As filed with the Securities and Exchange Commission on ____________, 2001
Registration No. _________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CANADA 1-10928
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(State or other jurisdiction of Commission File No.
incorporation of organization)
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110E MONTEE DE LIESSE
ST. LAURENT, QUEBEC, CANADA H4T 1N4
(514) 731-7591
INTERTAPE POLYMER GROUP, INC. USA EMPLOYEES' STOCK
OWNERSHIP AND RETIREMENT SAVINGS PLAN
(Full title of the Plan)
BURGESS H. HILDRETH
INTERTAPE POLYMER GROUP INC.
3647 CORTEZ ROAD WEST
BRADENTON, FLORIDA 34210
(941) 727-5788
CALCULATION OF REGISTRATION FEE
------------------------- ------------------------ -------------------- ----------------------- ------------------------- Title of Each Class of Proposed Maximum Proposed Maximum Securities to be Amount to be Offering Price per Aggregate Offering Amount of Registered (1) Registered (1) Share (2) Price (2) Registration Fee (2) ------------------------- ------------------------ -------------------- ----------------------- ------------------------- Common Shares 300,000 Shares $9.245 $2,773,500 $693.38 ------------------------- ------------------------ -------------------- ----------------------- ------------------------- |
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this Registration Statement also covers an indeterminate amount of interests to be offered and sold pursuant to the employee benefit plan described herein.
(2) Estimated, pursuant to Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee and based upon the average of the high and low prices of the Common Shares of the Registrant as reported on the New York Stock Exchange on August 10, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I of Form S-8 will be sent or given to employees eligible to participate in the Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant or the Plan to which this Registration Statement relates with the Securities and Exchange Commission (the "Commission") are incorporated by reference and made a part hereof:
(a) Registrant's annual report on Form 40-F for the year ended December 31, 2000, filed on May 18, 2001.
(b) Registrant's quarterly report on Form 6-K for the quarter ended March 31, 2001, filed on May 25, 2001.
(c) The description of Registrant's common shares contained in Registrant's 1998 Annual Report (Notes to Consolidated Financial Statements) included in Part I of the Registration Statement (File No. 1-10928) on Form 20-F, including any amendment or report updating this description.
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the Company's annual report referenced in (a) above.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14, and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
de-registers all such securities then remaining unsold, shall be deemed to be
incorporated in this Registration Statement by reference and to be a part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
None of the following experts or counsel has, nor shall any of them receive, any interest that would require disclosure in this Registration Statement.
Certain legal matters relating to Canadian law will be passed upon for the Company by Stikeman Elliott, Montreal, Quebec, Canada.
The financial statements and the related financial statement schedules included in or incorporated by reference in this Registration Statement, to the extent and for the periods indicated in their reports, have been audited by Raymond Chabot Grant Thornton, General Partnership, independent chartered accountants, Montreal, Quebec, Canada.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Canada Business Corporations Act (the "CBCA"), the Company may indemnify a present or former director or officer or a person who acts or acted at the Company's request as a director or officer of another corporation of which the Company is or was a shareholder or creditor, and his or her heirs and legal representatives, against all costs, charges and expenses, including an amount to settle an action or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal or administrative action or proceeding to which he or she is made a party by reason of being or having been a director or officer of the Company or such other corporation and provided that the director or officer acted honestly and in good faith with a view to the best interests of the Company, and, in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing that his or her conduct was lawful. Such indemnification may be made in connection with a derivative action only with court approval. A director or officer is entitled to indemnification from the Company as a matter of right if he or she was substantially successful on the merits in his or her defense of the action or proceeding and fulfilled the conditions set forth above.
In accordance with the CBCA, the By-Laws of the Company provide that the Company shall indemnify a present or former director or officer or a person who acts or acted at the Company's request as a director or officer of a body corporate of which the Company is or was a shareholder or creditor, and his or her heirs and legal representatives, against all costs, charges and expenses, including any amount paid to settle an action or satisfaction of judgment, reasonably incurred by him in respect of any civil, criminal or administrative
action or proceeding to which he or she is made a party by reason of being or having been a director or officer of the Company or such body corporate if (i) he or she acted honestly and in good faith with a view to the best interests of the Company; and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he or she had reasonable grounds for believing that his or her conduct was lawful. The Company will also indemnify such person in such other circumstances as the CBCA or law permits or requires. The By-Laws do not limit the right of any person entitled to indemnity to claim indemnity apart from the provisions of the By-Laws.
A directors and officers' liability insurance policy is maintained by the Company, which insures directors and officers for losses as a result of claims against the directors and officers of the Company in their capacity as directors and officers and also reimburses the Company for payments made pursuant to the indemnity provisions under the CBCA and the By-Laws of the Company.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, the Company has been advised that in the opinion of the Commission such indemnification is against United States public policy as expressed in the Securities Act and is, therefore, unenforceable in the United States.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
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4(a) Certificate of Incorporation of Registrant:
o Certificate of Incorporation/Articles of Incorporation
dated December 22, 1989
o Certificate of Amendment/Articles of Amendment
dated October 8, 1991
o Certificate of Amendment/Articles of Amendment
dated October 31, 1991
o Certificate of Amendment/Articles of Amalgamation
dated August 31, 1993
o Certificate of Amendment/Articles of Amendment
dated May 22, 1996
4(b) Bylaws of Registrant
4(c) Amendment and Restatement of Intertape Polymer Group, Inc.
USA Employees' Stock Ownership and Retirement Savings Plan
5(a) Legal Opinion of Stikeman Elliott
5(b) The Registrant undertakes to submit the plan and any
amendments thereto to the Internal Revenue Service in a
timely manner and has made or will make all changes required
by the IRS in order to qualify the plan.
23(a) Consent of Raymond Chabot Grant Thornton, General
Partnership
23(b) Consent of Stikeman Elliott
24 Power of Attorney (included on signature page of this
Registration Statement)
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ITEM 9. UNDERTAKINGS
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES - THE REGISTRANT
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Toronto and Province of Ontario, Canada, on the 13th day of August, 2001.
INTERTAPE POLYMER GROUP INC.
By: /s/ Melbourne F. Yull -------------------------------------- Melbourne F. Yull, Chairman, Chief Executive Officer and Director |
POWER OF ATTORNEY. Each person whose signature appears below constitutes and appoints Melbourne F. Yull as his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign any or all amendments of and supplements to this Registration Statement and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agents and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, to all intents and purposes and as fully as they might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
/s/ Melbourne F. Yull /s/ Andrew M. Archibald
------------------------------------ ------------------------------------
Melbourne F. Yull, Chairman, Chief Andrew M. Archibald, C.A., Chief Financial Officer,
Executive Officer and Director Secretary, Treasurer and Vice President Administration
August 13, 2001 (Principal Financial and Accounting Officer)
August 13, 2001
/s/ Michael L. Richards /s/ Ben J. Davenport, Jr.
------------------------------------ ------------------------------------
Michael L. Richards Ben J. Davenport, Jr.
Director Director
August 13, 2001 August 13, 2001
/s/ Gordon R. Cunningham
------------------------------------ ------------------------------------
L. Robbie Shaw Gordon R. Cunningham
Director Director
August __, 2001 August 13, 2001
/s/ J. Spencer Lanthier
------------------------------------
J. Spencer Lanthier
Director
August 13, 2001
------------------------------------
Irvine Mermelstein
Director
August __, 2001
SHUTTS & BOWEN LLP
United States Authorized Representative
By: /s/ J. Gregory Humphries
-----------------------------------
J. Gregory Humphries, Partner
August 15, 2001
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SIGNATURES - THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the Plan) have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bradenton, State of Florida, on August 15, 2001.
INTERTAPE POLYMER GROUP, INC. USA
EMPLOYEES' STOCK OWNERSHIP AND RETIREMENT
SAVINGS PLAN
By: IPG Administrative Services, Inc.
By: /s/ Burgess Hildreth
------------------------------
Burgess Hildreth
Vice President - Human Resources
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EXHIBIT 4(a)
[Logo] Consumer and Consommation Corporate Affairs Canada et Corporations Canada
CERTIFICATE OF INCORPORATION CERTIFICAT DE CONSTITUTION
CANADA BUSINESS LOI REGISSANT LES SOCIETES
CORPORATION ACT PAR ACTIONS DE REGIME FEDERAL
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171695 CANADA INC. 55724-0
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Name of corporation - Denomination de la societe Corporation number - Numero de la societe
I hereby certify that the above-mentioned Je certifie par les presentes que la societe
Corporation, the Articles of Incorporation of which mentionnee ci-haut, don't les statuts constitutifs
are attached, was incorporated under the Canada sont joints, a ete constituee en societe en vertu de
Business Corporations Act. la Loi regissant les societes par actions de reegime federal.
Le directeur
December 22, 1989/le 22 decembre 1989
/s/
------------------------------------
Director - Directeur Date of Incorporation - Date de constitution
[CANADA LOGO]
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CANADA BUSINESS
CORPORATIONS ACT
FORM 1
ARTICLES OF INCORPORATION
1 - NAME OF CORPORATION
171695 CANADA INC.
2 - THE PLACE IN CANADA WHERE THE REGISTERED OFFICE IS TO BE SITUATED
Montreal Urban Community, Province of Quebec.
3 - THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT THE CORPORATION
IS AUTHORIZED TO ISSUE
Unlimited number of common shares;
Unlimited number of class A preferred shares; and
Unlimited number of class B preferred shares.
I. The common shares and the class A preferred shares shall have attached
thereto the following rights, privileges, restrictions and conditions:
(a) The holders of the common shares and the holders of class A
preferred shares shall be entitled to receive notice of and to
attend and vote at all meetings of the shareholders of the
Corporation and each common share and class A preferred share
shall confer the right to one (1) vote in person or by proxy
at all meetings of shareholders of the Corporation.
(b) Provided that there are no class B preferred shares of the
Corporation issued and outstanding, the holders of the class A
preferred. shares shall, in each year, in the discretion of
the directors but always in preference and priority to any
payment of dividends on the common shares for such year, be
entitled to non-cumulative dividends at a rate of up to a
maximum of 12% per annum, determined in the discretion of the
directors, on the amount which was received by the Corporation
upon the issuance of each such share as recorded in the stated
capital account maintained for such class of shares which may
be paid in money or property or by issuing fully paid shares
of the Corporation as the directors may from time to time
determine. If, in any year after providing for the full
dividend on the class A preferred shares determined in the
discretion of the directors as aforesaid, there shall remain
any profits or surplus available for dividends, provided there
are no class B preferred shares of the Corporation issued and
outstanding at such time, such profits or surplus, or any part
thereof, may, in the discretion of the directors, be applied
to dividends on the common shares.
(c) The class A preferred shares shall rank, both as regard
dividends and return of capital, in priority to the common
shares of the Corporation
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but after the class B preferred shares and shall not confer any further right to participate in profits or assets.
(d) Provided all of the issued and outstanding class B preferred
shares of the Corporation have been redeemed as set forth in
paragraph II. (d) hereof, the Corporation may redeem the whole
or any part of the class A preferred shares outstanding on
payment for each share to be redeemed of an amount equal to
the consideration received by the Corporation upon the
issuance of each such share as recorded in the stated capital
account maintained for such class of shares together with all
dividends declared thereon and unpaid; in case a part only of
the then outstanding class A preferred shares is at any time
to be redeemed, the shares so to be redeemed shall be selected
by lot in such manner as the directors in their discretion
shall decide or, if the directors so determine, may be
redeemed pro rata, disregarding fractions, and the directors
may make such adjustments as may be necessary to avoid the
redemption of fractional parts of shares; not less than thirty
(30) days' notice in writing of such redemption shall be given
by mailing such notice to the registered holders of the shares
to be redeemed to the last known address of each such holder,
specifying the date and place or places of redemption; if
notice of any such redemption be given by the Corporation in
the manner aforesaid and an amount sufficient to redeem the
shares be deposited with any trust company or chartered bank
in Canada as specified in the notice on or before the date
fixed for redemption, dividends on the class A preferred
shares to be redeemed shall cease after the date so fixed for
redemption, and the holders thereof shall thereafter have no
rights against the Corporation in respect thereof except, upon
the surrender of certificates for such shares, to receive
payment therefor out of the moneys so deposited; after the
redemption price of such shares has been deposited with any
trust company or chartered bank in Canada, as aforesaid,
notice shall be given to the holders of any class A preferred
shares called for redemption who have failed to present the
certificates representing such shares, within two (2) months
of the date specified for redemption, that the money has been
so deposited and may be obtained by the holders of the said
class A preferred shares upon presentation of the certificates
representing such shares called for redemption at the said
trust company or chartered bank.
(e) Upon a redemption of class A preferred shares as set out in paragraph I. (d) hereof, the Corporation shall deduct from the stated capital account maintained for the class A preferred shares an amount equal to the result obtained by multiplying
the stated capital account of the class A preferred shares by the number of such shares which have been redeemed, divided by the number of class A preferred shares which have been issued and are outstanding immediately before such redemption.
(f) In the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the holders of the class A preferred shares shall be entitled to receive, before any distribution of any part of the assets of the Corporation among the holders of the common shares, but after distribution to the holders of the class B preferred shares, for each class A preferred share, an amount equal to the consideration received by the Corporation upon the issuance of each such share as recorded in the stated capital account maintained for such class of shares and any dividends declared thereon and unpaid and no more.
II. The class B preferred shares shall have attached thereto the following rights, privileges, restrictions and conditions:
(a) The holders of the class B preferred shares shall not, as such, have any voting rights for the election of directors or for any other purpose (except where the holders of such class B preferred shares are entitled to vote separately as a class as provided in the Canada Business Corporations Act), nor shall they be entitled to receive notice of or to attend shareholders meetings.
(b) The holders of the class B preferred shares shall, in each year, in the discretion of the directors, be entitled to a non-cumulative dividend at the rate of 12% per annum on the amount which was received by the Corporation upon the issuance of each such share as recorded in the stated capital account maintained for such class of shares which may be paid in money or property or by issuing fully paid shares of the Corporation as the directors may from time to time determine. No profit or surplus available for dividends after the provision for payment of the full dividend on the class B preferred shares shall be applied to dividends on the class A preferred shares or the common shares so long as any of the class B preferred shares remain issued and outstanding.
(c) The class B preferred shares shall rank, both as regard dividends and return of capital, in priority to all other shares of the Corporation but shall not confer any further right to participate in profits or assets.
(d) The. Corporation may redeem the whole or any part of the class B preferred shares outstanding on payment for each share to be redeemed of an amount equal to the consideration received by the Corporation upon the issuance of each such share as recorded in the stated capital account maintained for such class of shares together with an amount equal to all dividends declared thereon and unpaid; in case a part only of the then outstanding class B preferred shares is at any time to be redeemed, the shares so to be redeemed shall be selected by lot in such manner as the directors in their discretion shall decide or, if the directors so determine, may be redeemed pro
rata, disregarding fractions, and the directors may make such adjustments as may be necessary to avoid the redemption of fractional parts of shares; not less than thirty (30) days,' notice in writing of such redemption shall be given by mailing such notice to the registered holders of the shares to be redeemed to the last known address of each such holder, specifying the date and place or places of redemption; if notice of any such redemption be given by the Corporation in the manner aforesaid and an amount sufficient to redeem the shares be deposited with' any trust company or chartered bank in Canada as specified in the notice on or before the date fixed for redemption, dividends on the class B preferred shares to be redeemed shall cease after the date so fixed for redemption, and the holders thereof shall thereafter have no rights against the Corporation in respect thereof except, upon the surrender of certificates for such shares, to receive payment therefor out of the moneys so deposited; after the redemption price of such shares has been deposited with any trust company or chartered bank in Canada, as aforesaid, notice shall be given to the holders of any class B preferred shares called for redemption who have failed to present the certificates representing such shares, within two (2) months of the date specified for redemption, that the money has been so deposited and may be obtained by the holders of the said class B preferred shares upon presentation of the certificates representing such shares called for redemption at the said trust company or chartered bank.
