EX-4.1.1 ALCAN ALUMINUM HOURLY EMPLOYEE SAVINGS PLAN
Published on January 13, 2005
EXHIBIT 4.1.1
ALCAN ALUMINUM CORPORATION
HOURLY EMPLOYEES' SAVINGS PLAN
(Amendment and Restatement
Generally Effective as of January 1, 2000)
FOREWORD
Effective as of October 28, 1987, Alcan Aluminum Corporation adopted the Alcan
Aluminum Corporation Hourly Employees' Savings Plan (the "Plan") for the benefit
of Eligible Employees.
Since its inception, the Plan has been amended from time to time, and was most
recently amended and restated, generally effective September 1, 1997 (except as
otherwise specifically provided herein, including, without limitation, Appendix
G hereto) to reflect changes in the administration of the Plan and to make
certain other changes. The Plan is again amended and restated, generally
effective January 1, 2000, to further reflect the requirements of the Uniformed
Services Employment and Reemployment Rights Act of 1994, the Small Business Job
Protection Act of 1996, the Tax Reform Act of 1997, the Internal Revenue Service
Restructuring and Reform Act of 1998 and other new laws, and to make certain
other changes.
This restatement is generally effective January 1, 2000. Except as the text may
provide otherwise, the terms and provisions of the Plan as hereinafter set forth
and as it hereafter may be amended from time to time, establish the rights and
obligations with respect to the operation of the Plan and all transactions
hereunder on and after January 1, 2000, or, to the extent that the new laws
referred to above require an earlier effective date for a specific provision
hereof, such earlier date. This restatement shall not, however, be construed to
cause a retroactive increase or decrease in the amount of any contributions
previously allocated under the prior terms of this Plan with respect to
Participants whose employment terminated before January 1, 2000, except as
expressly provided otherwise.
The Plan in its entirety is intended to be a profit sharing plan and a qualified
cash and deferred arrangement and to comply with the provisions of Sections
401(a) and 401(k) of the Code. The adoption of this restatement of the Plan is
expressly conditioned upon receipt of a favorable determination letter from the
Internal Revenue Service with respect to the Plan as restated in this document.
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Alcan Aluminum Corporation Hourly Employees' Savings Plan
(Amendment and Restatement Generally Effective as of January 1, 2000)
Table of Contents
ARTICLE 1
Definitions
The following words and phrases, as used herein, shall have the following
meanings unless a different meaning is plainly required by the context. Some of
the words and phrases used in the Plan are not defined in this Article 1, but
for convenience are defined as they are introduced into the text.
1.1 "Accounts" means a Participant's After-Tax Account, Basic Account,
Before-Tax Account, Qualified Contributions Account, Rollover Account and
any other account established pursuant to an Appendix attached hereto.
1.2 "Act" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all lawful regulations and pronouncements
promulgated thereunder. Whenever a reference is made to a specific section
of the Act, regulations or pronouncements, such reference shall be deemed
to include any successor provisions having the same or a similar purpose.
1.3 "Affiliated Company" means (a) Alcan Inc. (or for periods prior to March
1, 2001, Alcan Aluminium Limited), (b) any corporation affiliated
therewith through more than 50% ownership, (c) any corporation, trade or
business designated by the Corporation to be an Affiliated Company of the
Corporation, and (d) any Employer or any other member of the Corporate
Group.
1.4 "After-Tax Account" means the Account to which the Participant's After-Tax
Contributions are credited, as adjusted in accordance with Article 6.
1.5 "After-Tax Contributions" means the contributions of a Participant by
means of payroll deductions from the Participant's Compensation after
applicable income taxes pursuant to Section 3.1.
1.6 "Alternate Payee" means a person who has or may potentially have a right,
pursuant to a Qualified Domestic Relations Order, to receive all or a
portion of the benefits payable under the Plan with respect to a
Participant.
1.7 "Appropriate Form" means the form provided or prescribed by the Plan
Administrator for the particular purpose.
1.8 "Basic Account" means the account maintained for a Participant to which is
credited the Basic Contributions, if any, made on account of the
Participant, as adjusted in accordance with Article 6.
1.9 "Basic Contributions" means the contributions of an Employer, if any,
pursuant to Section 4.1. (See Appendices attached to this Plan.)
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1.10 "Before-Tax Account" means the Account maintained for a Participant to
which Before-Tax Contributions are credited, as adjusted in accordance
with Article 6.
1.11 "Before-Tax Contributions" means the contributions made by the Employer
pursuant to an election by a Participant to reduce any Compensation and/or
Special Compensation otherwise currently payable to the Participant by an
equal amount in accordance with the provisions of Section 3.2.
1.12 "Beneficiary" means a beneficiary or beneficiaries entitled to receive any
benefits payable after the death of the Participant, as provided in
Section 2.5.
1.13 "Board" means the Board of Directors of the Corporation.
1.14 "Code" means the Internal Revenue Code of 1986, as amended from time to
time, and all lawful regulations and pronouncements promulgated
thereunder. Whenever a reference is made to a specific section of the
Code, regulations or pronouncements, such reference shall be deemed to
include any successor provisions having the same or a similar purpose.
1.15 "Compensation" means direct compensation of a continuing nature paid to an
Eligible Employee during any payroll period by an Employer or Employers.
Compensation includes, but is not limited to, regular base pay, incentive
program pay, overtime and other premium pay, lump sums which are paid
after January 1, 1989 in lieu of salary or wage increases to each member
of a defined group in a way which does not discriminate in favor of highly
paid Employees, and amounts contributed by compensation reduction and
deferral to the Plan and to any plan under Section 125 or 132(f)(4) of the
Code. Compensation excludes, but the exclusion is not limited to, pay on
the inactive payroll, Special Compensation as defined herein, gain sharing
or similar payments (whether or not designated as Special Compensation),
and vacation pay made in a lump sum because of termination.
The amount of Compensation which, on an aggregate basis together with
Special Compensation, is taken into account hereunder shall not be in
excess of $170,000 for the Plan Year beginning January 1, 2000, or such
higher dollar limit as may be in effect for any other Plan Year in
accordance with the applicable provisions of Section 401(a)(17) of the
Code. For any period shorter than a full Plan Year, the applicable
limitation set forth in the immediately preceding sentence shall be
multiplied by a fraction, the numerator of which is the number of months
in such period, and the denominator of which is twelve.
1.16 "Corporate Group" means the Corporation, any other Employer, and any other
company which is related to the Corporation or any other Employer as a
member of a controlled group of corporations in accordance with Section
414(b) of the Code, as a trade or business under common control in
accordance with Section 414(c) of the Code, as an affiliated service group
in accordance with Section 414(m) of the Code, or in any other manner in
accordance with Section 414(o) of the Code. For the purposes under the
Plan of determining a person's period of employment, each such other
company shall be included in the Corporate
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Group only for such period or periods during which such other company is a
member of such controlled group, under such common control, an affiliated
service group or otherwise required to be aggregated, except as is
designated pursuant to Section 14.2.
1.17 "Corporation" means Alcan Aluminum Corporation and any successor to such
corporation by merger, or any other corporation or business entity which
agrees to assume the position of Corporation hereunder.
1.18 "Disability" means disablement by disease or accidental bodily injury
which prevents a person from performing any and every duty of his normal
occupation, as determined by the Plan Administrator pursuant to uniform
and nondiscriminatory rules, and which has lasted continuously for a
six-month period.
1.19 "Domestic Relations Order" means any judgment, decree or order as defined
in Section 414(p)(1)(B) of the Code.
1.20 "Effective Date" means October 28, 1987. The general effective date of
this amendment and restatement is January 1, 2000.
1.21 "Eligible Employee" means an Employee who is: (a) regularly employed on a
full-time basis on the active payroll by an Employer or by another member
of the Corporate Group at a unit or division designated for participation
in the Plan by the board of directors of such Employer, all in the manner
and subject to the conditions contemplated under Articles 2 and 14 and any
applicable Appendix; or (b) employed on a part-time or temporary basis on
the active payroll by an Employer at a unit or division so designated for
participation in the Plan but only as and when such Employee has completed
a one-year period of Service, commencing with the date the individual
first performed an hour of service within the meaning of 29 CFR Section
2530.200b-2(a)(1) (which is incorporated herein by this reference) for any
Affiliated Company or Predecessor Company. In no event, however, shall a
person constitute an Eligible Employee who (i) is not paid from the active
payroll of an Employer or any other member of the Corporate Group, (ii) is
employed in accordance with an oral or written employment, consulting or
other agreement or arrangement, the terms and conditions of which directly
or indirectly preclude his participation in this Plan, or (iii) is treated
as an Employee of the Employer or other member of the Corporate Group
solely by reason of being an Leased Person, or otherwise performs services
for an Employer or member of the Corporate Group pursuant to an
arrangement between such Employer or Corporate Group member and any other
third party (including without limitation a leasing organization or
temporary agency).
Notwithstanding the foregoing, only an Employee who is represented by a
collective bargaining agent recognized by an Employer shall be deemed to
be an `Eligible Employee' and only after such status results as a term or
condition of the collective bargaining agreement between such collective
bargaining agent and the Employer. Any such Employee represented by a
collective bargaining agent shall be entitled to participate in the Plan
only to the extent and on the terms and conditions specified in such
collective
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bargaining agreement.
1.22 "Employee" means any common law employee or Leased Person of an Employer.
The word "Employee" does not include any person who is categorized by an
Employer or any Affiliated Company solely as a director or independent
contractor or otherwise self-employed individual. In the event that a
person renders service to an Employer or any Affiliated Company as a
common law employee and in another capacity as a director, an independent
contractor or otherwise as a self-employed individual, he shall be
considered to be an Employee hereunder only in his capacity as a common
law employee.
1.23 "Employer" means the Corporation and any entity which is an Affiliated
Company pursuant to subsections (a), (b) or (c) of Section 1.3, which
entity is designated an Employer by the Board and adopts the Plan as
provided in Article 14 hereof.
1.24 "Entry Date" means, except as otherwise set forth in any Appendix hereto,
the first day of any calendar month. (For the date participation may
commence for an Eligible Employee, see Section 2.2 of this Plan.)
1.25 "Highly Compensated Employee" or "HCE" means for any Plan Year, an
Employee who performs services for an Employer during the Plan Year and
who (i) during the twelve-month period immediately preceding the first day
of the Plan Year (the "Look Back Year") had compensation (as defined in
Section 414(q)(4) of the Code) in excess of $85,000 for the calendar year
beginning January 1, 2000 (or such other amount determined from time to
time under Section 414(q)(1) of the Code), or (ii) is a 5% owner of an
Employer (as defined in Section 416(i)(1) of the Code) at any time during
the Plan Year or the Look Back Year; provided, however, that as used in
Section 3.2, the term HCE shall mean those persons determined as of the
first day of a Plan Year to be such regardless of any changes in the
compensation of such persons or other persons during any other portion of
the Plan Year. The determination of who is an HCE, will be made in
accordance with Section 414(q) of the Code.
1.26 "Home Loan" means a Loan used to acquire, but not to construct, any
dwelling unit which within a reasonable time is to be used (determined at
the time the loan is made) as the principal residence of the Participant.
1.27 "Leased Person" means any individual (other than a common law employee of
an Employer or an Affiliated Company) who, pursuant to an agreement
between the Employer or Affiliated Company and any other person or leasing
organization ("Leasing Organization") has performed services for the
Employer or Affiliated Company (or for related persons determined in
accordance with Section 414(n)(6) of the Code) on a substantially
full-time basis for a period of at least one (1) year, and such services
are performed under the primary direction or control of the Employer or
Affiliated Company. Contributions or benefits provided to a Leased Person
by the Leasing Organization which are attributable to services performed
for the recipient employer shall be treated as provided by the recipient
employer.
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1.28 "Loan" means a loan to a Participant from the Plan pursuant to Article 15.
1.29 "Loan Valuation Date" means the Valuation Date as of which the amount of a
Loan shall be established and as of which the Loan amounts shall be
withdrawn from a Participant's Accounts and credited to his Outstanding
Loan Balance.
1.30 "Military Service" means duty in the Armed Forces of the United States,
whether voluntary or involuntary, provided that the Employee serves not
more than one voluntary enlistment or tour of duty, and further provided
that such voluntary enlistment or tour of duty does not follow involuntary
duty.
1.31 "Outstanding Loan Balance" means the account maintained in accordance with
Section 15.5(d) to record the balance of Loans to a Participant
outstanding from time to time.
1.32 "Participant" means an Eligible Employee who is included in the Plan under
Article 2 or a former Eligible Employee whose Accounts have not been fully
distributed.
1.33 "Plan" means the Alcan Aluminum Corporation Hourly Employees' Savings
Plan, as herein set forth or as it may be amended from time to time; such
term will also include the Plan as it was in established on October 28,
1987 and any later amendments thereto.
1.34 "Plan Administrator" means the Alcancorp Employee Benefits Committee,
acting in its capacity as plan administrator of the Plan as described in
the Act, or any successor plan administrator appointed by the Corporation.
1.35 "Plan Year" means the calendar year.
1.36 "Predecessor Company" means any company or other entity that is not an
Affiliated Company and the operations of which, in whole or in part, are
acquired by an Affiliated Company or by a Predecessor Company, but only in
relation to the acquisition of those operations and provided that the
company or other entity the operations of which are acquired does not
become an Affiliated Company upon such acquisition.
1.37 "QDRO Balance" means the account maintained under the Plan for the benefit
of an Alternate Payee pursuant to Section 10.2(b).
1.38 "QDRO Rules and Procedures" means the rules and procedures established by
the Plan Administrator for the treatment of any Domestic Relations Order
in respect of a Participant's benefits under the Plan.
1.39 "Qualified Contributions" means Employer contributions made to the Trust
Fund pursuant to Section 4.4.
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1.40 "Qualified Contributions Account" means the separate Account maintained
for a Participant to record his share of the Trust Fund attributable to
Qualified Contributions made on his behalf, as adjusted in accordance with
Article 6.
1.41 "Qualified Domestic Relations Order" means a Domestic Relations Order as
defined in Section 414(p)(1)(A) of the Code.
1.42 "Rollover Account" means the Account maintained for a Participant to which
Rollover Contributions are credited, as adjusted in accordance with
Article 6.
1.43 "Rollover Contributions" means the contributions of a Participant pursuant
to the provisions of Article 16.
1.44 "Service" means the aggregate of all periods of a Participant's employment
with an Affiliated Company or Predecessor Company since the Participant's
original date of hire by an Affiliated Company or Predecessor Company or
by another member of the Corporate Group with respect to which the
Participant is treated as an Employee. Service shall include:
(i) all periods of authorized leave of absence not in excess of two years,
and
(ii) in the case of a Participant whose employment terminates for any
reason other than quit, discharge, an approved leave of absence
immediately after which the Participant resumes employment, or death and
such Participant is not reemployed by an Affiliated Company on or prior to
the first anniversary date of such termination, a period of one year from
the date of such termination; provided, however, that (A) if during such
one-year period, the Participant quits, is discharged, retires, or dies,
Service shall include only the time elapsing between the date of such
termination and the date the Participant quits, is discharged, retires, or
dies and (B) on and after January 1, 1985, if the absence of a Participant
for a period exceeding one year is due to a Maternity Absence (as defined
below), then the Participant shall be deemed to have terminated employment
on the second anniversary of the first date of such absence and the period
between the first and second anniversaries of such first date of absence
shall not be treated as a period of Service or a period of absence.
For purposes of determining Service, the term "Maternity Absence" means an
absence because of the pregnancy of the Participant, the birth of a child
of the Participant, the placement of a child by the Participant in
connection with the adoption of a child by the Participant or for the
purpose of caring for such child for a period immediately following such a
birth or placement. No Maternity Absence shall be deemed to exist unless
the Participant timely provides the Plan Administrator with sufficient
information to establish the reason for the Participant's absence from
active employment.
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If a Participant terminates employment and is re-employed by any
Affiliated Company or Predecessor Company within the same calendar year,
he shall be deemed not to have terminated employment during such year.
If a person who is treated as a Leased Person for purposes of the Plan
subsequently becomes an Eligible Employee, then such person's Service
shall be determined as if such person had been employed by an Employer
during the entire period for which such person had performed services for
an Employer but had not been employed by an Employer. The service credit
provisions of the Plan are intended to, and shall be construed to, include
any Service necessary to satisfy Section 414(u) of the Code, which, as
applicable to this Plan, generally provides for certain periods of
qualified Military Service to constitute, upon a Participant's
reemployment, Service hereunder.
1.45 "Special Compensation" means any payment designated as such by an Employer
with respect to an Eligible Employee that is paid by the Employer in
addition to the Eligible Employee's Compensation, but not in excess of the
amount which together with such Eligible Employee's Compensation would
exceed $170,000 for the Plan Year beginning January 1, 2000, or such
higher dollar limit as may be in effect for any other Plan Year in
accordance with the applicable provisions of Section 401(a)(17) of the
Code. For any period shorter than a full Plan Year, the applicable
limitation set forth in the immediately preceding sentence shall be
multiplied by a fraction, the numerator of which is the number of months
in such period, and the denominator of which is twelve.
1.46 "Trust Agreement" means (collectively and individually) the trust
agreement(s), group insurance contract(s) or other funding vehicle
agreement(s) or arrangement(s), as amended from time to time, between the
Corporation and one or more individuals or entities providing for the
holding, investment and administration of the assets of the Plan.
1.47 "Trust Fund" means the assets of the Plan, as held by the Trustee under
the provisions of the Trust Agreement. Except as otherwise indicated
herein, all assets of the Trust Fund shall be available to satisfy any
benefit claims, expenses or other liabilities of the Plan.
1.48 "Trustee" means (collectively, or as appropriate to the context,
individually) one or more individuals or entities acting as trustee,
insurance company or other entity holding assets of the Plan from time to
time under the Trust Agreement.
1.49 "Valuation Date" means each day the New York Stock Exchange is open for
business, or such other date(s) as the Plan Administrator shall specify.
1.50 "Value" means the value of a Participant's Account as determined under
Article 6 as of the applicable Valuation Date.
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The masculine pronoun, whenever used herein, shall include the feminine pronoun,
and the singular shall include the plural.
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ARTICLE 2
Eligibility and Participation
2.1 Participation
(a) Generally. An Eligible Employee's eligibility for participation in
the Plan and the benefits which shall be available to him as a
Participant shall be determined by the Employer with respect to each
class of Eligible Employees as set forth in the Instrument of
Adoption executed by the Employer and attached as an Appendix
hereto. Participation shall be either on the basis described under
Paragraph (b) or (c) of this Section 2.1 as determined by the
Employer as aforesaid.
(b) Basic Mandatory Participation. In the event that an Employer has
agreed to contribute to the Plan as provided under Section 4 with
respect to a designated class of Eligible Employees, each Eligible
Employee in such class who has satisfied all requirements for
eligibility under the applicable Appendix shall automatically become
a Participant in the Plan; provided, however, that the allocation of
Basic Contributions in respect of any such Participant shall be
conditioned on the completion of such Appropriate Forms as the Plan
Administrator may reasonably require.
An Eligible Employee who has become a Participant in accordance with
the provisions of this Section 2.1(b) shall, in addition to any
entitlement under the preceding paragraph, be entitled, but shall
not be required, to make or cause to be made on his account
After-Tax Contributions or Before-Tax Contributions.
(c) Voluntary Participation. In the event that an Employer has adopted
the Plan with respect to a designated class of Eligible Employees
but has not agreed to contribute as provided under Section 4, each
Eligible Employee in such class who has satisfied all requirements
for eligibility under the applicable Appendix shall be entitled, but
shall not be required, to elect to participate in the Plan and, as
such Participant, to make or cause to be made on his account
After-Tax Contributions or Before-Tax Contributions. Such Eligible
Employee may become a Participant by filing the Appropriate Form or
Forms as the Plan Administrator shall prescribe.
2.2 Date Participation Commences
On or after the Effective Date, an Eligible Employee who is eligible to
participate in the Plan pursuant to the terms of an Appendix shall become
a Participant on the Entry Date occurring as soon as practicable after he
has fulfilled all requirements for eligibility (including execution of any
applicable Appropriate
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Forms), in accordance with the terms of this Article 2 and such Appendix,
unless the Appendix shall provide for a different date for commencement of
participation.
2.3 Plan Enrollment
An Eligible Employee who is eligible to participate in the Plan pursuant
to the terms of an Appendix may become a Participant by filing the
Appropriate Form or Forms with the Plan Administrator, as indicated in
Section 2.1, or in such other manner as the Plan Administrator may
prescribe, within such time period as the Plan Administrator shall
prescribe.
2.4 Requirements of Plan Enrollment
The Eligible Employee who is eligible to participate in the Plan pursuant
to the terms of an Appendix, in complying with Sections 2.1 and 2.3, shall
(i) authorize the deduction by his Employer from his Compensation for
After-Tax Contributions pursuant to Section 3.1 and/or the reduction in
his Compensation and/or Special Compensation for Before-Tax Contribution
pursuant to Section 3.2 (any such authorization or authorizations shall be
deemed to be continuing authorizations until changed by notice to the Plan
Administrator on the Appropriate Form or in such manner as the Plan
Administrator may prescribe), (ii) agree to the terms of the Plan, (iii)
specify marital status and agree to keep the Plan Administrator informed
of any change in marital status, (iv) make an investment election in
accordance with Section 5.2 and (v) indicate, to the extent and in such
manner as the Plan Administrator may from time to time direct, whether he
participates or has participated in any plan or plans (other than the
Plan) permitting employee tax-deferred contributions and state the total
amount of any such contributions made by him for the calendar year in
which he complies with Section 2.3. In addition to any other limitation
imposed pursuant to Section 402(g) of the Code, the Plan Administrator may
limit the amount of the Before-Tax Contributions of any Participant who
has made tax-deferred contributions to any plan (other than the Plan) in
any calendar year for which the Participant elects to make Before-Tax
Contributions to the Plan.
