EX-4.1.2 ALCANCORP EMPLOYEES' SAVINGS PLAN
Published on January 13, 2005
EXHIBIT 4.1.2
ALCANCORP
EMPLOYEES' SAVINGS PLAN
(Amendment and Restatement Generally Effective as of January 1, 2000)
FOREWORD
Effective as of May 1, 1981, Alcan Aluminum Corporation adopted the Alcancorp
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 January 1, 1996, 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
reflect the requirements of the Uniformed Services Employment and Reemployment
Rights Act of 1994, the Small Business Job Protection Act of 1996, the Taxpayer
Relief 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 of 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. In addition, effective January 1, 2001, the Plan
is intended to satisfy the nondiscrimination requirements applicable to elective
deferrals and matching contributions under Sections 401(k) and 401(m) of the
Code by means of safe harbor matching contributions made pursuant to Sections
401(k)(12) and 401(m)(11) 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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Alcancorp Employees' Savings Plan
(Amendment and Restatement Generally Effective as of January 1, 2000)
Table of Contents
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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 the accounts maintained to record the amounts allocated
to any Participant hereunder, as set forth herein or in any Appendix
hereto, and as such accounts may be restructured by the Plan Administrator
from time to time. The Accounts maintained under the Plan include a
Participant's After-Tax Account, Before-Tax Account, Employer Account,
Qualified Contributions Account, Rollover Account and Safe Harbor Account.
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, such reference shall be deemed to include any successor Act
section having the same or similar purpose.
1.3 "Additional After-Tax Account" means the portion of the After-Tax Account
attributable to the Participant's Additional After-Tax Contributions, as
adjusted in accordance with Article 6.
1.4 "Additional After-Tax Contributions" means the contributions of a
Participant by means of payroll deductions from the Participant's
compensation after applicable income taxes, in accordance with the
provisions of Section 3.1, with respect to which contributions no
allocation of Employer Contributions is made.
1.5 "Additional Before-Tax Account" means the portion of the Before-Tax
Account attributable to the Participant's Additional Before-Tax
Contributions, as adjusted in accordance with Article 6.
1.6 "Additional Before-Tax Contributions" means the contributions made by the
Employer pursuant to an election by a Participant to reduce cash
compensation otherwise currently payable to the Participant by an equal
amount in accordance with the provisions of Section 3.2, with respect to
which contributions no allocation of Employer Contributions is made.
1.7 "Affiliated Company" means Alcan Aluminium Limited, any Employer, any
corporation affiliated with Alcan Aluminium Limited (or for periods on and
after March 1, 2001, Alcan, Inc.) through more than 50% ownership, or any
corporation designated by the Corporation to be an Affiliated Company.
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1.8 "After-Tax Account" means the Account to which the Participant's After-Tax
Contributions are credited, as adjusted in accordance with Article 6. The
After-Tax Account shall be divided into sub-Accounts which shall be
credited with and reflect, respectively, amounts attributable to Basic and
Additional After-Tax Contributions made on or before December 31, 1986 and
amounts attributable to Basic and Additional After-Tax Contributions made
thereafter.
1.9 "After-Tax Contributions" means Basic After-Tax Contributions and
Additional After-Tax Contributions.
1.10 "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.
1.11 "Appropriate Form" means the form provided or prescribed by the Plan
Administrator for the particular purpose.
1.12 "Basic After-Tax Account" means the portion of the After-Tax Account
attributable to the Participant's Basic After-Tax Contributions, as
adjusted in accordance with Article 6.
1.13 "Basic After-Tax Contributions" means the contributions of a Participant
by means of payroll deductions from the Participant's compensation after
applicable income taxes in accordance with the provisions of Section 3.1,
with respect to which contributions an allocation of Employer
Contributions is made pursuant to Section 4.1.
1.14 "Basic Before-Tax Account" means the portion of the Before-Tax Account
attributable to the Participant's Basic Before-Tax Contributions, as
adjusted in accordance with Article 6.
1.15 "Basic Before-Tax Contributions" means the contributions made by the
Employer pursuant to an election by a Participant to reduce cash
compensation otherwise currently payable to the Participant by an equal
amount in accordance with the provisions of Section 3.2, with respect to
which contributions an allocation of Employer Contributions is made
pursuant to Section 4.1.
1.16 "Before-Tax Account" means the Account to which the Participant's
Before-Tax Contributions are credited, as adjusted in accordance with
Article 6.
1.17 "Before-Tax Contributions" means Basic Before-Tax Contributions and
Additional Before-Tax Contributions.
1.18 "Beneficiary" means a beneficiary or beneficiaries entitled to receive any
benefits payable after the death of the Participant, as provided in
Section 2.5.
1.19 "Board" means the Board of Directors of the Corporation.
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1.20 "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, such reference shall be deemed to include any successor Code section
having the same or similar purpose.
1.21 "Compensation" means direct compensation of a continuing nature paid to an
Eligible Employee during any payroll period by an Employer or Employers
which, on an aggregate basis, is not 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 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.
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, pay under any plan of variable compensation and pay under
the Executive Performance Award Plan and Management Performance Award Plan
and any similar program, but not in excess of any pay up to the guideline
bonus percentage of such pay established under any such variable
compensation or similar program, and amounts contributed by compensation
reduction and deferral to the Plan and to any plan under Section 125 of
the Code. For years beginning on or after January 1, 2001, Compensation
shall also include any supplemental payment related to vacation.
Compensation excludes, but the exclusion is not limited to, pay on the
inactive payroll, vacation pay in a lump sum because of termination, pay
over the guideline percentages in variable compensation plans (e.g.,
Executive Performance Award Plan and Management Performance Award Plan),
and Exceptional Achievement Award payments.
1.22 "Corporate Group" means the Corporation and any other company which is
related to the Corporation 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
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.
1.23 "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.
1.24 "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
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the Plan Administrator pursuant to uniform and nondiscriminatory rules,
and which has lasted continuously for a six-month period.
1.25 "Domestic Relations Order" means any judgment, decree or order as defined
in Section 414(p)(1)(B) of the Code.
1.26 "Effective Date" means May 1, 1981. The general effective date of this
amendment and restatement is January 1, 2000.
1.27 "Eligible Employee" means an Employee who is: (a) regularly employed on a
full-time basis on the active payroll by an Employer at a unit or division
designated for participation in the Plan by the board of directors of such
Employer 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 be considered an Eligible Employee who is (i) not paid from the
active payroll of an Employer, (ii) 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) treated as an Employee of the
Employer solely by reason of being a Leased Person.
Notwithstanding the foregoing, an Employee who is represented by a
collective bargaining agent recognized by an Employer shall be deemed to
be an "Eligible Employee" only when 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 bargaining agreement.
1.28 "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 an Affiliate solely as a director or independent contractor or
otherwise self-employed individual. In the event that a person renders
service to an Employer or an Affiliate 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.
1.29 "Employer" means the Corporation and any subsidiary or affiliate of the
Corporation which is designated an Employer by the Board and which adopts
the Plan as provided in Article 14 hereof.
1.30 "Employer Account" means the account maintained for a Participant to which
is credited the Employer Contributions made on account of the Participant,
as adjusted in accordance with Article 6.
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1.31 "Employer Contributions" means the contributions of an Employer pursuant
to the provisions of Section 4.1, including amounts which are credited to
a Participant's Employer Account or Safe Harbor Account.
1.32 "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).
1.33 "Hardship" means the conditions in respect of a Participant described in
clause 9 of Section 8.1.
1.34 "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.
1.35 "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.
1.36 "Investment Fund" means any one of the funds described in Article 5.
1.37 "Leased Person" means any individual (other than a common law employee of
an Employer or an Affiliate) who, pursuant to an agreement between the
Employer or Affiliate and any leasing organization, has performed services
for the Employer, an Affiliate or a related person, as determined in
accordance with Section 414(n)(6) of the Code, on a substantially
full-time basis for a period of at least one year; provided, however, that
such services are performed under the primary direction or control of the
Employer or Affiliate.
1.38 "Loan" means a loan to a Participant from the Plan pursuant to Article 15.
1.39 "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.
1.40 "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
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enlistment or tour of duty, and further provided that such voluntary
enlistment or tour of duty does not follow involuntary duty.
1.41 "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.
1.42 "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.
1.43 "Plan" means the Alcancorp Employees' Savings Plan, as herein set forth or
as it may be amended from time to time.
1.44 "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.
1.45 "Plan Year" means the calendar year.
1.46 "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.
1.47 "QDRO Balance" means the account maintained under the Plan for the benefit
of an Alternate Payee pursuant to Section 10.2(b).
1.48 "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.
1.49 "Qualified Contributions" means Employer contributions made to the Trust
Fund pursuant to Section 4.5.
1.50 "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.
1.51 "Qualified Domestic Relations Order" means a Domestic Relations Order as
defined in Section 414(p)(1)(A) of the Code.
1.52 "Retirement" means an Eligible Employee's termination of employment at a
time when he is eligible to retire under the provisions of a tax-qualified
pension plan maintained by his employer, or, if earlier, his termination
of employment on or after attaining age 65.
1.53 "Rollover Account" means the Account maintained for a Participant to which
Rollover Contributions are credited, as adjusted in accordance with
Section 6.1.
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1.54 "Rollover Contributions" means the contributions of a Participant pursuant
to the provisions of Article 16.
1.55 "Safe Harbor Account" means the account maintained for a Participant to
which is credited the Safe Harbor Contributions made on account of the
Participant, as adjusted in accordance with Article 6.
1.56 "Safe Harbor Contributions" means the Employer Contributions made pursuant
to Section 4.1(b)(ii).
1.57 "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.
Service shall include:
(i) all periods of leave of authorized absence not in excess of two
years.
(ii) a period after termination of employment up to one year provided
that the Participant terminates for any reason other than
retirement, discharge, quit or death; provided, however, that 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
(iii) Periods of Maternity Absence (as defined in Section 7.2) that exceed
one year on or after January 1, 1985. Employees with such leaves
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, 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. Service credit with respect to
Military Service will be determined in accordance with Section 10.7 of the
Plan.
1.58 "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.
1.59 "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.
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1.60 "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.
1.61 "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.
1.62 "Value" means the value of a Participant's Account as determined under
Article 6 as of the applicable Valuation Date.
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 Voluntary
Any Eligible Employee may participate in the Plan. Participation in the
Plan is entirely voluntary.
2.2 Date Participation Commences
On or after the Effective Date, an Eligible Employee may become a
Participant on any Entry Date.
2.3 Plan Enrollment
An Eligible Employee may become a Participant by filing the Appropriate
Form or Forms with the Plan Administrator, 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, in complying with Section 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 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.
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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 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 continues in
the employ of an Affiliated Company, he shall be deemed to be a
suspended Participant until the resumption of his status as 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, no Before-Tax Contributions
shall be made by his Employer on his behalf and no allocation
of contributions under Article 4 shall be made to his Employer
Account or his Safe Harbor Account; and
(iii) regarding loans during the period of suspension, 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, he may, subject to the provisions of Article 8, 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.
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ARTICLE 3
After-Tax Contributions, Before-Tax Contributions
3.1 After-Tax Contributions
Subject to the limitations of Sections 4.2 and 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
20% 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 20% 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. Those After-Tax
Contributions pursuant to this Section 3.1 which are eligible for an
allocation of Employer Contributions pursuant to Section 4.1 are Basic
After-Tax Contributions which shall be credited to the Participant's
After-Tax Account and those After-Tax Contributions which are not so
eligible for an allocation of Employer Contributions are Additional
After-Tax Contributions which also shall be credited to the Participant's
After-Tax Account.