(e) Upon a redemption of class B preferred shares as set out in paragraph II. (d) hereof, the Corporation shall deduct from the stated capital account maintained for the class B preferred shares an amount equal to the result obtained by multiplying the stated capital account of the class B preferred shares by the number of such shares which have been redeemed, divided by the number of class B preferred shares which have been issued and are outstanding immediately before such redemption.
(f) In the event of the liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary, the holders of the class B preferred shares shall be entitled to receive, before any distribution of any part of the assets of the Corporation among the holders of any other shares, for each class B preferred share, an amount equal to the consideration received by the Corporation upon the issuance of each such share as recorded in the stated capital account maintained for such class of shares and any dividends declared thereon and unpaid as of the date of such distribution and no more.
4 - RESTRICTIONS IF ANY ON SHARE TRANSFERS
No share in the share capital of the Corporation shall be transferred
nor assigned without the approval of the directors certified by a
resolution of the board of directors. Approval of such transfer or
assignment of shares may be given as above, after the said transfer or
assignment has been recorded in the books of the Corporation, in which
case, unless the said resolution otherwise provides, the said transfer
or assignment shall be valid and shall have effect as at the date it
has been recorded in the books of the Corporation.
5 - NUMBER (OR MINIMUM AND MAXIMUM NUMBER) OF DIRECTORS
A minimum of one (1) and a maximum of seven (7).
6 - RESTRICTIONS IF ANY ON BUSINESS THE CORPORATION MAY CARRY ON
None.
7 - OTHER PROVISIONS IF ANY
(1) the number of the shareholders of the Corporation is limited
to fifty (50) exclusive of present or former employees of the
Corporation or of a subsidiary of the Corporation, two or more
persons holding one or more shares jointly being counted as a
single shareholder;
(2) any distribution of securities to the public or invitation for
the subscription or the distribution of an instrument or
security issued by the Corporation is prohibited; and
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(3) the directors of the Corporation may, when deemed expedient:
(a) borrow money upon the credit of the Corporation;
(b) issue debentures or other securities of the Corporation, and pledge or sell the same for such sums and at such prices as may be deemed expedient;
(c) notwithstanding the provisions of the Civil Code, hypothecate, mortgage or pledge the moveable or immoveable property, present or future, of the Corporation, to secure any such debentures, or other securities, or give part only of such guarantee for such purposes; and constitute the hypothec, mortgage or pledge above mentioned, by trust deed, in accordance with sections 28 and 29 of the Special Corporate Powers Act (chapter P-16), or in any other manner; and
(d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any moveable or personal, immoveable or real or other property of the
Corporation, owned or subsequently acquired, to secure any obligation of the Corporation.
The directors may, by resolution or by-law, provide for the delegation of such powers by the directors to such officers or directors of the Corporation to such extent and in such manner as may be set out in the resolution or by-law, as the case may be.
8 - INCORPORATORS
NAME ADDRESS
Kathryn MacDougall 1155 Rene-Levesque Blvd.
West
Suite 3900
Montreal, Quebec
H3B 3V2
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Signature
Corporation No. Filed DEC 27 1989
[LOGO] Consumer and Consommation Corporate Affairs Canada et Corporations Canada
CERTIFICATE OF AMENDMENT CERTIFICAT DE MODIFICATION
CANADA BUSINESS LOI REGISSANT LES SOCIETES
CORPORATION ACT PAR ACTIONS DE REGIME FEDERAL
------------------------------------------------------------- --------------------------------------------------------
INTERTAPE POLYMER GROUP, INC. 255724-0
LE GROUPE INTERTAPE POLYMER INC.
Name of Corporation - Denomination de la societe Number--Numero
I hereby certify that the Articles of the Je certifie par les presentes que les statuts de la
above-mentioned Corporation were amended societe mentionnee ci-haut ont ete modifies
(a) under Section 13 of the Canada Business [ ] (a) en vertu de l'article 13 de la Loi regissant les
Corporations Act in accordance with the societes par actions de regime federal
attached notice; conformement a l'avis ci-joint;
(b) under Section 27 of the Canada Business [ ] (b) en vertu de l'article 27 de la Loi regissant les
corporations Act as set out in the attached societes par actions de regime federal tel
Articles of Amendment designating a series of qu'indique dans les clauses modificatrices
shares; ci-jointes
designant une serie d'actions;
(c) under Section 177 of the Canada Business [X] (c) en vertu de l'article 177 de la Loi regissant les
Corporations Act as set out in the attached societes par actions de regime federal tel
Articles of Amendment; qu'indique dans les clauses modificatrices ci-jointes;
(d) under Section 191 of the Canada Business [ ] (d) en vertu de l'article 191 de la Loi regissant les
Corporations Act as set out in the attached societes par actions de regime federal tel
Articles of Reorganization; qu'indique dans les clauses de reorganization ci-jointes;
(e) under Section 192 of the Canada Business [ ] (e) en vertu de l'article 192 de la Loi regissant les
Corporations Act as set out in the attached societes par actions de regime federal tel
Articles of Arrangement. qu'indique dans les clauses d'arrangement
cijointes.
Le directeur
October 8, 1991/le 8 octobre 1991
/s/
--------------------------------------
Date of Amendment - date de la modification
Director
[CANADA LOGO]
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CANADA BUSINESS
CORPORATIONS ACT
FORM 4
ARTICLES OF AMENDMENT
1 - NAME OF CORPORATION
171695 CANADA INC.
2 - CORPORATION NO.
255724-0
3 - THE ARTICLES OF THE ABOVE-NAMED CORPORATION ARE AMENDED AS FOLLOWS:
Section 1 of the articles of incorporation be and is hereby deleted
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and replaced by the following:
1 - Name of Corporation
INTERTAPE POLYMER GROUP INC.
LE GROUPE INTERTAPE POLYMER INC.
DATE SIGNATURE
October 8, 1991
-------------------------
Michael L. Richards
DESCRIPTION OF OFFICE
Director
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[LOGO] Consumer and Consommation Corporate Affairs Canada et Corporations Canada
CERTIFICATE OF AMENDMENT CERTIFICAT DE MODIFICATION
CANADA BUSINESS LOI REGISSANT LES SOCIETES
CORPORATION ACT PAR ACTIONS DE REGIME FEDERAL
------------------------------------------------------------- --------------------------------------------------------
INTERTAPE POLYMER GROUP, INC. 255724-0
LE GROUPE INTERTAPE POLYMER INC.
Name of Corporation - Denomination de la societe Number--Numero
I hereby certify that the Articles of the Je certifie par les presentes que les statuts de la
above-mentioned Corporation were amended societe mentionnee ci-haut ont ete modifies
(a) under Section 13 of the Canada Business [ ] (a) en vertu de l'article 13 de la Loi regissant les
Corporations Act in accordance with the societes par actions de regime federal
attached notice; conformement a l'avis ci-joint;
(b) under Section 27 of the Canada Business [ ] (b) en vertu de l'article 27 de la Loi regissant les
corporations Act as set out in the attached societes par actions de regime federal tel
Articles of Amendment designating a series of qu'indique dans les clauses modificatrices
shares; ci-jointes
designant une serie d'actions;
(c) under Section 177 of the Canada Business [X] (c) en vertu de l'article 177 de la Loi regissant les
Corporations Act as set out in the attached societes par actions de regime federal tel
Articles of Amendment; qu'indique dans les clauses modificatrices ci-jointes;
(d) under Section 191 of the Canada Business [ ] (d) en vertu de l'article 191 de la Loi regissant les
Corporations Act as set out in the attached societes par actions de regime federal tel
Articles of Reorganization; qu'indique dans les clauses de reorganization ci-jointes;
(e) under Section 192 of the Canada Business [ ] (e) en vertu de l'article 192 de la Loi regissant les
Corporations Act as set out in the attached societes par actions de regime federal tel
Articles of Arrangement. qu'indique dans les clauses d'arrangement
cijointes.
Le directeur
October 31, 1991/le 31 octobre 1991
/s/
--------------------------------------
Date of Amendment - date de la modification
Director
[CANADA LOGO]
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CANADA BUSINESS
CORPORATIONS ACT
FORM 4
ARTICLES OF AMENDMENT
1 - NAME OF CORPORATION
INTERTAPE POLYMER GROUP INC.
LE GROUPE INTERTAPE POLYMER INC.
2 - CORPORATION NO.
255724-0
3 - THE ARTICLES OF THE ABOVE-NAMED CORPORATION ARE AMENDED AS FOLLOWS:
A. Section 3 of the articles of incorporation is hereby deleted
and replaced by the following:
3 - THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT
THE CORPORATION IS AUTHORIZED TO ISSUE
Unlimited number of common shares; and
Unlimited number of class A preferred shares, issuable in
series.
I. The common shares shall have attached thereto the
following rights, privileges, restrictions and
conditions:
(a) Each common share shall entitle the holder thereof to
one (1) vote at all meetings of the shareholders of
the Corporation.
(b) The holders of the common shares shall be entitled to
receive during each year, as and when declared by the
board of directors, dividends payable in money,
property or by the issue of fully paid shares of the
capital of the Corporation.
(c) In the event of the liquidation, dissolution or
winding up of the Corporation, whether voluntary or
involuntary, or other distribution of assets of the
Corporation among shareholders for the purpose of
winding up its affairs, the holders of the common
shares shall be entitled to receive the remaining
property of the Corporation.
II. The class A preferred shares shall have attached
thereto the following rights, privileges,
restrictions and conditions:
(a) The directors of the Corporation may at any time and
from time to time, issue the class A preferred shares
|
in one (1) or more series, each series to consist of such number of shares as may, before issuance thereof, be determined by the directors;
(b) The directors of the Corporation may (subject as hereinafter provided) from time to time fix, before issuance, the designation, rights, restrictions, conditions and limitations to attach to the class A preferred shares of each series including, without limiting the generality of the foregoing, the rate, amount or method of calculation of preferential dividends, whether cumulative or non-cumulative or partially cumulative, and whether such rate, amount or method of calculation shall be subject to change or adjustment in the future, the currency or currencies of payment, the date or dates and place or places of payment thereof and the date or dates from which such preferential dividends shall accrue, the redemption price and terms and conditions of redemption, the rights of retraction, if any, vested in the holders of class A preferred shares of such series, and the prices and the other terms and conditions of any rights of retraction, and whether any additional rights of retraction may be vested in such holders in the future, voting rights and conversion rights (if any) and any sinking fund, purchase fund or other provisions attaching to the class A preferred shares of such series, the whole subject to the issue by the Director, Corporations Branch, of the Department of Consumer and Corporate Affairs, of a certificate of amendment in respect of articles of amendment in the prescribed form to designate a series of shares;
(c) The class A preferred shares shall be entitled to preference over the common shares of the Corporation and any other shares of the Corporation ranking junior to the class A preferred shares with respect to the payment of dividends, and may also be given such other preferences over the common shares of the corporation and any other shares of the Corporation ranking junior to the class A preferred shares, as may be fixed by the directors of the Corporation, as to the respective series authorized to be issued;
(d) The class A preferred shares of each series shall rank on a parity with the class A preferred shares of every other series with respect to priority in payment of dividends and in the distribution of assets in the event of liquidation, dissolution or winding-up of the Corporation whether voluntary or involuntary;
(e) In the event of the liquidation, dissolution or winding-up of the Corporation or other distribution of assets of the Corporation among shareholders for the purpose of winding-up its affairs, the holders of the class A preferred shares shall, before any amount shall be paid to or any property or assets of the Corporation distributed among the holders of the common shares or any other shares of the Corporation ranking junior to the class A preferred shares, be entitled to receive (i) an amount equal to the amount
paid-up on such shares together with, in the case of cumulative class A preferred shares, all unpaid cumulative dividends (which for such purpose shall be calculated as if such cumulative dividends were accruing from day to day for the period from the expiration of the last period for which cumulative dividends have been paid-up to and including the date of distribution) and, in the case of non-cumulative class A preferred shares, all declared and unpaid non-cumulative dividends, and (ii) if such liquidation, dissolution, winding-up or distribution shall be voluntary, an additional amount equal to the premium, if any, which would have been payable on the redemption of the said class A preferred shares respectively if they had been called for redemption by the Corporation on the date of distribution and, if said class A preferred shares could not be redeemed on such date, then an additional amount equal to the greatest premium, if any, which would have been payable on the redemption of said class A preferred shares respectively;
(f) No dividends shall at any time be declared or paid on or set apart for payment on any shares of the Corporation ranking junior to the class A preferred shares, unless all dividends up to and including the dividend payable for the last completed period for which such dividends shall be payable on each series of class A preferred shares then issued and outstanding shall have been declared and paid or set apart for payment at the date of such declaration or payment or setting apart for payment on such shares of the Corporation ranking junior to the class A preferred shares, nor shall the Corporation call for redemption or redeem or purchase for cancellation or reduce or otherwise pay off any of the class A preferred shares (less than the total amount then outstanding) or any shares of the Corporation ranking junior to the class A preferred shares, unless all dividends up to and including the dividend payable for the last completed period for which such dividends shall be payable on each series of the class A preferred shares then issued and outstanding shall have been declared and paid or set apart for payment at the date of such call for redemption, purchase, reduction or other payment;
(g) The class A preferred shares of any series may be purchased for cancellation or made subject to redemption by the Corporation at such times and at such prices and upon such other terms and conditions as may be specified in the rights, privileges, restrictions and conditions attaching to the class A preferred shares of such series as set forth in the resolution of the board of directors of the Corporation and certificate of amendment relating to such series; and
(h) The provisions of paragraph II. (a) to (g),
inclusive, and of the articles of amendment referred
to in paragraph II. (b) hereof and of this paragraph
(h) may be deleted or varied in whole or in part by a
certificate of amendment, but only with the prior
approval of the holders of the class A preferred
shares, given as hereinafter specified, in addition
to any other approval required by the Canada Business
Corporations Act (or any other statutory provision of
the like or similar effect, from time to time in force). The approval of the holders of the class A preferred shares with respect to any and all matters .hereinbefore referred to, may be given by at least two-thirds (2/3) of the votes cast at a meeting of the holders of the class A preferred shares duly called for that purpose and held upon at least twenty-one (21) days notice at which the holders of a majority of the outstanding class A preferred shares are present or represented by proxy. If at any such meeting the holders of a majority of the outstanding class A preferred shares are not present or represented by proxy within thirty (30) minutes after the time appointed for such meeting, then the meeting shall be adjourned to such date being not less than thirty (30) days later and to such time and place as may be appointed by the chairman and not less than twenty-one (21) days notice shall be given of such adjourned meeting but it shall not be necessary in such notice to specify the purpose for which the meeting was originally called. At such adjourned meeting the holders of class A preferred shares, present or represented by proxy, may transact the business for which the meeting was originally called and a resolution passed thereat by not less that two-thirds (2/3) of the votes cast at such adjourned meeting, shall constitute the authorization of the holders of the class A preferred shares referred to above. The formalities to be observed in respect of the giving of notice of any such meeting or adjourned meeting and the conduct thereof shall be those from time to time prescribed by the by-laws of the Corporation with respect to meetings of shareholders. On every poll taken at every such meeting or adjourned meeting, every holder of class A preferred shares shall be entitled to one (1) vote in respect of each class A preferred share held.
B. Section 4 of the articles of incorporation be and is hereby deleted and replaced by the following:
4 - RESTRICTIONS IF ANY ON SHARE TRANSFERS
None.
C. Section 5 of the articles of incorporation be and is hereby deleted and replaced by the following:
5 - NUMBER (OR MINIMUM AND MAXIMUM NUMBER) OF DIRECTORS
A minimum number of three (3) and a maximum number of
eleven (11).