2.5 Beneficiary Designation
The Participant's surviving spouse shall be the Beneficiary entitled to
receive all benefits payable on the death of the Participant; provided,
however, that if there is no surviving spouse, or if the surviving spouse
had consented in writing to the designation of another Beneficiary or
Beneficiaries, which consent acknowledged the effect of such designation,
and which consent was witnessed by a notary public, the Participant may
designate another Beneficiary by completing an Appropriate Form or in such
manner as the Plan Administrator may prescribe. The Plan Administrator may
allow for such a consent to expressly
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permit the Participant to change the designated Beneficiary without the
spouse's further consent, provided that such consent acknowledges that the
spouse has the right to limit consent to a specific Beneficiary. If there
is no surviving spouse or other properly designated surviving Beneficiary,
payment of benefits on the death of the Participant shall be made to the
Participant's executor or administrator.
2.6 Suspension of Participation Due to Transfer to Non-Covered Status
(a) If a Participant who ceases to be an Eligible Employee who is
eligible to participate in the Plan pursuant to the terms of an
Appendix continues in the employ of an Affiliated Company, he shall
be deemed to be a suspended Participant until the resumption of his
status as such an Eligible Employee. The provisions of the Plan
shall continue to apply to such a Participant except that:
(i) no final distribution of his Accounts pursuant to Article 9
shall occur as long as he so remains in the employ of an
Affiliated Company; and
(ii) during the period of his suspension, the Participant may not
make After-Tax Contributions under the Plan, no Before-Tax
Contributions shall be made by his Employer on his behalf, no
allocation of contributions under Article 4 shall be made to
his Basic Account, and the Participant may not borrow from the
Plan as otherwise permitted under Article 15.
(b) If and when the suspended Participant again becomes an Eligible
Employee who is eligible to participate in the Plan pursuant to the
terms of an Appendix, he may, subject to the provisions of Article
3, resume making After-Tax Contributions or having Before-Tax
Contributions made on his behalf, or both, as of any Entry Date
thereafter by giving notice to the Plan Administrator in such manner
as the Plan Administrator shall prescribe within such time period
prior to such Entry Date as the Plan Administrator shall prescribe
for the Plan.
(c) If the suspended Participant remains an Employee of the Corporation
and is a member of a group that is covered by another 401(k) savings
plan maintained by the Corporation or a Related Company, the
Participant may, with the consent of the Plan Administrator and the
plan administrator of the new plan, transfer his plan assets, plan
loans, and loan repayment schedule to the new plan by completing the
Appropriate Form or Forms.
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2.7 Participation Upon Re-employment
A Participant who terminates employment with an Employer will re-enter the
Plan immediately upon return to employment with an Employer. Such a
Participant may, pursuant to the provisions of Article 3 and subject to
filing the Appropriate Forms with Plan Administrator, commence making
After-Tax Contributions or Before-Tax Contributions, or both, beginning to
the extent practicable with the paydate which coincides with or next
follows the first day of the month after the Participant is reemployed. An
Employee who satisfies the Plan's eligibility conditions but who
terminates employment with an Employer prior to entering the Plan will
become a Participant on the Entry Date following the date the Employee
returns to employment with an Employer, provided he executes all
applicable Appropriate Forms. An Employee who terminates employment prior
to satisfying the Plan's eligibility conditions and later returns to
employment with an Employer shall become a Participant after satisfaction
of the general eligibility and participation requirements of the Plan.
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ARTICLE 3
After-Tax Contributions; Before-Tax Contributions
3.1 Participant's After-Tax Contributions
Subject to the limitations of Section 4.3, each Participant may elect to
contribute to the Plan, on an after-tax basis, by means of payroll
deduction from his Compensation, an integral percentage of up to 30% (16%
prior to January 1, 2002), of such Compensation, such payroll deductions
to commence to the extent practicable with the paydate which coincides
with or next follows the Participant's Entry Date. Participant
contributions to the Plan pursuant to this Section 3.1 are After-Tax
Contributions. If Before-Tax Contributions pursuant to Section 3.2 are
made with respect to the Participant, then the rate of After-Tax
Contributions under this Section 3.1 shall not exceed 30% (16% prior to
January 1, 2002), minus the rate of Before-Tax Contributions with respect
to the Participant for the same payroll period.
After-Tax Contributions pursuant to this Section 3.1 shall be transferred
to the Trustee as soon as administratively practicable, but in all events
within 15 days after the end of the month in which such contributions are
withheld from the Participant's Compensation.
3.2 Before-Tax Contributions
Subject to the limits of Sections 3.6, 4.3 and this Section, a Participant
may elect to have an integral percentage of up to 30% (16% prior to
January 1, 2002) of the Compensation otherwise payable to him by the
Employer after the effective date of his election constitute a Before-Tax
Contribution hereunder and have the Employer or collective bargaining
agent reduce his Compensation by the amount of such Before-Tax
Contribution and transfer such Before-Tax Contribution instead to the
Trustee.
In addition, but also subject to such limits, a Participant may elect to
have any Special Compensation, otherwise payable to him reduced by 25%,
50%, 75% or 100% and have the Employer make a contribution to the Trustee
in an amount equal to such Before-Tax Contribution. However, in the event
that the portion of the Special Compensation which the Participant has
elected to receive in cash is not sufficient to pay any federal, state,
local or other payroll or withholding taxes due or payable as a result of
the entire Special Compensation payment, the Employer or Plan
Administrator shall reduce the amount contributed to the Trustee on behalf
of the Participant by the amount necessary to fully pay any such taxes,
and the Participant shall be deemed to have elected to have only such net
amount contributed as a Before-Tax Contribution hereunder.
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Payroll deferrals shall commence to the extent practicable with the
paydate which coincides with or next follows the Participant's Entry Date.
The deposit of Before-Tax Contributions shall be made no later than the
15th day of the calendar month next following the month in which the cash
Compensation or Special Compensation with respect to which such reduction
is effective would have been paid.
Before-Tax Contributions shall be such integral percentage of the
Participant's Compensation or Special Compensation as the Participant
shall have designated but not to exceed the maximum percentage applicable
for the Plan Year with respect to such Compensation or Special
Compensation as determined by the Plan Administrator, separately for HCEs
and all other Participants; provided, however, that in no event shall the
amount of a Participant's Before-Tax Contributions exceed $10,500 for the
Plan Year beginning on or after January 1, 2000, or such higher dollar
limit as may be in effect for any other Plan Year in accordance with the
applicable provisions of Section 402(g) of the Code.
3.3 Voluntary Suspension
A Participant may voluntarily suspend his After-Tax Contributions pursuant
to Section 3.1 or the Before-Tax Contributions on his behalf pursuant to
Section 3.2. To the extent practicable, any such suspension shall be
effective as of the first paydate which coincides with or next follows any
Entry Date by the Participant giving notice to the Plan Administrator in
such manner as the Plan Administrator shall prescribe prior to such Entry
Date. A Participant may resume his After-Tax Contributions or cause
Before-Tax Contributions on his behalf to be resumed by giving notice to
the Plan Administrator in such manner as the Plan Administrator shall
prescribe, such resumption to be effective as of the first paydate next
following such notification to the Plan Administrator or as soon as
practicable thereafter.
3.4 Change in Contribution Rate
A Participant may increase or decrease the amount of his After-Tax
Contributions pursuant to Section 3.1 or the amount of Before-Tax
Contributions pursuant to Section 3.2. To the extent practicable, any such
change shall be effective as of the first paydate which next follows any
Entry Date by the Participant giving notice to the Plan Administrator in
such manner as the Plan Administrator shall prescribe prior to such Entry
Date. Notwithstanding the foregoing provisions of this Section 3.4, in the
event that the Before-Tax Contributions of a Participant equal $10,500 for
the Plan Year beginning on January 1, 2000, or such higher dollar limit as
may be in effect with respect to any other Plan Year in accordance with
the applicable provisions of Section 402(g) of the Code, such Participant
shall be deemed to have elected to commence to make After-Tax
Contributions pursuant to Section 3.1 at the percentage rate then in
effect with respect to the Participant's Before-Tax Contributions
immediately prior to such deemed election, except as otherwise provided by
procedures established by the Plan Administrator. When any modification in
the manner of
14
contribution becomes effective under a deemed election under the preceding
sentence any affected elections previously in effect with respect to the
Participant shall also be deemed to have been appropriately adjusted to
conform to the deemed election contemplated under the preceding sentence.
Any such deemed election (whether in the manner of contribution or
otherwise) shall remain in effect with respect to the Participant until
the January 1 immediately following the effective date of the deemed
election. Effective on such January 1, the Participant will have to make
another election to reinstate the manner of contribution in effect
immediately prior to any such deemed election or the Plan Administrator
may reinstate the election in force before the dollar limit was reached,
under such procedures as the Plan Administrator shall deem appropriate.
3.5 Authority of Plan Administrator to Establish Dates
Without limitation of the authority of the Plan Administrator under any
other provision of the Plan, the Plan Administrator may establish the
first date on which Participants may exercise their rights under Sections
3.3 and 3.4 and the length of the notification periods required for such
exercise.
3.6 Limitation on Before-Tax Contributions
(a) Notwithstanding the foregoing provisions of this Article 3, the Plan
Administrator shall limit the amount of Before-Tax Contributions
made on behalf of each Eligible Employee who is an HCE for each Plan
Year to the extent necessary to ensure that either of the following
tests is satisfied:
(i) the "Current Year Actual Deferral Percentage" (as hereinafter
defined) for the group of Eligible Employees who are HCEs is
not more than the "Prior Year Actual Deferral Percentage" of
all other Eligible Employees multiplied by 1.25; or
(ii) the excess of the Current Year Actual Deferral Percentage for
the group of Eligible Employees who are HCEs over the Prior
Year Actual Deferral Percentage of all other Eligible
Employees is not more than two percentage points, and the
Current Year Actual Deferral Percentage for the group of
Eligible Employees who are HCEs is not more than the Prior
Year Actual Deferral Percentage of all other Eligible
Employees multiplied by 2.0.
Notwithstanding the provisions in subparagraphs (i) and (ii) above,
the Corporation may elect, subject to the limitations described in
Internal Revenue Service Notice 98-1, to perform the tests using the
Current Year Actual Deferral Percentage for all Eligible Employees
who are not HCEs rather than the Prior Year Actual Deferral
Percentage. For Plan Years including and prior to the
15
2001 Plan Year, the Plan had no HCEs and, thus, the Corporation made
no election with respect to using the Current Year Actual Deferral
Percentage for Eligible Employees who were not HCEs.
(b) For purposes of this Section 3.6, the term (i) "Actual Deferral
Percentage" shall mean, for any specified group of Eligible
Employees for any Plan Year, the average of such Eligible Employees'
Deferral Percentages (as defined below) for such Plan Year, (ii)
"Current Year Actual Deferral Percentage" shall mean, for any
specified group of Eligible Employees, such group's Actual Deferral
Percentage for the current Plan Year, and (iii) "Prior Year Actual
Deferral Percentage" shall mean, for any specified group of Eligible
Employees, such group's Actual Deferral Percentage for the
immediately preceding Plan Year.
(c) For purposes of this Section 3.6, the term "Deferral Percentage"
shall mean, for any Eligible Employee for any Plan Year, the ratio
of:
(i) the aggregate of the Before-Tax Contributions which, in
accordance with the rules set forth in Treasury Regulation
Section 1.401(k)-1(b)(4), are taken into account with respect
to such Plan Year, to
(ii) such Eligible Employee's "Section 414(s) compensation" for
such Plan Year. For this purpose, the term "Section 414(s)
compensation" shall mean W-2 compensation as permitted and
described in Treasury Regulation Sections 1.414(s)-1(c)(2) and
1.415-2(d)(11)(i), and shall also include all amounts
currently not included in the Eligible Employee's gross income
by reason of Sections 125, 132(f)(4) and 402(e)(3) of the
Code. In the case of an Eligible Employee who begins, resumes,
or ceases to be eligible to elect to have Before-Tax
Contributions made on his behalf during a Plan Year, the
amount of Section 414(s) compensation included in the Actual
Deferral Percentage test is the amount of Section 414(s)
compensation received by the Eligible Employee during the
entire Plan Year. In no case shall the Section 414(s)
compensation for any Eligible Employee for any Plan Year
exceed $170,000, for the Plan Year beginning on January 1,
2000, or such higher dollar limit as may be in effect with
respect to any other Plan Year in accordance with the
applicable provisions of Section 401(a)(17) of the Code.
(d) The Deferral Percentage for any Participant who is a HCE for the
Plan Year and who is eligible to have before-tax contributions made
on his behalf under two or more arrangements described in Section
40l(k) of the Code that are maintained by the Corporation, or other
member of the Corporate Group, shall be determined as if such
before-tax contributions were made under a single arrangement.
Notwithstanding the foregoing, certain plans or portions of this
Plan shall be treated
16
as separate if disaggregated (mandatorily or otherwise) under
applicable Treasury Regulations, including without limitation,
Section 1.401(k)-1(b)(3)(ii).
If the Plan is permissibly aggregated or is required to be
aggregated with other plans having the same plan year, as provided
under Treasury Regulation Section 1.401(k)-1(b)(3) for purposes of
determining whether or not such plans satisfy Sections 401(k),
401(a)(4), and 410(b) of the Code, then the provisions of this
Section 3.6 shall be applied by determining the Actual Deferral
Percentage of Eligible Employees as if all such plans were a single
plan.
(e) In the event it is determined prior to any payroll period that the
amount of Before-Tax Contributions elected to be made thereafter is
likely to cause the limitation prescribed in this Section 3.6 to be
exceeded, the amount of Before-Tax Contributions allowed to be made
on behalf of Participants who are HCEs (and/or such other
Participants as the Plan Administrator may prescribe) shall be
reduced to a rate determined by the Plan Administrator (including a
rate of 0% if the Plan Administrator so determines), and any
elections of future Before-Tax Contributions which exceed the rate
determined by the Plan Administrator shall be deemed to be After-Tax
Contributions for the remainder of the Plan Year, notwithstanding
the limitations on contribution rate changes in Section 3.4, except
as otherwise provided by procedures established by the Plan
Administrator. Except as is hereinafter provided, the Participants
to whom such reduction is applicable and the amount of such
reduction shall be determined pursuant to such uniform and
nondiscriminatory rules as the Plan Administrator shall prescribe,
which may differ among classes of Participants. Any such deemed
election (whether in the manner of contribution or otherwise) shall
remain in effect with respect to the Participant until the January 1
immediately following the effective date of the deemed election.
Effective on such January 1, the Participant will have to make
another election to reinstate the manner of contribution in effect
immediately prior to any such deemed election or the Plan
Administrator may reinstate the election in force before the
reduction was imposed, pursuant to such procedures as the Plan
Administrator may deem appropriate.
(f) Notwithstanding the foregoing, with respect to any Plan Year in
which Before-Tax Contributions made on behalf of Participants who
are HCEs exceed the applicable limit set forth in this Section 3.6,
the Plan Administrator may reduce the amount of excess Before-Tax
Contributions made on behalf of such HCE by his portion of the
"Aggregate Excess Deferrals" for such Plan Year in accordance with
the following paragraphs:
(i) The "Aggregate Excess Deferrals" for such Plan Year shall mean
the total amount of Before-Tax Contributions which would be
distributed to HCEs if the Deferral Percentage
17
of the Participant who is an HCE with the highest Deferral
Percentage were reduced to the extent necessary to satisfy the
Actual Deferral Percentage test or cause such percentage to
equal the Deferral Percentage of the Participant who is an HCE
with the next highest percentage and this process were
repeated until the Actual Deferral Percentage Test was
satisfied, as determined under Section 401(k) of the Code.
(ii) The Before-Tax Contributions of the HCE with the highest
amount of Before-Tax Contributions shall be reduced by the
lesser of the amount necessary to exhaust the Aggregate Excess
Deferrals or to cause the Before-Tax Contributions of such HCE
to equal the Before-Tax Contributions of the HCE with the next
highest amount of Before-Tax Contributions. This process shall
be repeated until the aggregate Before-Tax Contributions of
HCEs shall be reduced by an amount equal to the Aggregate
Excess Deferrals, in accordance with Section 401(k) of the
Code.
(iii) Such excess Before-Tax Contributions shall be distributed
(along with earnings attributable to such excess Before-Tax
Contributions, as determined pursuant to Section 3.6(g)) to
the affected HCEs as soon as practicable after the end of such
Plan Year, and in all events prior to the end of the next
following Plan Year.
(g) Income on a Participant's excess Before-Tax Contributions shall be
determined by multiplying the income allocated to his Before-Tax
Contributions Account for the Plan Year in which such excess
Before-Tax Contribution was made by a fraction, the numerator of
which is the excess Before-Tax Contributions for such Participant
for the Plan Year, and the denominator of which is the total
Before-Tax Contributions Account balance for such Participant as of
the first day of the Plan Year, plus the Before-Tax Contributions
made on behalf of the Participant during the Plan Year.
(h) Distributions pursuant to this Section 3.6 shall be made
proportionately from the Investment Funds with respect to the
Participant's Account or Accounts from which distributions are made.
(i) The Plan Administrator may, to the extent permitted under Treasury
Regulation Section 1.401(k)-1(f)(3) or other lawful regulation,
recharacterize as After-Tax Contributions for such Plan Year all or
a portion of the Before-Tax Contributions for Participants who are
HCEs to the extent necessary to comply with the applicable limit set
forth in this Section 3.6 and in the same order as set forth in
paragraph (f)(ii) above. Recharacterized amounts shall remain
nonforfeitable and subject to the same distribution requirements as
Before-Tax Contributions.
Recharacterization shall occur no later than 2-1/2 months after the
last day of the Plan Year in which such excess Before-Tax
Contributions arose.
18
(j) Notwithstanding any distributions or recharacterizations pursuant to
the provisions of this Section 3.6, excess Before-Tax Contributions
shall be treated as Annual Additions for purposes of Section 4.3.
(k) In the event that an Employer elects to make a Qualified
Contribution on behalf of any or all Participants in the Plan, such
Qualified Contribution, to the extent specified, shall be treated as
a Before-Tax Contribution solely for purposes of this Section 3.6.
(l) The Plan Administrator may, in its sole discretion, elect to use any
combination of the methods described in this Section 3.6 to satisfy
the limitations contained herein; provided, however, that such
combination of methods shall be applied in a uniform and
nondiscriminatory manner.
3.7 Distributions of Excess Deferrals
(a) Notwithstanding any other provision of the Plan, Excess Deferrals
(as hereinafter defined), plus any income and minus any loss
allocable thereto for both the calendar year and the "gap period"
between the end of the calendar year and the date the distribution
is made (determined in the same manner as the method set forth in
Section 3.6(g)), shall be distributed to Participants who claim such
allocable Excess Deferrals at any time during the calendar year, or
no later than April 15 of the calendar year following the calendar
year in which the excess occurred.
(b) For purposes of this Section 3.7, "Excess Deferrals" shall mean the
amount of a Participant's Before-Tax Contributions (and other
"elective deferrals" within the meaning of Section 402(g)(3) of the
Code) for a calendar year that the Participant allocates to this
Plan pursuant to the claim procedure set forth in Section 3.7(c)
hereof.
(c) A Participant may make a claim for the distribution of Excess
Deferrals pursuant to the terms and conditions of this Section
3.7(c). Such Participant's claim shall be in writing; shall be
submitted to the Plan Administrator no later than March 1 of the
calendar year following the calendar year of the Excess Deferrals or
such later date as prescribed by the Plan Administrator; shall
specify the amount of the Participant's Excess Deferrals for the
preceding calendar year; and shall be accompanied by (i) the
Participant's written statement that if such amounts are not
distributed, such Excess Deferrals, when added to amounts deferred
under other plans or arrangements described in Section 401(k),
408(k), 403(b) or 501(c)(18) of the Code, exceed the limit imposed
on the Participant in accordance with the applicable provisions of
the Code for the year in which the deferral occurred, and (ii) such
documentation as the Plan Administrator, in its sole discretion,
shall require to substantiate the Participant's written statement.
The Plan Administrator may, on a
19
uniform and nondiscriminatory basis, automatically deem the
Participant to have made a claim for a distribution of Excess
Deferrals if such excess arises by taking into account only those
elective deferrals made to this Plan and any other plans of the
Employer and the Corporate Group.
(d) The Excess Deferrals distributed to a Participant with respect to a
calendar year shall be adjusted for income and, if there is a loss
allocable to the Excess Deferrals, shall in no event exceed the
lesser of the Participant's Before-Tax Account under the Plan or the
Participant's Before-Tax Contributions for the year.
(e) Excess Deferrals shall be treated as annual additions under the
Plan, unless such amounts are distributed no later than the first
April 15th following the close of the Participant's taxable year in
which such excess occurred.
3.8 Coordination of Excess Amounts under Sections 401(k) and 402(g) of the
Code
(a) The amount of excess Before-Tax Contributions to be recharacterized
or distributed under Section 3.6 with respect to a Participant for
the Plan Year shall be reduced by any Excess Deferrals previously
distributed to such Participant under Section 3.7 for the
Participant's taxable year ending with or within such Plan Year.
(b) The amount of Excess Deferrals that may be distributed under Section
3.7 with respect to a Participant for a taxable year shall be
reduced by any excess Before-Tax Contributions previously
distributed to such Participant or recharacterized with respect to
such Participant for the Plan Year beginning with or within such
taxable year.
3.9 Catch-Up Contributions after Return from Military Service
In the event that a Participant returns to employment with an Employer
immediately following a leave of absence due to Military Service and had
failed to make after-tax contributions and/or before-tax contributions
while on such leave of absence, then to the extent required by Section
414(u) of the Code, the Participant shall be permitted to elect to make
catch-up contributions relating to such period of Military Service. The
period during which such Participant may make such catch-up contributions
shall commence on his date of rehire and shall continue for a period which
is the lesser of five years following such date of rehire or three times
the Participant's period of Military Service. Such deferrals shall not be
required to be taken into account for purposes of Section 3.6 in the year
that they are made or the year to which they relate.