3.2 Before-Tax Contribution
Subject to the limits of Sections 3.6 and 4.2, a Participant may elect to
have an integral percentage of up to 20% 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
reduce his Compensation by the amount of such Before-Tax Contribution and
transfer such Before-Tax Contribution instead to the Trustee. Such 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
with respect to which such reduction is effective would have been paid.
Those contributions pursuant to this Section 3.2 which are eligible for an
allocation of Employer Contributions pursuant to Section 4.1 are Basic
Before-Tax Contributions which shall be credited to the Participant's
Before-Tax Account and those contributions pursuant to this Section 3.2
which are not so eligible for an allocation of Employer Contributions are
Additional Before-Tax Contributions which also shall be credited to the
Participant's Before-Tax Account.
The Before-Tax Contributions shall be such integral percentage of the
Participant's Compensation as the Participant shall have designated but
not to exceed the maximum percentage applicable for the Plan Year as
determined by the Plan Administrator,
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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 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 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 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.
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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, with
respect to Plan Year commencing prior to January 1, 2001 (that is,
prior to the commencement of Safe Harbor Contributions hereunder),
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. The following Actual Deferral Percentages were used to
perform the tests in the Plan Years beginning in the Plan Year as of
which this provision became effective and ending with the 2000 Plan
Year.
(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
13
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 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 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 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.
14
(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 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
15
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. Amounts may not be recharacterized by an
HCE to the extent that such amount, in combination with other
After-Tax Contributions made by such HCE, would exceed the
limitations under the Plan with respect to After-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.
(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 4.2.
(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.
16
(m) The Plan Administrator also shall take all appropriate steps to meet
the aggregate limitations test contained in Section 4.4.
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 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
17
(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, the Participant may elect to make catch-up
contributions relating to such period of Military Service, to the extent
required by Section 414(u) of the Code. 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.
18
ARTICLE 4
Employer Contributions
4.1 Amount
(a) Each Employer shall make such contributions to the Plan for each
calendar month on behalf of each Participant who made Basic
After-Tax Contributions under Section 3.1 during such month or with
respect to whom Basic Before-Tax Contributions are made under
Section 3.2 for such month, which Employer Contributions shall be
allocated to each such Participant's Employer Account or Safe Harbor
Account in accordance with subsection (b) below.
(b) Subject to any reduction pursuant to subsection (c) below, the
Employer Contributions for each month referred to in subsection (a)
above shall be allocated to the Employer Account or Safe Harbor
Account, as applicable, of each Participant referred to in such
subsection in an amount equal to a percentage of such Participant's
contributions under Section 3.1 and contributions under Section 3.2
for such month which does not in the aggregate exceed 6% of his
Compensation, based on the following schedules, as applicable:
(i) For periods of Service ending after the Restatement Date and
before January 1, 2001, credited to a Participant's Employer
Account, based on such Participant's years of Service as of
the end of such month, where:
For purposes of this Section 4.1(b), a Participant who
previously terminated employment but returns to employment
with an Employer after December 31, 1988 shall be credited
with all years of Service, subject to the provisions of
Section 1.57.
(ii) For periods of Service beginning on or after January 1, 2001,
credited to a Participant's Safe Harbor Account, based on such
Participant's level of contribution, where:
19
Amounts credited to a Participant's Safe Harbor Account and
Employer Account, as applicable, shall first constitute
Employer Contributions with respect to Before-Tax
Contributions and then Employer Contributions with respect to
After-Tax Contributions, as applicable.
(c) Notwithstanding any provision of the Plan to the contrary, if deemed
necessary or advisable by the Plan Administrator to comply with
regulations relating to prohibited discrimination in employee
benefit plan contributions or benefits, including, without
limitation, Treasury Regulation Section 1.401(a)(4)-4, an Employer
may, upon the instruction of the Plan Administrator, proportionately
reduce the amount of the Employer Contribution otherwise to be made,
pursuant to subsection (b)(i) above, on behalf of each HCE in any
category or categories identified under the schedule in such
subsection. The immediately preceding sentence shall be applied in
accordance with the following provisions: (i) any such reduction
made based upon estimates, or otherwise, may be greater than the
minimum reduction that may be required to comply with such
regulations; (ii) any such reduction shall be communicated, orally
or in writing as determined by the Plan Administrator, to affected
Participants prior to the date on which the Employer Contribution in
respect to the first month affected by such reduction shall have
been made and credited to such Participants' Employer Accounts;
(iii) the Plan Administrator may determine the reductions
contemplated under this subsection (c) separately and may determine
different amounts with respect to the Employees of any Employer or
with respect to any other definable group of Participants; and (iv)
any determination of the Plan Administrator pursuant to this
subsection (c) shall be conclusive and binding upon all Participants
and their Beneficiaries.
4.2 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 that are allocated 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.
20
For purposes of this Section 4.2, 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 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 4.2 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) Additional
After-Tax Contributions, (ii) Additional Before-Tax Contributions, (iii)
Basic After-Tax Contributions, (iv) Basic Before-Tax Contributions, (v)
Employer Contributions, and (vi) Qualified Contributions made pursuant to
Section 4.5.
In the event that, notwithstanding the foregoing provisions of this
Section 4.2, 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 Employer Contribution portion shall be held in a suspense
account and, if such Participant remains a Participant, shall
be used to reduce Employer 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 Employer
Contributions for all Participants in the Plan Year in which
he ceases to be a Participant, and all succeeding years, as
necessary.
4.3 Limitation on After-Tax Contributions and Employer Contributions
(a) Notwithstanding the foregoing provisions of Article 3 and this
Article 4, (i) with respect to Plan Years prior to January 1, 2001,
the Plan Administrator shall limit the amount of After-Tax
Contributions and Employer Contributions made by or on behalf of
each Eligible Employee who is an HCE, and (ii) with respect to Plan
Years on or after January 1, 2001, the Plan Administrator shall
limit the amount of After-Tax Contributions made by or on behalf of
each Eligible Employee who is an HCE, to the extent necessary to
ensure that either of the following tests is satisfied:
21
(i) the "Current Year Actual Contribution Percentage" (as
hereinafter defined) for the group of Eligible Employees who
are HCEs is not more than the "Prior Year Actual Contribution
Percentage" of all other Eligible Employees multiplied by
1.25; or
(ii) the excess of the Current Year Actual Contribution Percentage
for the group of Eligible Employees who are HCEs, over the
Prior Year Actual Contribution Percentage of all other
Eligible Employees is not more than two percentage points, and
the Current Year Actual Contribution Percentage for the group
of Eligible Employees who are HCEs is not more than the Prior
Year Actual Contribution 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 Contribution Percentage for all Eligible
Employees who are not HCEs rather than the Prior Year Actual
Contribution Percentage. The following Actual Contribution
Percentages were used to perform the tests in the Plan Years
beginning in the Plan Year as of which this provision became
effective and ending with the 2000 Plan Year.
(b) For purposes of this Section 4.3, the term (i) "Actual Contribution
Percentage" shall mean, for any specified group of Eligible
Employees for any Plan Year, the average of such Eligible Employees'
Contribution Percentages (as defined below) for such Plan Year, (ii)
"Current Year Actual Contribution Percentage" shall mean, for any
specified group of Eligible Employees, such group's Actual
Contribution Percentage for the current Plan Year, and (iii) "Prior
Year Actual Contribution Percentage" shall mean, for any specified
group of Eligible Employees, such group's Actual Contribution
Percentage for the immediately preceding Plan Year.
(c) For purposes of this Section 4.3, the term "Contribution Percentage"
shall mean for any Eligible Employee for any Plan Year, the ratio
of:
(i) the aggregate of the After-Tax Contributions (including
amounts recharacterized pursuant to Section 3.6) and with
respect to Plan Years prior to January 1, 2001, Employer
Contributions which are taken into account under Section
401(m) of the Code with respect to such Plan Year,
22
in accordance with the rules set forth in Treasury Regulation
Section 1.401(m)-1(b)(4), to
(ii) such Eligible Employee's "Section 414(s) compensation" for
such Plan Year. For this purpose, the terms "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 and 402(e)(3) of the Code. In the
case of an Eligible Employee who begins, resumes, or ceases to
be eligible to make After-Tax Contributions or to have
Employer Contributions made on his behalf during a Plan Year,
the amount of Section 414(s) compensation included in the
Actual Contribution 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 $150,000, as automatically adjusted as provided in
Section 401(a)(17) of the Code, for any Plan Year commencing
after December 31, 1993.
Notwithstanding the foregoing, for any Plan Year commencing on and
after January 1, 2001, any Employer Contributions that exceed the
minimum Safe Harbor Contributions under Section 401(k)(12)(B) of the
Code may, as determined by the Corporation, be included in
determining the Contribution Percentage.
(d) The Contribution Percentage for a Participant who is an HCE for the
Plan Year and who is eligible to make after-tax contributions, or to
have matching employer contributions (within the meaning of Section
40l(m)(4)(A) of the Code) made on his behalf under two or more plans
described in Section 40l(a) of the Code that are maintained by the
Employer or the Corporate Group, shall be determined as if the total
of such after-tax contributions and matching employer contributions
were made under a single arrangement. Notwithstanding the foregoing,
certain plans or portions of this Plan shall be treated as separate
if disaggregated (mandatorily or otherwise) under applicable
Treasury Regulations, including without limitation, Section
1.401(m)-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(m)-1(b)(3) for purposes of
determining whether or not such plans satisfy Sections 401(m),
401(a)(4), and 410(b) of the Code, then the provisions of this
Section 4.3 shall be applied by determining the Actual Contribution
Percentage of Eligible Employees as if all such plans were a single
plan.
With respect to Plan Years commencing on or after January 1, 2001,
Employer Contributions will be taken into account under this
subsection (d) only to the extent that they are taken into account
under subsection (c) above.
23
(e) In the event it is determined prior to any payroll period that the
amount of After-Tax Contributions and Employer Contributions to be
made thereafter is likely to cause the limitation prescribed in this
Section 4.3 to be exceeded, the amount of such contributions allowed
to be made by or on behalf of Participants who are HCEs (and/or such
other Participants as the Plan Administrator may prescribe) may be
reduced to a rate determined by the Plan Administrator (including a
rate of 0% if the Plan Administrator so determines). 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.
(f) Notwithstanding the foregoing, with respect to any Plan Year in
which After-Tax Contributions and Employer Contributions made by or
on behalf of Participants who are HCEs exceed the applicable limit
set forth in this Section 4.3, the Plan Administrator may reduce the
amount of excess After-Tax Contributions and Employer Contributions
made by or on behalf of each such HCEs by his portion of the
"Aggregate Excess Contributions" for such Plan Year in accordance
with the following paragraphs:
(i) The "Aggregate Excess Contributions" for such Plan Year shall
mean the total amount of After-Tax Contributions and Employer
Contributions taken into account under Section 401(m) of the
Code (hereinafter sometimes the "Combined Contributions")
which would be distributed to HCEs if the Contribution
Percentage of the Participant who is an HCE with the highest
Contribution Percentage were reduced to the extent necessary
to satisfy the Actual Contribution Percentage test or cause
such percentage to equal the Contribution Percentage of the
Participant who is an HCE with the next highest percentage and
this process were repeated until the Actual Contribution
Percentage Test was satisfied, as determined under Section
401(m) of the Code.