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D. Section 7 of the articles of incorporation be and is hereby deleted and replaced by the following:
7 - OTHER PROVISIONS IF ANY
The directors of the Corporation may, when deemed expedient:
(a) borrow money upon the credit of the corporation;
(b) issue debentures or other securities of the Corporation, and pledge or sell the same for such sums and at such prices as may be deemed expedient;
(c) notwithstanding the provisions of the Civil Code, hypothecate, mortgage or pledge the moveable or immoveable property, present or future, of the Corporation, to secure any such debentures, or other securities, or give part only of such guarantee for such purposes; and constitute the hypothec, mortgage or pledge above mentioned, by trust deed, in accordance with sections 28 and 29 of the Special Corporate Powers Act (chapter P16), or in any other manner; and
(d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any moveable or personal, immoveable or real or other property of the Corporation, owned or subsequently acquired, to secure any obligation of the Corporation.
The directors may, by resolution or by-law, provide for the delegation of such powers by the directors to such officers or directors of the Corporation to such extent and in such manner as may be set out in the resolution or by-law, as the case may be.
E. By the consolidation of the issued and outstanding common shares on a basis of 1 currently outstanding common share for .75 common share.
No fractional shares shall be issued upon the consolidation. Where the consolidation would otherwise result in the shareholder receiving a fraction of a share, the holder of a fractional interest of less than one-half of a share shall not be entitled to receive any compensation therefor and such fractional interest shall be cancelled. The holder of a fractional interest equal to or greater than one-half of a share shall receive a whole share in respect of such fractional interest without further payment being required therefor. For purposes hereof, all shares held by way of different share certificates by the same holder of record shall be considered in the aggregate.
DATE SIGNATURE
October 31, 1991
-------------------------
Michael L. Richards
DESCRIPTION OF OFFICE NOV - 1 1991
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Director
[LOGO] Consumer and Consommation Corporate Affairs Canada et Corporations Canada
CERTIFICATE OF AMENDMENT CERTIFICAT DE FUSION
CANADA BUSINESS LOI REGISSANT LES SOCIETES
CORPORATION ACT PAR ACTIONS DE REGIME FEDERAL
-------------------------------------------------------------- -------------------------------------------------------
INTERTAPE POLYMER GROUP INC.
LE GROUPE INTERTAPE POLYMER INC. 295104-5
------------------------------------------------------- -------------------------------------------------------
Name of corporation - Denomination de la societe Corporation number - Numero de la societe
I hereby certify that the above-named corporation Je certifie que la societe susmentionnee est
issue resulted from an amalgamation, under section 185 of d'une fusion, en vertu de l'article 185 de la LOI
the CANADA BUSINESS CORPORATIONS ACT, of the REGISSANT LES SOCIETES PAR ACTIONS DE REGIME FEDERAL,
corporations set out in the attached articles of des societes don't les denominations apparaissent
amalgamation. dans les statuts de fusion ci-joints.
/s/
------------------------------------ August 31, 1993/le 31 aout 1993
Director - Directeur Date of Amalgamation - Date de fusion
------------------------------------------------------- ------ -------------------------------------------------------
[CANADA LOGO]
|
CANADA BUSINESS
CORPORATIONS ACT
FORM 9
ARTICLES OF AMALGAMATION
(SECTION 185)
1 - NAME OF AMALGAMATED CORPORATION
INTERTAPE POLYMER GROUP INC.
LE GROUPE INTERTAPE POLYMER INC.
2 - THE PLACE WITHIN CANADA WHERE THE REGISTERED OFFICE IS TO BE SITUATED
Metropolitan Region of Montreal, Province of Quebec
3 - THE CLASSES AND ANY MAXIMUM NUMBER OF SHARES THAT THE CORPORATION IS
AUTHORIZED TO ISSUE
Unlimited number of common shares; and
Unlimited number of Class A preferred shares, issuable in series.
I. The common shares shall have attached thereto the following rights,
privileges, restrictions and conditions:
(a) Each common share shall entitle the holder thereof to one (1)
vote at all meetings of the shareholders of the Corporation.
(b) The holders of the common shares shall be entitled to receive
during each year, as and when declared by the board of
directors, dividends payable in money, property or by the
issue of fully paid shares of the capital of the Corporation.
(c) In the event of the liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, or other
distribution of assets of the Corporation among shareholders
for the purpose of winding-up its affairs, the holders of the
common shares shall be entitled to receive the remaining
property of the Corporation.
II. The Class A preferred shares shall have attached thereto the following
rights, privileges, restrictions and conditions:
(a) The directors of the Corporation may at any time and from time
to time, issue the class A preferred shares in one (1) or more
series, each series to consist of such number of shares as
may, before issuance thereof, be determined by the directors;
|
(b) The directors of the Corporation may (subject as hereinafter provided) from time to time fix, before issuance, the designation, rights, restrictions, conditions and limitations to attach to the class A preferred shares of each series including, without limiting the generality of the foregoing, the rate, amount or method of calculation of preferential dividends, whether cumulative or non-cumulative or partially cumulative, and whether such rate, amount or method of calculation shall be subject to change or adjustment in the future, the currency or currencies of payment, the date or dates and place or places of payment thereof and the date or dates from which such preferential dividends shall accrue, the redemption price and terms and conditions of redemption, the rights of retraction, if any, vested in the holders of class A preferred shares of such series, and the prices and the other terms and conditions of any rights of retraction, and whether any additional rights of retraction may be vested in such holders in the future, voting rights and conversion rights (if any) and any sinking fund, purchase fund or other provisions attaching to the class A preferred shares of such series, the whole subject to the issue by the Director, Corporations Branch, of the Department of Consumer and Corporate Affairs, of a certificate of amendment in respect of articles of amendment in the prescribed form to designate a series of shares;
(c) The class A preferred shares shall be entitled to preference over the common shares of the Corporation and any other shares of the Corporation ranking junior to the class A preferred shares with respect to the payment of dividends, and may also be given such other preferences over the common shares of the Corporation and any other shares of the Corporation ranking junior to the class A preferred shares, as may be fixed by the directors of the Corporation, as to the respective series authorized to be issued;
(d) The class A preferred shares of each series shall rank on a parity with the class A preferred shares of every other series with respect to priority in payment of dividends and in the distribution of assets in the event of liquidation, dissolution or winding-up of the Corporation whether voluntary or involuntary;
(e) In the event of the liquidation, dissolution or winding-up of
the Corporation or other distribution of assets of the
Corporation among shareholders for the purpose of winding-up
its affairs, the holders of the class A preferred shares
shall, before any amount shall be paid to or any property or
assets of the Corporation distributed among the holders of the
common shares or any other shares of the Corporation ranking
junior to the class A preferred shares, be entitled to receive
(i) an amount equal to the amount paid-up on such shares
together with, in the case of cumulative class A preferred
shares, all unpaid cumulative dividends (which for such
purpose shall be calculated as if such cumulative dividends
were accruing from day to day for the period from the expiration of the last period for which cumulative dividends have been paid-up to and including the date of distribution) and, in the case of non-cumulative class A preferred shares, all declared and unpaid non-cumulative dividends, and (ii) if such liquidation, dissolution, winding-up or distribution shall be voluntary, an additional amount equal to the premium, if any, which would have been payable on the redemption of the said class A preferred shares respectively if they had been called for redemption by the Corporation on the date of distribution and, if said class A preferred shares could not be redeemed on such date, then an additional amount equal to the greatest premium, if any, which would have been payable on the redemption of said class A preferred shares respectively;
(f) No dividends shall at any time be declared or paid on or set apart for payment on any shares of the Corporation ranking junior to the class A preferred shares, unless all dividends up to and including the dividend payable for the last completed period for which such dividends shall be payable on each series of class A preferred shares then issued and outstanding shall have been declared and paid or set apart for payment at the date of such declaration or payment or setting apart for payment on such shares of the Corporation ranking junior to the class A preferred shares, nor shall the Corporation call for redemption or redeem or purchase for cancellation or reduce or otherwise pay off any of the class A preferred shares (less than the total amount then outstanding) or any shares of the Corporation ranking junior to the class A preferred shares, unless all dividends up to and including the dividend payable for the last completed period for which such dividends shall be payable on each series of the class A preferred shares then issued and outstanding shall have been declared and paid or set apart for payment at the date of such call for redemption, purchase, reduction or other payment;
(g) The class A preferred shares of any series may be purchased for cancellation or made subject to redemption by the Corporation at such times and at such prices and upon such other terms and conditions as may be specified in the rights, privileges, restrictions and conditions attaching to the class A preferred shares of such series as set forth in the resolution of the board of directors of the Corporation and certificate of amendment relating to such series; and
(h) The provisions of paragraph II. (a) to (g), inclusive, and of the articles of amendment referred to in paragraph II. (b) hereof and of this paragraph (h) may be deleted or varied in whole or in part by a certificate of amendment, but only with the prior approval of the holders of the class A preferred shares, given as hereinafter specified, in addition to any other approval required by the Canada Business Corporations Act (or any other statutory provision of the like or similar effect, from time to time in force). The approval of the
holders of the class A preferred shares with respect to any
and all matters hereinbefore referred to, may be given by at
least two-thirds (2/3) of the votes cast at a meeting of the
holders of the class A preferred shares duly called for that
purpose and held upon at least twenty-one (21) days notice at
which the holders of a majority of the outstanding class A
preferred shares are present or represented by proxy. If at
any such meeting the holders of a majority of -the outstanding
class A preferred shares are not- present or represented by
proxy within thirty (30) minutes after the time appointed for
such meeting, then the meeting shall be adjourned to such date
being not less than thirty (30) days later and to such time
and place as may be appointed by the chairman and not less
than twenty-one (21) days notice shall be given of such
adjourned meeting but it shall not be necessary in such notice
to specify the purpose for which the meeting was originally
called. At such adjourned meeting the holders of class A
preferred shares, present or represented by proxy, may
transact the business for which the meeting was originally
called and a resolution passed thereat by not less then
two-thirds (2/3) of the votes cast at such adjourned meeting,
shall constitute the authorization of the holders of the class
A preferred shares referred to above. The formalities to be
observed in respect of the giving of notice of any such
meeting or adjourned meeting and the conduct thereof shall be
those from time to time prescribed by the by-laws of the
Corporation with respect to meetings of shareholders. On every
poll taken at every such meeting or adjourned meeting, every
holder of class A preferred shares shall be entitled to one
(1) vote in respect of each class A preferred share held.
4 - RESTRICTIONS IT ANY ON SHARE TRANSFERS
None.
5 - NUMBER (OR MINIMUM AND MAXIMUM NUMBER) OF DIRECTORS
A minimum number of three (3) and a maximum number of eleven (11).
6 - RESTRICTIONS IF ANY ON BUSINESS THE CORPORATION MAY CARRY ON
None.
7 - OTHER PROVISIONS IT ANY
(1) The directors of the Corporation may, when deemed expedient:
(a) borrow money upon the credit of the Corporation;
|
(b) issue debentures or other securities of the Corporation, and pledge or sell the same for such sums and at such prices a-s may be deemed expedient;
(c) notwithstanding the provisions of the Civil Code, hypothecate, mortgage or pledge the moveable or immoveable property, present or future, of the Corporation, to secure any such debentures, or other securities, or give part only of such guarantee for such purposes; and constitute the hypothec, mortgage or pledge above mentioned, by trust deed, in accordance with sections 28 and 29 of the Special Corporate Powers Act (chapter P-16), or in any other manner; and
(d) mortgage, hypothecate, pledge or otherwise create a security interest in all or any moveable or personal, immoveable or real or other property of the Corporation, owned or subsequently acquired, to secure any obligation of the Corporation.
The directors may, by resolution or by-law, provide for the delegation of such powers by the directors to such officers or directors of the Corporation to such extent and in such manner as may be set out in the resolution or by-law, as the case may be.
(2) the share capital of INTERTAPE POLYMER GROUP INC. - LE GROUPS INTERTAPE POLYMER INC. and EBAC HOLDINGS INC. - PLACEMENTS EBAC INC. shall be converted into the share capital of the amalgamated corporation; and
(a) six million nine hundred and twenty thousand five hundred and ninety-seven (6,920,597) issued and fully paid common shares of the capital of INTERTAPE POLYMER GROUP INC. - LE GROUPS INTERTAPE POLYMER INC. held by shareholders other than EBAC HOLDINGS INC. - PLACEMENTS EBAC INC. shall be converted share for share into six million nine hundred and twenty thousand five hundred and ninety-seven (6,920,597) issued and fully paid common shares of the amalgamated corporation; and
(b) the three million two hundred and thirty-one thousand four hundred and twenty-one (3,231,421) issued and fully paid common shares of the capital of INTERTAPE POLYMER GROUP INC. - LE GROUPS INTERTAPE POLYMER INC. held by EBAC HOLDINGS INC. -PLACEMENTS EBAC INC. shall be cancelled without any repayment of capital in respect thereof.
(c) the three million two hundred and thirty-one thousand four hundred and twenty-one (3,231,421) issued and fully paid common shares of the capital of EBAC HOLDINGS INC. - PLACEMENTS EBAC INC. shall be converted share for share into three million two hundred and thirty-one thousand four hundred and twenty-one (3,231,421) issued and fully paid common shares of the amalgamated corporation.
8 - THE AMALGAMATION AGREEMENT HAS BEEN APPROVED BY SPECIAL RESOLUTIONS OF
SHAREHOLDERS OF THE AMALGAMATING CORPORATIONS LISTED IN ITEM 10 BELOW
IN ACCORDANCE WITH SECTION 183 OF THE CANADA BUSINESS CORPORATIONS ACT.
9 - NAME OF THE AMALGAMATING CORPORATION THE BY-LAWS OF WHICH ARE TO BE THE
BY-LAWS OF THE AMALGAMATED CORPORATION.
INTERTAPE POLYMER GROUP INC. -
LE GROUPE INTERTAPE POLYMER INC.
10 - NAME OF AMALGAMATING CORPORATIONS
(a) INTERTAPE POLYMER GROUP INC.-
LE GROUPE INTERTAPE POLYMER INC.
(b) EBAC HOLDINGS INC.
PLACEMENTS EBAC INC.
Corporation Nos.
(a) 255724-0
(b) 291488-3
DATE: AUGUST 30, 1993 (A) SIGNATURE
---------------------------------
Melbourne F. Yull
Director, President and
Chief Executive Officer
|
DESCRIPTION OF OFFICE
DATE: AUGUST 30, 1993 (B) SIGNATURE
---------------------------------
Christopher J. Winn
Director
|
DESCRIPTION OF OFFICE
FOR DEPARTMENTAL USE ONLY
CORPORATION NO. FILED SEP 1 1993
[LOGO] Industry Canada Industrie Canada
MIADOCS 447234v1
CERTIFICATE OF AMENDMENT CERTIFICAT DE MODIFICATION
CANADA BUSINESS LOI CANADIENNE SUR
CORPORATION ACT LES SOCIETES PAR ACTIONS
------------------------------------------------------------- --------------------------------------------------------
INTERTAPE POLYMER GROUP, INC. 295104-5
LE GROUPE INTERTAPE POLYMER INC.