20
ARTICLE 4
Employer Contributions
4.1 Applicability and Amount
(a) This Section 4.1 shall be applicable only to the extent that an
Employer has agreed, pursuant to a collective bargaining agreement
between such Employer and a collective bargaining agent to make
contributions (referred to herein as "Basic Contributions") on
behalf of those Participants who are represented by such collective
bargaining agent, and shall be subject to any contrary provisions of
any applicable Appendix.
(b) Each Employer shall make such Basic Contributions to the Plan on
behalf of each Participant, as provided under Section 4.1(a) with
respect to such Participant, for credit to the Participant's Basic
Account. An Eligible Employee performing services for, or on behalf
of, his collective bargaining agent shall have Basic Contributions
made on his behalf to the same extent contributions would have been
made by his Employer if such services had been performed for his
Employer.
4.2 Expenses
The expenses of the administration of the Plan shall be borne by the Trust
Fund, except to the extent paid by the Corporation.
4.3 Limitations
Notwithstanding any provision of the Plan to the contrary, in no event in
any calendar year shall the "Annual Addition" (as hereinafter defined) on
behalf of any Participant exceed the lesser of:
(i) 25% of the Participant's "Section 415 compensation" (as
hereinafter defined) for the calendar year; or
(ii) $30,000 or such greater amount as is permissible under Section
415(c)(1)(A) of the Code, subject to any adjustment under
Section 415(d) of the Code.
The term "Annual Addition" means the sum for any calendar year of (a) any
Employer contributions (including Before-Tax Contributions) to the Plan
and to all other defined contribution plans (combining, for this purpose,
all defined contribution plans of the Corporate Group, as modified by
Section 415(h) of the Code), (b) forfeitures under all such plans, (c) all
after-tax contributions (including After-Tax
21
Contributions) under such plans, and (d) amounts described in Sections
415(l)(1) and 419A(d)(2) of the Code for the year.
For purposes of this Section 4.3, the term "Section 415 compensation"
means the Participant's W-2 compensation as permitted and described in
Treasury Regulation Section 1.415-2(d)(11)(i), and shall also include, for
Plan Years beginning on and after January 1, 1998, all amounts currently
not included in the Eligible Employee's gross income by reason of Sections
125, 132(f)(4) and 402(e)(3) of the Code.
If a Participant is also participating in another tax-qualified defined
contribution plan maintained by any member of the Corporate Group (as
modified by Section 415(h) of the Code), the otherwise applicable
limitation on Annual Additions under this Plan shall be reduced by the
amount of annual additions (within the meaning of Section 415(c)(2) of the
Code) under any such other defined contribution plan.
If the limitations applicable to any Participant in accordance with this
Section 4.3 would be exceeded, the contributions made by or on behalf of a
Participant under the Plan shall be reduced in the following order, but
only to the extent necessary to meet the limitations: (i) After-Tax
Contributions, (ii) Before-Tax Contributions, (iii) Basic Contributions,
and (iv) Qualified Contributions made pursuant to Section 4.4.
In the event that, notwithstanding the foregoing provisions of this
Section 4.3, the limitations with respect to Annual Additions prescribed
hereunder are exceeded with respect to any Participant and such excess
arises as a consequence of an error in estimating compensation, the
allocation of forfeitures, if any, or a reasonable error in determining
the amount of Before-Tax Contributions:
(i) the After-Tax Contribution and Before-Tax Contribution
portions of such excess shall be returned to the Participant,
along with any income attributable thereto; and
(ii) the Basic Contribution portion shall be held in a suspense
account and, if such Participant remains a Participant, shall
be used to reduce Basic Contributions for such Participant for
the succeeding Plan Years; provided, however, that if such
Participant ceases to be an active Participant in the Plan,
the suspense account shall be used to reduce Basic
Contributions for all Participants in the Plan Year in which
he ceases to be a Participant, and all succeeding years, as
necessary.
4.4 Qualified Contributions
An Employer may, in its sole discretion, make a Qualified Contribution in
order to satisfy the requirements of Section 3.6. A Qualified Contribution
is a contribution that (i) is made by the Employer that may be aggregated
with other contributions in accordance with Sections 3.6; (ii) is
nonforfeitable at all times; (iii)
22
may not be distributed to a Participant or any Beneficiary until the
earliest date provided for in Section 401(k)(2)(B) of the Code (determined
without regard to subsection (i)(IV) of such Section) and (iv) complies
with the requirements of Treasury Regulation Section 1.401(k)-1(b)(5).
A Qualified Contribution may take the form of a qualified nonelective
contribution (as defined in Treasury Regulation Section
1.401(k)-1(g)(13)(ii)). The Employer shall specify the form of the
Qualified Contribution, and the Participants to whom such contribution is
to be allocated.
4.5 Return of Contribution
Notwithstanding any provision of the Plan to the contrary, a contribution
made to the Plan by an Employer shall be returned to it if:
(a) the contribution is made by reason of mistake of fact;
(b) the contribution is conditioned upon its deductibility under Section
404 of the Code and such deduction is disallowed; or
(c) the contribution is conditioned on the initial qualification of the
Plan, under Section 401(a) of the Code, with respect to an Employer
which has adopted the Plan and such initial qualification is not
obtained;
provided, however, that such return of contribution is generally made
within one year of the mistaken payment of the contribution, the
disallowance of the deduction or the failure of the Plan to qualify
initially with respect to an Employer, as the case may be. All
contributions to the Plan by an Employer made on or after January 1, 1987
shall be conditioned upon their deductibility under Section 404 of the
Code.
4.6 Employer Contributions upon Return from Military Service
In the event that a Participant returns to employment with an Employer
immediately following a leave of absence due to Military Service, any
Employer contribution, or any other matching or profit sharing
contribution, which would have been made on behalf of such Participant,
had he not been on such leave of absence, shall be made on his behalf and
allocated to his Basic Account or other account, as applicable, to the
extent required by Section 414(u) of the Code. Any such allocation shall
be calculated based on any catch-up contributions made under Section 3.9
using estimated Compensation during such period of Military Service, based
on his rate of Compensation at the time such leave of absence commenced
and based on the matching or other contribution formula in effect for the
Plan Year to which such catch-up contribution relates, as applicable. Such
Employer contribution, or any other employer matching or profit
23
sharing contribution, shall not be required to be taken into account under
Section 4.3 in the Plan Year in which such contribution is made or to
which such contribution relates.
24
ARTICLE 5
Investment of Contributions
5.1 Investment Funds
Contributions to the Plan shall be invested in one or more of the
following Investment Funds, in accordance with Section 5.2
The Fixed Income Fund, which shall be invested and reinvested by the
Trustee in fixed income and other securities or investments
anticipated or purporting to have a relatively stable rate of return
and safety of principal, including without limitation bonds, any
so-called "guaranteed" income or investment or similar contract
issued by an insurance company or companies, a bank or other
financial institution, in each case, as designated by the Plan
Administrator, or in any combination of such investments.
The Large Cap S&P 500 Fund, which shall be invested and reinvested
by the Trustee in shares of the Vanguard 500 Index Fund, which
attempts to provide investment results that parallel the performance
of the Standard & Poor's 500 Composite Stock Price Index.
The Mid and Small Cap Wilshire 4500 Fund, which shall be invested
and reinvested by the Trustee in shares of the Vanguard Extended
Market Index Fund, which attempts to provide investment results that
parallel the performance of the unmanaged Wilshire 4500 Index.
The International Index Fund, which shall be invested and reinvested
by the Trustee in shares of the Vanguard Total International Stock
Index Fund which attempts to provide investment results that
parallel the performance of two indexes compiled by Morgan Stanley
Capital International, the Europe, Australia, Far East Index and the
Emerging Markets (select) Index.
The Bond Fund, for the period on or after June 8, 2000, which shall
be invested and reinvested by the Trustee in shares of the Vanguard
Total Bond Market Index Fund, which attempts to provide investment
results that parallel the performance of the Lehman Brothers
Aggregate Bond Index.
The Company Stock Fund, which shall be invested and administered by
the Trustee in securities of the ultimate parent corporation of the
Corporation, Alcan Inc. (or for periods prior to March 1, 2001,
Alcan Aluminium Limited). Said securities may be contributed by the
Corporation or acquired in accordance with the provisions of the
Trust Agreement on the open market or from
25
Alcan Inc. (or for periods prior to March 1, 2001, Alcan Aluminium
Limited) or in private transactions.
With respect to the period prior to June 8, 2000, the following Mix Funds:
The "Mix A" Fund, which shall be invested and reinvested by the
Trustee in approximately 80% of the Fixed Income Fund, 5% of the
International Index Fund, and 15% of the Large Cap S&P 500 Fund.
The "Mix B" Fund, which shall be invested and reinvested by the
Trustee in approximately 60% of the Fixed Income Fund, 10% of the
International Index Fund, 25% of the Large Cap S&P 500 Fund, and 5%
of the Mid and Small Cap Wilshire 4500 Fund.
The "Mix C" Fund, which shall be invested and reinvested by the
Trustee in approximately 40% of the Fixed Income Fund, 20% of the
International Index Fund, 30% of the Large Cap S&P 500 Fund, and 10%
of the Mid and Small Cap Wilshire 4500 Fund.
The "Mix D" Fund, which shall be invested and reinvested by the
Trustee in approximately 20% of the Fixed Income Fund, 25% of the
International Index Fund, and 40% of the Large Cap S&P 500 Fund, and
15% Mid and Small Cap Wilshire 4500 Fund.
The four above mixed funds shall be rebalanced periodically at such
times as the Plan Administrator and Trustee may determine.
With respect to the period on or after June 8, 2000, the following
Vanguard Life Strategy Funds:
The Vanguard LifeStrategy Income Fund, which shall be invested and
reinvested by the Trustee in shares of the Vanguard LifeStrategy
Income Fund, which attempts to provide current income based on a
portfolio consisting of a combination of other Vanguard mutual funds
which have a target equity exposure of 20%.
The Vanguard LifeStrategy Conservative Growth Fund, which shall be
invested and reinvested by the Trustee in shares of the Vanguard
LifeStrategy Conservative Growth Fund, which attempts to provide
current income and low-to-moderate growth of capital based on a
portfolio consisting of other Vanguard mutual funds which have a
target equity exposure of 40%.
26
The Vanguard LifeStrategy Moderate Growth Fund, which shall be
invested and reinvested by the Trustee in shares of the Vanguard
Moderate Growth Fund, which attempts to provide growth of capital
and a reasonable level of current income based on a portfolio
consisting of other Vanguard mutual funds which have a target equity
exposure of 60%.
The Vanguard LifeStrategy Growth Fund, which shall be invested and
reinvested by the Trustee in shares of the Vanguard LifeStrategy
Growth Fund, which attempts to provide growth of capital based on a
portfolio consisting of other Vanguard mutual funds which have a
target equity exposure of 80%.
The Plan Administrator, may, in its sole discretion, at any time and from
time to time establish additional Investment Funds, in which contributions
to the Plan may be invested, or eliminate or replace any existing
Investment Fund.
Any portion of an Investment Fund may, pending permanent investment or
distribution, be invested in short-term securities issued or guaranteed by
the United States of America or any other country or any agency or
instrumentality thereof or any other investments of a short-term nature,
including corporate obligations or participation therein. A portion of an
Investment Fund may be maintained in cash. Any portion of an Investment
Fund may be invested through the medium of the Alcancorp Master Savings
Trust or of any common, collective or commingled trust fund maintained by
the Trustee which is invested principally in property of the kind
specified for such Investment Fund.
Notwithstanding the provisions of this Article 5, the investment and
administration of the assets of the Plan shall be governed by the
provisions of the Trust Agreement, and without limitation of the
foregoing, the Plan Administrator may designate an investment manager, as
defined in Section 3(38) of the Act, to manage (including the power to
acquire and dispose of) all or any portion of the assets of the Plan.
The Corporation currently intends that this Plan should comply with the
provisions of Section 404(c) of the Act and until the Corporation shall
otherwise direct, this Plan shall be so construed and the Plan
Administrator shall, insofar as is practical, arrange for appropriate
steps to be taken in furtherance thereof. However, to the extent that
Section 404(c) of the Act is not applicable or the terms thereof are not
satisfied, the Participants and Beneficiaries shall constitute named
fiduciaries under the Act with respect to their authority to direct
investment of their Accounts.
27
5.2 Investment Options
All Contributions to the Plan shall be invested as initially elected by
the Participant pursuant to Section 2.4, or as subsequently changed
pursuant to Section 5.4, in multiples of 1% thereof to be invested in any
Investment Fund.
Notwithstanding anything in the Plan to the contrary, during any period
during which a Participant is employed by an Employer, 50% or more of the
voting stock of which is not directly or indirectly owned by Alcan Inc.
(or for periods prior to March 1, 2001, Alcan Aluminium Limited) and which
has not been specifically excluded from the application of this provision
by the Board, the Participant may not invest any future After-Tax
Contributions, Before-Tax Contributions, Rollover Contributions, Qualified
Contributions, Basic Contributions, or any other contributions in the
Company Stock Fund and all such future contributions made by the
Participant or on his behalf shall be invested as initially elected by the
Participant pursuant to Section 2.4, or as subsequently changed pursuant
to Section 5.4, with multiples of 1% thereof to be invested in Investment
Funds other than the Company Stock Fund. Recordkeeping accounts shall be
established for each Participant under each Investment Fund with respect
to which such contributions are being invested.
5.3 Reinvestment in Same Fund
Dividends, interest and other distributions received by the Trustee in
respect of any Investment Fund shall be reinvested in the same Investment
Fund.
5.4 Change in Investment Election
A Participant may change his future investment directions, within the
limits set forth in Section 5.2, as of the first practicable paydate
coinciding with or next following the start of any calendar month, with
respect to contributions to be made on such paydate and thereafter, by
giving prior notice to the Plan Administrator or its delegate in such
manner as the Plan Administrator shall require. Any such change in
investment elections pursuant to this Section 5.4 shall be subject to such
limitations on frequency as the Plan Administrator shall from time to time
prescribe, but shall be permitted no less frequently than once within any
calendar month.
5.5 Fund Reallocations
A Participant may direct, by giving prior notice to the Plan Administrator
or its delegate in such manner as the Plan Administrator shall require,
that, as of the next practicable Valuation Date, the Value of his
28
Accounts be transferred from one or more Investment Funds to other
Investment Funds (in 1% multiples thereof); provided, however, that a
Participant who is employed by, or has terminated employment from, an
Employer, 50% or more of the voting stock of which is not directly or
indirectly owned by Alcan Inc. (or for periods prior to March 1, 2001,
Alcan Aluminium Limited) and which has not been specifically excluded from
the application of this provision by the Board, may not direct that any
portion of the Value of his Accounts be reallocated to the Company Stock
Fund.
Any such reallocation pursuant to this Section 5.5 shall be subject to
such limitations on frequency as the Plan Administrator shall from time to
time prescribe, but shall be permitted no less frequently than once within
any calendar month and shall be implemented as of the next Valuation Date
as soon as reasonably practicable on or after timely receipt of such
notice by the Plan Administrator or its delegate.
5.6 Voting
Full and fractional shares of Alcan Inc. (or for periods prior to March 1,
2001, Alcan Aluminium Limited) credited to a Participant's Accounts shall
be voted by the Trustee in accordance with the instructions of the
Participant if such instructions are given on the form provided for that
purpose and received by the Trustee at least 10 days prior to the date on
which the Trustee is to vote such shares. The Employer shall notify
Participants of each occasion for the exercise of voting. The Trustee
shall vote any shares for which timely instructions for voting have not
been received from a Participant in the same proportion as the shares for
which the Trustee has received instructions from Participants hereunder.
29
ARTICLE 6
Valuation
6.1 Maintenance of Accounts
The Plan Administrator shall separately maintain on behalf of each
Participant, where applicable, and shall separately account for: After-Tax
Account, Before-Tax Account, Basic Account, Qualified Contributions
Account, Rollover Account and such other Accounts as may be set forth in
an Appendix hereto.
6.2 Valuation
As of each Valuation Date, the Plan Administrator shall cause to be
adjusted the After-Tax Account, Before-Tax Account, Basic Account,
Qualified Contributions Account, Rollover Account and any other Account
for each Participant on whose behalf any such Account is maintained to
reflect his share of contributions, loan repayments, withdrawals,
distributions, loans, income, expenses payable from the Trust Fund and any
increase or decrease in the value of Trust Fund assets since the preceding
Valuation Date. The fair market value on the Valuation Date is to be used
for this purpose, and the respective Accounts of Participants are to be
adjusted in accordance with the valuation.
30
ARTICLE 7
Vesting
7.1 Participant Accounts
Except as otherwise set forth in any applicable Appendix, the Value of a
Participant's After-Tax Account, Before-Tax Account, Basic Account,
Qualified Contributions Account, Rollover Account and any other Account
established hereunder, shall be 100% vested in him at all times.
31
ARTICLE 8
Withdrawals
8.1 Withdrawals -- Priorities of Withdrawals
A Participant may make withdrawals from his Accounts subject to the terms
and conditions contained in this Article 8, except as otherwise provided
in an applicable Appendix. Withdrawals shall be made in the order of
priority set forth below. No amount shall be withdrawn from a priority
category unless all amounts available for withdrawal from prior categories
have been withdrawn.
After-Tax Contributions
1. A Participant may withdraw, with earnings, an amount not in excess
of the Value of his After-Tax Account attributable to his
non-withdrawn After-Tax Contributions; provided that the amount
withdrawn pursuant to this clause may not exceed the Value of the
portion of the After-Tax Account attributable to such contributions.
Rollover Contributions
2. A Participant may withdraw, with earnings, an amount not in excess
of the Value of his Rollover Account attributable to his
non-withdrawn Rollover Contributions; provided that the amount
withdrawn pursuant to this clause may not exceed the Value of such
Rollover Account.
Vested Basic Account
3. A Participant may withdraw all or any part of the portion of the
Value of his vested Basic Account attributable to Basic
Contributions made on his behalf at least 24 months preceding the
Valuation Date as of which the withdrawal is made, if any, and he
may also withdraw all earnings in his Basic Account.
Age 59-1/2 Withdrawal from Basic Account
4. A Participant who has attained age 59-1/2 as of the Valuation Date
as of which such withdrawal is to be made, including one who has had
a termination of Service and retains a balance in the Plan pursuant
to Section 9.3, may withdraw with earnings all or any part of the
remaining vested Value of his Basic Account.
32
Age 59-1/2 Withdrawal from Before-Tax Account
5. A Participant who has attained age 59-1/2 as of the Valuation Date
as of which such withdrawal is to be made, including one who has had
a termination of Service and retains a balance in the Plan pursuant
to Section 9.3, may withdraw, with earnings, all or any part of his
Before-Tax Account.
Notwithstanding the preceding subsections of this Section, a Participant
who has not attained age 59 -1/2 as of the Valuation Date as of which a
withdrawal is to be made and who has had a termination of Service and
retains a balance in the Plan pursuant to Section 9.1, may withdraw all or
part (or, prior to June 1, 2001, all but not part) of his Before-Tax
Account.
8.2 Rules for Withdrawals
Withdrawals pursuant to this Article 8 shall be made in accordance with
the following rules:
(a) Payment of amounts withdrawn shall be made in a single cash lump
sum, payable as soon as practicable after the Valuation Date as of
which the withdrawn amount is being determined.
(b) Two (2) withdrawal elections under this Article 8 may be made in any
calendar year, except that a Participant who has terminated service
and retains a balance in the Plan may make up to twelve (12)
withdrawal elections under this Article 8 in a calendar year.
(c) All withdrawals from a Participant Accounts shall be made from the
Investment Funds in proportion to the Value of the Participant's
After-Tax Account, Before-Tax Account, Basic Account, or Rollover
Account or any other Account, whichever is applicable, in each such
Investment Fund.
(d) Withdrawals from a Participant's Before-Tax Account are not
permitted before the Participant has attained age 59-1/2 unless he
has died, become disabled, or is separated from service, in
accordance with the provisions of Section 401(k) of the Code.
(e) In order to make a withdrawal from his Accounts a Participant shall
give such prior notice to the Plan Administrator in such manner and
within such time limit as the Plan Administrator shall prescribe. In
the event that a Participant has executed a withdrawal application
and is entitled to a withdrawal hereunder and prior to the date on
which withdrawal proceeds are disbursed to him it is determined that
the amount available for withdrawal is less than the amount of such
application,
33
the application shall be deemed to be for the maximum amount
available for withdrawal and such amount shall be withdrawn.
8.3 [Reserved]
8.4 Certain Eligible Rollover Distributions
Notwithstanding anything in the Plan to the contrary that would otherwise
limit a distributee's election under this Section 8.4, a "distributee" (as
hereinafter defined) may elect, at the time and in the manner prescribed
by the Plan Administrator, to have any portion of an "eligible rollover
distribution" (as hereinafter defined) paid directly to an "eligible
retirement plan" specified by the distributee in a "direct rollover."
For purposes of this Section 8.4, the following terms shall have the
following meanings:
(a) "distributee" means an Eligible Employee or former Eligible
Employee. In addition, the surviving spouse of an Eligible Employee
or former Eligible Employee or a spouse or former spouse of an
Eligible Employee or former Eligible Employee who is the alternate
payee under a Qualified Domestic Relations Order, are distributees
with regard to the interest of the spouse or the former spouse;
(b) "eligible rollover distribution" means any distribution of all or
any portion of the balance to the credit of the distributee under
the Plan, except that an eligible rollover distribution shall not
include:
(i) any distribution from the Plan that is one of a series of
substantially equal periodic payments (made not less
frequently than annually) for the life (or life expectancy) of
the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's
designated Beneficiary, or for a specified period of ten years
or more;
(ii) any distribution from the Plan to the extent such distribution
is required under Section 401(a)(9) of the Code; or
(iii) the portion of any distribution from the Plan that is not
includible in gross income for federal income tax purposes
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
34
(c) "eligible retirement plan" means:
(i) an individual retirement account described in Section 408(a)
of the Code;
(ii) an individual retirement annuity described in Section 408(b)
of the Code;
(iii) an annuity plan described in Section 403(a) of the Code; or
(iv) a qualified trust described in Section 401(a) of the Code,
in any case, that accepts the distributee's eligible rollover
distribution; provided, however, that with respect to an eligible
rollover distribution to a surviving spouse of an Eligible Employee
or former Eligible Employee, an eligible retirement plan means an
individual retirement account or an individual retirement annuity;
and
(d) "direct rollover" means a payment by the Plan to the eligible
retirement plan specified by the distributee.