(ii) The Combined Contributions of the HCE with the highest amount
of Combined Contributions shall be reduced by the lesser of
the amount necessary to exhaust the Aggregate Excess
Contributions or to cause the amount of the Combined
Contributions of such HCE to equal the Combined Contributions
of the HCE with the next highest amount of Combined
Contributions. This process shall be repeated until the
aggregate Combined Contributions of HCEs shall be reduced by
an amount equal to the Aggregate Excess Contributions, in
accordance with Section 401(m) of the Code.
(iii) In reducing the Combined Contributions of an HCE the following
order shall be used: (A) Additional After-Tax Contributions,
(B) Basic After-Tax Contributions and the vested portion of
Employer Contributions attributable to such Basic After-Tax
Contributions, (C) the vested portion of Employer
Contributions attributable to Basic Before-Tax Contributions
and (D) the portion of such Employer Contributions which are
not vested.
24
Such excess After-Tax Contributions and Employer Contributions
(along with income attributable to such excess contributions,
as determined pursuant to Section 4.4(g)) shall be returned to
the affected Participants who are 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. The amount of excess
Employer Contributions that are not vested shall be forfeited
and shall be held in a suspense account and used to reduce the
Employer's future Employer Contributions.
(g) Income on excess After-Tax Contributions and excess Employer
Contributions shall be determined by multiplying the income
allocated for the Plan Year in which such excess After-Tax
Contributions and Employer Contributions were made by a fraction,
the numerator of which is the excess After-Tax Contributions and
Employer Contributions for such Participant for the Plan Year, and
the denominator of which is the aggregate After-Tax Contributions
Account and Employer Account balances for such Participant as of the
first day of the Plan Year, plus the After-Tax Contributions and
Employer Contributions made by or on behalf of the Participant
during the Plan Year.
(h) Notwithstanding any distributions pursuant to the foregoing
provisions, excess After-Tax Contributions and Employer
Contributions shall be treated as Annual Additions for purposes of
Section 4.2.
(i) Distributions pursuant to this Section 4.3 shall be made
proportionately from the Investment Funds with respect to the
Participant's Account or Accounts from which distributions are made.
(j) In the event that an Employer elects to make a Qualified
Contribution on behalf of any or all Participants in the Plan, any
such Qualified Contribution, to the extent specified, shall be
treated as an Employer Contribution solely for purposes of this
Section 4.3.
(k) In determining whether the requirements of this Section 4.3, and
Section 4.4 below, are satisfied, the Plan Administrator may in its
discretion, in accordance with regulations, take into account
Participants' Before-Tax Contributions made to the Plan pursuant to
Section 3.1; provided, however, that such contributions are not
taken into account in order to satisfy the requirements of Section
3.6.
(l) The Plan Administrator may, in its sole discretion, elect to use any
combination of the methods described in this Section 4.3 to satisfy
the limitations contained herein; provided, however, that such
combination of methods shall be applied in a uniform and
nondiscriminatory manner.
(m) The Plan Administrator shall also take all appropriate steps to meet
the aggregate limitation test contained in Section 4.4.
25
4.4 Aggregate Limitation
Any other provision of the Plan to the contrary notwithstanding, the
provisions of this Section 4.4 shall apply with respect to Plan Years
prior to January 1, 2001 if the conditions of both (a) and (b) below are
satisfied:
(a) the sum of (i) the "Current Year Actual Deferral Percentage" (as
defined in Section 3.6) for the group of Eligible Employees who are
HCEs and (ii) the "Current Year Actual Contribution Percentage" (as
defined in Section 4.3) for such group of HCEs exceeds the
"Aggregate Limit" (as hereinafter defined), and
(b) both (i) the Current Year Actual Deferral Percentage for the group
of Eligible Employees who are HCEs exceeds 125% of the Prior Year
Actual Deferral Percentage of all other Eligible Employees and (ii)
the Current Year Actual Contribution Percentage of such group of
HCEs exceeds 125% of the Prior Year Actual Contribution Percentage
of all such other Eligible Employees.
The term "Aggregate Limit" means the greater of the sum of (i) and
(ii) below or the sum of (iii) and (iv) below:
(i) 125% of the greater of (1) the Prior Year Actual Deferral
Percentage of the group of Eligible Employees who are not
HCEs, or (2) the Prior Year Actual Contribution Percentage of
the group of Eligible Employees who are not HCEs, and
(ii) two plus the lesser of (i)(1) or (i)(2) above (but in no event
more than 200% of the lesser of (i)(1) or (i)(2) above).
(iii) 125% of the lesser of (1) the Prior Year Actual Deferral
Percentage of the group of Eligible Employees who are not
HCEs, or (2) the Prior Year Actual Contribution Percentage of
the group of Eligible Employees who are not HCEs, and
(iv) two plus the greater of (iii)(1) or (iii)(2) above (but in no
event more than 200% of the greater of (iii)(1) or (iii)(2)
above).
Notwithstanding the provisions in subparagraphs (a) and (b) above,
the Corporation may elect, subject to the limitations described in
Internal Revenue Service Notice 98-1, to perform the tests for any
Plan Year using the Current Year Actual Contribution Percentage for
all Eligible Employees who are not HCEs rather than the Prior Year
Actual Contribution Percentage, consistent with the method used
under Section 4.3(a) for such Plan Year.
If the Current Year Actual Deferral Percentage and/or Current Year Actual
Contribution Percentage for the group of Eligible Employees who are HCEs,
determined after any corrective distribution or recharacterization of
excess amounts in accordance with the provisions of Sections 3.6 and 4.3
have been effectuated, exceed an amount which would cause the limits set
forth in the foregoing provisions of this Section 4.4 to be exceeded,
26
first the amount of After-Tax Contributions and then the amount of
Before-Tax Contributions and Employer Contributions shall be reduced, in
the same manner and at the same time as such contributions are reduced in
accordance with Sections 3.6 and 4.3, but only to the extent necessary to
bring the Plan into compliance with the applicable limits set forth in
this Section 4.4.
4.5 Qualified Contributions
An Employer may, in its sole discretion, make a Qualified Contribution in
order to satisfy the requirements of Section 3.6, 4.3 or 4.4. 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 and
4.3; (ii) is nonforfeitable at all times; (iii) 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 matching
contribution (as defined in Treasury Regulation Section
1.401(k)-1(g)(13)(i)), or 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.
4.6 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.
4.7 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 employer matching or profit sharing
contribution, which would have been made on
27
behalf of such Participant, had he not been on such leave of absence,
shall be made on his behalf and allocated to his Employer Account, Safe
Harbor 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 sharing
contribution, shall not be required to be taken into account under
Sections 4.2, 4.3 and 4.4 in the Plan Year in which they are made or to
the year which they relate.
28
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 stable rate of return and
relative 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 Fund, consisting of:
- With respect to the period prior to August 1, 1997, the EAFE
International Index Fund, which shall be invested and
reinvested by the Trustee in shares of the Vanguard
International Equity Index Fund-European Portfolio and the
Vanguard International Equity Index Fund-Pacific Portfolio, in
a manner which attempts to provide investment results that
parallel the performance of an index compiled by Morgan
Stanley Capital International: the Europe, Australia, Far East
Index (EAFE).
- With respect to the period on and after August 1, 1997, 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 a blended 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,
29
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 Aluminium Limited (or for periods on and after
March 1, 2001, Alcan, Inc.). 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 Alcan Aluminium Limited
(or for periods on and after March 1, 2001, Alcan, Inc.), 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 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 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 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 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 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-
30
moderate growth of capital based on a portfolio consisting of
other Vanguard mutual funds which have a target equity
exposure of 40%.
- 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 ERISA 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.
5.2 Investment Options
All After-Tax Contributions, Before-Tax Contributions, Rollover
Contributions, Qualified Contributions and Employer 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
Aluminium Limited (or for periods on and after
31
March 1, 2001, Alcan, Inc.) 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, Employer 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 For Future Contributions
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 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
Aluminium Limited (or for periods on and after March 1, 2001, Alcan, Inc.)
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.
32
5.6 Voting
Full and fractional shares of Alcan Aluminium Limited (or for periods on
and after March 1, 2001, Alcan, Inc.), 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.
33
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, an
After-Tax Account, Before-Tax Account, Employer Account, Qualified
Contributions Account, Rollover Account, Safe Harbor Account and/or such
other Accounts as may be set forth herein or in any Appendix hereto, as
any such Accounts may be restructured by the Plan Administrator from time
to time.
The Plan Administrator shall have the power to rename, combine and
separate Accounts, establish sub-Accounts or otherwise restructure any
Accounts under this Plan or any Appendix in such manner as the Plan
Administrator deems appropriate for the administration of the Plan,
provided that such restructuring shall not change the balance of the
Accounts of any Participant as of the time of such restructuring
(disregarding the impact of any rounding). The provisions of the Plan with
respect to vesting, distribution rights and restrictions, loan rights and
restrictions, investment rights and other features applicable to the
balance of any Account of any Participant prior to such restructuring
shall continue with respect to the portion of the Accounts of such
Participant after the restructuring which are attributable to such
balance. All references in this Plan to any Account prior to such a
restructuring shall thereafter be deemed to refer to the Account, Accounts
or portions thereof into which such prior Account was restructured.
6.2 Valuation
As of each Valuation Date, the Plan Administrator shall cause to be
adjusted the After-Tax Account, Before-Tax Account, Employer Account,
Qualified Contributions Account, Rollover Account, Safe Harbor Account
and/or 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.
34
ARTICLE 7
Vesting
7.1 Participant Accounts
The Value of a Participant's Basic After-Tax, Account, Additional
After-Tax Account, Basic Before-Tax Account, Additional Before-Tax
Account, Qualified Contributions Account (to the extent attributable to
Section 3.6(k)), Rollover Account and Safe Harbor Account shall be 100%
vested in him at all times.
7.2 Employer Account; Full Vesting
The Value of a Participant's Employer Account and Qualified Contribution
Account (to the extent attributable to Section 4.3(j)) shall automatically
become 100% vested upon:
(a) the Participant's death,
(b) the Participant's Disability,
(c) the Participant's Retirement,
(d) the Participant's attainment of age 59-1/2,
(e) the Participant's termination of employment as a result of a
permanent reduction in work force,
(f) the termination of the Plan, the complete discontinuance of
contributions to the Plan, or the partial termination of the Plan
(if the Participant is affected by such partial termination), or
(g) the Participant's completion of 2 years of Service.
Prior to becoming 100% vested, the value of a Participant's Employer
Account shall be 0% vested.
A Participant whose employment with all Affiliated Companies terminates
for any reason other than upon any of the events specified in this Section
7.2 shall forfeit the balance in his Employer Account which is not vested
at the time of his termination of employment. All such forfeitures shall
be applied to reduce future Employer Contributions.
7.3 Reinstatement of Employer Accounts
If a former Participant whose termination from employment resulted in a
forfeiture under the provisions of this Article 7 prior to January 1,
2001,
35
(i) is reemployed by an Affiliated Company on or before the last
day of the Plan Year in which such termination of employment
occurred, the amount of the forfeiture will be restored and
credited to the Participant's Employer Account as soon as
practicable after his rehire, or
(ii) is not reemployed in accordance with clause (i) above, such
forfeiture amounts shall be restored in accordance with clause
(i) only if the former Participant shall have repaid to the
Plan the amount of the distribution which he received upon his
termination of employment, if any, prior to earlier of:
(A) the fifth anniversary of the first date on which the
Participant is reemployed by an Affiliated Company or;
(B) the fifth anniversary of his termination of employment.