---------------------------------------- --------------------------------------------
Name of Corporation - Denomination de la societe Corporation number-- Numero de la societe
I hereby certify that the articles of the Je certifie que les statuts de la societe
above-named corporation were amended susmentionnee ont ete modifies:
(a) under Section 13 of the CANADA BUSINESS [ ] (a) en vertu de l'article 13 de la LOI REGISSANT
CORPORATIONS ACT in accordance with the CANADIENNE SUR LES SOCIETES PAR ACTIONS,
attached notice; conformement a l'avis ci-joint;
(b) under Section 27 of the CANADA BUSINESS [ ] (b) en vertu de l'article 27 de la LOI REGISSANT
CORPORATIONS ACT as set out in the attached CANADIENNE SUR LES SOCIETES PAR ACTIONS, tel
articles of amendment designating a series of qu'il est indique dans les clauses modificatrices
shares; ci-jointes designant une serie d'actions;
(c) under Section 179 of the CANADA BUSINESS [X] (c) en vertu de l'article 177 de la LOI REGISSANT
CORPORATIONS ACT as set out in the attached CANADIENNE SUR LES SOCIETES PAR ACTIONS, tel
articles of amendment; designating a series qu'il est indique dans les clauses modificatrices
of shares; ci-jointes;
(d) under Section 191 of the CANADA BUSINESS [ ] (d) en vertu de l'article 191 de la LOI REGISSANT
CORPORATIONS ACT as set out in the attached CANADIENNE SUR LES SOCIETES PAR ACTIONS, tel
articles of reorganization; qu'il est indique dans les clauses de
reorganization ci-jointes.;
May 22, 1996/le 22 mai 1996
/s/
--------------------------------------
Date of Amendment - date de la modification
Director -- Directeur
[CANADA LOGO]
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CANADA BUSINESS
CORPORATIONS ACT
FORM 4
ARTICLES OF AMENDMENT
(SECTION 27 OR 177)
1 - NAME OF CORPORATION
Intertape Polymer Group Inc.
Le Groupe Intertape Polymer Inc.
2 - CORPORATION NO.
295104-5
3 - THE ARTICLES OF THE ABOVE-NAMED CORPORATION ARE AMENDED AS FOLLOWS:
The Articles of Amalgamation dated August 31, 1993 are hereby amended by adding the following:
Effective at the close of business on June 4, 1996, the issued and outstanding common shares shall be subdivided on a
two-for-one basis.
Date Signature
May 22, 1996 -------------------------
Andrew M. Archibald, C.A.
Title
Vice President Finance and Administration,
Chief Financial Officer and Secretary
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FOR DEPARTMENTAL USE ONLY
Filed May 23 1996
EXHIBIT 4(b)
INTERTAPE POLYMER GROUP INC.
LE GROUPE INTERTAPE POLYMER INC.
BY-LAW NO. ONE
being a by-law relating generally to the transaction of the business and affairs of the Corporation (as amended and restated).
DEFINITIONS
1. In this by-law and all other by-laws of the Corporation, unless the context otherwise specifies or requires:
(a) "Act" means the Canada Business Corporations Act, and any statute that may be substituted therefor, as from time to time amended;
(b) "articles" means the articles of the Corporation, as from time to time amended or restated;
(c) "by-law" means this by-law and all other by-laws of the Corporation from time to time in force and effect;
(d) words importing the singular number only shall include the plural and vice versa; words importing the masculine gender shall include the feminine and neuter genders and vice-versa; words importing persons shall include bodies corporate, corporations, companies, partnerships, syndicates, trusts and any number or aggregate of individuals;
(e) the headings used in the by-laws are inserted for reference purposes only and are not to be considered or taken into account in construing the terms or provisions thereof or to be deemed in any way to clarify, modify or explain the effect of any such terms or provisions; and
(f) all terms contained in the by-laws and which are defined in the Act shall have the meanings given to such terms in the Act.
REGISTERED OFFICE
2. The Corporation may from time to time (i) by resolution of the board of directors change the location of the address of the registered office of the Corporation within the place specified in the articles and (ii) by articles of amendment change the place in which its registered office is situated to another place within Canada.
CORPORATE SEAL
3. The Corporation may have one or more corporate seals which shall be such as the board of directors may by resolution from time to time adopt and change.
DIRECTORS
4. NUMBER AND POWERS. There shall be a board of directors consisting of such fixed number, or minimum and maximum number of directors as may be set out in the articles, but a corporation, any of the issued securities of which are or were part of a distribution to the public and remain outstanding and are held by more than one person, shall not have fewer than three (3) directors, at least two (2) of whom are not officers or employees of the corporation or its affiliates. The precise number of directors shall be determined from time to time by the board of directors. A majority of the board of directors must be resident Canadians unless the Corporation is a holding corporation referred to in subsection 105(4) of the Act.
5. VACANCIES. If the number of directors is increased, the resulting vacancies shall be filled at a meeting of shareholders duly called for that purpose. Notwithstanding the provisions of this by-law and subject to the provisions of the Act, if a vacancy should otherwise occur in the board, the remaining directors, if constituting a quorum, may appoint a qualified person to fill the vacancy for the remainder of the term. In the absence of a quorum, the remaining directors shall forthwith call a meeting of shareholders to fill the vacancy pursuant to subsection 111(2) of the Act. Where a vacancy or vacancies exist in the boards the remaining directors may exercise all of the powers of the board so long as a quorum remains in office.
6. TERM OF OFFICE. A director's term of office shall be from the meeting at which he is elected or appointed until the annual meeting next following or until his successor is elected or appointed, or until, if earlier, he dies or resigns, or is removed or disqualified pursuant to the provisions of the Act.
7. VACATION OF OFFICE. The office of a director shall ipso facto be vacated if:
(a) he dies;
(b) by notice in writing to the Corporation he resigns his office and such resignation, if not effective immediately, becomes effective in accordance with its terms;
(c) he is removed from office in accordance with section 109 of the Act; or
(d) he ceases to be qualified to be a director.
8. ELECTION. Directors shall be elected by the shareholders by ordinary resolution in a general meeting on show of hands unless a poll is demanded and if a poll is demanded such election shall be by ballot.
A retiring director shall retain office until the adjournment or termination of the meeting at which his successor is elected unless such meeting was called for the purpose of removing him from office as a director in which case the director so removed shall vacate office forthwith upon the passing of the resolution for his removal.
MEETINGS OF DIRECTORS
9. Place of Meeting. Subject to the articles, meetings of directors may be held at any place within or outside Canada as the directors may from time to time determine or the person convening the meeting may give notice. A meeting of the board of directors may, be convened by the chairman of the board, if any, the president if any, or any director at any time. The secretary, if any, shall upon direction of any of the foregoing convene a meeting of the board of directors.
NOTICE. Notice of the time and place for the holding of any such meeting shall be delivered, mailed, telegraphed, cabled or telexed to each director at his latest address as shown on the records of the Corporation not less than two (2) days (exclusive of the day on which the notice is delivered, mailed, telegraphed, cabled or telexed but inclusive of the day for which notice is given) before the date of the meeting; provided that meetings of the board of directors may be held at any time without notice if all the directors have waived notice.
For the first meeting of the board of directors to be held immediately following the election of directors at an annual or special meeting of the shareholders, no notice of such meeting need be given to the newly elected or appointed director or directors in order for the meeting to be duly constituted, provided a quorum of the directors is present.
A notice of a meeting of directors shall specify any matter referred to in subsection 115(3) of the Act that is to be dealt with at the meeting.
WAIVER OF NOTICE. Notice of any meeting of the board of directors or any irregularity in any meeting or in the notice thereof may be waived by any director in writing or by telegram, cable or telex addressed to the Corporation or in any other manner, and such waiver may be validly given either before or after the meeting to which such waiver relates. The attendance of a director at a meeting of directors is a waiver of notice of the meeting except where a director attends a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
TELEPHONE PARTICIPATION. A director may, if all the directors of the Corporation consent thereto (either before, during or after the meeting), participate in a meeting of directors by means of such telephone or other communications facilities as permit all persons participating in the meeting to hear each other, and a director participating in such a meeting by such means shall be deemed to be present at that meeting.
10. ADJOURNMENT. Any meeting of the board of directors may be adjourned from time to time by the chairman of the meeting, with the consent of the meeting, to a fixed time and place and no notice of the time and place for the continuance of the adjourned meeting need be given to any director. Any adjourned meeting shall be duly constituted if held in accordance with the terms of the adjournment and a quorum present thereat. The directors who formed a quorum at the original meeting are not required to form the quorum at the adjourned meeting. If there is no quorum present at the adjourned meeting, the original meeting shall be deemed to have terminated forthwith after its adjournment.
11. QUORUM AND VOTING. Subject to the articles, a majority of the number of directors in office at the time shall constitute a quorum for the transaction of business. Subject to subsection 117(1) of the Act, no business shall be transacted by the directors except at a meeting of directors at which a quorum of the board is present. Questions arising at any meeting of the board of
directors shall be decided by a majority of votes cast. In case of an equality of votes, the chairman of the meeting, in addition to his original vote shall have a second or casting vote. Where the Corporation has only one director, that director may constitute the meeting.
12. RESOLUTION IN LIEU OF MEETING. A resolution in writing, signed by all the directors entitled to vote on that resolution at a meeting of directors, is as valid as if it had been passed at a meeting of directors or committee of directors.
A copy of every such resolution shall be kept with the minutes of the proceedings of the directors or committee of directors.
REMUNERATION OF DIRECTORS
13. Subject to the articles, the remuneration to be paid to the directors shall be such as the board of directors shall from time to time determine and such remuneration shall be in addition to the salary paid to any officer of the Corporation who is also a member of the board of directors. The directors may also by resolution award special remuneration to any director undertaking any special services on the Corporation's behalf other than the routine work ordinarily required of a director by the Corporation. The confirmation of any such resolution or resolutions by the shareholders shall not be required. The directors shall also be entitled to be paid their traveling and other expenses properly incurred by them in connection with the affairs of the Corporation.
SUBMISSION OF CONTRACTS OR TRANSACTIONS
TO SHAREHOLDERS FOR APPROVAL
14. The board of directors in their discretion may submit any contract, act or transaction for approval, ratification or confirmation at any annual meeting of the shareholders or at any special meeting of the shareholders called for the purpose of considering the same and any contract, act or transaction that shall be approved, ratified or confirmed by resolution passed by a majority of the votes cast at any such meeting (unless any different or additional requirement is imposed by the Act or by the Corporation's articles or any other by-law) shall be as valid and as binding upon the Corporation and upon all the shareholders as though it had been approved, ratified or confirmed by every shareholder of the Corporation.
INDEMNITIES TO DIRECTORS AND OTHERS
15. Except in respect of an action by or on behalf of the Corporation or another body corporate (as hereinafter defined), the Corporation shall indemnify each director and officer of the Corporation and each former director and officer of the Corporation, and each person who acts or acted at the Corporation's request as a director or officer of another body corporate, and his heirs and legal representatives, against all costs, charges and expenses, including any amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the Corporation or another body corporate, as the case may be, if
(a) he acted honestly and in good faith with a view to the best interests of the Corporation; and
(b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful.
"another body corporate" as used herein means a body corporate, e of which the Corporation is or was a shareholder or creditor.
OFFICERS
16. APPOINTMENT OF OFFICERS. Subject to the articles, the board of directors, annually or as often as may be required, may appoint from among themselves a chairman of the board and may appoint a president and a secretary and, if deemed advisable, may also appoint one or more vice-presidents, a treasurer and one or more assistant secretaries and/or one or more assistant treasurers. None of such officers, except the chairman of the board, need be a director of the Corporation. Any two (2) or more of such offices may be held by the same person. In case and whenever the same person holds the offices of secretary and treasurer he may, but need not, be known as the secretary-treasurer. The board of directors may from time to time designate such other offices and appoint such other officers, employees and agents as it shall deem necessary who shall have such authority and shall perform such functions and duties, as may from time to time be prescribed by resolution of the board of directors.
17. REMUNERATION AND REMOVAL OF OFFICERS. Subject to the articles, the remuneration of all officers, employees and agents elected or appointed by the board of directors may be determined from time to time by resolution of the board of directors. The fact that any officer, employee or agent is a director or shareholder of the Corporation shall not disqualify him from receiving such remuneration as may be so determined. The board of directors may by resolution remove any officer, employee or agent at any time, with or without cause.
18. DUTIES OF OFFICERS MAY BE DELEGATED. In case of the absence or inability or refusal to act of any officer of the Corporation or for any other reason that the board of directors may deem sufficient, the board may delegate all or any of the powers of such officer to any other officer or to any director for the time being.
19. CHAIRMAN OF THE BOARD. The chairman of the board, if any, shall, if present, preside at all meetings of the board of directors and of shareholders. He shall sign such contracts, documents or instruments in writing as require his signature and shall have such other powers and duties as may from time to time be assigned to him by resolution of the board of directors.
20. PRESIDENT. The president, if any, shall be the chief executive officer of the Corporation and shall exercise general supervision over the business and affairs of the corporation. In the absence of the chairman of the board, if any, the president shall, when present, preside at all meetings of the board of directors and shareholders; he shall sign such contracts, documents or instruments in writing as require his signature and shall have such other powers and shall perform such other duties as may from time to time be assigned to him by resolution of the board of directors or as are incident to his office.
21. VICE-PRESIDENT. The vice-president or, if more than one, the vice-presidents in order of seniority, shall be vested with all the powers and shall perform all the duties of the president in the absence or inability or refusal to act of the president, provided, however, that a vice-president who is not a director shall not preside as chairman at any meeting of shareholders. The vice-president or, if more than one, the vice-presidents in order of seniority, shall sign such contracts, documents or instruments in writing as require his or their signatures and shall also have such other powers and duties as may from time to time be assigned to him or them by resolution of the board of directors.
22. SECRETARY. The secretary, if any, shall give or cause to be given notices for all meetings of the board of directors, of committees thereof, if any, and of shareholders when directed to do so and shall have charge, subject to the provisions of this by-law, of the records referred to in section 20 of the Act (except the accounting records) and of the corporate seal or seals, if any. He shall sign such contracts, documents or instruments in writing as require his signature and shall have such other powers and duties as may from time to time be assigned to him by resolution of the board of directors or as are incident to his office.
23. TREASURER. Subject to the provisions of any resolution of the board of directors, the treasurer, if any, shall have the care and custody of all the funds and securities of the Corporation and shall deposit the same in the name of the Corporation in such bank or banks or with such other depositary .or depositaries as the board of directors may by resolution direct. He shall prepare, maintain and keep or cause to be kept adequate books of accounts and accounting records. He shall sign such contracts, documents or instruments in writing as require his signature and shall have such other powers and duties as may from time to time be assigned to him by resolution of the board of directors or as are incident to his office. He may be required to give such bond for the faithful performance of his duties as the board of directors in their uncontrolled discretion may require and no director shall be liable for failure to require any such bond or for the insufficiency of any such bond or for any loss by reason of the failure of the Corporation to receive any indemnity thereby provided.
24. ASSISTANT SECRETARY AND ASSISTANT TREASURER. The assistant secretary or, if more than one, the assistant secretaries in order of seniority, and the assistant treasurer or, if more than one, the assistant treasurers in order of seniority, shall respectively perform all the duties of the secretary and
treasurer, respectively, in the absence or inability to act of the secretary or treasurer as the case may be. The assistant secretary or assistant secretaries, if more than one, and the assistant treasurer or assistant treasurers, if more than one, shall sign such contracts, documents or instruments in writing as require his or their signatures respectively and shall have such other powers and duties as may from time to time be assigned to them by resolution of the board of directors.
MANAGING DIRECTOR
25. The board of directors may from time to time appoint from their number a managing director who is a resident Canadian and may delegate to him any of the powers of the board of directors except as provided in subsection 115(3) of the Act. The managing director shall conform to all lawful orders given to him by the board of directors of the Corporation and shall at all reasonable times give to the directors or any of them all information they may require regarding the affairs of the Corporation. Any agent or employee appointed by the managing director shall be subject to discharge by the board of directors.
COMMITTEES
26. The board of directors may from time to time appoint from their number one or more committees consisting of one or more individuals and delegate to such committee or committees any of the powers of the directors except as provided in subsection 115(3) of the Act. Except in the case of a holding corporation referred to in subsection 105(4) of the Act, a majority of the members of any such committee must be resident Canadians. Unless otherwise ordered by the board, a committee of directors shall have power to fix its quorum, to elect its chairman and to regulate its proceedings.
If any of the issued securities of the Corporation are or were part of a distribution to the public, remain outstanding and are held by more than one person, the Corporation shall have an Audit Committee composed of not fewer that three (3) directors, a majority of whom are not officers or employees of the Corporation or any of its affiliates. The members of the Audit Committee shall be appointed annually by the board of directors from its number. The Audit Committee shall have the powers and duties provided in the Act and such other powers and duties as may be specified by the board of directors.