35
ARTICLE 9
Distributions on Termination of Employment
9.1 Distributions on Termination of Employment
When a Participant's employment with all Affiliated Companies is
terminated, the Value of his vested interest in his Accounts shall be
distributed to him or, if distribution is being made by reason of death,
to his Beneficiary. For purposes of this Section 9.1, and subject to the
provisions of Section 13.6, a termination of employment occurs upon a
quit, discharge, termination due to a permanent shutdown or sale of a
plant (except for situations involving a spinoff to another qualified
plan), an absence that continues after the period of a leave of absence
granted by an Employer expires, or a break in seniority under the terms of
any applicable collective bargaining agreement, whichever occurs first.
Any amount distributed to a Participant's Beneficiary pursuant to the
preceding sentence shall be reduced to the extent the Participant's
Accounts are subject to a pledge under Section 15.5. All amounts
distributable pursuant to this Article 9 shall be paid as soon as
practicable on or after the Valuation Date as of which payment is to be
made (and except as is provided in Sections 9.2 and 9.3 in all events
within 60 days after the end of the later of the Plan Year in which the
Participant attains age 65 or terminates employment with all Affiliated
Companies). The Participant's Accounts shall be retained and administered
under the Plan until the date of distribution.
Effective January 1, 2002 (except with respect to any individuals who
entered into severance agreements with an Employer prior to that date) for
purposes of this Plan, including without limitation this Section and
Sections 1.44, and 8.1, `discharge' shall include any cessation of active
service by an Employee which is expected to be permanent and in connection
with which the individual receives severance payments, payments from the
inactive payroll or any other similar payments, and such a discharge shall
constitute a `termination of employment,' a `termination of service' (or
`Service'), `ceasing to be employed' and any other similarly described
event.
9.2 Valuation
The Value of a Participant's Accounts for purposes of Section 9.1 shall be
determined and payable on the Valuation Date on or as soon as practicable
following the date the Participant (or his Beneficiary) is entitled to a
distribution hereunder and has completed and submitted to the Plan
Administrator any application and election forms which the Plan
Administrator may require, but in no event prior to the Valuation Date on
which authorized distribution directions are received by the Trustee.
36
9.3 Form of Distribution
Distributions under this Article 9 shall be made in a lump sum payment and
shall be made in cash from the applicable Investment Funds (other than the
Company Stock Fund). A Participant may elect in such manner and at such
time as the Plan Administrator may determine whether distributions from
the Company Stock Fund shall be distributed in cash or in kind, except
that any uninvested cash and any fractional shares shall be paid in cash.
In the event that a Participant has not made the election under the
preceding sentence, distributions from the Company Stock Fund shall be
made in cash.
Notwithstanding anything herein contained to the contrary, no part of a
distribution in excess of $5,000 ($3,500 before January 1, 2000) may
commence before the April 1st following the Plan Year in which the
Participant attains age 70-1/2 without the advance written consent of such
Participant (except with respect to benefits made payable by reason of the
death of a Participant or former Participant). The Participant's Accounts
shall be retained and administered under the Plan until the Valuation Date
immediately preceding the date of distribution.
9.4 Distribution on Disability or Layoff for Six Months
When a Participant has suffered a Disability, or been on layoff for six
months or more, the Value of his Accounts may be distributed to him in
accordance with the foregoing provisions of this Article 9.
9.5 Mandatory Commencement of Benefits
Notwithstanding anything herein contained to the contrary, and subject to
Section 401(a)(9) of the Code and Proposed Treasury Regulation Sections
1.401(a)(9)-1 and -2, any final regulations under such section, and any
amendments to such regulations or section:
(a) a Participant who is a 5% owner (as defined in Section 416(i) of the
Code) at any time after the attainment of age 66-1/2, shall receive
the Value of his Accounts no later than the April 1 of the calendar
year following the calendar year in which such Participant attains
age 70-1/2;
(b) a Participant who is not a 5% owner at any time after the attainment
of age 66-1/2, shall receive the Value of his Accounts no later than
the April 1 of the calendar year following the later of (i) the
calendar year in which the Participant attains age 70-1/2, or (ii)
his termination of employment with the Employer and any Affiliated
Company; and
37
(c) a Participant who becomes a 5% owner after the attainment of age
70-1/2, but prior to termination of employment, shall receive the
Value of his Accounts no later than the April 1 of the calendar year
following the calendar year in which such Participant becomes a 5%
owner.
Any payments under this Plan shall be adjusted to meet the requirements of
Section 401(a)(9) of the Code and the regulations thereunder. Thus, to the
extent the distributions otherwise provided for under this Plan would not
satisfy Section 401(a)(9) of the Code, the entire interest of each
Participant (a) shall be distributed to him not later than the required
beginning date as defined in Section 401(a)(9)(C) of the Code, or (b)
shall be distributed, beginning not later than the required beginning
date, in accordance with regulations or proposed regulations, over the
life of the Participant or over the life of the Participant and
Beneficiary (or over a period not extending beyond the life expectancy of
the Participant or the life of the Participant and Beneficiary). Except to
the extent that Section 9.3, or other provisions of this Section or this
Plan, would cause such distribution to be in the form of a single lump sum
payment, the amount to be distributed each year must be at least an amount
(i) equal to the quotient obtained by dividing the Participant's entire
interest, determined as of the last Valuation Date for the Plan Year
immediately preceding the year for which such distribution is being made,
by the life expectancy of the Participant or joint and survivor life
expectancy of the Participant and designated Beneficiary or, (ii)
calculated under such other method as may be prescribed by the Department
of Treasury.
Notwithstanding any provision of the Plan to the contrary, distributions
made under this Section 9.5 shall be deemed to satisfy any distribution
options provided for in the Plan that are inconsistent with Section
401(a)(9) of the Code. In addition, any distribution required under the
incidental death benefit rule of Section 401(a)(9)(G) of the Code shall be
treated as a distribution required under this Section.
9.6 Latest Commencement of Benefits
Except as provided in Section 9.5, and unless a Participant otherwise
elects, a Participant's benefits under the Plan shall begin not later than
the 60th day after the close of the Plan Year in which the latest of the
following events occur: (a) the Participant attains age 65; (b) the 10th
anniversary of the date the Participant's participation in the Plan
commences; (c) the Participant's employment with the Employer or any
Affiliated Company is terminated.
9.7 Missing Participants
If, after reasonable efforts of the Plan Administrator to locate a
Participant or a Participant's Beneficiary, including sending a certified
letter, return receipt requested, to the last known address of the
Participant or Beneficiary, the Plan Administrator is unable to locate the
Participant or Beneficiary, then the amounts distributable to such
Participant or Beneficiary shall be treated as a forfeiture under the
Plan. In the event that such a Participant or Beneficiary is located
subsequent to such a forfeiture, then his benefit shall be
38
reinstated (without earnings from the date of forfeiture except to the
extent required by law) and shall not be used to determine his Annual
Additions (as defined in Section 4.3) for the Plan Year in which it is
reinstated.
39
ARTICLE 10
Miscellaneous
10.1 No Assignment or Alienation
Except as may be otherwise provided herein or by law, no benefit payable
under the Plan shall be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, or change, and any action
by way of anticipating, alienating, selling, transferring, assigning,
pledging, encumbering, or charging the same shall be void and of no
effect; nor shall any such benefit be in any manner liable for or subject
to the debts, contracts, liabilities, engagements, or torts of the person
entitled to such benefit.
Notwithstanding the foregoing, the following shall not be treated as an
assignment or alienation prohibited by this Section 10.1:
(a) the creation, assignment or recognition of a right to any benefit
payable with respect to a Participant or former Participant under
the Plan pursuant to a Qualified Domestic Relations Order; or
(b) the offset of a Participant's or former Participant's benefit under
the Plan against an amount that such Participant or former
Participant is ordered or required to pay to the Plan where:
(1) the order or requirement to pay arises under a judgment for a
crime involving the Plan, a civil judgment, consent order or
decree for violation or alleged violation of fiduciary duties
as stated in part 4 of subtitle B of title I of the Act, or
pursuant to a settlement agreement between the Secretary of
Labor or the Pension Benefit Guaranty Corporation and the
Participant or former Participant for violation or alleged
violation of fiduciary duties as stated in part 4 of subtitle
B of title I of the Act by a fiduciary or any other person;
and
(2) the judgment, order, decree, or settlement agreement expressly
provides for the offset of all or part of the amount ordered
or required to be paid to the Plan against the Participant's
or former Participant's benefits provided under the Plan; and
(3) to the extent, if any, that the survivor annuity requirements
apply to distributions to the Participant or former
Participant under Section 401(a)(11) of the Code, the rights
of such Participant's or former Participant's spouse are
preserved in accordance with Section 401(a)(13)(C)(iii) of the
Code; or
40
(c) any other arrangement, transfer or transaction which is not treated
as a prohibited assignment or alienation under Section 401(a)(13) of
the Code or other applicable law.
If any Participant or other payee under the Plan shall become bankrupt or
attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber,
or charge any benefit, except as provided herein, then such benefit shall,
at the discretion of the Plan Administrator, be applied as follows: the
Plan Administrator shall hold or apply the benefit or any part thereof to,
or for, such Participant or payee, his spouse, children, or other
dependents, or any of them, in such manner and in such proportions as the
Plan Administrator shall at its sole discretion determine.
10.2 Qualified Domestic Relations Orders
Notwithstanding any other provision in the Plan to the contrary, the
following provisions shall apply with respect to a Domestic Relations
Order.
(a) A Qualified Domestic Relations Order may require the payment in a
single sum of any designated portion of the Value of a Participant's
Accounts in which the Participant has a fully vested interest, as
determined as soon as practicable following the determination by the
Plan Administrator of the qualified status of such Domestic
Relations Order, regardless of whether the Participant shall then
have qualified for an immediate distribution and regardless of the
inability of the Participant then to have withdrawn all or any of
the amounts covered by the Qualified Domestic Relations Order.
Unless otherwise specified in the Qualified Domestic Relations
Order, any such single sum distribution shall be withdrawn on a pro
rata basis from all of the Participant's Accounts and from the
Investment Funds in which his Accounts are invested.
(b) In the event that a Qualified Domestic Relations Order shall require
that a portion of a Participant's Accounts be held under the Plan
for the benefit of the Alternate Payee, such portion shall be held
in a QDRO Balance and shall be subject to the following rules:
(i) Except as otherwise specifically provided in this Section
10.2, the Alternate Payee shall, with respect to the
administration of the QDRO Balance, be treated in the same
manner as a Participant who has terminated employment with all
the Affiliated Companies.
(ii) The rights of the Alternate Payee with respect to the
investment of and withdrawals from the QDRO Balance shall be
established by the Employer and any reasonable costs of the
administration of the QDRO Balance may be assessed against the
same.
41
(iii) The Alternate Payee shall not be entitled to contribute,
receive an allocation of contributions, or borrow under the
Plan.
(iv) The obligations under any Loan shall be personal to the
Participant, and in the event that the Qualified Domestic
Relations Order would otherwise require the transfer of all or
any portion of a Loan to the QDRO Balance, such Loan shall
become due and payable as provided in Section 15.4(c).
(v) Unless otherwise specified in the Qualified Domestic Relations
Order, any transfer to the QDRO Balance shall be withdrawn,
subject to paragraph (iv), above, on a pro rata basis from all
of the Participant's Accounts and from the Investment Funds in
which the Participant's Accounts are invested.
(c) Upon and after the receipt by the Plan Administrator of a Domestic
Relations Order, no withdrawals shall be permitted to be made from
the Participant's Accounts and no Loans shall be made to the
Participant unless and until permitted under a related Qualified
Domestic Relations Order, or, absent a related Qualified Domestic
Relations Order, until the end of the nine-month period immediately
following such receipt of the Domestic Relations Order. The
Participant's investment directions in effect immediately prior to
the Plan Administrator's receipt of the Domestic Relations Order
shall remain in effect; provided, however, that the Participant may
make a change pursuant to Section 5.4 or a reallocation pursuant to
Section 5.5, in either case, solely in order to increase the portion
of his Accounts invested in the Fixed Income Fund.
(d) The Plan Administrator shall follow such other rules and procedures
with respect to a Domestic Relations Order as provided in the
Qualified Domestic Relations Order Rules and Procedures as in effect
from time to time.
(e) If (i) any regulation becomes effective which interprets Section
206(d) of the Act, Section 414(p) of the Code, or both, and (ii) any
provision of the Plan or the QDRO Rules and Procedures is contrary
to such regulation or does not fully comply with the same, then any
such provision shall, to the extent necessary, be of no force or
effect for any Domestic Relations Order received by the Plan
Administrator after the effective date of such regulation, and the
Plan and the QDRO Rules and Procedures shall be deemed to have
complied with such regulations from such effective date and further
shall be deemed not to have created any accrued benefits under
Section 204(g) of the Act or Section 411(d)(6) of the Code not
required under such regulation. Any Domestic Relations Order shall
be subject to any changes in the Plan or the QDRO Rules and
Procedures which may
42
be required to comply with such regulation or otherwise to maintain
the qualification of the Plan under Section 401(a) of the Code.
10.3 No Employment Rights
The establishment of the Plan shall not be construed as conferring any
rights upon any Employee or any other person for a continuation of
employment, nor shall it be construed as limiting in any way the right of
an Employer to discharge any Employee or to treat him without regard to
the effect which such treatment might have upon him as a Participant under
the Plan.
10.4 Incapacity
If any person entitled to receive any benefits hereunder is, in the
judgment of the Plan Administrator, legally, physically or mentally
incapable of personally receiving and receipting for any distribution, the
Plan Administrator may direct that any distribution due him, unless claim
has been made therefor by a duly appointed legal representative, be made
to his spouse, children or other dependents or to a person with whom he
resides, and any other distribution so made shall be a complete discharge
of the liabilities of the Plan therefor.
10.5 Identity of Proper Payee
The determination of the Plan Administrator as to the identity of the
proper payee of any payment and the amount properly payable shall be
conclusive, and payment in accordance with such determination shall
constitute a complete discharge of all obligations on account thereof.
10.6 Governing Law
To the extent not preempted by federal law, the Plan shall be interpreted
and applied in accordance with the laws of the State of Ohio.
43
ARTICLE 11
Fiduciary and Administration
11.1 Plan Administrator
The authorities and responsibilities of the Plan Administrator shall be
vested jointly in the members of the Alcancorp Employee Benefits Committee
(the "Committee"). The members of the Committee shall be designated by the
Board and shall serve for terms of one year and until their successors are
designated and qualified. The term of any member of the Committee may be
renewed from time to time without limitation as to the number of renewals.
Any member of the Committee may resign upon not less than 60 days' notice
to the Board but may be removed from office only by reason of his failure
or inability, in the opinion of the Board, to carry out his responsibility
in an effective manner. Any instrument or document signed on behalf of the
Committee by any member of the Committee may be accepted and relied upon
as the act of the Committee.
11.2 Plan Fiduciaries
The Plan Administrator is the named fiduciary under the Plan and is
responsible for controlling and managing the operation and administration
of the Plan in accordance with the provisions of the Act.
11.3 Reports of the Plan Administrator
The Plan Administrator shall report to the Board on the performance of its
responsibilities and on the performance of any persons to whom any of its
powers and responsibilities may have been delegated.
11.4 Service in Various Fiduciary Capacities
The Plan Administrator or any other persons may serve in more than one
fiduciary capacity with respect to the Plan, and any fiduciary may serve
as such in addition to being an officer, Employee, agent or other
representative of a party in interest.
11.5 Retention of Advisors and Services
The Plan Administrator may employ one or more persons to render advice
with regard to any responsibility assumed by such fiduciary under the Plan
or the Act and retain such clerical, legal, accounting and consulting
services as the Plan Administrator deems appropriate.
44
11.6 Power to Construe and Make Rules
The designated local representative of the Corporation (or on appeal under
Section 11.11, the Plan Administrator) shall have full power and authority
to construe the provisions of the Plan, to resolve any ambiguities,
errors, inconsistencies or omissions therein, to determine any questions
of fact which may arise thereunder, and to determine the right to benefits
and amount of benefits, if any, payable to any person under this Plan; and
the Administrator shall also have full power and authority to make such
rules and regulations regarding the Plan and administrative matters,
including but not limited to rules governing the manner in which the Plan
Administrator shall act or in which the Plan Administrator's own affairs
shall be managed, as the Plan Administrator may deem necessary or
appropriate in the exercise of its authority hereunder.
11.7 Power to Direct Trustee
The Plan Administrator shall have authority to direct the Trustee with
respect to any payments or disbursements from, or contributions to, the
Plan.
11.8 Exercise of Authority
Whenever in the administration of the Plan the Plan Administrator acts or
otherwise exercises any authority, such exercise of authority shall be
consistent with the requirements of the Act and all other laws and in
addition shall generally be uniform in nature as applied to all persons
similarly situated and without discrimination in favor of HCEs, and in
accordance with the Plan, all as determined by the Plan Administrator in
its sole discretion.
11.9 Power of Delegation
The Plan Administrator shall have the power to designate one or more
persons, including any corporation, to whom the Plan Administrator may
delegate, and among whom the Plan Administrator may allocate, specified
fiduciary responsibilities (other than trustee responsibilities as defined
in Section 405(c)(3) of the Act). Any such designation shall be in writing
and the Plan Administrator shall not enter into any delegation under this
Section 11.9 which does not provide for the termination thereof by the
Plan Administrator upon reasonable notice to such person. Without limiting
the generality of the foregoing, the Plan Administrator shall have the
power to delegate, in accordance with the foregoing provisions of this
Section 11.9, to one or more persons, the authority (i) to determine the
amount of benefits based upon records due any person under the Plan, (ii)
to execute, in the name, and on behalf of, the Plan
45
Administrator, any direction for payment of any benefit under the Plan,
and (iii) to maintain records and accounts.
11.10 Ministerial Plan Services
The Corporation or any other person shall perform such ministerial
services in the administration of the Plan as may be agreed upon between
the Plan Administrator and the Corporation or such other person. The Plan
Administrator shall furnish the Corporation or such other person with such
framework of policies, interpretations, rules, practices and procedures as
the Plan Administrator shall deem necessary or appropriate. The Plan
Administrator may rely on any information, data, statistics, reports or
analysis furnished by the Corporation, including, without limitation,
information relating to addresses, employment, employment status, and
services of any Participant or other person.
11.11 Claims Procedure; Appeals
If a Participant or a Participant's Beneficiary (who shall be considered
for this purpose a "Claimant") believes that he is entitled to a vested
benefit, the Claimant must apply for the benefit, in writing, to the
designated local representative of the Corporation. In rendering its
decision, such designated local representative shall have full power and
authority to construe the provisions of the Plan, to resolve any errors,
inconsistencies or omissions therein, and to determine any questions of
fact which may arise thereunder.
In the event that the Claimant's application or any other claim under the
Plan is denied, the Claimant will be notified by the Plan Administrator
within 90 days after its receipt of his application or claim, provided
that if there are special circumstances which make a longer period for
decision necessary or appropriate, on notice to the Claimant, such
decision may be postponed for an additional 90 days. Such notice will be
in writing, will indicate the specific reasons for such denial, the
specific provisions of the Plan on which it was based and any additional
material or information necessary for him to perfect the Claimant's
application or claim as well as provide an explanation of the claim review
procedure of the Plan. In the event that notice of such denial is not
furnished within the prescribed time period, the Claimant will be entitled
to appeal as if the application or claim had been denied.
An appeal with respect to the Plan, if it cannot be resolved by discussion
with the designated local representative of the Corporation, is to be
addressed by the Claimant in writing to the Plan Administrator. The Plan
Administrator is the named fiduciary of the Plan for the purpose of
hearing claims appeals. The Claimant is entitled to review pertinent
documents and he may submit in writing issues and comments in the same
manner as an appeal is to be submitted. Requests for review must be made
within 120 days after
46
receipt of written notice of denial of the claim. A decision will be
rendered by the named fiduciary within 60 days after his receipt of the
request for review, provided that if there are special circumstances which
make a longer period of decision necessary or appropriate, on notice to
the Claimant, decision may be postponed for an additional 60 days. Any
decision by the Plan Administrator shall be in writing and shall set forth
the specific reason for the decision and the specific Plan provisions on
which the decision is based. In rendering its decision, the Plan
Administrator shall have full power and authority to construe the
provisions of the Plan, to resolve any errors, inconsistencies or
omissions therein, and to determine any questions of fact which may arise
thereunder. Except as otherwise provided by applicable law, the decision
of the Plan Administrator shall be final and binding on all parties.
No benefit shall be payable hereunder unless the applicable designated
local representative of the Corporation, or the Plan Administrator acting
in its review capacity hereunder, determines in its discretion that such
benefit is due under the terms of the Plan.
Without limiting the foregoing, no Claimant may file any lawsuit in any
court of law with respect to a claim for benefits hereunder unless such
Claimant has timely and properly taken all steps to submit his claim to
the designated local representative of the Corporation and to appeal any
benefit denial to the Plan Administrator, and otherwise followed and
exhausted the application and review procedures of this Plan. For claims
which are either incurred or for which application is made on or after
March 1, 2002, no legal action may be commenced against the Plan,
designated local representative of the Corporation, or the Plan
Administrator more than 180 days after the Plan Administrator's final
decision has been rendered with respect to the Claimant's claim.