For purposes of the preceding sentence, any Plan Year in which a
Participant or former Participant is absent from employment on the last
day of the Plan Year by reason of a "Maternity Absence" shall be
disregarded. A "Maternity Absence" shall be 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.
A Participant who previously terminated employment but returns to
employment with an Employer after December 31, 1988 shall be credited with
all years of Service, in accordance with Section 4.1(b).
Any amount repaid by the Participant pursuant to clause (ii) above shall
be credited to the Participant's Additional After-Tax Account and shall be
treated as Additional After-Tax Contributions for all purposes of the Plan
except the limitation on After-Tax Contributions. The amount required to
make any restoration described in the preceding paragraph will be derived
from amounts forfeited but not yet applied to reduce future Employer
Contributions, or, if such forfeitures are insufficient to restore the
amount of such forfeiture as provided in the preceding paragraph, the
Employer shall contribute an amount required to make up such deficiency.
7.4 Treatment of Formerly Leased Persons
If an individual who is treated as a Leased Person for purposes of the
Plan subsequently becomes an Eligible Employee, or a part-time employee
with one year of service, of an Employer, then such person's Service
towards vesting and Employer Contributions 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.
36
7.5 Vesting Schedule Amendment
Notwithstanding anything in the Plan to the contrary, in no event shall an
amendment to the vesting provisions of this Article 7 cause: (i) the
benefit provided under the Plan without regard to such amendment to any
Participant to be reduced or restricted, directly or indirectly, in any
manner prohibited by Section 411(d)(6) of the Code and the regulations
thereunder; or (ii) the vested percentage (determined as of the later of
the date such amendment is adopted or becomes effective) of the Value of
the Employer Account of an Eligible Employee who is a Participant on such
date to be less than such percentage determined under the Plan without
regard to such amendment.
If the vesting provisions of this Article 7 are amended, a Participant who
has completed at least three years of Service may elect, during the
applicable election period, to have the vested percentage of the Value of
the Participant's Employer Account determined under the Plan without
regard to such amendment. The election period shall begin on the date such
amendment is adopted and shall end no earlier than the 60th day after the
later of:
(a) the date such amendment is adopted;
(b) the date such amendment becomes effective; or
(c) the date written notice of such amendment is issued to the
Participant.
37
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.
Pre-1987 After-Tax Contributions, Without Earnings
1. A Participant may withdraw from his After-Tax sub-Account, without
penalty, any amount not in excess of his non-withdrawn After-Tax
Contributions made prior to January 1, 1987; provided that the
amount withdrawn pursuant to this clause 1 may not exceed the Value
of such After-Tax sub-Account.
Post-1986 After-Tax Contributions, With Earnings
2. A Participant may withdraw, with earnings and without penalty, an
amount not in excess of the Value of his After-Tax sub-Account
attributable to his non-withdrawn After-Tax Contributions made after
December 31, 1986.
Earnings on pre-1987 After-Tax Contributions
3. A Participant may withdraw, without penalty, all or any part of the
remaining Value of his After-Tax sub-Account attributable to his
After-Tax Contributions to such Account made prior to January 1,
1987.
Rollover Contributions, With Earnings
4. A Participant may withdraw, with earnings and without penalty, 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 4 may not exceed
the Value of such Rollover Account.
Matured Employer Account, With Earnings
5. A Participant may withdraw, without penalty, all or any part of the
portion of the Value of his Employer Account attributable to
Employer 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 Employer Account.
38
Age 59-1/2 Withdrawal from Employer Account, With Earnings
6. 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
terminated service and retains a balance in the Plan pursuant to
Section 9.3, may withdraw, with earnings and without penalty, all or
any part of the remaining Value of his Employer Account.
Age 59 -1/2 Withdrawal from Safe Harbor Account, With Earnings
7. A Participant who has attained age 59-1/2 as of the Valuation Date
as of which such withdrawal is to be made may withdraw, with
earnings and without penalty, all or any part of his Safe Harbor
Account.
Age 59-1/2 Withdrawal from Before-Tax Account, With Earnings
8. A Participant who has attained age 59-1/2 as of the Valuation Date
as of which such withdrawal is to be made may withdraw, with
earnings and without penalty, all or any part of his Before-Tax
Account.
Under Age 59-1/2 Withdrawal from Before-Tax Account due to Hardship or
Termination
9. A Participant, who has not attained age 59-1/2 as of the Valuation
Date as of which a withdrawal is to be made, may withdraw, all or
any part of his Before-Tax Account which is not in excess of the
Value of such Account as established as of December 31, 1988, plus
the amount of the Additional Before-Tax Contributions or Basic
Before-Tax Contributions, as the case may be, made thereto on or
after January 1, 1989, provided that such withdrawal is made on
account of Hardship.
Upon making a withdrawal pursuant to this clause 9, a Participant's
After-Tax Contributions pursuant to Section 3.1 and the Before-Tax
Contributions on his behalf pursuant to Section 3.2 shall
automatically be suspended effective as of the first paydate which
coincides with or next follows any Entry Date. A Participant may
resume his After-Tax Contributions or cause the Before-Tax
Contributions on his behalf to be resumed as of the first paydate
which coincides with or next follows any Entry Date at least twelve
months after such suspension became effective, by giving notice to
the Plan Administrator in such manner as the Plan Administrator
shall prescribe prior to such Entry Date.
Distributions pursuant to this clause 9 shall be made in accordance
with the provisions set forth below. A distribution shall be deemed
to be made on account of Hardship if:
(i) the requested withdrawal is necessary on account of an
immediate and heavy financial need of the Participant
occasioned by:
(A) payment of tuition, room and board, and related
educational fees for the next twelve months of
post-secondary education for the
39
Participant, his spouse or dependents as defined in
Section 152 of the Code,
(B) the purchase of a principal residence for the
Participant (excluding mortgage payments and the
construction of a principal residence),
(C) expenses for unreimbursed medical care described in
Section 213(d) of the Code previously incurred by the
Participant or his spouse or dependents or amounts
necessary for such persons to obtain such medical care,
(D) the need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage
of the Participant's principal residence, or
(E) any other need described by the Commissioner of Internal
Revenue in rulings, notices or other documents of
general applicability; and
(ii) the amount of the withdrawal is necessary to satisfy the
financial need. The Plan Administrator will require
certification or other proof of the purposes for which the
Hardship withdrawal is needed. The amount of withdrawal shall
be deemed necessary to satisfy a Participant's immediate and
heavy financial need if:
(A) such amount is not in excess of the amount of the
Participant's immediate and heavy financial need and, at
the Participant's request, any amounts necessary (as
determined by the Plan Administrator) to pay any federal
income taxes or penalties reasonably anticipated to
result from such withdrawal,
(B) the Participant has obtained all other distributions or
nontaxable (at the time of the loan) loans from plans
maintained by the Corporation or any other Employer,
(C) with respect to the Participant's taxable year next
following the taxable year of such withdrawal, the
amount of the Participant's elective deferrals under all
plans maintained by the Corporation or any other
Employer shall be limited to the applicable limit under
Section 402(g) of the Code minus the amount of such
deferrals for the taxable year of such withdrawal, and
(D) the Participant may not make any After-Tax Contributions
or Before-Tax Contributions to the Plan or any elective
contribution under any other plan maintained by the
Corporation or any other Employer for at least twelve
months after receipt of such withdrawal.
Notwithstanding the preceding provisions of this Section 8.1, 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
40
who has terminated service and retains a balance in the Plan pursuant to
Section 9.3, may withdraw all, but not part, or, on and after June 1,
2001, all or part, of his Before-Tax Account, whether or not he can
demonstrate that the distribution would be on account of a Hardship.
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 withdrawal elections under this Article 8 may be made in any
calendar year.
(c) All withdrawals from a Participant's Accounts shall be made from the
Investment Funds in proportion to the Value of the Participant's
After-Tax Account, Before-Tax Account, Employer Account, Qualified
Contributions Account, Rollover Account, Safe Harbor Account or any
other Account, whichever is applicable, in each such Investment
Fund.
(d) Except in the case of a withdrawal on account of Hardship,
withdrawals from a Participant's Before-Tax Account and Safe Harbor
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, the application shall be deemed to be for the maximum
amount available for withdrawal and such amount shall be withdrawn.
8.3 Certain Eligible Rollover Distributions
Notwithstanding anything in the Plan to the contrary that would otherwise
limit a distributee's election under this Section 8.3, 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 8.3, the following terms shall have the
following meanings:
41
(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;
(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); or
(iv) any distribution from the Plan made on account of Hardship.
(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.
42
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), or an absence that continues after the period of a leave of absence
granted by an Employer expires, 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. Any portion of a
Participant's Accounts in which he does not have a vested interest in
accordance with Article 7 at the time of termination of employment shall
be forfeited, and shall be applied to reduce contributions of Employers
(or to reinstate Accounts pursuant to Section 7.3). 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 otherwise expressly provided herein 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.
Notwithstanding the preceding paragraph, no part of a distribution in
excess of $5,000 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).
If a Participant's employment with all Affiliated Companies terminated
prior to December 31,1999, and the Value of his vested interest as of
December 31, 1999, or any subsequent December 31, does not exceed Five
Thousand Dollars ($5,000.00), then his benefit hereunder shall be
distributed as soon as practicable on or after such December 31.
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.
43
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.
9.4 Distribution on Disability
When a Participant has suffered a Disability, the Value of his Accounts
shall be distributed to him in accordance with the foregoing provisions of
this Article 9.
9.5 Mandatory Commencement of Benefits
Subject to Section 401(a)(9) of the Code, 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
(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
44
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 in calendar years
beginning on or after 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) of the Code that were
proposed in January, 2001, notwithstanding any provision of the Plan to
the contrary. This provisions shall continue in effect until the end of
the last calendar year beginning before the effective date of final
regulations under Section 401(a)(9) or such other date specified in
guidance published by the Internal Revenue Service.
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 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 4.2) for the Plan Year in which it is reinstated.
45
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 pursuant to a Qualified
Domestic Relations Order;
(b) the offset of a Participant's benefit against an amount that the
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 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
benefits provided under the Plan; and
(3) to the extent, if any, that the survivor annuity requirements
apply to distributions to the Participant under Section
401(a)(11) of the Code, the rights of the Participant's spouse
are preserved in accordance with Section 401(a)(13)(C)(iii) of
the Code; or
(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
46
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.
(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).
47
(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 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.
48
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.
49
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.
11.6 Power to Construe and Make Rules
The Plan Administrator shall have the power to construe the provisions of
the Plan, resolve any errors, inconsistencies or omissions therein and to
determine any questions of
50
fact which may arise hereunder and to make such rules and regulations,
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 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.
51
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 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.
No legal action may be commenced against the Plan, the Corporation, any
Employer or the Plan Administrator in connection with any Claimant's claim
more than 120 days after the Plan Administrator's final decision has been
rendered with respect to such claim.
52
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.
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
53
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.
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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 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 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.
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.
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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 Employer and
the Trustee, may, in the discretion of the Plan Administrator, be paid
from the Participants' Accounts, be borne by the Trust Fund, or, with the
consent of the Corporation, be paid 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.
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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, 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
(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.
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:
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(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, except
as permitted by Section 401(k) of the Code or other applicable law, 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) or other
applicable law, no distribution in excess of $5,000 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
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
this Plan or in the agreement which governs such disposition or other
transaction.