SHAREHOLDERS' MEETINGS
27. ANNUAL MEETING. Subject to compliance with section 133 of the Act, the annual meeting of the shareholders shall be convened on such day in each year and at such time as the board of directors may by resolution determine.
28. SPECIAL MEETINGS. Other meetings of the shareholders may be convened by order of the chairman of the board, the president or a vice-president who is a director or by the board of directors, to be held at such time and place as may be specified in such order.
Special meetings of shareholders may also be called by written requisition to the board of directors signed by shareholders holding between them not less than five percent (5%) of the outstanding shares of the capital of the Corporation entitled to vote thereat. Such requisition shall state the business to be transacted at the meeting and shall be sent to the registered office of the Corporation.
Except as otherwise provided in subsection 143(3) of the Act, it shall be the duty of the board of directors on receipt of such requisition, to cause the meeting to be called by the secretary of the Corporation .
If the board of directors does not, within twenty-one (21), days after receiving such requisition call a meeting, any shareholder who signed the requisition may call the meeting.
29. PLACE OF MEETINGS. Meetings of shareholders of the Corporation shall be held at the registered office of the Corporation or at such other place in Canada as may be specified in the notice convening such meeting. Notwithstanding the foregoing, a meeting of shareholders may be held outside Canada if all the shareholders entitled to vote at that meeting so agree, and a shareholder who attends a meeting of shareholders held outside Canada is deemed to have so agreed except when he attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully held.
30. NOTICE. A printed, written or typewritten notice stating the day, hour and place of meeting and, subject to subsection 135(6) of the Act, the general nature of the business to be transacted shall be served to each person who is entitled to vote at such meeting, each director of the Corporation and the auditor of the Corporation, either personally or by sending such notice by prepaid mail not less than twenty-one (21) days or more than fifty (50) days before the meeting. If such notice is served by mail it shall be directed to the latest address as shown in the records of the Corporation, of the intended recipient.
Notice of any meeting of shareholders or any irregularity in any such meeting or in the notice thereof may be waived by any shareholder, the duly appointed proxy of any shareholder, any directors or the auditor of the Corporation in writing, by telegram, cable or telex addressed to the Corporation or by any other manner, and any such waiver may be validly given either before or after the meeting to which such waiver relates.
31. VOTING. Voting at a meeting of shareholders shall be by show of hands except where a ballot is demanded by a shareholder entitled to vote at the meeting. A shareholder may demand a ballot either before or after any vote by show of hands.
32. OMISSION OF NOTICE. The accidental omission to give notice of any meeting to or the non-receipt of any notice by any person shall not invalidate any resolution passed or any proceeding taken at any meeting of shareholders.
33. RECORD DATE. The board of directors may by resolution fix in advance a date and time as the record date for the determination of the shareholders entitled
to receive notice of and vote at a meeting of the shareholders, but such record
date shall not precede by more than fifty (50) days or by less than twenty-one
(21) days the date on which the meeting is to be held.
If the directors fail to fix in advance such a record date, the record
date for the determination of the shareholders entitled to receive notice of and
vote at a meeting of shareholders shall be at the close of business on the day
immediately preceding the day on which notice of the meeting is given or sent.
34. VOTES. Every question submitted to any meeting of shareholders shall be
decided in the first instance, unless a ballot is demanded, on a show of hands
and in case of an equality of votes the chairman of the meeting shall not, both
on a show of hands and on a ballot, have a second or casting vote in addition to
the vote or votes to which he may be entitled as a shareholder.
At any meeting, unless a ballot is demanded, a declaration by the chairman of the meeting that a resolution has been carried or carried unanimously or by a particular majority or lost or not carried by a particular majority shall be conclusive evidence of the fact without proof of the number or proportion of votes recorded in favour of or against the motion.
In the absence of the chairman of the board, the president and every vice-president who is a director, the shareholders present entitled to vote shall choose another director as chairman of the meeting and if no director is present or if all the directors present decline to take the chair then the shareholders present shall choose one of their number to be chairman.
If at any meeting a ballot is demanded on the election of a chairman or on the question of adjournment or termination it shall be taken forthwith without adjournment. If a ballot is demanded on any other question or as to the election of directors it shall be taken in such manner and either at once or later at the meeting or after adjournment as the chairman of the meeting directs. The result of a ballot shall be deemed to be the resolution of the meeting at which the ballot was demanded. A demand for a ballot may be withdrawn.
Where a person holds shares as a personal representative, such person or his proxy is the person entitled to vote at all meetings of shareholders in respect of the shares so held by him.
Where a person mortgages or hypothecates his shares, such person or his proxy is the person entitled to vote at all meetings of shareholders in respect of such shares unless, in the instrument creating the mortgage or hypothec, he has expressly empowered the person holding the mortgage or hypothec to vote in respect of such shares, in which case, subject to the Corporation's articles, such holder or his proxy is the person entitled to vote in respect of the shares.
Where two (2) or more persons hold the same share or shares jointly, any one of such persons present at a meeting of shareholders has the right, in the absence of the other or others, to vote in respect of such share or shares, but if more than one of such persons are present or represented by proxy and vote, they shall vote together as one on the share or shares jointly held by them.
35. PROXIES. A shareholder, including a shareholder that is a body corporate, entitled to vote at a meeting of shareholders may by means of a proxy appoint a proxyholder or one or more alternate proxyholders, who are not required to be shareholders, to attend and act at the meeting in the manner and to the extent authorized by the proxy and with the authority conferred by the proxy.
An instrument appointing a proxyholder shall be in writing and shall be executed by the shareholder or his attorney authorized in writing or, if the shareholder is a body corporate, either under its seal or by an officer or attorney thereof, duly authorized. A proxy is valid only at the meeting in respect of which it is given or any adjournment thereof.
Unless the Act requires another form, an instrument appointing a proxyholder may be in the following form:
"The undersigned shareholder of ___________________ hereby appoints ______________________ of _______________________ or failing him, ___________________ of _________________________ as the nominee of the undersigned.to attend and act for and on behalf of the undersigned at the ____________________ meeting of the shareholders of the said Corporation to be held on the ______________ day of _______________, 20____, and at any adjournment thereof to the same extent and with the same power as if the undersigned were personally present at the said meeting or such adjournment thereof.
Dated the _____________ day of _______________, 20____.
NOTE:
This form of proxy must be signed by a shareholder or his attorney authorized in writing or, if the shareholder is a body corporate, either under its seal or by an officer or attorney thereof duly authorized."
The directors may from time to time pass regulations regarding the deposit of instruments appointing a proxyholder at some place or places other than the place at which a meeting or adjourned meeting. of shareholders is to be held and for particulars of such instruments to be telegraphed, cabled, telexed or sent in writing before the meeting or adjourned meeting to the Corporation or any agent of the Corporation for the purpose of receiving such particulars and providing that instruments appointing a proxyholder so lodged may be voted upon as though the instruments themselves were produced at the meeting or adjourned meeting and votes given in accordance with such regulations shall be valid and shall be counted. The chairman of any meeting of shareholders may, subject to any regulations made as aforesaid, in his discretion accept telegraphic, telex,
cable or written communication as to the authority of anyone claiming to vote on behalf of and to represent a shareholder notwithstanding that no instrument of proxy conferring such authority has been lodged with the Corporation, and any votes given in accordance with such telegraphic, telex, cable or written communication accepted by the chairman of the meeting shall be valid and shall be counted.
36. ADJOURNMENT. The chairman of the meeting may with the consent of the meeting adjourn any meeting of shareholders from time to time to a fixed time and place. If a meeting of shareholders is adjourned less than thirty (30) days, it is not necessary to give notice of the adjourned meeting other than by announcement at the earliest meeting that is adjourned. If a meeting of shareholders is adjourned by one or more adjournments for an aggregate of thirty (30) days or more, notice of the adjourned meeting shall be given as for an original meeting but, unless the meeting is adjourned by one or more adjournments for an aggregate of more than ninety (90) days, the requirements of subsection 149(1) of the Act relating to mandatory solicitation of proxies do not apply.
Any adjourned meeting shall be duly constituted if held in accordance with the terms of the adjournment and a quorum is present thereat. If the original meeting was adjourned for lack of a quorum, at the adjourned meeting the shareholders present in person or their duly appointed proxyholders so present shall form the quorum; if the original meeting was adjourned for any other reason, the quorum requirement for the adjourned meeting shall be the same as that for the original meeting. Any business may be brought before or dealt with at any adjourned meeting which might have been brought before or dealt with at the original meeting in accordance with the notice calling same.
37. QUORUM. One (1) person present and holding or representing by proxy at least ones (1) issued and outstanding voting share of the Corporation shall be a quorum for any meeting of shareholders for the choice of a chairman of the meeting and for the adjournment of the meeting; subject to section 36 herein, for all other purposes a quorum for any meeting (unless a different number of shareholders and/or a different number of shares are required to be represented by the Act or by the articles or by any other by-law) shall be persons present being not less than three (3) in number and holding or representing by proxy at least ten percent (10%) of the shares entitled to be voted at such meeting. If a quorum is present at the opening of a meeting of the shareholders, the shareholders present may proceed with the business of the meeting, notwithstanding that a quorum is not present throughout the meeting. Where the Corporation has only one shareholder or only one holder of any class or series of shares, the shareholder present in person or by proxy constitutes a meeting.
38. RESOLUTION IN LIEU OF MEETING. Except where a written statement is submitted by a director under subsection 110(2) of the Act or by an auditor under subsection 168(5) of the Act, a resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders.
A copy of every such resolution shall be kept with the minutes of the meetings of shareholders.
SHARES
39. CERTIFICATES. Share certificates (and the form of stock transfer power on the reverse side thereof) shall (subject to compliance with section 49 of the Act) be in such form and be signed by such directors) or officers) as the board of directors may from time to time by resolution determine.
40. REGISTRAR AND TRANSFER AGENT. The board of directors may from time to time by resolution appoint or remove one or more registrars and/or branch registrars (which may but need not be the same person) to keep the register of security holders and/or one or more transfer agents and/or branch transfer agents (which may but need not be the same person) to keep the register of transfer, and (subject to section 50 of the Act) may provide for the registration of issues and the registration of transfers of the securities of the Corporation in one or more places and such registrars and/or branch registrars and/or transfer agents and/or branch transfer agents shall keep all necessary books and registers of the Corporation for the registration of the issuance and the registration of transfers of the securities of the Corporation for which they are so appointed. All certificates issued after any such appointment representing securities issued by the Corporation shall be countersigned by or on behalf of one of the said registrars and/or branch registrars and/or transfer agents and/or branch transfer agents, as the case may be.
41. SURRENDER OF SHARE CERTIFICATES. No transfer of a share issued by the Corporation shall be recorded or registered unless or until the certificate representing the share to be transferred has been surrendered and cancelled or, if no certificate has been issued by the Corporation in respect of such share, unless or until a duly executed share transfer power in respect thereof has been presented for registration.
42. DEFACED, DESTROYED, STOLEN OR LOST CERTIFICATES. If the defacement, destruction or apparent destruction, theft, or other wrongful taking or loss of a share certificate is, reported by the owner to the Corporation or to a registrar, branch registrar, transfer agent or branch transfer agent of the Corporation (hereinafter, in this paragraph, called the "Corporation's transfer agent") and such owner gives to the Corporation or the Corporation's transfer agent a written statement verified by oath or statutory declaration as to the defacement, destruction or apparent destruction, theft, or other wrongful taking or loss and the circumstances concerning the same, a request for the issuance of a new certificate to replace the one so defaced, destroyed, wrongfully taken or lost and a bond of a surety company (or other security approved by the board of directors) in such form as is approved by the board of directors or by the chairman of the board, the president, a vice-president, the secretary or the treasurer of the Corporation, indemnifying the Corporation (and the Corporation's transfer agent, if any), against all loss, damage or expense, which the Corporation and/or the Corporation's transfer agent may suffer or be liable for by reason of the issuance of a new certificate to such shareholder, a new certificate may be issued in replacement of the one defaced, destroyed or apparently destroyed, stolen or otherwise wrongfully taken or lost, if such issuance is ordered and authorized by any one of the chairman of the board, the president, a vice-president, the secretary or the treasurer of the Corporation or by resolution .of the board of directors.
DIVIDENDS
43. Subject to the relevant provisions of the Act, the board of directors may from time to time by resolution declare and the Corporation may pay dividends on its issued shares, subject to the relevant provisions, if any, of the articles.
NOTICE
44. SHARES REGISTERED IN MORE THAN ONE NAME. All notices or other documents required to be sent to a shareholder by the Act, the regulations under the Act, the articles or the by-laws of the Corporation shall, with respect to any shares in the capital of the Corporation registered in more than one name, be given to whichever of such persons is named first in the records of the Corporation and any notice or other document so given shall be sufficient notice or delivery of such document to all the holders of such shares.
45. PERSONS BECOMING ENTITLED BY OPERATION OF LAW. Every person who by operation of law, transfer or by any other means whatsoever shall become entitled to any shares in the capital of the Corporation shall be bound by every notice or other document in respect of such shares which prior to his name and address being entered on the records of the Corporation shall have been duly given to the person or persons from whom he derives his title to such shares.
46. DECEASED SHAREHOLDER. Any notice or other document delivered or sent by post or left at the address of any shareholder as the same appears in the records of the Corporation shall, notwithstanding that such shareholder be then deceased and whether or not the Corporation has notice of his decease, be deemed to have been duly served in respect of the shares held by such shareholder (whether held solely or with other persons) until some other person be entered in his stead in the records of the Corporation as the holder or one of the holders thereof and such service shall for all purposes be deemed a sufficient service of such notice or other document on his heirs, executors or administrators and all persons, if any, interested with him in such shares.
47. SIGNATURES TO NOTICES. The signature of any director or officer of the Corporation to any notice may be written, stamped, typewritten or printed or partly written, stamped, typewritten or printed.
48. COMPUTATION OF TIME. Where a given number of days notice or notice extending over any period is required to be given under any provisions of the articles or by-laws of the Corporation, the day of service or posting of the notice shall, unless it is otherwise provided, be counted in such number of days or other period and such notice shall be deemed to have been given or sent on the day of service or posting.
49. PROOF OF SERVICE. A certificate of any officer of the Corporation in office at the time of the making of the certificate or of a transfer officer of any transfer agent or branch transfer agent of shares of any class of the Corporation as to facts in relation to the mailing or delivery or service of any notice or other documents to any shareholder, director, officer or auditor or publication of any notice or other document shall be conclusive evidence thereof and shall be binding on every shareholder, director, officer or, auditor of the Corporation, as the case may be.
CHEQUES, DRAFTS, NOTES, ETC.
50. All cheques, drafts or orders for the payment of money and all notes, acceptances and bills of exchange shall be signed by such officer or officers or other person or persons, whether or not officers of the Corporation, and in such manner as the board of directors may from time to time designate by resolution.
CUSTODY OF SECURITIES
51. All securities, including warrants, owned by the Corporation shall be lodged, in the name of the Corporation, with a chartered bank or a trust company or in a safety deposit box or, if so authorized by resolution of the board of directors, with such other depositaries or in such other manner as may be determined from time to time by the board of directors.
All securities, including warrants, belonging to the Corporation may be issued and held in the name of a nominee or nominees of the Corporation, and if issued or held in the names of more than one nominee shall be held in the names of the nominees jointly with right of survivorship and shall be endorsed in blank with endorsement guaranteed in order to enable transfer thereof to be completed and registration thereof to be effected.
EXECUTION OF CONTRACTS, ETC.
52. Contracts, documents or instruments in writing requiring the signature of the Corporation may be signed by two (2) persons, one of whom holds the office of chairman of the board, president, managing director, vice-president or director and the other of whom holds one of the said offices or the office of secretary, treasurer, assistant secretary or assistant treasurer or any other office created by by-law or by resolution of the board. All contracts, documents or instruments in writing so signed shall be binding upon the Corporation without any further authorization or formality. The board of directors is authorized from time to time by resolution to appoint any officer or officers or any other person or persons on behalf of the Corporation either to sign contracts, documents or instruments in writing generally or to sign specific contracts, documents or instruments in writing. Where the Corporation has only one director and officer being the same person, that person may sign all such contracts, documents or other written instruments.