11.12 Funding Policy
The Plan Administrator, acting in conjunction with any trustee, insurance
carrier, investment manager or other party responsible for the investment
of the assets of the Plan (the "Funding Agency"), shall cause to be
established a funding policy pursuant to the procedure set forth in this
Section 11.12. The Plan Administrator shall determine the short and long
run financial needs of the Plan, giving regard to the objectives of the
Plan, its need for liquidity, and such other factors as it deems
appropriate. The Plan Administrator shall, on the basis of such
information, formulate a statement of the needs of the Plan which shall be
submitted to each Funding Agency. The Funding Agency shall on the basis of
such statement and such other information as it shall reasonably request,
coordinate its investment policy with the Plan needs communicated to it
and establish the funding policy of the Plan.
The Plan Administrator shall review the funding policy and all or any
portion of the information upon which it is based at such time or times as
it may deem advisable but not less often than annually.
47
11.13 Qualified Status of Plan
It is intended that the Plan at all times satisfies the requirements of
Section 401(a) of the Code and the regulations issued thereunder. To
enable the Employer to provide, in its sole discretion, benefits to
Employees as permitted under a plan that satisfies such requirements,
notwithstanding any other provision in the Plan to the contrary, no action
shall be required to be taken with respect to the Plan or any Participant
(or Beneficiary) that in the determination of the Plan Administrator would
have a significant likelihood of adversely affecting this determination
under Section 401(a) of the Code. The Plan shall be interpreted in
accordance with the Code and the Act, and all provisions hereof shall be
administered in accordance with such laws.
11.14 Indemnification of Certain Persons
Each individual who has been designated hereunder to carry out any
Fiduciary or administrative responsibility or any act on behalf of the
Corporation (including without limitation, members of the Committee), and
is an Employee, officer or director of the Corporation, shall be
indemnified by the Corporation to the extent permitted by law, against all
expenses (including costs and attorney's fees) actually and necessarily
incurred or paid by him in connection with the defense of any action, suit
or proceeding in any way relating to or arising from the Plan to which he
may be made a part by reason of his being or having been so designated, or
by reason of any action or omission or alleged action or omission by him
in such capacity, and against any amount or amounts which may be paid by
him (other than to the Corporation) in reasonable settlement of any such
action, suit or proceeding, where it is in the interest of the Corporation
that such settlement be made. In cases where such action, suit or
proceeding shall proceed to final adjudication, such indemnification shall
not extend to matters as to which it shall be adjudged that such Employee,
officer or director is liable for gross negligence or willful misconduct
in the performance of his duties as such. The right of indemnification
herein provided shall not be exclusive of other rights to which any such
Employee, officer or director may now or hereafter be entitled, shall
continue as to a person who has ceased to be so designated and shall inure
to the benefit of the heirs, executors and administrators of such
Employee, officer or director.
48
ARTICLE 12
Management of the Trust Fund
12.1 Trust Fund
All contributions under the Plan shall be paid over to the Trustee which
shall be appointed from time to time by the Plan Administrator or pursuant
to its authorization, with such powers in the Trustee (or in any
investment manager designated pursuant to Section 5.1) as to investment,
reinvestment, control and disbursement of the funds as the Plan
Administrator shall approve and as shall be in accordance with the Plan.
The Plan Administrator may remove or authorize the removal of any Trustee
at any time, upon reasonable notice, and upon such removal or upon the
resignation of any Trustee, the Plan Administrator shall designate or
authorize the designation of a successor Trustee.
12.2 Exclusive Benefit of Participants and Beneficiaries
All funds under the Plan shall be held under a trust or trusts for the
exclusive benefit of Participants and their Beneficiaries, and no part of
the corpus or income shall revert to the Employers or be used for, or
diverted to, purposes other than for the exclusive benefit of such persons
under the Plan, including the payment or reimbursement of expenses of the
Plan, except as otherwise expressly provided hereunder, including Section
12.5. No such person, nor any other person, shall have any interest in or
right to any of such funds, except to the extent expressly provided in the
Plan.
12.3 Application and Disbursement of Trust Fund
The funds held by the Trustee shall be applied to the payment of benefits
as provided in the Plan to such persons as are entitled thereto in
accordance with the Plan and for the payment or reimbursement of expenses
of the Plan and Trust Fund as provided in Sections 12.2 and 12.5, except
as otherwise expressly provided herein.
The Plan Administrator shall determine the manner in which the funds of
the Plan shall be disbursed in accordance with the Plan, including the
form of voucher or warrant to be used in making disbursement and the
qualification of persons authorized to approve and sign the same and any
other matters incident to the disbursement of such funds.
49
12.4 Master Trust
The assets of the trust established under the Plan as adopted by the
Corporation may be commingled for investment purposes under a master trust
or trusts established by the Corporation with the assets of other trusts
established under the Plan in accordance with Section 14.1 and with the
assets of trusts established under a plan other than the Plan which has
been admitted to participation in such master trust on such terms and
conditions as may be specified by the Corporation.
12.5 Expenses of Plan
The expenses for general administration of the Plan, including Trustee's
fees as such may from time to time be agreed upon between the Corporation
and the Trustee, may, in the discretion of the Plan Administrator, be paid
from the Participants' Accounts, be paid, reimbursed or otherwise borne by
the Trust Fund, or, with the consent of the Corporation, be borne by the
Employer. Fees and expenses of the Plan which are incurred with respect to
a specific Investment Fund or a specific Account or Accounts or portions
thereof may, in the discretion of the Plan Administrator, be paid from the
assets of such Investment Fund or Account or Accounts or portions thereof
in such manner as the Plan Administrator may determine. Fees and expenses
of the trustee which have not been paid will be deemed to be a lien on the
Trust Fund.
50
ARTICLE 13
Amendment, Modification, Suspension or Termination
13.1 Corporate Authority
The Corporation reserves the right at any time to amend, modify, suspend
or terminate the Plan, any contributions thereunder, the Trust Fund or any
contract forming a part of the Plan, in whole or in part, prospectively or
retroactively, and for any reason and without the consent of any Employer,
Participant, Beneficiary or any other person having an interest under the
Plan. Any such amendment, modification, suspension or termination of the
Plan shall be made by:
(a) the adoption of a resolution by the Board amending said Plan or
ratifying such an amendment; or
(b) the execution of a certificate of amendment or other written
instrument by an officer of the Corporation authorized by a
resolution of the Board to amend the Plan.
13.2 Limitations
No amendment shall be made which would make it possible for any part of
the funds of the Plan (other than such part as is required to pay taxes,
if any) to be used for or diverted to any purposes other than for the
exclusive benefit of Participants and their Beneficiaries under the Plan.
No merger or consolidation with, or transfer of assets or liabilities to,
any other pension or retirement plan, shall be made unless the benefit
each Participant in the Plan would receive if the Plan were terminated
immediately after such merger or consolidation, or transfer of assets and
liabilities, would be at least as great as the benefit he would have
received had the Plan terminated immediately before such merger,
consolidation or transfer.
13.3 Retroactivity
Subject to the provisions of Section 13.1, 13.2 or any applicable
provision of law, any amendment, modification, suspension or termination
of any provision of the Plan may be made retroactively if necessary or
appropriate either to qualify or maintain the Plan, the Trust Fund and any
contract forming a part of the Plan as a plan and trust meeting the
requirements of Sections 401(a) and 501(a) of the Code or any other
applicable section of law (including the Act) or regulations issued
pursuant thereto, as now in effect or hereafter amended or adopted, or for
any other reason.
51
13.4 Right to Terminate or Discontinue Contributions or to Secede from the Plan
Each Employer reserves the right by resolution of its board of directors
to:
(a) terminate the Plan with respect to such Employer; or
(b) discontinue contributions under the Plan.
13.5 Distribution on Plan Termination
In the event of a complete termination of the Plan with respect to an
Employer, the Accounts of the Participants who are employed by such
Employer shall be distributed at the time and in the manner determined
under the amendment terminating the Plan; provided, however, that no
distribution with respect to any Participant shall be made prior to the
earliest date on which a withdrawal is permitted under Article 8 and,
provided further, however, that, unless required pursuant to Article 9, or
permitted under Treasury Regulation Section 1.411(a)-11(e), no
distribution in excess of $5,000 ($3,500 before January 1, 2000) shall be
made without the advance written consent of such Participant.
13.6 Distribution on Sale
In the event of any transaction involving an Employer that results in the
Employer no longer being an Affiliated Company or the disposition of all
or substantially all of the Employer's assets, the Accounts of the
Participants who are employed by such Employer at the time of such
transaction shall continue to be held by the Plan, and such event shall
not be construed to constitute an event entitling a Participant to a
distribution hereunder except as otherwise provided in an amendment to the
Plan or in the agreement which governs such distribution or other
transaction.
52
ARTICLE 14
Participation in Plan by Subsidiary or Affiliated Company
14.1 Adoption by Subsidiary or Affiliated Company; Extension to Division or
Unit
Any subsidiary or Affiliated Company of the Corporation may, with the
consent of the Board, become a party to this Plan by adopting the Plan, on
such terms and conditions as mutually agreed upon by the Board and such
subsidiary or Affiliated Company, which terms and conditions shall be set
forth in an Appendix hereto, as its savings plan for its eligible
Employees and by establishing a trust to fund the benefits of the Plan as
so adopted by it. Any such trust may be established, as the Plan
Administrator shall determine, either by the execution of a separate trust
agreement or by the adoption of the Trust Agreement by such subsidiary or
Affiliated Company. Upon the filing with the Trustee of a certified copy
of the resolutions or other documents evidencing adoption of the Plan, and
the Trust Agreement if applicable, and a written instrument showing the
consent of the Board to participation of such subsidiary or Affiliated
Company and, if applicable, upon the execution of a separate agreement of
trust with the Trustee satisfactory in form to the Plan Administrator,
such subsidiary or Affiliated Company shall thereupon be included in the
Plan as an Employer. Without limitation of the foregoing, any such
adopting subsidiary or Affiliated Company and the plan established by it
as aforesaid shall be subject to the authorities herein reserved to the
Corporation and the Plan Administrator with respect to the Plan.
14.2 Special Provisions for Employees of Subsidiaries, Affiliated Companies,
Acquired Companies
In approving the adoption of the Plan or its extension to Employees of any
organization all or part of whose business or assets, or both, are
acquired by an Employer by merger, purchase or otherwise, the Board shall,
subject to applicable law, designate the extent, if any, to which the
Employees' employment with predecessor companies prior to the date of such
adoption or extension shall be considered Service.
53
ARTICLE 15
Loans to Participants
15.1 Eligibility for Borrowing
A Participant who is an Eligible Employee may borrow from the Plan to the
extent permitted and under the conditions set forth in this Article 15. A
loan from the Plan shall be made to a former Participant whose employment
with the Employer has terminated only to the extent required to comply
with the applicable provisions of the Act and the Code.
15.2 Amount of Loans
(a) The maximum amount available for a Loan to a Participant when added
to the outstanding balance of all other Loans to such Participant as
of the Loan Valuation Date shall be the lesser of:
(i) $50,000 reduced by the excess (if any) of:
(A) the highest outstanding balance of Loans to the
Participant during the one-year period ending on the day
before the Loan Valuation Date, over
(B) the outstanding balance of Loans to the Participant as
of the Loan Valuation Date, or
(ii) one-half (1/2) of the Value of the Participant's Accounts
under the Plan on the Loan Valuation Date;
provided, however, that in no event shall the amount of any Loan
exceed the Value of the Participant's Accounts as of the Valuation
Date coinciding with or immediately preceding the date of
disbursement of the Loan.
(b) No more than two Loans including, without limitation, one Home Loan
may be outstanding with respect to a Participant at any time, and no
Loan shall be made to a Participant who is in default under a Loan.
54
(c) The minimum amount of any Loan shall be $1,000, and Loans shall be
made in $100 increments.
(d) The Plan Administrator may, at its discretion, impose such fees for
loans which it deems appropriate, including but not limited to, loan
initiation fees and handling charges. Such fees shall be payable in
any manner that the Plan Administrator deems appropriate, including
but not limited to, by a charge to the Participant's Account or
Accounts, by adding such fee to the outstanding balance of the loan,
by deducting such fee from the loan proceeds, or by charging the fee
directly to the Participant.
15.3 Interest Rate
The interest rate payable on any Loan shall be established by the Plan
Administrator in accordance with the requirements of law and shall be
communicated to Participants. Any rate so established shall remain in
effect until a new rate is established and communicated. The interest rate
established under this Section 15.3 which is in effect on the Loan
Valuation Date of any Loan shall be applicable to such Loan and shall
remain in effect during the term of that Loan.
15.4 Term of Loan
(a) A Home Loan shall be repaid prior to the expiration of the 14-1/2
year period commencing on the date of the first repayment. Any Loan
under the Plan, other than a Home Loan, shall be repaid on or before
the end of the 4-1/2-year period commencing on the date of the first
repayment.
(b) The minimum term of any Loan shall be one year.
(c) Except to the extent required to comply with the applicable
provisions of the Act or the Code, the outstanding balance of
principal and accrued interest under any Loan shall become
immediately due and payable as of (i) the last day of the calendar
month following the month in which the Participant's employment with
the Employer is terminated for any reason, including death or (ii)
the effective date of a Qualified Domestic Relations Order that
otherwise would require the transfer of all or any portion of a Loan
to an Alternate Payee.
(d) Notwithstanding the preceding provisions of this Section 15.4, the
full amount of the outstanding principal balance of any Loan which
has been outstanding for not less than a six-
55
month period may be prepaid without penalty, effective as of such
date as may be prescribed by the Plan Administrator.
15.5 Disbursement and Security
(a) A Loan shall be evidenced in such written, telephonic or electronic
manner as the Plan Administrator may prescribe, by the agreement of
the borrowing Participant to the terms of the Loan, which terms
shall include, without limitation, an assignment of 1/2 of the Value
of the Participant's vested interest in his Accounts and the
Participant's Outstanding Loan Balance or, in either case, any
lesser portion thereof, as security for such Loan and the
Participant's consent to a reduction of the Participant's Accounts
in satisfaction of such security interest. Each Loan shall be
secured by the Participant's pledge of his Accounts and his
Outstanding Loan Balance to the extent assigned pursuant to the
immediately preceding sentence.
(b) In the event that a Participant has executed a promissory note,
otherwise agreed to Loan terms, or requested a Loan and, that prior
to the date on which Loan proceeds are disbursed to him, it is
determined that the amount available for a Loan under Section 15.2
is less than the amount of such promissory note, Loan terms or Loan
request, the Participant shall be required to accept a Loan in the
maximum lesser amount permitted under Section 15.2 and evidence
agreement with the revised Loan terms in such written, telephonic or
electronic manner as the Plan Administrator shall require.
(c) Except as otherwise determined by the Plan Administrator, Loans
shall be disbursed as soon as practicable following the Loan
Valuation Date.
(d) Loans shall be made from a Participant's Accounts in the reverse
order to the order in which withdrawals are permitted from such
Accounts under Section 8.1. As of the Loan Valuation Date, an amount
equal to the principal amount loaned from an Account shall be
deducted on a pro rata basis from the Investment Funds in which such
Account is otherwise invested. A Fund denominated the "Loan Fund"
shall be established for each Participant with respect to whom a
Loan is outstanding under the Plan. The Loan Fund shall be invested
solely in the promissory note evidencing the Loan made to the
Participant. The Loan Fund shall be credited with the principal
amount of any Loan together with any interest accruing thereon.
(e) Except as otherwise determined by the Plan Administrator, a
Participant who has applied for a Loan shall be required to accept
such Loan.
56
15.6 Repayment of Loans
(a) Effective January 1, 2002 (except with respect to any individuals
who entered into severance agreements with an Employer prior to that
date), repayment of the principal and interest of any Loan under the
Plan shall be made in substantially equal payments during the term
of the Loan which shall be due upon each paydate of the borrowing
Participant to occur during each calendar month commencing as soon
as practicable following the date on which the proceeds of the Loan
are disbursed. A Participant may prepay any loan in full (but not in
part), provided that if the Participant remains on the active
payroll of an Employer, such prepayment shall not be permitted, at
any time prior to six months after the Loan Valuation Date.
(b) Payments of principal and interest, and lump sum prepayments of
principal, shall reduce the balance in the Participant's Loan Fund.
Such amounts shall be returned to the Participant's Accounts (e.g.,
After-Tax Account, Basic Account, Before-Tax Account, Rollover
Account, or any other Account established hereunder) from which the
Loan was made pursuant to Section 15.5(d), in the same proportion as
the original principal amount of the loan was borrowed from such
Accounts.
(c) Amounts which are returned to a Participant's Accounts pursuant to
Section 15.6(b) above, shall be invested in the Investment Funds in
the proportion last elected by the Participant in accordance with
Section 5.2.
(d) Notwithstanding any provision of this Plan to the contrary, loan
repayments by a Participant who is in Military Service will be
suspended under this Plan as permitted under Section 414(u)(4) of
the Code.
15.7 Defaults and Remedies
(a) Except as otherwise prescribed by the Plan Administrator pursuant to
Section 15.8, in the event that a Participant fails to make any
required payment under a Loan, such Participant shall be deemed to
be in default on such Loan, and a Loan which is in default shall
become due and payable as of the last day of the month in which such
default occurs.
(b) The Plan Administrator, in its sole discretion, may take such action
as it may deem appropriate to enforce payment of any Loan, including
the execution by the Plan upon its security interests in the
Participant's Accounts and Loan Fund; provided, however, that the
57
Plan shall not levy against an Account of the Participant until such
time that a distribution from such Account would otherwise be
available under the Plan. Any such application of a Participant's
Accounts to payment of the Loan may be treated as a distribution
from the Participant's Accounts in the order in which withdrawals
are permitted from such Accounts under Section 8.1 to the extent
required to discharge the Loan. If the entire balance and accrued
interest of the Loan in default cannot be discharged as set forth in
the preceding provisions of this Section 15.7, the remaining amount
may be collected by the Plan Administrator using appropriate legal
remedies and, until collected in full, shall be deducted from any
subsequent withdrawals and distributions from the Plan. Nothing in
this Section 15.7 shall affect the right of the Plan Administrator
to retain the security in any part of the Participant's Accounts
that is not available for withdrawal at the time that any other
remedies are available to the Plan Administrator. Expenses of
collection of any loan in default, including legal fees, if any,
shall be borne by the Participant or his Accounts, except as the
Plan Administrator may determine.
15.8 Loan Rules
The Plan Administrator shall establish such rules consistent with the
provisions of this Article 15, as it may deem necessary or advisable to
provide for the administration of Loans, including, without limitation,
rules governing (i) the date on which Loans shall commence to be made
under the Plan; (ii) the manner and timing of repayments and prepayments;
(iii) the treatment of Loans and repayments, including the determination
of the events of default, in the event of an absence from employment by
reason of leave of absence, lay-off or otherwise; (iv) the content of any
Appropriate Form or Forms, promissory note/loan agreements, Loan
applications and other documentation or written or electronic agreements
or notices required or appropriate in connection with Loans; (v) the
timing of applications and notifications in connection with Loans; and
(vi) any matter as to which discretion is reserved to the Plan
Administrator under this Article 15. Without limitation of the foregoing,
the Plan Administrator may establish such rules and procedures, including
the modification of the terms of any outstanding Loan, which he may deem
to be necessary or desirable in order to comply with any regulations
governing Employee loans under the provisions of the Act, the Code or any
other applicable law, and by requesting a Loan hereunder each borrowing
Participant agrees to execute such modified or superseding documents as
may be required by the Plan Administrator pursuant to such rules or
procedures.
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ARTICLE 16
Rollovers and Transfers
16.1 Rollovers to the Plan
A Participant who is an Eligible Employee who has had distributed to him
his interest in another plan which meets the requirements of Section
401(a) of the Code, hereinafter referred to as the `Other Plan,' may, in
accordance with procedures approved by the Plan Administrator, roll over
all or a portion of such distribution to the Trustee provided the
following conditions are met:
(a) The rollover (i) occurs on or before the 60th day following his
receipt of the distribution from the Other Plan; (ii) the rollover
is a "direct rollover" (within the meaning of Treasury Regulation
Section 1.401(a)(31)-1T, Q&A-3) from the Other Plan; or (iii) if
such distribution had previously been deposited in a conduit
individual retirement account (as defined in Section 408 of the
Code), the rollover occurs on or before the 60th day following his
receipt of such distribution plus earnings thereon from the
individual retirement account; and
(b) The distribution or direct rollover from the Other Plan is an
eligible rollover distribution within the meaning of Section 402(c)
of the Code, or the amount distributed from the individual
retirement account qualifies as a rollover contribution under
Section 408(d)(3) of the Code; and
(c) The amount rolled over does not include any amounts not includible
in gross income in accordance with Section 402(c)(2) of the Code.
The Plan Administrator shall develop such procedures, and may require such
information from a Participant desiring to make such a rollover, as it
deems necessary or desirable to determine that the proposed rollover shall
meet the requirements of this Section 16.1. Rollovers made to this Plan
shall only be allowed on a cash basis (wire transfer or checks). Any such
rollover amount shall be invested as directed by such Eligible Employee's
separate investment election consistent with Article 5.
16.2 Trust-to-Trust Transfers into or from the Plan
At the discretion of the Corporation and pursuant to procedures issued by
the Plan Administrator, the individuals who were participants in another
plan which meets the requirements of Section 401(a) of the Code may have
their entire interests in such plan, including Plan loans, transferred
directly on a trust-to-trust basis into this Plan. Any such transferred
amounts shall be allocated to Accounts of Participants as determined by
the Plan Administrator. The Plan Administrator shall transfer such amounts
to corresponding accounts under this Plan or in such other appropriate
accounts as are
59
necessary to protect any optional forms of benefit which may not be
eliminated without violating Section 411(d)(6) of the Code.
Notwithstanding the foregoing, in no event shall a transfer be permitted
under this paragraph 16.2 to the extent that such transfer will subject
the Plan or any portion of the Plan (including, but not limited to, the
amount of the transfer) to the provisions of Sections 401(a)(11) and 417
of the Code.
At the discretion of the Corporation and pursuant to procedures issued by
the Plan Administrator, the individuals who were participants in another
plan which meets the requirements of Section 401(a) of the Code may have
their entire interests in this Plan, including Plan loans, transferred
directly on a trust-to-trust basis into such other Plan.