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ARTICLE 14
Participation in Plan by Subsidiary or Affiliate
14.1 Adoption by Subsidiary or Affiliate; Extension to Division or Unit
Any subsidiary or affiliate 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
affiliate, 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 affiliate. 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 affiliate 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 affiliate shall thereupon be
included in the Plan as an Employer. Without limitation of the foregoing,
any such adopting subsidiary or affiliate 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, Affiliates, 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.
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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 not be made to a former Participant whose
employment with the Employer has terminated unless 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.
(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,
60
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 15-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 5-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
transfer to an Affiliated Company which is not part of the Employer,
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-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.
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(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.
15.6 Repayment of Loans
(a) 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 or
inactive 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, Before-Tax Account, Employer Account, Qualified
Contributions Account, Rollover Account, Safe Harbor Account and 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.
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(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
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, including, if applicable, withdrawal due
to Hardship. 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)
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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
Effective on or after January 1, 1998, Section 16.1 shall read, as
follows:
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 necessary to protect any optional forms of benefit which
may not be eliminated without violating Section
65
411(d)(6) of the Code. Notwithstanding the foregoing, in no event shall a
transfer be permitted under this paragraph 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.
66
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.
(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,
67
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
Employer Contribution (disregarding any Safe Harbor Contributions)
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 4.2) 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 two years of Service,
the Value of the Participant's Employer 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 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.
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IN WITNESS WHEREOF, ALCAN ALUMINUM CORPORATION has caused this amendment
and restatement of this Plan to be executed as of ______________ _______, _____.
ALCAN ALUMINUM CORPORATION
By ______________________________
Attest:
________________________
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APPENDIX A
Table of Applicability
(In effect January 1, 2000)
The following table shows the Employers to which the Alcancorp Employees'
Savings Plan applies and the respective effective dates of adoption of the Plan
and, if applicable, the respective date of cessation of participation in the
Plan and the groups of Employees covered by such Employers.
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APPENDIX B
Alcancorp Employees' Savings Plan; Special Provisions
Applicable to Employees of Certain Acquired Enterprises
A. Introduction
Notwithstanding anything to the contrary in the Plan, the following
provisions of this Appendix B shall govern the Plan participation and the
ability to make or receive allocations of Plan contributions with respect
to certain groups of Employees specified herein who were formerly employed
by an employer the operations of which have been acquired by the
Corporation. Except as otherwise specifically provided in this Appendix B,
the provisions of the Plan shall apply to any Participant referred to
herein.
B. Atlantic Richfield Corporation
(1) A Transferred Arco Employee may become a Participant on March 1,
1985 or on any subsequent Entry Date. "Transferred Arco Employee"
means a former Atlantic Richfield Corporation Employee who became an
Eligible Employee of an Employer on January 18, 1985, the closing
date of the purchase of certain Arco operations.
(2) In the case of a Transferred Arco Employee who becomes a Participant
as of March 1, 1985, Employer Contributions for the first calendar
month of such Participant's Plan participation shall be twice the
amount of Employer Contributions otherwise applicable with respect
to such Participant in accordance with Section 4.1.
C. Kroy Industries, Inc.
(1) Effective June 1, 1988, the Kroy Industries Division of Alcan Pipe
(USA) (the "Kroy Division") shall participate in the Plan to the
extent and as provided in this Section C.
(2) On or before December 31, 1988, the Employer shall contribute an
amount equal to such percentage of the earnings for the period June
1, 1988 through November 30, 1988 of each Employee of the Kroy
Division on November 30, 1988 who was hired by Kroy Industries, Inc.
prior to December 1, 1987 as the Corporation shall determine, and
such amount shall be allocated among the Accounts of each person who
is an Eligible Employee at the Kroy Division on December 31, 1988,
who has filed an Appropriate Form or Forms within such time period
as the Plan Administrator shall prescribe ("Initially Eligible Kroy
Employees") as a "Special Employer Contribution," and such
contribution shall be allocated among the Employee Contribution
Accounts of such Eligible Employees in such proportions. Such
contribution shall be treated for purposes of the Plan (except with
respect to the manner of allocation thereof) as if such
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contribution constituted an Employer Contribution under Section
4.1(b). Notwithstanding the foregoing provisions of this Section C
of Appendix B, no Employee of the Kroy Division shall be eligible to
make or to receive an allocation of any contribution under the Plan
during the period from December 1, 1988 through December 31, 1988,
except as specifically provided in the preceding sentence.
(3) For the purposes of the allocation of Employer Contributions
pursuant to Section 4.1(b) and the establishment of vesting in
Employer Contributions pursuant to Article 7, the service of any
Initially Eligible Kroy Employees shall include service with Kroy
Industries, Inc., U.S. Industries, Inc. and Ulysses Irrigation Pipe
Company, Inc. Each Initially Eligible Kroy Employee who has
completed five or more years of service on December 31, 1988 shall
be fully vested in all contributions made by the Employer on his
behalf under the Plan.
(4) Each Initially Eligible Kroy Employee who has received an allocation
of the Special Employer Contribution provided under subsection (2)
above shall be eligible to continue to participate in the Plan from
and after January 1, 1989 in the same manner as all other
Participants in the Plan, provided that he shall have elected such
participation under an Appropriate Form. Without limitation of the
foregoing, each other Eligible Employee of the Kroy Division may
become a Participant in the Plan in the manner provided in Article
2.
D. Jarl Extrusions, Inc.
(1) Effective February 1, 1989, Jarl Extrusion Division ("Jarl
Division") shall participate in the Plan to the extent and as
provided in this Section D.
(2) Effective March 31, 1989, each person who is an Eligible Employee at
the Jarl Division on said date who has filed an Appropriate Form or
Forms within such time period as the Plan Administrator shall
prescribe shall become a Participant in the Plan as of said date.
Each such Participant shall have the right, under conditions of
uniform application established by the Plan Administrator, to make
Before-Tax Contributions as provided in Section 3.2 of the Plan with
respect to the period February 1, 1989 through March 31, 1989, and
the Employer shall contribute, in respect of such contributions, the
appropriate amount established under Section 4.1. Such contributions
of the Participants of the Employer may, but need not, be made in a
single sum and may be made prior to or following March 31, 1989.
Notwithstanding the provisions of this subsection (2), no Employee
of the Jarl Division shall be eligible to make or to receive an
allocation of any contribution during the period from February 1,
1989 through December 31, 1989, except as specifically provided in
the preceding sentence.
(3) For the purposes of the allocation of Employer Contributions
pursuant to Section 4.1(b) and the establishment of vesting in
Employer Contributions pursuant to Article 7, the service of any
Participant who was employed by Jarl Extrusions,
72
Inc. immediately prior to his employment by the Employer shall
include service with Jarl Extrusions, Inc.
(4) Each Eligible Employee referred to in subsection (2) above shall be
eligible to continue to participate in the Plan from or after April
1, 1989, regardless of whether he has made any contributions with
respect to the period ending March 31, 1989, in the same manner as
all other Participants in the Plan, provided that he shall have
elected such participation under an Appropriate Form or Forms.
Without limitation of the foregoing, each other Eligible Employee of
the Jarl Division may become a Participant in the Plan in the manner
provided in Article 2 of the Plan.
E. Magnesium Elektron, Inc.
(1) Effective April 1, 1989, Magnesium Elektron Inc. ("MEI") shall
participate in the Plan to the extent and as provided in this
Section E.
(2) In the case of each Employee of MEI who becomes a Participant as of
April 1, 1989, Employer Contributions for the first calendar month
of such Participant's Plan participation shall be four times the
amount of Employer Contributions otherwise applicable with respect
to such Participant in accordance with Section 4.1.
F. Alumax Aluminum Corporation
(1) A transferred Alumax Employee may become a Participant on January 1,
1991 or on any subsequent Entry Date. "Transferred Alumax Employee"
means a former Employee of the Building Specialties Division of
Alumax Aluminum Corporation who became an Eligible Employee of an
Employer on January 1, 1991.
(2) In addition to any contribution to the Plan permitted under Sections
3.1 or 3.2, a Transferred Alumax Employee who has become a
Participant on or before September 1, 1991 may contribute to the
Plan, during the period commencing on September 30, 1991 and ending
on October 11, 1991, for the Plan Year ending on December 31, 1991,
by means of a single lump sum, cash payment, an amount not in excess
of 6% of the Participant's compensation paid by an Employer for the
period August 1, 1990 through December 31, 1990, subject to any
other applicable limitation on the amount of such contribution under
the Plan or the Code. Any such contribution shall be allocated to
the Basic After-Tax Account of each such Participant and shall be
treated for purposes of the Plan (except for the purposes of the
allocation of Employer Contributions pursuant to Section 4.1(b)) as
if such contribution constituted a Basic After-Tax Contribution.
(3) In addition to any contribution to the Plan made pursuant to Section
4.1, the Employer shall contribute to the Plan, on or before
December 31, 1991 for the Plan Year ending on December 31, 1991, on
behalf of each Participant who made a contribution pursuant to
subsection (2) immediately above, an amount equal to a
73
percentage of such contribution, determined in accordance with the
provisions of Section 4.1(b), and such amount shall be allocated to
the Employer Account of each such Participant. Such contribution by
the Employer shall be treated for purposes of the Plan (including,
without limitation, the establishment of vesting in Employer
Contributions pursuant to Article 7) as if such contribution
constituted an Employer Contribution under Section 4.1. No
Transferred Alumax Employee shall be eligible to make or receive an
allocation of any contribution under the plan during or for any
period prior to January 1, 1991.
G. Logan Aluminum Inc.
(1) Effective December 31, 1994, the Logan Aluminum Employees' Savings
Plan (the "Logan Plan") shall be merged into, and the assets thereof
transferred to, the Plan and Logan Aluminum Inc. shall participate
in the Plan to the extent and as provided in this Section G.
(2) The Board has designated Logan Aluminum Inc. as an Affiliated
Company for all purposes under the Plan.
(3) Any investment election effective under the Logan Plan immediately
prior to December 31, 1994 shall remain in effect until changed
pursuant to Section 5.4 of the Plan.
74
APPENDIX C
Alcancorp Employees' Savings Plan;
Pre-May 1, 1992 Hardship Withdrawal Provisions
Notwithstanding anything in the Plan to the contrary, distributions
pursuant to Section 8.1(10) made on or after March 31, 1989 and before May 1,
1992 shall be made in accordance with the provisions set forth below.
Hardship shall be deemed to exist if the Plan Administrator is satisfied
that (i) the requested withdrawal is necessary in light of immediate and
heavy financial needs of the Participant occasioned by payment of tuition
for the next semester or quarter of post-secondary education for the
Participant, his spouse or dependents, the purchase (excluding mortgage
payments) of a principal residence for the Participant, medical expenses
described in Section 213(d) of the Code incurred by the Participant or his
spouse or dependents as defined in Section 152 of the Code, the need to
prevent the eviction of the Participant from his principal residence or
foreclosure on the mortgage of the Participant's principal residence, or
for such other purpose of an emergency nature or long range purpose as may
be approved by the Plan Administrator, and (ii) the Participant cannot
meet these needs by use of any other reasonably available resources
including the withdrawal of all other available funds from the Plan. The
amount of any Hardship withdrawal shall not exceed the amount required to
meet the immediate financial need created by the Hardship. The Plan
Administrator may require certification or other proof of the purposes for
which the Hardship withdrawal is needed. Clause (ii), above, shall be
deemed to have been satisfied if the Plan Administrator reasonably relies
upon the Participant's certification that his immediate and heavy
financial needs cannot be relieved through reimbursement or compensation
by insurance or otherwise, by reasonable liquidation of the Participant's
assets (to the extent such liquidation would not itself cause an immediate
and heavy financial need), by cessation of all contributions by or on
behalf of the Participant under the Plan, or other distributions or
nontaxable (at the time of the loan) loans from the plans maintained by
the Corporation or any other employer, or by borrowing from commercial
sources on reasonable commercial terms. For purposes of clause (ii),
above, a Participant's resources shall be deemed to include those assets
of the Participant's spouse and minor children that are reasonably
available to the Participant.