The corporate seal, if any, may, when required, be affixed to contracts, documents or instruments in writing signed as aforesaid or by an officer or officers, person or persons appointed as aforesaid by resolution of the board of directors.
The term "contracts, documents or instruments in writing" as used in this by-law shall include deeds, mortgages, hypothecs, charges, conveyances, transfers and assignments of property, real or personal, immoveable or moveable, agreements, releases, receipts and discharges for the payment of money or other obligations, conveyances, transfers and assignments of shares, warrants, bonds, debentures or other securities and all paper writings.
In particular, without limiting the generality of the foregoing, two
(2) persons, one of whom holds the office of chairman of the board, president,
`managing director, vice-president or director and the other of whom holds one
of the said offices or the office of secretary, treasurer, assistant secretary
or assistant treasurer or any other office created by by-law or by resolution of
the board are hereby authorized to sell, assign, transfer, exchange, convert or
convey all shares, bonds, debentures, rights, warrants or other securities owned
by or registered in the name of the Corporation and to sign and execute, under
the seal of the Corporation or otherwise, all assignments, transfers,
conveyances, powers of attorney and other instruments that may be necessary for
the purpose of selling, assigning, transferring, exchanging, converting or
conveying or enforcing or exercising any voting rights in respect of any such
shares, bonds, debentures, rights, warrants or other securities. Where the
Corporation has only one director and officer, being the same person, that
person may perform the functions and exercise the powers herein contemplated.
The signature or signatures of any officer or director of the Corporation and/or of any other officer or officers, person or persons appointed as aforesaid by resolution of the board of directors may, if specifically authorized by resolution of the directors, be printed, engraved, lithographed or otherwise mechanically reproduced upon all contracts, documents or instruments in writing or, subject to subsections 49(4) and 49(5) of the Act, bonds, debentures or other securities of the Corporation executed or issued by or on behalf of the Corporation and all contracts, documents or instruments in writing or bonds, debentures or other securities of the Corporation on which the signatures of any of the foregoing officers, directors or persons shall be so reproduced, by authorization by resolution of the board of directors, shall, subject to subsections 49(4) and 49(5) of the Act, be deemed to have been duly signed by such officers, shall be as valid to all intents and purposes as if they had been signed manually and notwithstanding that the officers, directors or persons whose signature or signatures is or are so reproduced may have ceased to hold office at the date of the delivery or issue of such contracts, documents or instruments in writing or bonds, debentures or other securities of the Corporation.
DECLARATIONS
53. The chairman of the board, if appointed, the president, the vice-presidents, secretary and/or treasurer, the assistant secretaries and/or assistant treasurers, comptroller, accountant, chief clerk, or any one of them, is authorized and empowered to appear and make answer for the Corporation to all writs, orders and interrogatories upon articulated facts issued out of any court and to declare for and on behalf of the Corporation any answer to writs of attachment by way of garnishment in which the Corporation is garnishee, and to make all affidavits and sworn declarations in connection therewith or in connection with any or all judicial proceedings to which the Corporation is a party and to make demands of abandonment or petitions for winding up or bankruptcy orders upon any debtor of the Corporation and to attend and vote at all meetings of creditors of any of the Corporation's debtors and grant proxies in connection therewith.
FISCAL YEAR
54. The fiscal period of the Corporation shall terminate on such day in each year as the board of directors may from time to time by resolution determine.
CERTIFICATE
The undersigned, Andrew M. Archibald, Vice-President, Finance and Secretary of INTERTAPE POLYMER GROUP INC. - LE GROUPE INTERTAPE POLYMER INC. (the "Corporation"), hereby certifies that the foregoing document is a true and complete copy of BY-LAW NO. ONE of the Corporation, as restated after amendment by the board of directors on October 7, 1991, the amendment having been confirmed by the shareholders on October 30, 1991.
The undersigned further certifies that the said by-law has not been further amended as of the date hereof.
DATED this 8th day of November, 1991.
AMENDMENT AND RESTATEMENT
OF THE
INTERTAPE POLYMER GROUP INC. USA EMPLOYEES'
STOCK OWNERSHIP AND RETIREMENT SAVINGS PLAN
EFFECTIVE AS OF JANUARY 1, 2001
AMENDMENT AND RESTATEMENT
OF THE
INTERTAPE POLYMER GROUP INC. USA EMPLOYEES'
STOCK OWNERSHIP AND RETIREMENT SAVINGS PLAN
TABLE OF CONTENTS
PAGE
----
ARTICLE I Definitions.................................................................................I-1
ARTICLE II Amendment and Restatement, and Merger, of the Plan.........................................II-1
ARTICLE III Purpose of the Plan and the Trust.........................................................III-1
ARTICLE IV Plan Administrator.........................................................................IV-1
ARTICLE V Eligibility and Participation...............................................................V-1
ARTICLE VI Contributions to the Trust.................................................................VI-1
ARTICLE VII Participants' Accounts....................................................................VII-1
ARTICLE VIII Benefits Under the Plan..................................................................VIII-1
ARTICLE IX Payments of Benefits.......................................................................IX-1
ARTICLE X Preretirement Withdrawals and Diversification Elections.....................................X-1
ARTICLE XI Directed Investments.......................................................................XI-1
ARTICLE XII Trust Funds...............................................................................XII-1
ARTICLE XIII Expenses of Administration of the Plan and the Trust Fund................................XIII-1
ARTICLE XIV Amendment and Termination.................................................................XIV-1
ARTICLE XV Miscellaneous..............................................................................XV-1
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AMENDMENT AND RESTATEMENT
OF THE
INTERTAPE POLYMER GROUP INC. USA EMPLOYEES'
STOCK OWNERSHIP AND RETIREMENT SAVINGS PLAN
This Amendment and Restatement of the Intertape Polymer Group Inc. USA Employees' Retirement Plan is made and entered into effective for all purposes as of January 1, 2001, except as may be otherwise noted herein, by IPG Administrative Services, Inc. (the "Company").
W I T N E S S E T H:
WHEREAS, the Company has previously adopted the Intertape Polymer Group Inc. USA Employees' Retirement Plan, which has been amended from time to time (as amended, the "Plan"); and
WHEREAS, the Company is authorized and empowered to amend the Plan; and
WHEREAS, the Company deems it advisable and in the best interests of the Participants to amend the Plan to provide for the revision of the contribution, investment, accounting provisions to add employee stock ownership plan provisions to the Plan, to bring the Plan into compliance with recent legislative changes and to change the name of the Plan to the Intertape Polymer Group Inc. USA Employees' Stock Ownership and Retirement Savings Plan.
NOW, THEREFORE, the Plan is hereby amended and restated in its entirety to read as follows:
ARTICLE I
DEFINITIONS
1.1 "ACCOUNT" or "ACCOUNTS" shall mean, as required by the context, the entire amount held from time to time for the benefit of any one Participant, or a portion thereof attributable to a Participant's Elective Contributions Account, Employer Contributions Account, Matching Contributions Account, Qualified Non-Elective Contributions Account, and/or Rollover / Merger Account.
(a) To the extent provided hereinafter, a Participant's Elective Contributions Account, Employer Contributions Account, Matching Contributions Account, Qualified Non-Elective Contributions Account, and Rollover / Merger Account may each include an ESOP Account and a Non-ESOP Account.
(b) A Participant's ESOP Accounts shall be comprised of amounts invested in the ESOP Company Stock Fund on behalf of the
Participant from time to time and may each include an Employer Securities Account and an Other Investments Account, as set forth hereinafter.
1.2 "ACTUAL CONTRIBUTION PERCENTAGE" shall mean, with respect to any Plan Year beginning on or after January 1, 1997 and with respect to a group of Participants for the Plan Year, the average of the Actual Contribution Ratios (calculated separately for ESOP Contributions (for Plan Years beginning on or after January 1, 2000) and Non-ESOP Contributions, and for each member of the group) of each Participant who is a member of such group.
1.3 "ACTUAL CONTRIBUTION RATIO" shall mean the ratio of the amount of Matching Contributions (calculated separately for ESOP Contributions and Non-ESOP Contributions, and including any other ESOP Contributions or Non-ESOP Contributions that may be treated as matching contributions in accordance with Treasury Regulation Section 1.401(m)-1(b)(5)) made on behalf of a Participant for a Plan Year to the Participant's Compensation for the Plan Year.
1.4 "ACTUAL DEFERRAL PERCENTAGE" shall mean, with respect to any Plan Year beginning on or after January 1, 1997 and with respect to a group of Participants for the Plan Year, the average of the Actual Deferral Ratios (calculated separately for ESOP Contributions (for Plan Years beginning on or after January 1, 2001) and Non-ESOP Contributions, and for each member of the group) of each Participant who is a member of such group.
1.5 "ACTUAL DEFERRAL RATIO" shall mean the ratio of the amount of Elective Contributions (calculated separately for ESOP Contributions and Non-ESOP Contributions, and including Elective Contributions by Highly Compensated Employees in excess of the limitation set forth in section 6.1(b)(1) to the extent required by Treasury Regulation Section 1.402(g)-1(e)(1)(ii), any Non-Elective Contributions treated as elective ESOP Contributions or elective Non-ESOP Contributions) made on behalf of a Participant for a Plan Year to the Participant's Compensation for the Plan Year.
1.6 "ADMINISTRATOR" shall mean the Plan Administrator.
1.7 "AFFILIATE" shall mean, with respect to an Employer, any corporation other than such Employer that is a member of a controlled group of corporations, within the meaning of Section 414(b) of the Code, of which such Employer is a member; all other trades or businesses (whether or not incorporated) under common control, within the meaning of Section 414(c) of the Code, with such Employer; any service organization other than such Employer that is a member of an affiliated service group, within the meaning of Section 414(m) of the Code, of which such Employer is a member; and any other organization that is required to be aggregated with such Employer under Section 414(o) of the Code. For purposes of determining the limitations on Annual Additions, the special rules of Section 415(h) of the Code shall apply.
1.8 "AGREEMENT AND DECLARATION OF TRUST" shall mean the agreement providing for the Trust Fund, as entered into between the Company and the Trustee and as the agreement may be amended from time to time.
1.9 "ANNUAL ADDITIONS"
(a) The term "Annual Additions" shall mean, with respect to a Limitation Year, the sum of:
(1) the amount of the contributions made by the Employers (including elective contributions other than amounts distributed as "excess deferrals" in accordance with Treasury Regulation Section 1.402(g)-1(e)(2) or (3)) and allocated to the Participant under any defined contribution plan maintained by an Employer or an Affiliate;
(2) the amount of the Employee's contributions (other than Rollover Contributions, if any) to any contributory defined contribution plan maintained by an Employer or an Affiliate;
(3) except as provided in section 1.9(b), any forfeitures separately allocated to the Participant under any defined contribution plan maintained by an Employer or an Affiliate; and
(4) if the Participant is a Key Employee, to the extent required by law, any contributions allocated to any individual account on behalf of such Participant under Section 401(h) or Section 419A(d) of the Code.
(b) The amount of any ESOP Contribution allocated to a Participant for purposes of section 1.9(a)(1), if such contribution is used to repay a loan for the purchase of Employer Securities, shall be equal to the Participant's share of the repayment, and not to the value of Employer Securities released from a suspense account and allocated to such Participant's Employer Securities Accounts as a result of such repayment. If no more than one third of the ESOP Contributions for a Plan Year that are used to repay a loan for the purchase of Employer Securities are allocated to Highly Compensated Employees, the Annual Additions for such Plan Year shall not include
(1) forfeitures of Employer Securities that were acquired with the proceeds of a loan, and
(2) amounts used to pay interest on a loan used for the purchase of Employer Securities.
1.10 "BOARD OF DIRECTORS" and "BOARD" shall mean the board of directors of the Company or, when required by the context, the board of directors of an Employer other than the Company.
1.11 "BREAK IN SERVICE" shall mean a Period of Severance of twelve (12) consecutive months. A Break in Service shall be deemed to commence on the first day of the Period of Severance and shall be deemed to end on the day on which the Employee again performs an Hour of Service.
(a) Solely for purposes of determining whether a Break in Service has occurred, in the case of an Employee who is absent from work beyond the first anniversary of the beginning of a Period of Severance and the absence is for maternity or paternity leave reasons, the date the Employee incurs a Break in Service shall be the second anniversary of the beginning of the Employee's Period of Severance. The period between the first and second anniversary of the beginning of the Period of Severance shall not constitute a Period of Service.
(b) An absence from work for maternity or paternity leave reasons means an absence by reason of the pregnancy of the Employee, by reason of the birth of a child of the Employee, by reason of the placement of a child with the Employee in connection with the adoption of such child by such Employee, or for purposes of caring for a child of the Employee for a reasonable period beginning immediately following the birth or placement of such child.
1.12 "CODE" shall mean the Internal Revenue Code of 1986, as amended, or any successor statute. Reference to a specific section of the Code shall include a reference to any successor provision.
1.13 "COMPANY" shall mean IPG Administrative Services, Inc. and its successors.
1.14 "COMPENSATION" shall mean wages within the meaning of Section 3401(a) of the Code (wages, tips and other compensation paid to or for an Employee which is subject to withholding for Federal income tax purposes). Compensation shall not include any amount required to be included in gross income as a taxable fringe benefit.
(a) (1) Compensation must be determined without regard to any rules under Section 3401(a) of the Code that limit the remuneration included in wages based on the nature or location of the employment of the services performed.
(2) Compensation shall also include elective contributions made on behalf of a Participant to this Plan, salary reduction contributions made pursuant to a plan described in Section 125 of the Code, and amounts contributed or deferred by the Employer at the election of the Participant and which is not includible in the gross income of the Participant by reason of Section 132(f) of the Code.
(b) To the extent required by law no Compensation in excess of the $170,000 limit under Section 401(a)(17) of the Code (as adjusted in accordance with law) shall be taken into account for any Employee.
(c) For purposes of crediting contributions pursuant to Article VI (other than elective contributions) with respect to any Plan Year, no Compensation paid by an Employer with respect to an Employee prior to the Employee's first day of participation shall be taken into account.
1.15 "DIRECT ROLLOVER" shall mean a payment of an Eligible Rollover Distribution by the Plan to an Eligible Retirement Plan specified by the Distributee.
1.16 "DISTRIBUTEE" shall mean
(a) a Participant, or former Participant, who is entitled to benefits payable as a result of his retirement, disability or other severance of service as provided in Article VIII,
(b) a Participant's, or former Participant's, surviving Eligible Spouse who is entitled to death benefits payable pursuant to section 8.4, and
(c) a Participant's, or former Participant's, spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code, entitled to benefits payable as provided by section 15.2(b).
1.17 "DIVERSIFICATION ELECTION PERIOD" shall mean the six Plan Year period beginning with the later of
(a) the Plan Year after the Plan Year in which the Participant attains age 55; or
(b) the Plan Year after the Plan Year in which the Participant first completes ten (10) years of participation in the Plan.
1.18 "EARLY RETIREMENT DATE" shall mean the first date on which a Participant has reached the age of 55 years and completed seven Years of Service.