At the discretion of the Corporation and pursuant to procedures issued by
the Plan Administrator, any transfers into or out of this Plan pursuant to
this Section may be done on a elective basis by the individuals involved.
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ARTICLE 17
In Event Plan Becomes Top-Heavy
17.1 For purposes of this Article 17, the following terms shall have the
following meanings:
(a) "Determination Date" means, with respect to any Plan Year, the last
Valuation Date of the preceding Plan Year.
(b) "Key Employee" means a Participant or former Participant who is a
"key employee" as defined in Section 416(i) of the Code.
(c) "Non-Key Employee" is any Employee who is not a Key Employee
(including a Participant who is a former Key Employee).
(d) "Permissive Aggregation Group" means, with respect to a given Plan
Year, the Plan and all other plans of the Corporation and Corporate
Group (other than those included in the Required Aggregation Group)
which, when aggregated with the plans in the Required Aggregation
Group, continue to meet the requirements of Sections 401(a)(4) and
410 of the Code.
(e) "Present Value of Accounts" means, as of a given Determination Date,
the sum of the Value of the Participant's Accounts under the Plan as
of such Valuation Date. The determination of the Present Value of
Accounts shall take into consideration distributions made to or on
behalf of any Participant in the Plan Year ending on the
Determination Date and the four preceding Plan Years, but shall not
take into consideration the Value of the Accounts of any Participant
who has not performed any services for an Employer during the
five-year period ending on the Determination Date.
(f) "Required Aggregation Group" means with respect to a given Plan
Year, (A) the Plan, (B) each other plan of the Corporation and
Corporate Group in which a Key Employee is a participant, and (C)
each other plan of the Corporation and Corporate Group which enables
a plan described in (A) and (B) to meet the requirements of Section
401(a)(4) or 410 of the Code. The Required Aggregation Group shall
include any plan which would, but for the fact it terminated, be
included in the terms of this definition.
61
(g) "Top-Heavy" means, with respect to the Plan for a Plan Year:
(1) that the Present Value of Accounts of Key Employees exceeds
60% of the Present Value of Accounts of all Participants; or
(2) the Plan is part of a Required Aggregation Group and such
Required Aggregation Group is a Top-Heavy Group,
unless the Plan or such Top-Heavy Group is itself part of a
Permissive Aggregation Group which is not a Top-Heavy Group.
(h) "Top-Heavy Group" means, with respect to a given Plan Year, a group
of plans of the Corporation which, in the aggregate, meet the
requirements of the definition contained in Section 416(g)(2)(B) of
the Code.
17.2 Notwithstanding any other provision of the Plan to the contrary, the
following provisions of this Section 17.2 shall automatically become
operative and shall supersede any conflicting provisions of the Plan if,
in any Plan Year, the Plan is Top-Heavy.
(a) For any Plan Year in which the Plan is Top-Heavy, the minimum Basic
Contribution during the Plan Year on behalf of a Non-Key Employee
shall be equal to the lesser of (i) 3% of such Non-Key Employee's
"Section 416 compensation;" or (ii) the percentage of "Section 416
compensation" at which Employer contributions are made (or required
to be made) under the Plan on behalf of the Key Employee for whom
such percentage is the highest. For the purposes of this subsection
(a) the term "Section 416 compensation" shall mean the Section 415
compensation (as defined in Section 4.3) for the Plan Year under
consideration, subject to the applicable limitations of Section
401(a)(17) of the Code, and the Employer contributions referred to
in paragraph (ii) shall be deemed to include both Basic
Contributions and Before-Tax Contributions.
(b) In the event of the termination of service of a Participant with all
Affiliated Companies after the completion of not less than three
years of Service, the Value of the Participant's Basic Account shall
be 100% vested.
(c) Solely for purposes of determining if the Plan, or any other plan
included in a Required Aggregation Group of which this Plan is a
part, is Top-Heavy, the accrued benefit of a Participant other than
a Key Employee shall be determined under (i) the method, if any,
that
62
uniformly applies for the accrual purposes under all plans
maintained by the Corporation or any other member of the Corporate
Group, or (ii) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted
under the fractional accrual rate of Section 411(b)(1)(C) of the
Code.
(d) In the event that Congress should provide by statute, or the
Treasury Department should provide by regulation or ruling, that the
limitations provided in this Article 17 are no longer necessary for
the Plan to meet the requirements of Section 401 of the Code or
other applicable law then in effect, such limitations shall become
void and shall no longer apply, without the necessity of further
amendment to the Plan.
IN WITNESS WHEREOF, ALCAN ALUMINUM CORPORATION has caused this amendment
and restatement of this Plan to be executed as of ______________ ______, 2002.
ALCAN ALUMINUM CORPORATION
By___________________________
Attest:
______________________________
63
APPENDIX A
ADOPTION TERMS AND CONDITIONS
Table of Applicability
(In effect January 1, 2000)
The following table shows the Employees to whom the Alcan Aluminum Corporation
Hourly Employees' Savings Plan applies and the respective effective dates of
adoption of the Plan.
Appendix
A-1 Collectively bargained Employees at Sebree, Kentucky (October
28, 1987)
A-2 Collectively bargained Employees at Terre Haute, Indiana
(February 1, 1988)
A-3 [Reserved] [An Appendix of the Plan prior to this restatement
applied to collectively bargained Employees at St. Louis,
Missouri who were covered under the Plan from May 1, 1992 through
March 31, 1995]
A-4 Collectively bargained Employees at Warren, Ohio (May 1, 1992)
A-5 Collectively bargained Employees at Fairmont, West Virginia
(January 1, 1994)
A-6 Collectively bargained Employees at Louisville, Kentucky
(November 1, 1997)
A-7 Collectively bargained Employees at Lockport, Illinois
(October 1, 1999)
64
APPENDIX A-1
ADOPTION TERMS AND CONDITIONS -- Sebree, Kentucky
Alcan Aluminum Corporation Hourly Employees' Savings Plan
Alcan Aluminum Corporation, as Employer under the Alcan Aluminum Corporation
Hourly Employees' Savings Plan ("Plan"), has adopted the Plan in its current
form and as it may be hereinafter amended, with respect to the Employee
classification and on the terms and conditions hereinafter set forth:
1. Date of Adoption:
Effective October 28, 1987
2. Designated Eligible Employee Class:
Collectively bargained Employees at Sebree, Kentucky
3. Basis of Adoption:
Basic mandatory participation pursuant to Section 2.1(b)
- Employer contribution for each Eligible Employee covered by this
Appendix of $0.30 per hour worked per each payroll period on and
after 10/28/87 and before 10/28/88, allocable to the Basic Account
of such Eligible Employee.
- Employer contribution for each Eligible Employee covered by this
Appendix, and allocable to the Basic Account of such Eligible
Employee, of $0.65 per hour worked per each payroll period on and
after 10/28/88, until the expiration of the current collective
bargaining agreement, and thereafter of such greater or lesser
amount as may be required under any future collective bargaining
agreement.
Voluntary participation pursuant to Section 2.1(c)
4. Participation under Section 2.1(b) shall commence on the later of October 28,
1987 or an Eligible Employee's date of employment.
65
APPENDIX A-2
ADOPTION TERMS AND CONDITIONS -- Terre Haute, Indiana
Alcan Aluminum Corporation Hourly Employees' Savings Plan
Alcan Aluminum Corporation, as Employer under the Alcan Aluminum Corporation
Hourly Employees' Savings Plan ("Plan"), has adopted the Plan in its current
form and as it may be hereinafter amended, with respect to the Employee
classification and on the terms and condition hereinafter set forth.
1. Date of Adoption:
Effective February 1, 1988
2. Designated Eligible Employee Class:
Collectively bargained Employees at Terre Haute, Indiana
3. Basis of Adoption:
Basic mandatory participation pursuant to Section 2.1(b).
- A one-time, $500 lump sum Employer contribution for each Eligible
Employee covered by this Appendix who was active as of 12/1/89,
allocable to the Basic Account of such Eligible Employee. (This
amount was previously contributed to the Plan.)
- A one-time, $3,500 lump sum Employer contribution for each Eligible
Employee covered by this Appendix who was active as of 2/1/96,
allocable to the Basic Account of such Eligible Employee. (This
amount was previously contributed to the Plan.)
Voluntary participation pursuant to Section 2.1(c).
66
APPENDIX A-3
RESERVED -- St. Louis, Missouri
67
APPENDIX A-4
ADOPTION TERMS AND CONDITIONS -- Warren, Ohio
Alcan Aluminum Corporation Hourly Employees' Savings Plan
Alcan Aluminum Corporation, as Employer under the Alcan Aluminum Corporation
Hourly Employees' Savings Plan ("Plan"), has adopted the Plan in its current
form and as it may be hereinafter amended, with respect to the Employee
classification and on the terms and conditions hereinafter set forth:
1. Date of Adoption:
Effective May 1, 1992
2. Designated Eligible Employee Class:
Collectively bargained Employees at Warren, Ohio
3. Basis of Adoption:
Basic mandatory participation pursuant to Section 2.1(b)
- A one-time, $200 lump sum Employer contribution for each Eligible
Employee covered by this Appendix who was active as of 5/1/92,
allocable to the Basic Account of such Eligible Employee. (This
amount was previously contributed to the Plan.)
Voluntary participation pursuant to Section 2.1(c)
68
APPENDIX A-5
ADOPTION TERMS AND CONDITIONS -- Fairmont, West Virginia
Alcan Aluminum Corporation Hourly Employees' Savings Plan
Alcan Aluminum Corporation, as Employer under the Alcan Aluminum Corporation
Hourly Employees' Savings Plan ("Plan"), has adopted the Plan in its current
form and as it may be hereinafter amended, with respect to the Employee
classification and on the terms and conditions hereinafter set forth:
1. Date of Adoption:
Effective January 1, 1994
2. Designated Eligible Employee Class:
Collectively bargained Employees at Fairmont, West Virginia
3. Basis of Adoption:
Basic mandatory participation pursuant to Section 2.1(b).
- A one-time, $500 lump sum Employer contribution for each Eligible
Employee covered by this Appendix who was active as of 1/1/94,
allocable to the Basic Account of such Eligible Employee. (This
amount was previously contributed to the Plan.)
Voluntary participation pursuant to Section 2.1(c)
69
APPENDIX A-6
ADOPTION TERMS AND CONDITIONS -- Louisville, Kentucky
Alcan Aluminum Corporation Hourly Employees' Savings Plan
Alcan Aluminum Corporation, as Employer under the Alcan Aluminum Corporation
Hourly Employees' Savings Plan ("Plan"), has adopted the Plan in its current
form and as it may be hereinafter amended, with respect to the Employee
classification and on the terms and conditions hereinafter set forth:
1. Date of Adoption:
Effective November 1, 1997
2. Designated Eligible Employee Class:
Collectively bargained Employees at Louisville, Kentucky
3. Basis of Adoption:
Basic mandatory participation pursuant to Section 2.1(b).
- A one-time, $100 lump sum Employer contribution for each Eligible
Employee covered by this Appendix who is active as of 11/1/97,
allocable to the Basic Account of such Eligible Employee.
Voluntary participation pursuant to Section 2.1(c).
70
APPENDIX A-7
ADOPTION TERMS AND CONDITIONS -- Lockport, Illinois
Alcan Aluminum Corporation Hourly Employees' Savings Plan
Toyal America Inc., as a participating company under the Alcan Aluminum
Corporation Hourly Employees' Savings Plan ("Plan"), has adopted the Plan in its
current form and as it may be hereinafter amended, with respect to the Employee
classification and on the terms and conditions hereinafter set forth:
1. Date of Adoption:
Effective October 1, 1999
2. Designated Eligible Employee Class:
Collectively bargained Employees at Lockport, Illinois
3. Basis of Adoption:
Basic mandatory participation pursuant to Section 2.1(b)
- Effective January 1, 2000, an Employer contribution equal to 50% of
any Participant contributions (After-tax and/or Before-tax
Contributions) not exceeding 4% of Compensation, allocable to the
Basic Account of such contributing Employee
- A one-time $500 lump sum Employer contribution for each Eligible
Employee covered by this Appendix who was active as of November 20,
1999, allocable to the Basic Account of such Eligible Employee
- The Basic Account will be 0% vested until the Participant completes
two years of Service, at which time the Basic Account will be 100%
vested
Voluntary participation pursuant to Section 2.1(c)
71
APPENDIX B
TEMPORARY PROVISIONS AND RESTRICTIONS WITH RESPECT TO CERTAIN TRANSACTIONS
Notwithstanding anything in the Plan to the contrary (including the general
effective date of this restatement), the following provisions shall apply during
the period from July 1, 1997 through approximately July 31, 1997 (hereinafter
referred to as "the Special Election Period"):
(1) a change in Investment Fund elections pursuant to Section 5.4 of the Plan,
and Investment Fund reallocations pursuant to Section 5.5 of the Plan
shall be permitted for a Participant at anytime during the Special
Election Period regardless of the timing of any changes in Investment Fund
elections or reallocations made prior to the Special Election Period;
(2) a withdrawal pursuant to Article 8 of the Plan shall be permitted by a
Participant during the Special Election Period, regardless of the timing
of any withdrawal of the Participant prior to the Special Election Period;
(3) a change in a Participant's After-Tax Contributions pursuant to 3.1 or
Before-Tax Contributions pursuant to Section 3.2 of the Plan shall be
permitted anytime during the Special Election Period, regardless of the
timing of any After-Tax Contribution or Before-Tax Contribution changes
made prior to the Special Election Period; and
(4) a request from a Participant for a new loan will be accepted and processed
during the Special Election Period despite the existence of a current
outstanding Loan to such Participant, as long as such Participant's
existing Loan has been paid in full or is anticipated to be paid in full
by July 31, 1997; however, repayments on any existing loans will be
required to be made without interruption during the Special Election
Period.
The Committee may provide additional rules with respect to the exercise of any
of the above options, make additional options available, and change the length
of the Special Election Period, in any uniform and nondiscriminatory manner that
it determines essential or appropriate to the operation of the Plan.
Notwithstanding anything in the Plan to the contrary (including the general
effective date of this restatement), the following restrictions shall apply
during the period from August 1, 1997 through approximately October 31, 1997
(hereinafter referred to as "the Freeze"):
(1) changes in Investment Fund elections pursuant to Section 5.4 of the Plan,
and Investment Fund reallocations pursuant to Section 5.5 of the Plan
shall not be permitted during the Freeze;
72
(2) withdrawals pursuant to Article 8 of the Plan shall not be permitted
during the Freeze;
(3) eligible rollover distributions pursuant to Section 8.4 of the Plan, and
distributions pursuant to Article 9 of the Plan shall not occur during the
Freeze, except as may be required by applicable law; and
(4) requests for loans will not be accepted or processed during the Freeze,
although repayments on existing loans will be required to be made without
interruption.
The Committee may make additional restrictions, and may change the length of the
Freeze, in any uniform and nondiscriminatory manner that it determines essential
or appropriate to the operation of the Plan.
73
AMENDMENT NO. 1
TO
ALCAN ALUMINUM CORPORATION
HOURLY EMPLOYEES' SAVINGS PLAN
This Amendment No. 1 is executed as of the date set forth below, by
ALCAN ALUMINUM CORPORATION, (hereinafter called the "Company");
WITNESSETH:
WHEREAS, the Company established and maintains the Alcan Aluminum
Corporation Hourly Employees' Savings Plan, effective October 28, 1987,
(hereinafter referred to as the "Plan") for the benefit of eligible employees;
WHEREAS, generally effective September 1, 1997, the Company amended
and restated the Plan, and thereafter again amended and restated the Plan,
generally effective January 1, 2000, in order to conform the Plan with the
Uniformed Services Employment and Reemployment Rights Act of 1994, the Small
Business Job Protection Act of 1996 and the Taxpayer Relief Act of 1997 and to
make certain other desirable changes;
WHEREAS, pursuant to Section 13.1 of the Plan, the Company reserved
the right to make further amendments thereto; and
WHEREAS, the Company desires to amend the Plan in order to permit
catch-up contributions to be made to the Plan by Participants who have attained
age 50, to bring the Plan into compliance with the Economic Growth and Tax
Relief Reconciliation Act of 2001, and make other desirable changes;
NOW, THEREFORE, pursuant to Section 13.1 of the Plan, the Company
hereby amends the Plan, as follows, effective as set forth below:
(1) Effective July 1, 2002, Section 1.11 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
1.11 to read as follows:
"1.11 `Before-Tax Contributions' means the contributions made by the Employer
pursuant to an election by a Participant to reduce any Compensation and/or
Special Compensation otherwise currently payable to the Participant by an
equal amount in accordance with the provisions of Section 3.2 and, if
applicable. 3.10."
(2) Effective July 1, 2002, Article 1 of the Plan is hereby amended by the
addition of new Sections 1.13A and 1.13B to read as follows:
"1.13A `Catch-Up Contributions' means the contributions made by the Employer in
accordance with the provisions of Section 3.10 pursuant to an election by
a Participant to reduce cash compensation otherwise currently payable to
the Participant by an equal amount.
1.13B `Catch-Up Eligible Participant' means, for any Plan Year, a Participant
who is eligible to make Before-Tax Contributions under Section 3.2 and
who has attained age 50 or is expected to attain age 50 before the close
of such Plan Year."
(3) Effective January 1, 2002, Section 1.15 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
1.15 to read as follows:
"1.15 `Compensation' means direct compensation of a continuing nature paid to an
Eligible Employee during any payroll period by an Employer or Employers.
Compensation includes, but is not limited to, regular base pay, incentive
program pay, overtime and other premium pay, lump sums which are paid
after January 1, 1989 in lieu of salary or wage increases to each member
of a defined group in a way which does not discriminate in favor of
highly paid Employees, and amounts contributed by compensation reduction
and deferral to the Plan and to any plan under Section 125 or 132(f)(4)
of the Code. Compensation excludes, but the exclusion is not limited to,
pay on the inactive payroll, Special Compensation as defined herein, gain
sharing or similar payments (whether or not designated as Special
Compensation), and vacation pay made in a lump sum because of
termination.
The amount of Compensation which, on an aggregate basis together with
Special Compensation, is taken into account hereunder shall not be in
excess of: (a) $170,000 for Plan Years beginning January 1, 2000; and (b)
$200,000 for Plan Years beginning on or after January 1, 2002, or such
higher dollar limit as may be in effect for any other Plan Year in
accordance with the applicable provisions of Section 401(a)(17) of the
Code. For any period shorter than a full Plan Year, the applicable
limitation set forth in the immediately preceding sentence shall be
multiplied by a fraction, the numerator of which is the number of months
in such period, and the denominator of which is twelve."
2
(4) Effective July 1, 2002, Section 2.4 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
2.4 to read as follows:
"2.4 Requirements of Plan Enrollment
The Eligible Employee who is eligible to participate in the Plan pursuant
to the terms of an Appendix, in complying with Sections 2.1 and 2.3, shall
(i) authorize the deduction by his Employer from his Compensation for
After-Tax Contributions pursuant to Section 3.1 and/or the reduction in
his Compensation and/or Special Compensation for Before-Tax Contributions
pursuant to Section 3.2 and, if applicable, Section 3.10 (any such
authorization or authorizations shall be deemed to be continuing
authorizations until changed by notice to the Plan Administrator on the
Appropriate Form or in such manner as the Plan Administrator may
prescribe), (ii) agree to the terms of the Plan, (iii) specify marital
status and agree to keep the Plan Administrator informed of any change in
marital status, (iv) make an investment election in accordance with
Section 5.2 and (v) indicate, to the extent and in such manner as the Plan
Administrator may from time to time direct, whether he participates or has
participated in any plan or plans (other than the Plan) permitting
employee tax-deferred contributions and state the total amount of any such
contributions made by him for the calendar year in which he complies with
Section 2.3. In addition to any other limitation imposed pursuant to
Sections 402(g) or 414(v) of the Code, the Plan Administrator may limit
the amount of the Before-Tax Contributions of any Participant who has made
tax-deferred contributions to any plan (other than the Plan) in any
calendar year for which the Participant elects to make Before-Tax
Contributions to the Plan."
(5) Effective July 1, 2002, Sections 3.1 and 3.2 of the Plan are hereby amended
by the deletion of such Sections in their entirety and the substitution of new
Sections 3.1 and 3.2 to read as follows:
"3.1 After-Tax Contributions
Subject to the limitations of Section 4.3, each Participant may elect to
contribute to the Plan, on an after-tax basis, by means of payroll
deduction from his Compensation, an integral percentage of up to,
effective July 1, 2002, 50% (previously, 30%) of such Compensation, such
payroll deductions to commence to the extent practicable with the paydate
which coincides with or next follows the Participant's Entry Date.
Participant contributions to the Plan pursuant to this Section 3.1 are
After-Tax Contributions. If Before-Tax Contributions pursuant to Section
3.2 are made with respect to the Participant, then the rate of After-Tax
Contributions under this Section 3.1 shall not exceed, effective July 1,
2002, 50% (previously 30%) minus the rate of Before-Tax Contributions with
respect to the Participant for the same payroll period.
After-Tax Contributions pursuant to this Section 3.1 shall be transferred
to the Trustee as
3
soon as administratively practicable, but in all events within 15 days
after the end of the month in which such contributions are withheld from
the Participant's Compensation.
3.2 Before-Tax Contribution
Subject to the limits of Sections 3.6, 4.3 and this Section, a Participant
may elect to have an integral percentage of up to, effective July 1, 2002,
50% (previously, 30%) of the Compensation otherwise payable to him by the
Employer after the effective date of his election constitute a Before-Tax
Contribution hereunder and have the Employer or collective bargaining
agent reduce his Compensation by the amount of such Before-Tax
Contribution and transfer such Before-Tax Contribution instead to the
Trustee.