75
APPENDIX D
Alcancorp Employees' Savings Plan;
Temporary Restrictions With Respect to Certain Transactions
Notwithstanding anything in the Plan to the contrary, the following restrictions
shall apply during the period of December 1, 1995 through February 28, 1996
(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;
(2) withdrawals pursuant to Article 8 of the Plan shall not be permitted
during the Freeze;
(3) eligible rollover distributions pursuant to Section 8.7 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 Plan Administrator may make additional restrictions, and may change the
length of the Freeze, in any uniform and nondiscriminatory manner that it
determines essential to the operation of the Plan.
76
APPENDIX E
Alcancorp Employees' Savings Plan;
Temporary Provisions With Respect to Change in International Fund
Prior to August 1, 1997 (hereinafter referred to as the "Change Date"), the
"EAFE International Index Fund" constituted the international investment fund
option (the "International Fund") available under the Plan. Effective as of the
Change Date, the "International Index Fund" became the International Fund.
Notwithstanding anything in the Plan to the contrary, the following provisions
shall apply with respect to the change in the International Fund as of the
Change Date:
(1) Prior to the Change Date, the Administrator shall takes such steps
as it deems appropriate to notify Participants of the change in the
International Fund under the Plan.
(2) Effective as of the Change Date, any amounts in any Account under
the Plan which are invested in the EAFE International Fund shall
transferred to the International Index Fund and all affected
Participants and Beneficiaries shall be deemed to have authorized
such transfers.
(3) Effective as of the Change Date, any investment directions to invest
future contributions or other amounts under this Plan in the EAFE
International Fund shall be deemed to be investment directions to
invest such contributions or amounts in the International Index Fund
and all affected Participants and Beneficiaries shall be deemed to
have consented to such change.
77
APPENDIX F
Alcancorp Employees' Savings Plan;
Temporary Restrictions With Respect to Certain Transactions
Notwithstanding anything in the Plan to the contrary, the following restrictions
shall apply during the period of May 26, 2000 through June 8, 2000 (hereinafter
referred to as the "2000 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 2000 Freeze;
(2) withdrawals pursuant to Article 8 of the Plan shall not be permitted
during the 2000 Freeze;
(3) eligible rollover distributions pursuant to Section 8.7 of the Plan, and
distributions pursuant to Article 9 of the Plan shall not occur during the
2000 Freeze, except as may be required by applicable law; and
(4) requests for loans will not be accepted or processed during the 2000
Freeze, although repayments on existing loans will be required to be made
without interruption.
The Plan Administrator may make additional restrictions, and may change
the length of the 2000 Freeze, in any generally uniform and
nondiscriminatory manner that it determines appropriate for the operation
of the Plan.
78
AMENDMENT NO. 1
TO
ALCANCORP
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 Alcancorp
Employees' Savings Plan, effective May 1, 1981, (hereinafter referred to as the
"Plan") for the benefit of eligible employees;
WHEREAS, generally effective January 1, 1996, the Company amended
and restated the Plan, and thereafter again amended and restated the Plan,
generally effective January 1, 2000, in order to bring the Plan in compliance
with new laws and to make other desirable changes; and
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 increase
the percentage of salary deferral permitted under the Plan, clarify and adjust
the treatment of severance situations, expand withdrawal rights for certain
terminated participants and make other desirable changes, effective as set forth
herein;
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 January 1, 2002, Sections 3.1 and 3.2 of the Plan are hereby
amended by the deletion of said Sections 3.1 and 3.2 and the substitution in
lieu thereof of the following:
"3.1 After-Tax Contributions
Subject to the limitations of Sections 4.2 and 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% 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% 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. Those After-Tax
Contributions pursuant to this Section 3.1 which are eligible for an
allocation of Employer Contributions pursuant to Section 4.1 are Basic
After-Tax Contributions which shall be credited to the Participant's
After-Tax Account and those After-Tax Contributions which are not so
eligible for an allocation of Employer Contributions are Additional
After-Tax Contributions which also shall be credited to the Participant's
After-Tax Account.
3.2 Before-Tax Contribution
Subject to the limits of Sections 3.6 and 4.2, a Participant may elect to
have an integral percentage of up to 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
reduce his Compensation by the amount of such Before-Tax Contribution and
transfer such Before-Tax Contribution instead to the Trustee. Such 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
with respect to which such reduction is effective would have been paid.
Those contributions pursuant to this Section 3.2 which are eligible for an
allocation of Employer Contributions pursuant to Section 4.1 are Basic
Before-Tax Contributions which shall be credited to the Participant's
Before-Tax Account and those contributions pursuant to this Section 3.2
which are not so eligible for an allocation of Employer Contributions are
Additional Before-Tax Contributions which also shall be credited to the
Participant's Before-Tax Account.
The Before-Tax Contributions shall be such integral percentage of the
Participant's Compensation as the Participant shall have designated 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 $10,500 for the Plan Year
2
beginning on 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 the Code."
(2) Effective January 1, 2002 (except with respect to any individuals who
entered into severance agreements with an Employer prior to that date), Section
1.21 is hereby amended by the deletion of the second paragraph of such Section
1.21 and the substitution in lieu thereof of the following:
"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, pay under any plan of variable compensation and pay under
the Executive Performance Award Plan and Management Performance Award Plan
and any similar program, but not in excess of any pay up to the guideline
bonus percentage of such pay established under any such variable
compensation or similar program, and amounts contributed by compensation
reduction and deferral to the Plan and to any plan under Section 125 and
132(f)(4) of the Code. For years beginning on or after January 1, 2001,
Compensation shall also include any supplemental payment related to
vacation. Compensation excludes, but the exclusion is not limited to, pay
on the inactive payroll, vacation pay in a lump sum because of
termination, bonus payments over the guideline percentages or which are
earned in the year of termination, but paid in the following year in
variable compensation plans (e.g., Executive Performance Award Plan and
Management Performance Award Plan), and Exceptional Achievement Award
payments."
(3) Effective January 1, 2002 (except with respect to any individuals who
entered into severance agreements with an Employer prior to that date), Section
9.1 is amended by the addition of a new paragraph at the end thereof, to read as
follows:
"For purposes of this Plan, including without limitation this
Section and Sections 1.57, 7.2, 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."
3
(4) Effective January 1, 2002 (except with respect to any individuals who
entered into severance agreements with an Employer prior to that date), Section
15.6 (a) is hereby amended by the deletion of said Section 15.6 (a) and the
substitution in lieu thereof of the following:
"(a) 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."
(5) Effective January 1, 2002, Section 8.2 (b) of the Plan is hereby amended by
the deletion of said Section 8.2 (b) and the substitution in lieu thereof of the
following:
"(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."
(6) Effective January 1, 2000, Section 1.2 of the Plan is hereby amended by
the deletion of said Section 1.2 and the substitution in lieu thereof of the
following:
"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 similar purpose."
(7) (Effective as of January 1, 2000, Section 1.7 of the Plan is hereby amended
by the deletion of said Section 1.7 and the substitution in lieu thereof of the
following:
"1.7 `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."
(8) Effective as of January 1, 2000, Section 1.20 of the Plan is hereby
amended by the deletion of said Section 1.20 and the substitution in lieu
thereof of the following:
4
"1.20 `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 similar purpose."
(9) Effective January 1, 2000, the Section 1.21 is hereby amended by the
deletion of the first sentence of the second paragraph of such Section 1.21 and
the substitution in lieu thereof of the following:
"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, pay under any plan of variable compensation and pay under
the Executive Performance Award Plan and Management Performance Award Plan
and any similar program, but not in excess of any pay up to the guideline
bonus percentage of such pay established under any such variable
compensation or similar program, and amounts contributed by compensation
reduction and deferral to the Plan and to any plan under Section 125 and
132(f)(4) of the Code."
(10) Effective as of January 1, 2000, Section 1.16 of the Plan is hereby amended
by the deletion of said Section 1.16 and the substitution in lieu thereof of the
following:
"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 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.
5
(11) Effective as of January 1, 2000, Sections 1.27, 1.28 and 1.29 of the Plan
is hereby amended by the deletion of said Sections 1.27, 1.28 and 1.29 and the
substitution in lieu thereof of the following:
"1.27 `Eligible Employee' means an Employee who is: (a) regularly employed on a
full-time basis on the active payroll by an Employer at a unit or division
designated for participation in the Plan by the board of directors of such
Employer 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 be considered an Eligible Employee who: (i) is not paid from the
active payroll of an Employer, (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 an Affiliated Company solely by reason of being a Leased
Person, or otherwise performs services for an Employer or an Affiliated
Company pursuant to an agreement between such entity and any other third
party (including without limitation a leasing organization or temporary
agency).
Notwithstanding the foregoing, an Employee who is represented by a
collective bargaining agent recognized by an Employer shall be deemed to
be an "Eligible Employee" only when 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 bargaining agreement.
1.28 `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.
1.29 `Employer' means the Corporation and any entity which is an Affiliated
Company pursuant to Subsections (a), (b) or (c) of Section 1.7, which
entity is designated an Employer by the Board and adopts the Plan as
provided in Article 14 hereof."
(12) Effective as of January 1, 2000, Section 1.37 of the Plan is hereby
amended by the
6
deletion of said Section 1.37 and the substitution in lieu thereof of the
following:
"1.37 `Leased Person' means any individual (other than a common law employee of
an Employer or an Affiliated Company) who, pursuant to an arrangement
between the Employer or Affiliated Company and any other person ("Leasing
Organization") has performed services for the Employer, an Affiliated
Company or a related person, as determined in accordance with Section
414(n)(6) of the Code on a substantially full-time basis for a period of
at least one 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."
(13) Effective as of January 1, 2000 the last paragraph of Section 1.57 of
the Plan is hereby amended by the deletion of said last paragraph and the
substitution in lieu thereof of the following:
"For purposes of determining Service, 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."
(14) Effective as of January 1, 2000, paragraph (ii) of Section 3.6(c) of the
Plan is hereby amended by the deletion of said paragraph (ii) and the
substitution in lieu thereof of the following:
"(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
7
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 the Code."
(15) Effective as of January 1, 2000, the third paragraph of Section 4.2 of the
Plan is hereby amended by the deletion of said third paragraph and the
substitution in lieu thereof of the following:
"For purposes of this Section 4.2, 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."
(16) Effective as of January 1, 2000, paragraph (ii) of Section 4.3(c) of the
Plan is hereby amended by the deletion of said paragraph (ii) and the
substitution in lieu thereof of the following:
"(ii) such Eligible Employee's "Section 414(s) compensation" for
such Plan Year. For this purpose, the terms "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 make After-Tax Contributions or to
have Employer Contributions made on his behalf during a Plan
Year, the amount of Section 414(s) compensation included in
the Actual Contribution 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 $150,000, as automatically adjusted as provided in
Section
8
401(a)(17) of the Code, for any Plan Year commencing after
December 31, 1993."