1.19 "EARNINGS" attributable to any Pooled Investment Fund (other than any pooled Employer Securities Accounts or Other Investments Accounts) shall mean, with respect to a Valuation Period, the aggregate of the unrealized appreciation or depreciation accruing to the Pooled Investment Fund during such a period; and the income earned or the loss sustained by the Pooled Investment Fund during such period, whether from investments or from the sale or exchange of assets. The Earnings attributable to a separate portion of a Segregated Investment Fund (other than any segregated Employer Securities Accounts or Other Investments Accounts) credited to a Participant's Account for any Valuation Period shall be determined by multiplying the number of shares of the Segregated Investment Fund credited to the Participant's Account by the difference between the value of each share for the current Valuation Date and the value of each
share as of the most recent preceding Valuation Date. The Earnings attributable to any portion of the ESOP Company Stock Fund credited to any Other Investments Accounts shall mean, with respect to a Valuation Period, (i) cash dividends received on shares of Employer Securities allocated to Participants' Employer Securities Accounts (to the extent such cash dividends are not used, pursuant to section 7.5 of this Plan and the Agreement and Declaration of Trust to repay the loan), (ii) cash dividends received on Employer Securities not allocated to any Participant's Employer Securities Account or any Fund described in Article XI (to the extent such cash dividends are not used, pursuant to section 7.5 of this Plan and the Agreement and Declaration of Trust to repay a loan), and (iii) the aggregate of the unrealized appreciation or depreciation occurring in the value of, and that portion of the income earned or the loss sustained by, the Other Investments Account during such period.
1.20 "EFFECTIVE DATE" of this Amendment and Restatement shall mean January 1, 2001, except as may otherwise be noted herein.
1.21 "ELECTIVE CONTRIBUTION" shall mean a contribution pursuant to section 6.1 by an Employer on behalf of a Participant.
1.22 "ELECTIVE CONTRIBUTIONS ACCOUNT" shall mean an account established pursuant to section 7.2 with respect to contributions made to this Plan under salary reduction arrangements pursuant to section 6.1. A Participant's Elective Contributions Account shall include amounts previously credited to the "Participant's Elective Account" in this Plan under the terms of this Plan as in effect immediately before this Amendment and Restatement.
1.23 "ELIGIBLE RETIREMENT PLAN" shall mean an individual retirement
account described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in Section 401(a) of
the Code, that accepts a Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to a Participant's, or former
Participant's, surviving Eligible Spouse who is entitled to death benefits
payable pursuant to section 8.4, an Eligible Retirement Plan shall mean an
individual retirement account or individual retirement annuity.
1.24 "ELIGIBLE ROLLOVER DISTRIBUTION" shall mean any distribution of all or any portion of the balance to the credit of a Distributee, other than:
(a) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made
(1) for the life (or life expectancy) of the Distributee, or the joint lives (or life expectancies) of the Distributee and the Distributee's designated beneficiary, or
(2) for a specified period of ten years or more;
(b) any distribution to the extent such distribution is required under Section 410(a)(9) of the Code; and
(c) the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities); and
(d) any hardship distribution described in Section 401(k)(2)(B)(i)(IV) of the Code.
Notwithstanding the preceding provisions of this section, an Eligible Rollover Distribution shall not include one or more distributions during a Plan Year with respect to a Participant if the aggregate amount distributed during the Year is less than $200 (adjusted under such regulations as may be issued from time to time by the Secretary of the Treasury).
1.25 "ELIGIBLE SPOUSE" shall mean a Participant's husband or wife.
1.26 "EMPLOYEE"
(a) The term "Employee" shall mean any person employed by an Employer or an Affiliate other than:
(1) a member of a collective bargaining unit if retirement benefits were a subject of good faith bargaining between such unit and an Employer unless the bargaining agreement provides for coverage in this Plan;
(2) a nonresident alien who does not receive earned income from sources within the United States;
(3) an individual whose employment status has not been recognized by completion of Internal Revenue Service Form W-4 and who is not initially treated as a common law employee of an Employer on the payroll records of an Employer; and
(4) a leased employee.
(b) Effective for Plan Years beginning on or after January 1, 1997, the term "leased employee" means any person (other than an employee of the Employer) who, pursuant to an agreement between the Employer and any other person ("leasing organization"), has performed services for the Employer (or for the Employer and one or more Affiliates) on a substantially full time basis for a period of at least one year and the individual's services are performed under the primary direction or control of such Employer.
1.27 "EMPLOYER" shall mean the Company, Cajun Bag & Supply Corp., Central Products Company, Intertape, Inc., Intertape Polymer Corp., Intertape
Polymer Management Corp., and any other subsidiary, related corporation, or other entity that adopts this Plan with the consent of the Company.
1.28 "EMPLOYER CONTRIBUTIONS ACCOUNT" shall mean an account established pursuant to section 7.2 with respect to contributions made as ESOP Employer Contributions pursuant to section 6.3(a) and Non-ESOP Employer Contributions pursuant to section 6.3(b). A Participant's Employer Contributions Account shall include amounts previously credited to the "Participant's Account" with respect to "Employer's Non-Elective Contributions" in this Plan as of the Effective Date of this Amendment and Restatement under the terms of this Plan in effect immediately before this Amendment and Restatement.
1.29 "EMPLOYER SECURITIES" shall mean common shares, any other type of
stock or any marketable obligation (as defined in Section 407(e) of ERISA)
issued by the Issuer; provided, however, that if Employer Securities are
purchased with borrowed funds, Employer Securities, to the extent required by
Section 4975 of the Code, shall only include
(a) such securities that are readily tradable on an established securities market, or
(b) if none of the stock of the Issuer (or any Affiliate of the Issuer other than a member of an affiliated service group that includes the Issuer) is publicly tradable on an established securities market, common shares issued by the Issuer having a combination of voting power and dividend rights equal to or in excess of
(1) that class of common shares of the Issuer or any Affiliate having the greatest voting power, and
(2) that class of common shares of the Issuer or any Affiliate having the greatest dividend rights, or
(c) noncallable preferred shares that is convertible at any time into stock meeting the requirements of section 1.29(a) or (b) (whichever is applicable), if such conversion is at a reasonable price (determined pursuant to Treasury Regulation ss.54.4975-11(d)(5) as of the date of acquisition by the Trustee).
1.30 "EMPLOYER SECURITIES ACCOUNT" shall mean a subaccount which may be established pursuant to section 7.2 with respect to amounts invested in common shares of the Company held within the ESOP Company Stock Fund.
1.31 "ENTRY DATE" shall mean the first day of each calendar month.
1.32 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended, or any successor statute. References to a specific section of ERISA shall include references to any successor provisions.
1.33 "ESOP ACCOUNT" shall mean a subaccount established pursuant to section 7.2 with respect to amounts invested in the ESOP Company Stock Fund.
1.34 "ESOP COMPANY STOCK FUND" shall mean the fund established under the Agreement and Declaration of Trust between the Company and the Trustee from which the amounts of supplementary compensation provided by the Plan and invested primarily in common shares of the Issuer are to be paid or are to be funded.
1.35 "ESOP CONTRIBUTION" shall mean a contribution made pursuant to Article VI by an Employer on behalf of a Participant that is initially invested in the ESOP Company Stock Fund.
1.36 "ESOP EMPLOYER CONTRIBUTION" shall mean a contribution pursuant to section 6.3(a) by an Employer on behalf of a Participant.
1.37 "ESOP MATCHING CONTRIBUTION" shall mean a Matching Contribution pursuant to section 6.2(a)(1) by an Employer on behalf of a Participant.
1.38 "FAIR MARKET VALUE" shall mean, for purposes of the valuation of Employer Securities, the closing price (or, if there is no closing price, then the closing bid price) of such Employer Securities as reported on the Composite Tape, or if not reported thereon, then such price as reported in the trading reports of the principal securities exchange in the United States on which such Employer Securities are listed, or if the Employer Securities are not listed on a securities exchange in the United States, the mean between the dealer closing "bid" and "ask" prices on the over-the-counter market as reported by the National Association of Securities Dealers Automated Quotation System (NASDAQ), or NASDAQ's successor, or if not reported on NASDAQ, the fair market value of the securities as determined in good faith and based on all relevant factors; provided, however, that the Fair Market Value of Employer Securities not readily tradable on an established securities market shall be determined by an independent appraiser pursuant to Section 401(a)(28)(C) of the Code.
1.39 "FUND" shall mean an investment fund established pursuant to Article XI.
1.40 "HARDSHIP" shall mean an immediate and heavy financial need of the Participant for which a distribution from the Participant's Elective Contributions Account is necessary to satisfy such need, as described in section 10.1.
1.41 "HIGHLY COMPENSATED EMPLOYEE"
(a) The term "Highly Compensated Employee" shall mean, for Plan Years beginning on or after January 1, 1997, any Employee:
(1) who was a 5% owner of an Employer or an Affiliate during the Plan Year or the immediately preceding Plan Year; or
(2) whose Section 415 Compensation was more than $80,000 (adjusted under such regulations as may be issued by the Secretary of the Treasury) for the immediately preceding Plan Year.
(b) In determining who is a Highly Compensated Employee, Employees who are nonresident aliens and who receive no earned income (within the meaning of Section 911(d)(2) of the Code) from an Employer constituting United States source income (within the meaning of Section 861(a)(3) of the Code) shall not be treated as Employees.
(c) For purposes of determining who is a Highly Compensated Employee, an Employer and any Affiliate shall be taken into account as a single Employer.
(d) For purposes of this section, the determination of Section
415 Compensation shall be based only on Section 415 Compensation that
is actually paid and shall be made by including elective or salary
reduction contributions to a plan described in Section 125 of the Code,
a plan described in Section 401(k) of the Code, a simplified employee
pension described in Section 408(k) of the Code, a plan described in
Section 403(b) of the Code, or deferrals made pursuant to Section
132(f) of the Code.
(e) The term "Highly Compensated Employee" shall also mean any former Employee who separated from service (or was deemed to have separated from service) prior to the Plan Year, performs no service for an Employer during the Plan Year, and was an actively employed Highly Compensated Employee in the separation year or any Plan Year ending on or after the date the Employee attained age 55.
1.42 "HOUR OF SERVICE"
(a) The term "Hour of Service" shall mean
(1) an hour for which an Employee is paid, or entitled to payment, for the performance of duties for an Employer or an Affiliate;
(2) an hour for which an Employee is paid, or entitled to payment, by an Employer or an Affiliate on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), lay-off, jury duty, military duty or leave of absence. Notwithstanding the preceding,
(A) no more than 501 Hours of Service shall be credited under this section 1.42(a)(2) to an Employee on account of any single continuous period
during which the Employee performs no duties (whether or not such period occurs in a single Plan Year);
(B) an hour for which an Employee is directly or indirectly paid, or entitled to payment, on account of a period during which no duties are performed shall not be credited to the Employee if such payment is made or due under a plan maintained solely for the purpose of complying with applicable workmen's compensation, or unemployment compensation or disability insurance laws; and
(C) an hour shall not be credited for a payment which solely reimburses an Employee for medical or medically related expenses incurred by the Employee; and
(3) an hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by an
Employer or an Affiliate; provided, that the same Hour of
Service shall not be credited both under section 1.42(a)(1) or
section 1.42(a)(2), as the case may be, and under this section
1.42(a)(3). Crediting of an Hour of Service for back pay
awarded or agreed to with respect to periods described in
section 1.42(a)(2) shall be subject to the limitations set
forth in that section.
The definition set forth in this section 1.42(a) is subject to the special rules contained in Department of Labor Regulations Sections 2530.200b-2(b) and (c), and any regulations amending or superseding such sections, which special rules are hereby incorporated in the definition of "Hour of Service" by this reference.
(b) Each Employee who is not required to maintain records of his actual Hours of Service during any month shall be credited with 190 Hours of Service for such month if he would be credited with at least one Hour of Service during such month under section 1.42(a).
(c) (1) Notwithstanding the other provisions of this "Hour of Service" definition, in the case of an Employee who is absent from work for any period by reason of her pregnancy, by reason of the birth of a child of the Employee, by reason of the placement of a child with the Employee in connection with the adoption of such child by the Employee or for purposes of caring for such child for a reasonable period beginning immediately following such birth or placement, the Employee shall be treated as having those Hours of Service described in section 1.42(c)(2).
(2) The Hours of Service to be credited to an Employee under the provisions of section 1.42(c)(1) are the Hours of Service that otherwise would normally have been credited to such Employee but for the absence in question or, in any case in. which the Plan is unable to determine such hours, eight Hours of Service per day of such absence; provided, however, that the total number of hours treated as Hours of
Service under this section 1.42(c) by reason of any such pregnancy or placement shall not exceed 501 hours.
(3) The hours treated as Hours of Service under this section 1.42(c) shall be credited only in the Plan Year in which the absence from work begins, if the crediting is necessary to prevent a Break in Service in such Plan Year or, in any other case, in the immediately following Plan Year.
(4) Credit shall be given for Hours of Service under this section 1.42(c) solely for purposes of determining whether a Break in Service has occurred for participation or vesting purposes; credit shall not be given hereunder for any other purposes (including, without limitation, benefit accrual).
(5) Notwithstanding any other provision of this section 1.42(c), no credit shall be given under this section 1.42(c) unless the Employee in question furnishes to the Administrator such timely information as the Administrator may reasonably require to establish that the absence from work is for reasons referred to in section 1.42(c)(1) and the number of days for which there was such an absence.
1.43 "ISSUER" shall mean Intertape Polymer Group Inc., a Canadian corporation which is a member of the same controlled group as the Company, and its successors.
1.44 "KEY EMPLOYEE" shall mean any Employee or former Employee (and the beneficiaries of such Employee) who is at any time during the Plan Year (or was at any time during the four preceding Plan Years)--
(a) an officer of an Employer or an Affiliate having an aggregate annual compensation from the Employer and its Affiliates in excess of 50% of the amount in effect under Section 415(b)(1)(A) of the Code for any such Plan Year; provided, however, that no more than the lesser of--
(1) 50 Employees, or
(2) the greater of
(A) three Employees or
(B) 10 percent of all Employees,
shall be treated as officers, and such officers shall be those with the highest annual compensation in the five-year period;
(b) one of the ten Employees owning (or considered as owning) the largest interests in an Employer or an Affiliate, owning more than a 1/2% interest in the Employer or an Affiliate, and having an aggregate annual compensation from the Employer and its Affiliates of
more than the limitation in effect under Section 415(c)(1)(A) of the Code for the calendar year that includes the last day of the Plan Year;
(c) 5% owner of an Employer or an Affiliate; or
(d) a 1% owner of an Employer or an Affiliate having an aggregate annual compensation from the Employer and its Affiliates of more than $150,000.
Ownership shall be determined in accordance with Code section 416(i)(1)(B) and
(C). For purposes of section 1.44(b), if two Employees have the same ownership
interest in an Employer or an Affiliate, the Employee having the greatest annual
compensation from the Employer and all Affiliates shall be treated as having a
larger interest. For purposes of this section, "compensation" shall mean Section
415 Compensation.
1.45 "LEAVE OF ABSENCE" shall mean the time granted to an Employee for illness, military service or other purposes, all as authorized in accordance with uniform rules adopted by his Employer from time to time. Leave of Absence shall also include the time that an Employee serves in the armed forces of the United States of America during a period of national emergency or as a result of the operation of a compulsory military service law of the United States of America, and during any period after his discharge from such armed forces in which his employment rights are guaranteed by law.
1.46 "LIMITATION YEAR" shall mean the Plan Year.
1.47 "MATCHING CONTRIBUTION" shall mean a contribution pursuant to section 6.2 by an Employer on behalf of a Participant. Matching Contributions shall include ESOP Matching Contributions made pursuant to section 6.2(a)(1), and Non-ESOP Matching Contributions made pursuant to section 6.2(a)(2).
1.48 "MATCHING CONTRIBUTIONS ACCOUNT" shall mean an account established pursuant to section 7.2 with respect to ESOP Matching Contributions and Non-ESOP Matching Contributions made pursuant to sections 6.2(a)(1) and 6.2(a)(2), respectively.
1.49 "NON-ELECTIVE CONTRIBUTION" shall mean a contribution pursuant to section 6.4 by an Employer on behalf of a Participant, and shall include Non-Elective Contributions made as ESOP Contributions pursuant to section 6.4(a) and Non-Elective Contributions made as Non-ESOP Contributions pursuant to section 6.4(b).