In addition, but also subject to such limits, a Participant may elect to
have any Special Compensation otherwise payable to him reduced by 25%,
50%, 75% or 100% and have the Employer make a contribution to the Trustee
in an amount equal to such Before-Tax Contribution. However, in the event
that the portion of the Special Compensation which the Participant has
elected to receive in cash is not sufficient to pay any federal, state,
local or other payroll or withholding taxes due or payable as a result of
the entire Special Compensation payment, the Employer or Plan
Administrator shall reduce the amount contributed to the Trustee on behalf
of the Participant by the amount necessary to fully pay any such taxes,
and the Participant shall be deemed to have elected to have only such net
amount contributed as a Before-Tax Contribution hereunder.
Payroll deferrals shall commence to the extent practicable with the
paydate which coincides with or next follows the Participant's Entry Date.
The deposit of Before-Tax Contributions shall be made no later than the
15th business day of the calendar month next following the month in which
the cash Compensation or Special Compensation with respect to which such
reduction is effective would have been paid.
Before-Tax Contributions shall be such integral percentage of the
Participant's Compensation or Special Compensation as the Participant
shall have designed but not to exceed the maximum percentage applicable
for the Plan Year as determined by the Plan Administrator, separately for
HCEs and all other Participants; provided, however, that in no event shall
the amount of a Participant's Before-Tax Contributions exceed: (a) $10,500
for Plan Years beginning on January 1, 2000; and (b) $11,000 for Plan
Years beginning on or after January 1, 2002, or such higher dollar limit
as may be in effect for any other Plan Year in accordance with the
applicable provisions of the Code, including Section 402(g) of the Code
and, effective July 1, 2002, Section 414(v) of the Code. Effective July 1,
2002, in addition to any Before-Tax Contributions permitted under this
section, certain Participants shall also be permitted to make Catch-Up
Contributions under Section 3.10. The rules, limitations and procedures
applicable to such Catch-Up Contributions under Section 3.10 shall
supercede any contrary provisions of this Section 3.2 or the other
sections of this Article 3 or Article 4."
4
(6) Effective January 1, 2002, Section 3.4 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
3.4 to read as follows:
"3.4 Change in Contribution Rate
A Participant may increase or decrease the amount of his After-Tax
Contributions pursuant to Section 3.1 or the amount of Before-Tax
Contributions pursuant to Section 3.2. To the extent practicable, any such
change shall be effective as of the first paydate which next follows any
Entry Date by the Participant giving notice to the Plan Administrator in
such manner as the Plan Administrator shall prescribe prior to such Entry
Date. Notwithstanding the foregoing provisions of this Section 3.4, in the
event that the Before-Tax Contributions of a Participant equal: (a)
$10,500 for Plan Years beginning on January 1, 2000; and (b) $11,000 for
Plan Years beginning on or after January 1, 2002, or such higher dollar
limit as may be in effect with respect to any other Plan Year in
accordance with the applicable provisions of the Code, including Section
402(g) of the Code and, effective July 1, 2002, Section 414(v) of the
Code, such Participant shall be deemed to have elected to commence to make
After-Tax Contributions pursuant to Section 3.1 at the percentage rate
then in effect with respect to the Participant's Before-Tax Contributions
immediately prior to such deemed election, except as otherwise provided by
procedures established by the Plan Administrator. When any modification in
the manner of contribution becomes effective under a deemed election under
the preceding sentence any affected elections previously in effect with
respect to the Participant shall also be deemed to have been appropriately
adjusted to conform to the deemed election contemplated under the
preceding sentence. Any such deemed election (whether in the manner of
contribution or otherwise) shall remain in effect with respect to the
Participant until the January 1 immediately following the effective date
of the deemed election. Effective on such January 1, the Participant will
have to make another election to reinstate the manner of contribution in
effect immediately prior to any such deemed election or the Plan
Administrator may reinstate the election in force before the dollar limit
was reached, under such procedures as the Plan Administrator shall deem
appropriate."
(7) Effective January 1, 2002, except as otherwise indicated, Section 3.6 of the
Plan is hereby amended by the deletion of subsection(c) in its entirety and the
substitution of a new Section 3.6(c) to read as follows:
"(c) For purposes of this Section 3.6, the term `Deferral Percentage'
shall mean, for any Eligible Employee for any Plan Year, the ratio
of:
(i) the aggregate of the Before-Tax Contributions which, in
accordance with the rules set forth in Treasury Regulation
Section 1.401(k)-1(b)(4), are taken into account with respect
to such Plan Year (and excluding, effective July 1, 2002, any
Catch-Up Contributions made pursuant to Section 3.10
5
hereof), to
(ii) such Eligible Employee's `Section 414(s) compensation' for
such Plan Year. For this purpose, the term "Section 414(s)
compensation" shall mean W-2 compensation as permitted and
described in Treasury Regulation Sections 1.414(s)-1(c)(2) and
1.415-2(d)(11)(i), and shall also include all amounts
currently not included in the Eligible Employee's gross income
by reason of Sections 125, 132(f)(4) and 402(e)(3) of the
Code. In the case of an Eligible Employee who begins, resumes,
or ceases to be eligible to elect to have Before-Tax
Contributions made on his behalf during a Plan Year, the
amount of Section 414(s) compensation included in the Actual
Deferral Percentage test is the amount of Section 414(s)
compensation received by the Eligible Employee during the
entire Plan Year. In no case shall the Section 414(s)
compensation for any Eligible Employee for any Plan Year
exceed: (A) $170,000 for Plan Years beginning on January 1,
2000; and (B) $200,000 for Plan Years beginning on or after
January 1, 2002, or such higher dollar limit as may be in
effect with respect to any other Plan Year in accordance with
the applicable provisions of Section 401(a)(17) of the Code."
(8) Effective July 1, 2002, Section 3.9 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
3.9 to read as follows:
"3.9 Make-Up Contributions after Return from Military Service
In the event that a Participant returns to employment with an Employer
immediately following a leave of absence due to Military Service and had
failed to make after-tax contributions and/or before-tax contributions
while on such leave of absence, then to the extent required by Section
414(u) of the Code, the Participant shall be permitted to elect to make
make-up contributions relating to such period of Military Service. The
period during which such Participant may make such make-up contributions
shall commence on his date of rehire and shall continue for a period which
is the lesser of five years following such date of rehire or three times
the Participant's period of Military Service. Such deferrals shall not be
required to be taken into account for purposes of Section 3.6 in the year
that they are made or the year to which they relate."
(9) Effective July 1, 2002, Article 3 of the Plan is hereby amended by the
addition of a new Section 3.10 to read as follows:
"3.10 Catch-Up Contributions After Attainment of Age 50.
Effective July 1, 2002, a Catch-Up Eligible Participant may, in accordance
with and subject to the limitations of this Section 3.10, Section 414(v)
of the Code and the procedures adopted by the Plan Administrator, be
eligible to make Catch-Up
6
Contributions. Such Catch-Up Contributions shall constitute Before-Tax
Contributions and shall be made as follows:
(a) A Catch-Up Eligible Participant shall be subject to an
"Adjusted Dollar Limit" for Before-Tax Contributions, in lieu
of the dollar limit otherwise applicable pursuant to the last
paragraph of Section 3.2 and Section 402(g) of the Code (the
"Regular 402(g) Limit"). The "Adjusted Dollar Limit" for any
year shall be the sum of the Regular 402(g) Limit for such
year plus the "Applicable Dollar Amount" for such year under
Section 414(v)(2)(B)(i) of the Code. The "Applicable Dollar
Amount" for the Plan Year beginning on January 1, 2002, is
$1,000 and such amount is scheduled to be increased in $1,000
increments through the 2006 Plan Year and may be increased for
future Plan Years in accordance with the applicable provisions
of the Code. Any amount contributed by a Participant as a
Before-Tax Contribution for a Plan Year which is in excess of
the Regular 402(g) Limit for such Plan Year, shall, to the
extent of the Applicable Dollar Amount, automatically
constitute a Catch-Up Contribution hereunder. Basic
Contributions shall be made with respect to Catch-Up
Contributions under this subsection 3.10(a) to the same extent
as Basic Contributions would otherwise be made pursuant to
Section 4.1 with respect to other Before-Tax Contributions
under Section 3.2.
(b) Any Catch-Up Eligible Participant whose Before-Tax
Contributions for a Plan Year do not exceed the Regular 402(g)
Limit, but whose After-Tax Contributions and Before-Tax
Contributions reach the percentage limit of such Participant's
Compensation set forth in Sections 3.1 and 3.2 (the
"Percentage Limit") or whose Annual Additions reach the limit
described in Section 4.2 (the "415 Limit"), may elect, in such
manner as the Plan Administrator shall prescribe, to make
further Before-Tax Contributions in excess of such Percentage
Limit and 415 Limit. Such further Before-Tax Contributions
shall constitute Catch-Up Contributions hereunder. No Basic
Contributions shall be made with respect to Catch-Up
Contributions made pursuant to this subsection 3.10(b).
(c) A Participant's Catch-Up Contributions for a Plan Year shall
not exceed the Participant's Compensation for such Plan Year,
reduced by any other elective deferrals of the Participant for
the Plan Year. In addition, a Participant's Catch-Up
Contributions for a Plan Year shall not exceed the Applicable
Dollar Amount for such Plan Year.
(d) Catch-Up Contributions made in accordance this Section 3.10
shall constitute Before-Tax Contributions and, except as
provided hereunder or by applicable law, shall be subject to
the provisions of this Plan generally applicable with respect
to Before-Tax Contributions. Without limiting the foregoing,
the deposit of any Catch-Up Contributions shall be made no
later than the 15th business day of the calendar month next
following the
7
month in which the cash Compensation with respect to which
such reduction is effective would have been paid, Catch-Up
Contributions shall be credited to the Participant's
Before-Tax Account and Catch-Up Contributions shall be subject
to the same provisions related to vesting, investment and
distribution as other Before-Tax Contributions credited to the
Participant's Before-Tax Account.
(e) Notwithstanding anything in this Plan to the contrary,
Catch-Up Contributions made in accordance with this Section
3.10 shall not be taken into account for purposes of the
provisions of this Plan, implementing the required limitations
of Sections 402(g) and 415 of the Code and this Plan shall not
be treated as failing to satisfy the provisions of the Plan
implementing the requirements of Section 401(k)(3),
401(k)(11), 401(k)(12), 410(b) or 416 of the Code, as
applicable, by reason of the making of such Catch-Up
Contributions."
(10) Effective January 1, 2002, Section 4.3 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
4.3 to read as follows:
"4.3 Limitations
Notwithstanding any provision of the Plan to the contrary, in no event in
any calendar year shall the `Annual Addition' (as hereinafter defined) on
behalf of any Participant exceed:
(a) for calendar years beginning before January 1, 2002, the
lesser of:
(i) 25% of the Participant's `Section 415 compensation' (as
hereinafter defined) for the calendar year; or
(ii) $35,000 or such other (generally lesser) amount as
constituted the limit under Section 415(c)(1)(A) of the
Code, as adjusted under Section 415(d) of the Code; and
(b) for calendar years beginning on or after January 1, 2002, the
lesser of:
(i) 100% of the Participant's `Section 415 compensation' (as
hereinafter defined) for the calendar year; or
(ii) $40,000 or such greater amount as constitutes the limit
under Section 415(c)(1)(A) of the Code, as adjusted
under Section 415(d) of the Code
The term `Annual Addition' means the sum for any calendar year of (a) any
Employer contributions (including Before-Tax Contributions other than
Catch-Up Contributions) to
8
the Plan and to all other defined contribution plans (combining, for this
purpose, all defined contribution plans of the Corporate Group, as
modified by Section 415(h) of the Code), (b) forfeitures under all such
plans, (c) all after-tax contributions (including After-Tax Contributions)
under such plans, and (d) amounts described in Sections 415(l)(1) and
419A(d)(2) of the Code for the year.
For purposes of this Section 4.3, the term `Section 415 compensation'
means the Participant's W-2 compensation as permitted and described in
Treasury Regulation Section 1.415-2(d)(11)(i), and shall also include, for
Plan Years beginning on and after January 1, 1998, all amounts currently
not included in the Eligible Employee's gross income by reason of Sections
125, 132(f) and 402(e)(3) of the Code.
If a Participant is also participating in another tax-qualified defined
contribution plan maintained by any member of the Corporate Group (as
modified by Section 415(h) of the Code), the otherwise applicable
limitation on Annual Additions under this Plan shall be reduced by the
amount of annual additions (within the meaning of Section 415(c)(2) of the
Code) under any such other defined contribution plan.
If the limitations applicable to any Participant in accordance with this
Section 4.3 would be exceeded, the contributions made by or on behalf of a
Participant under the Plan shall be reduced in the following order, but
only to the extent necessary to meet the limitations: (i) After-Tax
Contributions, (ii) Before-Tax Contributions (other than Catch-Up
Contributions), (iii) Basic Contributions, and (iv) Qualified
Contributions made pursuant to Section 4.4.
In the event that, notwithstanding the foregoing provisions of this
Section 4.3, the limitations with respect to Annual Additions prescribed
hereunder are exceeded with respect to any Participant and such excess
arises as a consequence of an error in estimating Compensation, the
allocation of forfeitures, if any, or a reasonable error in determining
the amount of Before-Tax Contributions:
(i) the After-Tax Contribution and Before-Tax Contribution
portions of such excess shall be returned to the Participant,
along with any income attributable thereto; and
(ii) the Basic Contribution portion shall be held in a suspense
account and, if such Participant remains a Participant, shall
be used to reduce Basic Contributions for such Participant for
the succeeding Plan Years; provided, however, that if such
Participant ceases to be an active Participant in the Plan,
the suspense account shall be used to reduce Basic
Contributions for all Participants in the Plan Year in which
he ceases to be a Participant, and all succeeding years, as
necessary."
(11) Effective July 1, 2002, Section 4.6 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
4.6 to read as follows:
9
"4.6 Employer Contributions upon Return from Military Service
In the event that a Participant returns to employment with an Employer
immediately following a leave of absence due to Military Service, any
Employer contribution, or any other matching or profit sharing
contribution, which would have been made on behalf of such Participant,
had he not been on such leave of absence, shall be made on his behalf and
allocated to his Basic Account or other account, as applicable, to the
extent required by Section 414(u) of the Code. Any such allocation shall
be calculated based on any make-up contributions made under Section 3.9
using estimated Compensation during such period of Military Service, based
on his rate of Compensation at the time such leave of absence commenced
and based on the matching or other contribution formula in effect for the
Plan Year to which such make-up contribution relates, as applicable. Such
Employer contribution, or any other employer matching or profit sharing
contribution, shall not be required to be taken into account under Section
4.3 in the Plan Year in which such contribution is made or to which such
contribution relates."
(12) Effective January 1, 2002, Section 8.4 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
8.4 to read as follows:
"8.4 Certain Eligible Rollover Distributions
Notwithstanding anything in the Plan to the contrary that would otherwise
limit a distributee's election under this Section 8.4, a `distributee' (as
hereinafter defined) may elect, at the time and in the manner prescribed
by the Plan Administrator, to have any portion of an `eligible rollover
distribution' (as hereinafter defined) paid directly to an `eligible
retirement plan' specified by the distributee in a `direct rollover.'
For purposes of this Section 8.4, the following terms shall have the
following meanings:
(a) `distributee' means an Eligible Employee or former Eligible
Employee. In addition, the surviving spouse of an Eligible Employee
or former Eligible Employee or a spouse or former spouse of an
Eligible Employee or former Eligible Employee who is the alternate
payee under a Qualified Domestic Relations Order, are distributees
with regard to the interest of the spouse or the former spouse;
(b) `eligible rollover distribution' means any distribution of all or
any portion of the balance to the credit of the distributee under
the Plan, except that an eligible rollover distribution shall not
include:
(i) any distribution from the Plan that is one of a series of
substantially equal periodic payments (made not less
frequently than annually) for the life (or life expectancy) of
the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's
designated Beneficiary, or for a specified period of ten years
or more;
10
(ii) any distribution from the Plan to the extent such distribution
is required under Section 401(a)(9) of the Code; or
(iii) the portion of any distribution from the Plan that is not
includible in gross income for federal income tax purposes
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities), except that
for distributions made on or after January 1, 2002, After-Tax
Contributions are included in a distributee's eligible
rollover distribution;
(c) `eligible retirement plan' means:
(i) an individual retirement account described in Section 408(a)
of the Code;
(ii) an individual retirement annuity described in Section 408(b)
of the Code;
(iii) an annuity plan described in Section 403(a) of the Code;
(iv) a qualified trust described in Section 401(a) of the Code;
(v) for distributions made on or after January 1, 2002, an
eligible deferred compensation plan described in Section
457(b) of the Code which is maintained by an eligible employer
described in Section 457(e)(1)(A) of the Code;
(vi) for distributions made on or after January 1, 2002, an annuity
contract described in Section 403(b) of the Code; and
(vii) any such other plan, contract or other arrangement as may be
specified by statute or regulations in accordance with Section
401(a)(31) of the Code;
in any case, that accepts the distributee's eligible rollover
distribution.
Notwithstanding the foregoing, for Plan Years beginning prior to
January 1, 2002, with respect to an eligible rollover distribution
to a surviving spouse of an Eligible Employee or former Eligible
Employee, an eligible retirement plan means only an individual
retirement account or an individual retirement annuity; and
(d) `direct rollover' means a payment by the Plan to the eligible
retirement plan specified by the distributee."
(13) Effective January 1, 2002, Section 9.1 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
9.1 to read as follows:
11
"9.1 Distributions on Termination of Employment
When a Participant's employment with all Affiliated Companies is
terminated, the Value of his vested interest in his Accounts shall be
distributed to him or, if distribution is being made by reason of death,
to his Beneficiary. For purposes of this Section 9.1, and subject to the
provisions of Section 13.6, a termination of employment occurs upon a
quit, discharge, termination due to a permanent shutdown or sale of a
plant (except for situations involving a spinoff to another qualified
plan), an absence that continues after the period of a leave of absence
granted by an Employer expires, or a break in seniority under the terms of
any applicable collective bargaining agreement, whichever occurs first.
Any amount distributed to a Participant or a Participant's Beneficiary
pursuant to the preceding sentence shall be reduced to the extent the
Participant's Accounts are subject to a pledge under Section 15.5. All
amounts distributable pursuant to this Article 9 shall be paid as soon as
practicable on or after the Valuation Date as of which payment is to be
made (and except as provided in Sections 9.2 and 9.3, in all events within
60 days after the end of the later of the Plan Year in which the
Participant attains age 65 or terminates employment with all Affiliated
Companies). The Participant's Accounts shall be retained and administered
under the Plan until the date of distribution.
Effective January 1, 2002 (except with respect to any individuals who
entered into severance agreements with an Employer prior to that date) for
purposes of this Plan, including without limitation this Section and
Sections 1.44 and 8.1, `discharge' shall include any cessation of active
service by an Employee which is expected to be permanent and in connection
with which the individual receives severance payments, payments from the
inactive payroll or any other similar payments, and such a discharge shall
constitute a `termination of employment,' a `termination of service' (or
`Service'), `ceasing to be employed' and any other similarly described
event."
(14) Effective July 1, 2002, Section 16.1 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
16.1 to read as follows:
"16.1 Rollovers to the Plan
A Participant who is an Eligible Employee who has had distributed to him
his interest in an eligible retirement plan (which, effective July 1,
2002, is defined for purposes of this Section 16.1 as it is defined in
Section 8.4(c) effective January 1, 2002) may, in accordance with
procedures approved by the Plan Administrator, roll over all or a portion
of such distribution to the Trustee provided the following conditions are
met:
(a) the rollover (i) occurs on or before the 60th day following his
receipt of the distribution from the eligible retirement plan; or
(ii) the rollover is a "direct rollover" (within the meaning of
Treasury Regulation Section 1.401(a)(31)-1T, Q&A-3) from the
eligible retirement plan;
(b) the distribution or direct rollover from the eligible retirement
plan is an eligible rollover distribution within the meaning of
Section 402(c) of the Code, or
12
qualifies as a rollover contribution under Section 408(d)(3) of the
Code;
(c) the amount rolled over does not include any amounts not otherwise
includible in gross income in accordance with Section 402(c)(2) of
the Code, except that, effective July 1, 2002, an amount transferred
in a direct rollover from a qualified trust described in Section
401(a) of the Code may, to the extent permitted by the Code, include
amounts not otherwise includible in gross income, which amounts
shall, in such manner as is determined by the Plan Administrator, be
separately accounted for hereunder (including without limitation,
crediting such amounts to an After-Tax Account rather than a
Rollover Account, if the Plan Administrator so determines).
The Plan Administrator shall develop such procedures, and may require such
information from a Participant desiring to make such a rollover, as it
deems necessary or desirable to determine that the proposed rollover shall
meet the requirements of this Section 16.1. Rollovers made to this Plan
shall only be allowed on a cash basis (wire transfer or checks). Any such
rollover amount shall be invested as directed by such Eligible Employee's
separate investment election consistent with Article 5."
(15) Effective January 1, 2002, subsection (e) of Section 17.1 of the Plan is
hereby amended by the deletion of such subsection in its entirety and the
substitution of a new Section 17.1(e) to read as follows:
"(e) `Present Value of Accounts' means, as of a given Determination Date,
the sum of the Value of the Participant's Accounts under the Plan as
of such Valuation Date. The determination of the Present Value of
Accounts shall take into consideration distributions made to or on
behalf of any Participant in the Plan Year ending on the
Determination Date and, for distributions made for reasons other
than separation from service, disability or death, the four
preceding Plan Years, but shall not take into consideration the
Value of the Accounts of any Participant who has not performed any
services for an Employer during the five-year period ending on the
Determination Date."
(16) Effective January 1, 2002, subsection (a) of Section 17.2 of the Plan is
hereby amended by the deletion of such subsection in its entirety and the
substitution of a new Section 17.2(a) to read as follows:
"(a) For any Plan Year in which the Plan is Top-Heavy, the minimum Basic
contribution during the Plan Year on behalf of a Non-Key Employee
shall be equal to the lesser of (i) 3% of such Non-Key Employee's
`Section 416 compensation;' or (ii) the percentage of `Section 416
compensation' at which Employer contributions are made (or required
to be made) under the Plan on
13
behalf of the Key Employee for whom such percentage is the highest.