(17) Effective as of January 1, 2002, the last paragraph of Section 5.1 of
the Plan is hereby amended by the deletion of the last paragraph and the
substitution in lieu thereof of the following:
"The Corporation currently intends that this Plan should comply with the
provisions of Section 404(c) of ERISA 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 ERISA is not applicable or the terms thereof are not
satisfied, the Participants and Beneficiaries shall constitute named
fiduciaries under ERISA with respect to their authority to direct
investment of their Accounts."
(18) Effective as of January 1, 2002, the last paragraph of Section 11.11 of
the Plan is hereby amended by the deletion of said last paragraph and the
substitution in lieu thereof of the following:
"Without limiting the foregoing, no Claimant may file any lawsuit or other
legal action in any court of law with respect to a claim for benefits
hereunder (whether against the Plan, the Corporation, any Employer, the
Plan Administrator or any Claims Fiduciary) unless the Claimant has timely
and properly taken all steps to submit his claim, and appeal any benefit
denial, and otherwise followed and exhausted the claims application and
review procedures of this Plan and no such lawsuit or other legal action
may be filed more than 180 days after the Plan Administrator's final
decision has been rendered with respect to the Claimant's claim."
(19) Effective as of January 1, 2000 Sections 12.2 and 12.3 of the Plan are
hereby amended by the deletion of said Sections 12.2 and 12.3 and the
substitution in lieu thereof of the following:
"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
9
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.
IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to
be executed by its officers thereto duly authorized this ____ day of
______________, 2002, effective as set forth above.
ALCAN ALUMINUM CORPORATION
("Company")
By_________________________________
And________________________________
10
AMENDMENT NO. 2
TO
ALCANCORP
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 Alcancorp
Employees' Savings Plan, effective May 1, 1981, (hereinafter referred to as the
"Plan") for the benefit of eligible employees;
WHEREAS, generally effective January 1, 1996, 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, the Company has amended the restated Plan on one previous
occasion;
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 1.17 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
1.17 to read as follows:
"1.17 `Before-Tax Contributions' means Basic Before-Tax Contributions,
Additional Before-Tax Contributions and Catch-Up Contributions."
(2) Effective July 1, 2002, Article 1 of the Plan is hereby amended by the
addition of new Sections 1.19A and 1.19B to read as follows:
"1.19A `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.
1.19B `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 1.21 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
1.21 to read as follows:
"1.21 `Compensation' means direct compensation of a continuing nature paid to an
Eligible Employee during any payroll period by an Employer or Employers
which, on an aggregate basis, is not 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 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.
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, pay under any plan of variable compensation and pay under
the Executive Performance Award Plan and Management Performance Award Plan
and any similar program, but not in excess of any pay up to the guideline
bonus percentage of such pay established under any such variable
compensation or similar program, and amounts contributed by compensation
reduction and deferral to the Plan and to any plan under Section 125 and
132(f)(4) of the Code. For years beginning on or after January 1, 2001,
Compensation shall also include any supplemental payment related to
vacation. Compensation excludes, but the exclusion is
2
not limited to, pay on the inactive payroll, vacation pay in a lump sum
because of termination, pay over the guideline percentages in variable
compensation plans (e.g., Executive Performance Award Plan and Management
Performance Award Plan), and Exceptional Achievement Award payments."
(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, in complying with Section 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 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 Sections 4.2 and 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% minus the rate of Before-Tax Contributions with respect to the
Participant for the same payroll period.
3
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. Those After-Tax
Contributions pursuant to this Section 3.1 which are eligible for an
allocation of Employer Contributions pursuant to Section 4.1 are Basic
After-Tax Contributions which shall be credited to the Participant's
After-Tax Account and those After-Tax Contributions which are not so
eligible for an allocation of Employer Contributions are Additional
After-Tax Contributions which also shall be credited to the Participant's
After-Tax Account.
3.2 Before-Tax Contribution
Subject to the limits of Sections 3.6 and 4.2, 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 reduce his Compensation by
the amount of such Before-Tax Contribution and transfer such Before-Tax
Contribution instead to the Trustee. Such 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
with respect to which such reduction is effective would have been paid.
Those contributions pursuant to this Section 3.2 which are eligible for an
allocation of Employer Contributions pursuant to Section 4.1 are Basic
Before-Tax Contributions which shall be credited to the Participant's
Before-Tax Account and those contributions pursuant to this Section 3.2
which are not so eligible for an allocation of Employer Contributions are
Additional Before-Tax Contributions which also shall be credited to the
Participant's Before-Tax Account.
The Before-Tax Contributions shall be such integral percentage of the
Participant's 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 the Code."
(8) Effective July 1, 2002, Section 3.9 of the Plan is hereby amended by the
deletion of Section 3.9 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, the Participant may elect to make make-up
contributions relating to such period of Military Service, to the extent
required by Section 414(u) of the Code. 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. Employer
Contributions shall be made with respect to Catch-Up
Contributions under this subsection 3.10(a) to the same extent
as Employer 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 Employer
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
7
later than the 15th business day of the calendar month next
following the 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 4.2 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
4.2 to read as follows:
"4.2 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
8
contributions (including Before-Tax Contributions other than Catch-Up
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 that are allocated 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 4.2, 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 4.2 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) Additional
After-Tax Contributions, (ii) Additional Before-Tax Contributions (other
than Catch-Up Contributions), (iii) Basic After-Tax Contributions, (iv)
Basic Before-Tax Contributions (other than Catch-Up Contributions), (v)
Employer Contributions, and (vi) Qualified Contributions made pursuant to
Section 4.5.
In the event that, notwithstanding the foregoing provisions of this
Section 4.2, 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 Employer Contribution portion shall be held in a suspense
account and, if such Participant remains a Participant, shall
be used to reduce Employer 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 Employer
Contributions for all Participants in the Plan Year in which
he ceases to be a Participant, and all succeeding years, as
necessary."
9
(11) Effective January 1, 2002, Section 4.7 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
4.7 to read as follows:
"4.7 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 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 Employer Account, Safe Harbor 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 Sections 4.2, 4.3 and 4.4 in the Plan Year in which
they are made or to the year which they relate."
(12) Effective January 1, 2002, Section 8.1 of the Plan is hereby amended by the
deletion of clause 9 of such Section in its entirety and the substitution of a
new Section 8.1, clause 9 to read as follows:
"Under Age 59 1/2 Withdrawal from Before-Tax Account Due to Hardship
9. A Participant, who has not attained age 59 1/2 as of the Valuation
Date as of which a withdrawal is to be made, may withdraw, all or
any part of his Before-Tax Account which is not in excess of the
Value of such Account as established as of December 31, 1988, plus
the amount of Before-Tax Contributions made thereto on or after
January 1, 1989, provided that such withdrawal is made on account of
Hardship.
Upon making a withdrawal pursuant to this clause 9, a Participant's
After-Tax Contributions pursuant to Section 3.1 and the Before-Tax
Contributions on his behalf pursuant to Section 3.2 and, if
applicable, Section 3.10, shall automatically be suspended effective
as of the first paydate which coincides with or next follows any
Entry Date. A Participant may resume his After-Tax Contributions or
cause the Before-Tax Contributions on his behalf to be resumed as of
the first paydate which coincides with or next follows any Entry
Date at least (i) for Hardship withdrawals made before January 1,
2001, twelve months after such suspension became effective; (ii) for
Hardship withdrawals made on or after January 1, 2001 and before
January 1, 2002, the later of six months after such
10
suspension became effective or January 1, 2002; and (iii) for
Hardship withdrawals made on or after January 1, 2002, six months
after such suspension became effective, by giving notice to the Plan
Administrator in such manner as the Plan Administrator shall
prescribe prior to such Entry Date.
Distributions pursuant to this clause 9 shall be made in accordance
with the provisions set forth below. A distribution shall be deemed
to be made on account of Hardship if:
(i) the requested withdrawal is necessary on account of an
immediate and heavy financial need of the Participant
occasioned by:
(A) payment of tuition, room and board, and related
educational fees for the next twelve months of
post-secondary education for the Participant, his spouse
or dependents as defined in Section 152 of the Code,
(B) the purchase of a principal residence for the
Participant (excluding mortgage payments and the
construction of a principal residence),
(C) expenses for unreimbursed medical care described in
Section 213(d) of the Code previously incurred by the
Participant or his spouse or dependents or amounts
necessary for such persons to obtain such medical care,
(D) the need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage
of the Participant's principal residence, or
(E) any other need described by the Commissioner of Internal
Revenue in rulings, notices or other documents of
general applicability; and
(ii) the amount of the withdrawal is necessary to satisfy the
financial need. The Plan Administrator will require
certification or other proof of the purposes for which the
Hardship withdrawal is needed. The amount of withdrawal shall
be deemed necessary to satisfy a Participant's immediate and
heavy financial need if:
(A) such amount is not in excess of the amount of the
Participant's immediate and heavy financial need and, at
the Participant's request, any amounts necessary (as
determined by the Plan Administrator) to pay any federal
income taxes or penalties reasonably anticipated to
result from such withdrawal,
(B) the Participant has obtained all other distributions or
nontaxable (at the time of the loan) loans from plans
maintained by the
11
Corporation or any other Employer,
(C) for taxable years beginning prior to January 1, 2002,
with respect to the Participant's taxable year next
following the taxable year of such withdrawal, the
amount of the Participant's elective deferrals under all
plans maintained by the Corporation or any other
Employer shall be limited to the applicable limit under
Section 402(g) of the Code minus the amount of such
deferrals for the taxable year of such withdrawal, and
(D) the Participant may not make any After-Tax Contributions
or Before-Tax Contributions to the Plan or any elective
contribution under any other plan maintained by the
Corporation or any other Employer for at least the
period described in the second paragraph of this clause
9.
Notwithstanding the preceding provisions of this Section 8.1, 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 terminated
service and retains a balance in the Plan pursuant to Section 9.3,
may withdraw all, but not part, or, on and after June 1, 2001, all
or part, of his Before-Tax Account, whether or not he can
demonstrate that the distribution would be on account of a
Hardship."
(13) Effective January 1, 2002, Section 8.3 of the Plan is hereby amended by the
deletion of such Section in its entirety and the substitution of a new Section
8.3 to read as follows:
"8.3 Certain Eligible Rollover Distributions
Notwithstanding anything in the Plan to the contrary that would otherwise
limit a distributee's election under this Section 8.3, 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 8.3, 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;
12
(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;
(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; or
(iv) any distribution from the Plan made on account of Hardship.
(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.
13
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."
(14) 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:
"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), or an absence that continues after the period of a leave of absence
granted by an Employer expires, 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. Any portion of a
Participant's Accounts in which he does not have a vested interest in
accordance with Article 7 at the time of termination of employment shall
be forfeited, and shall be applied to reduce contributions of Employers
(or to reinstate Accounts pursuant to Section 7.3). 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 otherwise expressly provided herein 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.
Notwithstanding the preceding paragraph, no part of a distribution in
excess of $5,000 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).
If a Participant's employment with all Affiliated Companies terminated
prior to December 31,1999, and the Value of his vested interest as of
December 31, 1999, or any subsequent December 31, does not exceed Five
Thousand Dollars ($5,000.00), then his benefit hereunder shall be
distributed as soon as practicable on or after such December 31. Effective
January 1, 2002, the Value of a Participant's vested interest shall not
include any amounts in his Rollover Account.
14
For purposes of this Plan, including without limitation this Section and
Sections 1.57, 7.2, 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."
(15) 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 8.3(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 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
(16) 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."
(17) 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
Employer 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 4.2) 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 Employer Contributions and Before-Tax Contributions.