For the purposes of this subsection (a) the term `Section 416
compensation' shall mean the Section 415 compensation (as defined in
Section 4.3) for the Plan Year under consideration, subject to the
applicable limitations of Section 401(a)(17) of the Code, and the
Employer contributions referred to in paragraph (ii) shall be deemed
to include both Basic Contributions and Before-Tax Contributions.
For Plan Years commencing on or after January 1, 2002, matching
contributions made by the Employer, including Basic Contributions
made in accordance with Section 4.1(b), shall be taken into account
for purposes of determining whether Employer contributions for a
Non-Key Employee reach the percentage level required under the first
sentence of this subsection 17.2(a)."
IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to
be executed by its officers thereto duly authorized this _____ day of May, 2002.
ALCAN ALUMINUM CORPORATION
("Company")
By___________________________
And__________________________
14
AMENDMENT NO. 2
TO
ALCAN ALUMINUM CORPORATION HOURLY EMPLOYEES' SAVINGS PLAN
This Amendment No. 2 is executed as of the date set forth below, by
Alcan Aluminum Corporation, (hereinafter called the "Company").
WITNESSETH:
WHEREAS, the Company established and maintains the Alcan Aluminum
Corporation Hourly Employees' Savings Plan, effective October 28, 1987,
(hereinafter referred to as the "Plan") to provide retirement benefits to
certain eligible employees;
WHEREAS, the Company amended and restated the Plan, generally
effective January 1, 2000, in order to conform the Plan with the Uniformed
Services Employment and Reemployment Rights Act of 1994, the Small Business Job
Protection Act of 1996 and the Taxpayer Relief Act of 1997, and to make certain
other desirable changes;
WHEREAS, the Company reserved the right, pursuant to Section 13.1 of
the Plan, to make amendments thereto; and
WHEREAS, the Company has amended the restated Plan on one previous
occasion;
WHEREAS, the Company desires to amend the Plan in order to modify
the minimum required distribution provisions in accordance with final
regulations published by the Internal Revenue Service ("IRS"); to bring the Plan
into compliance on a good faith basis with certain provisions of the Economic
Growth and Tax Relief Reconciliation Act of 2001 and related regulations, to
update the Plan's claims procedures for compliance with Department of Labor
regulations and other pronouncements, to incorporate the provisions of IRS
Revenue
Ruling 2002-27 relating to compensation under Section 125 of the Code, to
reflect a higher matching contribution for certain employees of Toyal America,
Inc. and to make other desirable changes;
NOW, THEREFORE, pursuant to Section 13.1 of the Plan, the Company
hereby amends the Plan, as follows:
MINIMUM REQUIRED DISTRIBUTIONS (CODE SECTION 401(A)(9))
(1) Effective January 1, 2001, Section 9.5 of the Plan is hereby amended by the
addition of a new last paragraph at the end of said Section to read as follows:
"With respect to distributions under the Plan made in the calendar year
beginning January 1, 2001, the Plan will apply the minimum distribution
requirements of Section 401(a)(9) of the Code in accordance with the
regulations under Section 401(a)(9) that were proposed in January, 2001,
notwithstanding any provision of the Plan to the contrary."
(2) Effective April 17, 2002, Section 9.5 of the Plan is hereby amended by the
deletion of said Section and the substitution in lieu thereof of a new Section
9.5 to read as follows:
"9.5 Mandatory Commencement of Benefits
Subject to Section 401(a)(9) of the Code, Treasury Regulation Sections
1.401(a)(9)-1 through -9, and any amendments to such regulations or
section:
(a) a Participant who is a 5% owner (as defined in Section 416(i) of the
Code) at any time after the attainment of age 661/2, shall receive
the Value of his Accounts no later than the April 1 of the calendar
year following the calendar year in which such Participant attains
age 701/2;
(b) a Participant who is not a 5% owner at any time after the attainment
of age 66 1/2, shall receive the Value of his Accounts no later than
the April 1 of the calendar year following the later of (i) the
calendar year in which the Participant attains age 70 1/2, or (ii)
his termination of employment with the Employer and any Affiliated
Company; and
(c) a Participant who becomes a 5% owner after the attainment of age
701/2, but prior to termination of employment, shall receive the
Value of his Accounts no later than the April 1 of the calendar year
following the calendar year in which such Participant becomes a 5%
owner.
2
Any payments under this Plan shall be adjusted to meet the
requirements of Section 401(a)(9) of the Code and the
regulations thereunder. Thus, to the extent the distributions
otherwise provided for under this Plan would not satisfy
Section 401(a)(9) of the Code, the entire interest of each
Participant (a) shall be distributed to him not later than the
required beginning date as defined in Section 401(a)(9)(C) of
the Code, or (b) shall be distributed, beginning not later
than the required beginning date, in accordance with
regulations or proposed regulations, over the life of the
Participant or over the life of the Participant and
Beneficiary (or over a period not extending beyond the life
expectancy of the Participant or the life of the Participant
and Beneficiary). Except to the extent that Section 9.3, or
other provisions of this Section or this Plan, would cause
such distribution to be in the form of a single lump sum
payment, the amount to be distributed each year must be at
least an amount (i) equal to the quotient obtained by dividing
the Participant's entire interest, determined as of the last
Valuation Date for the Plan Year immediately preceding the
year for which such distribution is being made, by the life
expectancy of the Participant or joint and survivor life
expectancy of the Participant and designated Beneficiary or,
(ii) calculated under such other method as may be prescribed
by the Department of Treasury.
Notwithstanding any provision of the Plan to the contrary,
distributions made under this Section 9.5 shall be deemed to
satisfy any distribution options provided for in the Plan that
are inconsistent with Section 401(a)(9) of the Code. In
addition, any distribution required under the incidental death
benefit rule of Section 401(a)(9)(G) of the Code shall be
treated as a distribution required under this Section.
With respect to distributions under the Plan made on or after
April 17, 2002, relating to calendar years beginning on or
after January 1, 2002, the Plan will apply the minimum
distribution requirements of Section 401(a)(9) of the Code in
accordance with the final and temporary regulations under
Section 401(a)(9) of the Code that were published on April 17,
2002, notwithstanding any provision of the Plan to the
contrary."
EGTRRA AND OTHER LEGISLATIVE CHANGES
(3) Effective January 1, 2002, Section 3.6 of the Plan is hereby amended by the
deletion of subsection (c)(ii) of said Section and the substitution in lieu
thereof of a new subsection (c)(ii) to read as follows:
"(ii) such Eligible Employee's `Section 414(s) compensation' for
such Plan Year. For this purpose, the term `Section 414(s)
compensation' shall mean W-2 compensation as permitted and
described in Treasury Regulation Sections 1.414(s)-1(c)(2) and
1.415-2(d)(11)(i), and shall also include all amounts
currently not included in the Eligible Employee's gross income
by reason of Sections 125 (including any amounts not available
to a Participant in cash in lieu of group health coverage
because the Participant is unable
3
to certify that he or she has other health coverage),
132(f)(4), 402(e)(3) and 457 of the Code. In the case of an
Eligible Employee who begins, resumes, or ceases to be
eligible to elect to have Before-Tax Contributions made on his
behalf during a Plan Year, the amount of Section 414(s)
compensation included in the Actual Deferral Percentage test
is the amount of Section 414(s) compensation received by the
Eligible Employee during the entire Plan Year. In no case
shall the Section 414(s) compensation for any Eligible
Employee for any Plan Year exceed: (A) $170,000 for Plan Years
beginning on January 1, 2000; and (B) $200,000 for Plan Years
beginning on or after January 1, 2002, or such higher dollar
limit as may be in effect with respect to any other Plan Year
in accordance with the applicable provisions of the Code."
(4) Effective January 1, 2002, Section 4.3 of the Plan is hereby amended by the
deletion of the third paragraph of said Section and the substitution in lieu
thereof of a new third paragraph to read as follows:
"For purposes of this Section 4.3, the term `Section 415 compensation'
means the Participant's W-2 compensation as permitted and described in
Treasury Regulation Section 1.415-2(d)(11)(i), and shall also include all
amounts currently not included in the Eligible Employee's gross income by
reason of Sections 125 (including, effective January 1, 2002, any amounts
not available to a Participant in cash in lieu of group health coverage
because the Participant is unable to certify that he or she has other
health coverage), 132(f), 402(e)(3) and 457 of the Code."
NOTWITHSTANDING AMENDMENT NO. 3 TO THE PLAN, THE ABOVE PROVISION SHALL BECOME
EFFECTIVE JANUARY 1, 2002, AND SHALL SUPERSEDE ANY AMENDMENT TO THE THIRD
PARAGRAPH OF SECTION 4.3 CONTAINED IN AMENDMENT NO. 3 TO THE PLAN THAT CONTAINS
AN EARLIER EFFECTIVE DATE.
(5) Effective January 1, 2002, Section 4.6 of the Plan is hereby amended by the
deletion of said Section and the substitution in lieu thereof of a Section 4.6
to read as follows:
"4.6 Employer Contributions upon Return from Military Service
Effective December 12, 1994, in the event that a Participant returns to
employment with an Employer immediately following a leave of absence due
to Military Service, any Employer contribution, or any other employer
matching or profit sharing contribution, which would have been made on
behalf of such Participant, had he not been on such leave of absence,
shall be made on his behalf and allocated to his Basic Account or other
account, as applicable, to the extent required by Section 414(u) of the
Code. Any such allocation shall be calculated based on any make-up
contributions made under Section 3.9 using
4
estimated Compensation during such period of Military Service, based on
his rate of Compensation at the time such leave of absence commenced and
based on the matching or other contribution formula in effect for the Plan
Year to which such make-up contribution relates, as applicable. Such
Employer contribution, or any other employer matching or profit sharing
contribution, shall not be required to be taken into account under Section
4.3 in the Plan Year in which such contribution is made or to which such
contribution relates."
CLAIMS PROCEDURES (LABOR REGULATION 2560.503-1)
(6) Effective January 1, 2002, Section 11.11 of the Plan is hereby amended by
the addition of a new last paragraph at the end of said Section to read as
follows:
"Notwithstanding the foregoing, in the case of a determination relating to
a disability benefit, the following claims and appeal procedures shall
apply:
(1) The time for the initial determination of benefit shall be 45 days
(instead of 90 days), and may be extended for two additional periods
of 30 days each (instead of one additional period of 90 days). A
notice to the Claimant of any such extension shall be provided prior
to the start of the extension and shall indicate that the local
representative of the Corporation has determined that the extension
is necessary due to matters beyond the control of the local
representative of the Corporation, the circumstances requiring the
extension, the date by which a decision is expected, the standards
upon which entitlement to disability benefits is based, the
unresolved issues that prevent a decision on the claim and the
additional information needed to resolve the claim. The Claimant
shall be afforded at least 45 days in which to provide the specified
information (during which time, the period for the local
representative of the Corporation to make a determination shall be
tolled).
(2) To the extent any internal rule, guideline, protocol or similar
criterion is relied upon in making an initial adverse claims
determination, then a copy of such rule, guideline, protocol or
criterion shall be available to the Claimant upon request, free of
charge.
(3) The time for requesting a review of an initial adverse claims
determination shall be 180 days (instead of 120 days).
(4) The review shall be made by the Plan Administrator and shall be made
by a person or entity which is neither the individual nor a
subordinate of the individual who made the initial determination of
benefit. If the initial determination of benefit was based in whole
or in part on a medical judgment, the Plan Administrator shall
consult with an appropriate health care professional who was not
consulted in the initial determination of benefit and who is not the
subordinate of the individual consulted in the initial claims
determination. In addition, the identity of the health care
professionals consulted in connection with the initial determination
and the determination on
5
appeal shall be available to the Claimant upon request.
(5) The time for a decision to be rendered by the Plan Administrator on
a request for review shall be 45 days (instead of 60 days), and may
be extended for an additional 45 days (instead of 60 days)."
MISCELLANEOUS
(7) Effective January 1, 2003, Item 3 of Appendix A-7 of the Plan is hereby
amended by the deletion of said Item and the substitution in lieu thereof of a
new Item 3 to read as follows:
"3. Basis of Adoption:
Basic mandatory participation pursuant to Section 2.1(b)
- Effective January 1, 2003, an Employer contribution equal to 50% of
any Participant contributions (After-tax and/or Before-tax
Contributions) not exceeding 5% of Compensation (4% of Compensation
from January 1, 2000 to December 31, 2002), allocable to the Basic
Account of such contributing Employee
- A one-time $500 lump sum Employer contribution for each Eligible
Employee covered by this Appendix who was active as of November 20,
1999, allocable to the Basic Account of such Eligible Employee
- The Basic Account will be 0% vested until the Participant completes
two years of Service, at which time the Basic Account will be 100%
vested
Voluntary participation pursuant to Section 2.1(c)"
IN WITNESS WHEREOF, the Company has caused this Amendment No. 2 to
be executed by its officers thereto duly authorized this______ day
of________________________ , 2003.
ALCAN ALUMINUM CORPORATION
By:_____________________________________
Title:__________________________________
6
AMENDMENT NO. 3
TO
ALCAN ALUMINUM CORPORATION HOURLY EMPLOYEES' SAVINGS PLAN
This Amendment No. 3 is executed as of the date set forth below by
ALCAN ALUMINUM CORPORATION (hereinafter called the "Company").
WITNESSETH:
WHEREAS, the Company established and maintains the Alcan Aluminum
Corporation Hourly Employees' Savings Plan, effective October 28, 1987
(hereinafter referred to as the "Plan") for the benefit of eligible employees;
WHEREAS, generally effective September 1, 1997, the Company amended
and restated the Plan, and thereafter again amended and restated the Plan,
generally effective January 1, 2000, in order to conform the Plan with the
Uniformed Services Employment and Reemployment Rights Act of 1994, the Small
Business Job Protection Act of 1996 and the Taxpayer Relief Act of 1997 (the
foregoing collectively referred to as "GUST") and to make certain other
desirable changes;
WHEREAS, pursuant to Section 13.1 of the Plan, the Company reserved
the right to make further amendments thereto; and
WHEREAS, the Company has amended the restated Plan on two previous
occasions;
WHEREAS, the Company desires to amend the Plan further in order to
bring the Plan into good faith compliance with GUST, to secure a favorable
determination letter from the Internal Revenue Service and to make other
desirable changes;
NOW, THEREFORE, pursuant to Section 13.1 of the Plan, the Company
hereby amends the Plan, as follows:
(1) Effective January 1, 1997, Section 1.27 of the Plan is hereby
amended by the deletion of such Section in its entirety and the substitution of
a new Section 1.27 to read as follows:
"1.27 `Leased Person' means, effective January 1, 1997, any individual
(other than a common law employee of an Employer or an Affiliated
Company) who, pursuant to an agreement between the Employer or
Affiliated Company and any other person or leasing organization
(`Leasing Organization') has performed services for the Employer or
Affiliated Company (or for related persons determined in accordance
with Section 414(n)(6) of the Code) on a substantially full-time basis
for a period of at least one (1) year, and such services are performed
under the primary direction or control of the Employer or Affiliated
Company. Contributions or benefits provided to a Leased Person by the
Leasing Organization which are attributable to services performed for
the recipient employer shall be treated as provided by the recipient
employer."
(2) Effective January 1, 1997, Section 3.6(a) of the Plan is hereby
amended by the deletion of such Subsection in its entirety and the substitution
of a new Section 3.6(a) to read as follows:
"(a) Notwithstanding the foregoing provisions of this Article 3, the Plan
Administrator shall limit the amount of Before-Tax Contributions made
on behalf of each Eligible Employee who is an HCE for each Plan Year
to the extent necessary to ensure that either of the following tests
is satisfied:
(i) the `Current Year Actual Deferral Percentage' (as hereinafter
defined) for the group of Eligible Employees who are HCEs is not
more than the "Prior Year Actual Deferral Percentage" of all
other Eligible Employees multiplied by 1.25; or
(ii) the excess of the Current Year Actual Deferral Percentage for the
group of Eligible Employees who are HCEs over the Prior Year
Actual Deferral Percentage of all other Eligible Employees is not
more than two percentage points, and the Current Year Actual
Deferral Percentage for the group of Eligible Employees who are
HCEs is not more than the Prior Year Actual Deferral Percentage
of all other Eligible Employees multiplied by 2.0.
Notwithstanding the provisions in subparagraphs (i) and (ii) above,
the Corporation may elect, subject to the limitations described in
Internal Revenue Service Notice 98-1, to perform the tests using the
Current Year Actual Deferral Percentage for all Eligible Employees who
are not HCEs
2
rather than the Prior Year Actual Deferral Percentage. For Plan Years
beginning on and after January 1, 1997 and through December 31, 2001
(and for later Plan Years, until changed pursuant to the previous
sentence), the Corporation has used and anticipates using the Prior
Year Actual Deferral Percentage for Eligible Employees who were not
HCEs."
(3) Effective January 1, 1998, Section 4.3 of the Plan is hereby
amended by modifying the third sentence thereof to read as follows:
"For purposes of this Section 4.3, the term `Section 415 compensation'
means the Participant's W-2 compensation as permitted and described in
Treasury Regulation Section 1.415-2(d)(11)(i), and shall also include, for
Plan Years beginning on and after January 1, 1998, all amounts currently
not included in the Eligible Employee's gross income by reason of Sections
125, 132(f)(4), 402(e)(3) and 457 of the Code."
IN WITNESS WHEREOF, the Company has caused this Amendment No. 3 to
be executed by its officers thereto duly authorized as of this_____ day
of______________ , 2003.
ALCAN ALUMINUM CORPORATION
By:_________________________
Title:______________________
3
AMENDMENT NO. 4
TO
ALCAN ALUMINUM CORPORATION HOURLY EMPLOYEES' SAVINGS PLAN
This Amendment No. 4 is executed as of the date set forth below by
Alcan Aluminum Corporation (which, effective July 31, 2003, is merging with and
into Alcan Corporation) (the "Corporation").
WITNESSETH:
WHEREAS, Alcan Aluminum Corporation established and maintains the
Alcan Aluminum Corporation Hourly Employees' Savings Plan, effective October 28,
1987 (hereinafter referred to as the "Plan") for the benefit of eligible
employees; and
WHEREAS, Alcan Aluminum Corporation most recently restated the Plan,
generally effective January 1, 2000; and
WHEREAS, effective July 31, 2003, Alcan Aluminum Corporation, which
is an Ohio corporation, is reorganizing into a parent company and three
operating companies (the "Reorganization"), all of which shall be Texas
corporations, by (1) merging into a newly established subsidiary of Alcan Inc.,
which subsidiary is to be called Alcan Corporation, and (2) engaging in a
divisive merger to form three subsidiaries known as Alcan Products Corporation,
Alcan Primary Products Corporation and Alcan Aluminum Corporation, each of which
shall hold certain operating assets; and
WHEREAS, pursuant to Section 13.1 of the Plan, Alcan Aluminum
Corporation reserved the right to make further amendments thereto; and
WHEREAS, as a result of the Reorganization, Alcan Aluminum
Corporation desires to again amend the Plan in order to reflect the plan sponsor
and the participating
companies, effective July 31, 2003;
NOW, THEREFORE, pursuant to Section 13.1 of the Plan, the
Corporation hereby amends the Plan, effective July 31, 2003, as follows:
1. The Plan is hereby amended by the addition of a new last paragraph to
the FOREWORD, to read as follows:
"Effective July 31, 2003, the Alcan Aluminum Corporation, which is an Ohio
corporation, is reorganizing into a parent company and three operating
companies, all of which shall be Texas corporations, by (1) merging into a newly
established subsidiary of Alcan Inc., which subsidiary is to be called Alcan
Corporation, and (2) engaging in a divisive merger to form three subsidiaries
known as Alcan Products Corporation, Alcan Primary Products Corporation and
Alcan Aluminum Corporation, each of which shall hold certain operating assets."
2. The Plan is hereby amended by the deletion of Section 1.17 in its
entirety and the substitution in lieu thereof of a new Section 1.17 to read as
follows:
"1.17 "Corporation" means, with respect to periods prior to July 31, 2003, Alcan
Aluminum Corporation, an Ohio corporation, and with respect to periods on
and after July 31, 2003, Alcan Corporation, a Texas corporation (the
successor by merger to the Ohio corporation known as Alcan Aluminum
Corporation) and any successor to such corporation by merger, purchase,
reorganization or otherwise, or any other corporation or business entity
which agrees to assume the position of the Corporation hereunder. In
connection with such reorganization and to the extent appropriate to Plan
context, references herein to Alcan Aluminum Corporation, the Ohio
corporation, which predate July 31, 2003, including references to Alcan
Aluminum Corporation as the Plan's sponsor and references in the Foreword,
signature block and Appendix A, shall be deemed to refer to Alcan
Corporation, the Texas corporation, on and after July 31, 2003, whether or
not such a reference is otherwise specifically mentioned."
3. The name of the Plan is hereby changed from "Alcan Aluminum Corporation
Hourly Employees' Savings Plan" to "Alcancorp Hourly Employees' Savings Plan."
To the extent appropriate to Plan context, references to "Alcan Aluminum
Corporation Hourly Employees' Savings Plan" throughout the Plan, including the
cover page, headers and Appendix A, shall be deemed to refer to "Alcancorp
Hourly Employees' Savings Plan." Additionally, the Plan is hereby amended by the
deletion of Section 1.33 in its entirety and the substitution in lieu
2
thereof of a new Section 1.33 to read as follows:
"1.33 "Plan" means the Alcancorp Hourly Employees' Savings Plan, as herein set
forth or as it may be amended from time to time; such term will also
include the Plan as it was established on October 28, 1987 and any later
amendments thereto."
IN WITNESS WHEREOF, the Corporation has caused this Amendment No. 4
to be executed by its duly authorized officer this _______day of July, 2003.
ALCAN ALUMINUM CORPORATION
By:___________________________
Title:________________________
3