For Plan Years commencing on or after January 1, 2002, matching
contributions made by the Employer, including Employer Contributions
made in accordance with Section 4.1(b)(ii), 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)."
16
IN WITNESS WHEREOF, the Company has caused this Amendment No. 2 to
be executed by its officers thereto duly authorized this _____ day of May, 2002.
ALCAN ALUMINUM CORPORATION
("Company")
By_________________________________
And________________________________
17
AMENDMENT NO. 3
TO
ALCANCORP 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 Alcancorp
Employees' Savings Plan, effective May 1, 1981, (hereinafter referred to as the
"Plan") for the benefit of eligible employees;
WHEREAS, generally effective January 1, 1996, 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, the Company has amended the restated Plan on two previous
occasions;
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 bring the
Plan into good faith compliance with Code Sections 414(u) and 415(e) (repealed)
in order to secure a favorable determination letter from the Internal Revenue
Service, and make other desirable changes;
NOW, THEREFORE, pursuant to Section 13.1 of the Plan, the Company
hereby amends the Plan, as follows:
USERRA PROVISIONS (CODE SECTION 414(U))
(1) Effective December 12, 1994, the last paragraph of Section 1.57 of the Plan
is hereby amended by the deletion of said last paragraph and the substitution in
lieu thereof of the following:
"For purposes of determining Service, 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. Effective December 12, 1994, 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."
(2) Effective December 12, 1994, Article 3 of the Plan is hereby amended by the
addition of a new Section 3.9 to read as follows:
"3.9 Make-Up Contributions after 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 and had failed to make after-tax contributions and/or
before-tax contributions while on such leave of absence, the Participant
may elect to make make-up contributions relating to such period of
Military Service, to the extent required by Section 414(u) of the Code.
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."
(3) Effective December 12, 1994, Article 4 of the Plan is hereby amended by
the addition of a new Section 4.7 to read as follows:
2
"4.7 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 Employer Account, Safe
Harbor 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
Sections 4.2, 4.3 and 4.4 in the Plan Year in which they are made or to
the year which they relate."
(4) Effective December 12, 1994, subsection (d) of Section 15.6 of the Plan is
hereby amended by the addition of a new subsection (d) to read as follows:
"(d) Notwithstanding any provision of this Plan to the contrary,
effective December 12, 1994, 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."
ANNUAL ADDITIONS LIMITATIONS (REPEALED CODE SECTION 415(e))
(5) Effective January 1, 2000 through December 31, 2001, Section 4.2 of the Plan
is hereby amended by the deletion of such Section in its entirety and the
substitution of a new Section 4.2 to read as follows:
"4.2 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.
3
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 that are allocated 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 4.2, 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 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.
Anything in this Section 4.2 to the contrary notwithstanding, with respect
to Plan Years beginning prior to January 1, 2000, if a Participant is also
a participant in one or more defined benefit plans maintained by the
Corporate Group, the combined limitation under Section 415(e) of the Code
shall be applied, for purposes of the Plan, as set forth in the defined
benefit plan or plans in which the Participant is accruing a benefit with
respect to any such Plan Year for which such limitation is applicable
taking into account any priority established therein for the manner in
which benefits under such plans and the Plan shall be reduced. With
respect to Plan Years beginning on or after January 1, 2000, no combined
limit under Section 415(e) of the Code shall apply with respect to the
Plan.
If the limitations applicable to any Participant in accordance with this
Section 4.2 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) Additional
After-Tax Contributions, (ii) Additional Before-Tax Contributions, (iii)
Basic After-Tax Contributions, (iv) Basic Before-Tax Contributions, (v)
Employer Contributions, and (vi) Qualified Contributions made pursuant to
Section 4.5.
In the event that, notwithstanding the foregoing provisions of this
Section 4.2, 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
4
(ii) the Employer Contribution portion shall be held in a suspense
account and, if such Participant remains a Participant, shall be
used to reduce Employer 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 Employer Contributions for all Participants
in the Plan Year in which he ceases to be a Participant, and all
succeeding years, as necessary."
(6) Effective January 1, 2000, Section 17.2 of the Plan is hereby amended by the
addition of a new subsection (e) to read as follows:
"(e) Prior to January 1, 2000, in order to comply with the requirements
of Section 416(h) of the Code, in the case of a Participant who is a
participant or has also participated in a defined benefit plan of
the Corporation (or any member of the Corporate Group that is
required to be aggregated with the Corporation in accordance with
Section 415(h) of the Code) in any Plan Year commencing prior to
January 1, 2000, in which the Plan is Top-Heavy, there shall be
imposed under such defined benefit plan the following limitation in
addition to any limitation which may be imposed as described in
Section 4.2. In any such year, for purposes of satisfying the
aggregate limit on contributions and benefits imposed by Section
415(e) of the Code, benefits payable from the defined benefit plan
shall, except as hereinafter described, be reduced so as to comply
with a limit determined in accordance with Section 415(e) of the
Code, but with the number "1.0" substituted for the number "1.25" in
the "defined benefit plan fraction" (as defined in Section 415(e)(2)
of the Code) and in the "defined contribution plan fraction" (as
defined in Section 415(e)(3) of the Code). Notwithstanding the
foregoing, if the application of the additional limitation set forth
in this paragraph (e) would result in the reduction of accrued
benefits of any Participant under the defined benefit plan, such
additional limitation shall not become operative, so long as (1) no
additional Employer contributions, forfeitures or voluntary
nondeductible contributions are allocated to such Participant's
accounts under any defined contribution plan maintained by the
Employer including the Plan, and (2) no additional benefits accrue
to such Participant under any defined benefit plan maintained by the
Corporation. Accordingly, in any Plan Year that the Plan is
Top-Heavy, no additional benefits shall accrue under the defined
benefit plan on behalf of any Participant whose overall benefits
under the defined benefit plan otherwise would be reduced in
accordance with the limitation described in this paragraph (e)."
5
IN WITNESS WHEREOF, the Company has caused this Amendment No. 3 to
be executed by its officers thereto duly authorized this ________ day of
_________________, 2003.
ALCAN ALUMINUM CORPORATION
By: ________________________________
Title: _____________________________
6
AMENDMENT NO. 4
TO
ALCANCORP EMPLOYEES' SAVINGS PLAN
This Amendment No. 4 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 Alcancorp
Employees' Savings Plan, effective May 1, 1981, (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 three previous
occasions;
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, 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 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 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
(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
2
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
(2) 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 to certify that he or she
has other health coverage), 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
3
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."
(3) Effective January 1, 2002, Section 3.6 of the Plan is hereby amended by the
deletion of subsection (m) of said Section and the substitution in lieu thereof
of a new subsection (m) to read as follows:
"(m) [Repealed]."
(4) Effective January 1, 2002, Section 4.2 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 4.2, 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 (including 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) and 402(e)(3) of the Code."
(5) Effective January 1, 2002, Section 4.3 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 terms "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 to certify that he or she
has other health coverage), 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 make After-Tax Contributions or to
have Employer Contributions made on his behalf during a Plan
Year, the amount of Section 414(s) compensation included in
the Actual Contribution Percentage test is the amount of
Section 414(s) compensation received by the Eligible Employee
during the entire Plan
4
Year. In no case shall the Section 414(s) compensation for any
Eligible Employee for any Plan Year exceed $150,000, as
automatically adjusted as provided in Section 401(a)(17) of
the Code, for any Plan Year commencing after December 31,
1993."
(6) Effective January 1, 2002, Section 4.3 of the Plan is hereby amended by the
deletion of subsection (k) of said Section and the substitution in lieu thereof
of a new subsection (k) to read as follows:
"(k) In determining whether the requirements of this Section 4.3 are
satisfied, the Plan Administrator may in its discretion, in
accordance with regulations, take into account Participants'
Before-Tax Contributions made to the Plan pursuant to Section 3.1;
provided, however, that such contributions are not taken into
account in order to satisfy the requirements of Section 3.6."
(7) Effective January 1, 2002, Section 4.4 of the Plan is hereby amended by the
deletion of said Section and the substitution in lieu thereof of a Section 4.4
to read as follows:
"4.4 [Repealed]."
(8) Effective January 1, 2002, Section 4.5 of the Plan is hereby amended by the
deletion of said Section and the substitution in lieu thereof of a Section 4.5
to read as follows:
"4.5 Qualified Contributions
An Employer may, in its sole discretion, make a Qualified Contribution in
order to satisfy the requirements of Section 3.6 or 4.3. 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 and
4.3; (ii) is nonforfeitable at all times; (iii) 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 matching
contribution (as defined in Treasury Regulation Section
1.401(k)-1(g)(13)(i)), or 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."
5
(9) Effective January 1, 2002, Section 4.7 of the Plan is hereby amended by the
deletion of said Section and the substitution in lieu thereof of a Section 4.7
to read as follows:
"4.7 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 Employer Account, Safe
Harbor 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
Sections 4.2 and 4.3 in the Plan Year in which they are made or to the
year which they relate."
CLAIMS PROCEDURES (LABOR REGULATION 2560.503-1)
(10) Effective January 1, 2002, Section 11.11 of the Plan is hereby amended by
the addition thereto of the following:
"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,
6
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 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
(11) Effective January 1, 2000, Section 4.3 of the Plan is hereby amended by the
deletion of subsection (f)(iii) of said Section and the substitution in lieu
thereof of a new subsection (f)(iii) to read as follows:
"(iii) In reducing the Combined Contributions of an HCE the
following order shall be used: (A) Additional After-Tax
Contributions, (B) Basic After-Tax Contributions and the
vested portion of Employer Contributions attributable to such
Basic After-Tax Contributions, (C) the vested portion of
Employer Contributions attributable to Basic Before-Tax
Contributions and (D) the portion of such Employer
Contributions which are not vested. Such excess After-Tax
Contributions and Employer Contributions (along with income
attributable to such excess contributions, as determined
pursuant to Section 3.6(g)) shall be returned to the affected
Participants who are 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. The amount of excess Employer
Contributions that are not vested shall be forfeited and shall
be held in a suspense account and used to reduce the
Employer's future Employer Contributions."
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IN WITNESS WHEREOF, the Company has caused this Amendment No. 4 to
be executed by its officers thereto duly authorized this ______day of
_____________, 200 .
ALCAN ALUMINUM CORPORATION
By: __________________________________
Title: _______________________________
8
AMENDMENT NO. 5
TO
ALCANCORP EMPLOYEES' SAVINGS PLAN
This Amendment No. 5 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
Alcancorp Employees' Savings Plan, effective May 1, 1981 (the "Plan") to provide
retirement benefits to certain 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, Alcan Aluminum Corporation reserved the right, pursuant to
Section 13.1 of the Plan, to make 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 as of 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 1.23 in its
entirety and the substitution in lieu thereof of a new Section 1.23 to read as
follows:
"1.23 "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
and the signature block, 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 Plan is hereby amended by the deletion of Appendix A in its
entirety and the substitution in lieu thereof a new Appendix A to read as
follows:
"APPENDIX A
Table of Applicability
(In effect July 31, 2003)
The following table shows the Employers to which the Alcancorp Employees'
Savings Plan applies and the respective effective dates of adoption of the Plan
and, if applicable, the respective date of cessation of participation in the
Plan and the groups of Employees covered by such Employers.
2
3
IN WITNESS WHEREOF, the Corporation has caused this Amendment No. 5
to be executed by its duly authorized officer this _________ day of July, 2003.
ALCAN ALUMINUM CORPORATION
By:__________________________
Title:_______________________
4