1.50 "NON-ESOP ACCOUNT" shall mean a subaccount established pursuant to section 7.2 with respect to amounts invested in Funds other than the ESOP Company Stock Fund.
1.51 "NON-ESOP CONTRIBUTION" shall mean a contribution made pursuant to Article VI by an Employer on behalf of a Participant that is initially invested in a Fund other than the ESOP Company Stock Fund.
1.52 "NON-ESOP EMPLOYER CONTRIBUTION" shall mean an Employer Contribution pursuant to section 6.3(b) by an Employer on behalf of a Participant.
1.53 "NON-ESOP MATCHING CONTRIBUTION" shall mean a Matching Contribution pursuant to section 6.2(a)(2) by an Employer on behalf of a Participant.
1.54 "NON-HIGHLY COMPENSATED EMPLOYEE" shall mean, with respect to any Plan Year, an Employee who is not a Highly Compensated Employee.
1.55 "NON-KEY EMPLOYEE" shall mean, with respect to any Plan Year, an Employee or former Employee who is not a Key Employee (including any such Employee who formerly was a Key Employee).
1.56 "NORMAL RETIREMENT DATE" shall mean the later of the date on which a Participant attains the age of 65 years or the date which is the 5th anniversary of the date in which the Participant became a Participant in the Plan.
1.57 "OTHER INVESTMENTS ACCOUNT" shall mean a subaccount established pursuant to section 7.2 with respect to amounts invested in assets other than common shares of the Issuer held within the ESOP Company Stock Fund.
1.58 "PARTICIPANT" shall mean any eligible Employee of an Employer who has become a Participant under the Plan and shall include any former employee of an Employer who became a Participant under the Plan and (1) who still has a balance in an Account under the Plan or (2) is entitled to an allocation of a contribution pursuant to section 7.5(b).
1.59 "PERIOD OF SERVICE" shall mean, with respect to an Employee, the period (expressed in years and fractional years) beginning with the date the Employee last commenced employment with an Employer or an Affiliate and ending with the date that a Period of Severance begins; provided, however, that for purposes of Article V and Article VIII any Period of Severance of less than twelve (12) consecutive months shall be disregarded and such time shall be included in the Period of Service. For purposes of Article VI, any Period of Severance of less than twelve (12) consecutive months shall not be disregarded.
(a) For purposes of this section,
(1) the date an Employee commenced employment is the first day an Employee performs an Hour of Service, and
(2) fractional periods of less than a year shall be expressed in terms of days.
(b) For purposes of determining a Participant's vested percentage under the Plan:
(1) If an Employee incurs a Break in Service and is thereafter reemployed by an Employer, his Periods of Service before such date shall be added to his Periods of Service after reemployment for purposes of determining his vested percentage in his Matching Contribution Account and Nonelective Contribution Account attributable to contributions made after his reemployment.
(2) Notwithstanding the foregoing, Periods of Service shall not include any Period of Service prior to a Break in Service if the Participant had no vested interest in the balance of his Accounts attributable to Employer contributions at the time of such Break in Service and if the number of consecutive Breaks in Service equaled or exceeded the greater of five or the number of Years of Service completed by the Participant prior thereto (not including any Periods of Service not required to be taken into consideration under this subsection as a result of any prior Break in Service).
1.60 "PERIOD OF SEVERANCE" shall mean, with respect to an Employee, the period beginning with the earlier of the date the Employee separates from the service of an Employer or an Affiliate by reason of quitting, discharge, death or retirement, or the date twelve (12) months after the date the Employee separates from the service of the Employer or Affiliate for any reason other than quitting, retirement, discharge or death (e.g., vacation, holiday, sickness, disability, leave of absence or lay off), and ending with the date the Employee performs an Hour of Service.
1.61 "PLAN" shall mean the Intertape Polymer Group Inc. USA Employees' Stock Ownership and Retirement Savings Plan (f/k/a Intertape Polymer Group Inc. USA Employees' Retirement Plan) as herein set forth, as it may be amended from time to time.
1.62 "PLAN ADMINISTRATOR" shall mean the Company.
1.63 "PLAN YEAR" shall mean the 12 month period ending on December 31.
1.64 "POOLED INVESTMENT FUND" shall mean a Fund established under Article XI, the combined assets of which shall consist of the common investments of all Participants selecting the Fund.
1.65 "QUALIFIED JOINT AND SURVIVOR ANNUITY" shall mean
(a) in the case of a Participant who has an Eligible Spouse, an annuity for the life of the Participant with a survivor annuity for the life of his spouse that is 50% of the amount of the annuity payable during the joint lives of the Participant and his spouse; provided, however, that such annuity shall be the actuarial equivalent of the benefit that would otherwise be paid to the Participant; and
(b) in the case of any other Participant, an annuity for the life of the Participant.
1.66 "QUALIFIED NON-ELECTIVE CONTRIBUTIONS ACCOUNT" shall mean an account established pursuant to section 7.2 with respect to Non-Elective Contributions made pursuant to section 6.4 (and its predecessor provisions).
1.67 "QUALIFIED PRERETIREMENT SURVIVOR ANNUITY" shall mean a survivor annuity for the life of the surviving spouse of the Participant equal to the death benefit provided in section 9.5 of Article IX and that begins within a reasonable time following the death of the Participant.
1.68 "ROLLOVER CONTRIBUTION" shall mean a contribution pursuant to section 6.7 by an Employer on behalf of an Employee.
1.69 ROLLOVER/MERGER ACCOUNT" shall mean an account established pursuant to section 7.2 with respect to qualified Rollover Contributions made pursuant to section 6.7.
1.70 "SECTION 415 COMPENSATION" shall mean:
(a) Wages, salaries, and fees for professional services and other amounts received (without regard to whether or not an amount is paid in cash) for personal services actually rendered in the course of employment with the Employer to the extent that the amounts are includible in gross income (including, but not limited to, commissions paid salesmen, compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips, bonuses, fringe benefits, and reimbursements or other expense allowances under a nonaccountable plan (as described in Section 1.62-2(c) of the Income Tax Regulations), and, effective for Plan Years beginning on or after January 1, 1998,
(1) any elective deferral (as defined in Section 402(g)(3) of the Code),
(2) any amount which is contributed or deferred by
the Employer at the election of the Employee and which is not
includible in the gross income of the Employee by reason of
Section 125 or 457 of the Code, and
(3) for Plan Years beginning on and after January 1, 2001, any amount which is contributed or deferred by the Employer at the election of the Employee and which is not includible in the gross income of the Employee by reason of Code Section 132(f).
(b) Section 415 Compensation shall exclude the following:
(1) Employer contributions (except as set forth in section 1.70(a) above) to a plan of deferred compensation which are not includible in the Employee's gross income for the taxable year in which contributed, or Employer contributions (except as set forth in section 1.70(a) above) under a simplified employee pension or any distributions from a plan of deferred compensation; provided, however, that any amounts received by an Employee pursuant to an unfunded non-qualified plan are permitted to be considered as Section 415 Compensation in the year the amounts are includible in the gross income of the Employee;
(2) Amounts realized from the exercise of a non-qualified stock option, or when restricted stock (or property) held by the Employee either becomes freely transferable or is no longer subject to a substantial risk of forfeiture;
(3) Amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; and
(4) Effective for Plan Years beginning prior to January 1, 1998, other amounts which received special tax benefits, or contributions made by the Employer (whether or not under a salary reduction agreement) towards the purchase of an annuity contract described in Section 403(b) of the Code (whether or not the contributions are actually excludable from the gross income of the Employee).
1.71 "SEGREGATED INVESTMENT FUND" shall mean a Fund established under Article XI, in which the assets of each Participant selecting the Fund shall be separately invested, and for which the earnings attributable to such assets shall be separately accounted.
1.72 "TOP HEAVY PLAN" shall mean this Plan if the aggregate account balances (not including voluntary rollover contributions made by any Participant from an unrelated plan) of the Key Employees and their beneficiaries for such Plan Year exceed 60% of the aggregate account balances (not including voluntary rollover contributions made by any Participant from an unrelated plan) for all Participants and their beneficiaries. Such values shall be determined for any Plan Year as of the last day of the immediately preceding Plan Year. The account balances on any determination date shall include the aggregate distributions made with respect to Participants during the five-year period ending on the determination date. For the purposes of this definition, the aggregate account balances for any Plan Year shall include the account balances and accrued benefits of all retirement plans qualified under Section 401(a) of the Code with which this Plan is required to be aggregated to meet the requirements of Section 401(a)(4) or 410 of the Code (including terminated plans that would have been required to be aggregated with this Plan) and all plans of an Employer or an Affiliate in which a Key Employee participates; and such term may include (at
the discretion of the Plan Administrator) any other retirement plan qualified under Section 401(a) of the Code that is maintained by an Employer or an Affiliate, provided the resulting aggregation group satisfies the requirements of Sections 401(a) and 410 of the Code. All calculations shall be on the basis of actuarial assumptions that are specified by the Plan Administrator and applied on a uniform basis to all plans in the applicable aggregation group. The account balance of any Participant shall not be taken into account if:
(a) he is a Non-Key Employee for any Plan Year, but was a Key Employee for any prior Plan Year, or
(b) for Plan Years beginning after December 31, 1984, he has not performed any service for an Employer during the five-year period ending on the determination date.
1.73 "TRUST" shall mean the trust established by the Agreement and Declaration of Trust.
1.74 "TRUSTEE" shall mean the individual, individuals or corporation designated as trustee under the Agreement and Declaration of Trust.
1.75 "TRUST FUND" or "TRUST FUNDS" shall mean the trust fund established under the Agreement and Declaration of Trust from which the amounts of supplementary compensation provided for by the Plan are to be paid or are to be funded.
1.76 "VALUATION DATE" shall mean the last day of each Plan Year, or such other dates as may be selected by the Plan Administrator. In the event that the Plan Administrator designates each business day as a Valuation Date, the term "business day" shall mean a day on which the New York Stock Exchange and the home office of any third-party administrator that contracts with the Plan Administrator to provide services to the Plan are open for business.
1.77 "VALUATION PERIOD" shall mean the period beginning with the first day after a Valuation Date and ending with the next Valuation Date.
1.78 "YEAR OF SERVICE" shall mean
(a) the number of years included in an Employee's Periods of Service determined by aggregating all his years and days of service and converting days into years based upon the assumption that a year includes 365 days. Any Period of Service remaining after the aggregation that totals less than 365 days shall be disregarded in determining an Employee's number of Years of Service.
(b) For each Employee who was employed by Anchor Continental, Inc., Cajun Bag & Supply Corp. or International Container Systems, Inc., such Employee's "Years of Service" shall include, for all purposes of the Plan, service with Coating Technologies International, Inc. 401(k) Profit Sharing Plan for CTI and Anchor Continental, Inc.
Employees, Cajun Bag & Supply Corp. and International Container Systems, Inc. during such time that a qualified plan was maintained for the benefit of the Employee.
(c) For each Employee of Tape, Inc. who was employed by Central Products Company as of August 9, 1999 or Spinnaker Electrical Tape Company as of July 29, 1999, such Employee's "Years of Service" shall include, for all purposes of the Plan, service with such entities.
(d) For each Employee that was a participant in the Intertape Polymer Corp. Retirement Plan or the Polymer International Corp. 401(k) Savings-Retirement Plan, such Employee's "Years of Service" shall include, for all purposes of the Plan, years of service credited under the Intertape Polymer Corp. Retirement Plan and the Polymer International Corp. 401(k) Savings-Retirement Plan.
ARTICLE II
AMENDMENT AND RESTATEMENT, AND NAME, OF THE PLAN
2.1 The Employers' 401(k) profit sharing plan is hereby amended and
restated in accordance with the terms hereof to be a combined employee stock
ownership plan and 401(k) plan. The amended and restated Plan shall be known as
the "INTERTAPE POLYMER GROUP INC. USA EMPLOYEES' STOCK OWNERSHIP AND RETIREMENT
SAVINGS PLAN (F/K/A INTERTAPE POLYMER GROUP INC. USA EMPLOYEES' RETIREMENT
PLAN)."
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ARTICLE III
PURPOSE OF THE PLAN AND THE TRUST
3.1 EXCLUSIVE BENEFIT. This Plan is created for the sole purpose of providing benefits to the Participants and enabling them to share in the growth of their Employer and is designed to invest ESOP Accounts in Employer Securities. Except as otherwise provided herein and as otherwise permitted by law, in no event shall any part of the principal or income of the Trust be paid to or reinvested in any Employer or be used for or diverted to any purpose whatsoever other than for the exclusive benefit of the Participants and their beneficiaries.
3.2 RETURN OF CONTRIBUTIONS. Notwithstanding the foregoing provisions of section 3.1, any contribution made by an Employer to this Plan by a mistake of fact may be returned to the Employer within one year after the payment of the contribution; and any contribution made by an Employer that is conditioned upon the deductibility of the contribution under Section 404 of the Code (each contribution shall be presumed to be so conditioned unless the Employer specifies otherwise) may be returned to the Employer if the deduction is disallowed and the contribution is returned (to the extent disallowed) within one year after the disallowance of the deduction.
3.3 PARTICIPANTS' RIGHTS. The establishment of this Plan shall not be considered as giving any Employee, or any other person, any legal or equitable right against any Employer, any Affiliate, the Plan Administrator, the Trustee or the principal or the income of the Trust, except to the extent otherwise provided by law. The establishment of this Plan shall not be considered as giving any Employee, or any other person, the right to be retained in the employ of any Employer or any Affiliate.
3.4 QUALIFIED PLAN. This Plan and the Trust are intended to qualify
under the Code as a tax-free employees' plan and trust, as a cash or deferred
arrangement subject to Section 401(k) of the Code with respect to Elective
Contributions, and as an employee stock ownership plan within the meaning of
Section 4975(e)(7) of the Code with respect to ESOP Accounts. The provisions of
this Plan and the Trust should be interpreted accordingly.
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ARTICLE IV
PLAN ADMINISTRATOR
4.1 ADMINISTRATION OF THE PLAN. The Plan Administrator shall control and manage the operation and administration of the Plan, except with respect to investments. The Administrator shall have no duty with respect to the investments to be made of the funds in the Trust except as may be expressly assigned to it by the terms of the Agreement and Declaration of Trust.
4.2 POWERS AND DUTIES. The Administrator shall have complete control over the administration of the Plan herein embodied, with all powers necessary to enable it to carry out its duties in that respect. Not in limitation, but in amplification of the foregoing, the Administrator shall have the power and discretion to interpret or construe this Plan and to determine all questions that may arise as to the status and rights of the Participants and others hereunder.
4.3 DIRECTION OF TRUSTEE. It shall be the duty of the Administrator to direct the Trustee with regard to the allocation and the distribution of the benefits to the Participants and others hereunder.
4.4 SUMMARY PLAN DESCRIPTION. The Administrator shall prepare or cause to be prepared a Summary Plan Description (if required by law) and such periodic and annual reports as are required by law.
4.5 DISCLOSURE. At least once each year, the Administrator shall furnish to each Participant a statement containing the value of his interest in the Trust Fund and such other information as may be required by law.
4.6 CONFLICT IN TERMS. The Administrator shall notify each Employee, in writing, as to the existence of the Plan and Trust and the basic provisions thereof. In the event of any conflict between the terms of this Plan and Trust as set forth in this Plan and in the Agreement and Declaration of Trust and as set forth in any explanatory booklet or other description, this Plan and the Agreement and Declaration of Trust shall control.
4.7 NONDISCRIMINATION. The Administrator shall not take any action or direct the Trustee to take any action whatsoever that would result in unfairly benefiting one Participant or group of Participants at the expense of another or in improperly discriminating between Participants similarly situated or in the application of different rules to substantially similar sets of facts.
4.8 RECORDS. The Administrator shall keep a complete record of all its proceedings as such Administrator and all data necessary for the administration of the Plan. All of the foregoing records and data shall be located at the principal office of the Administrator.
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4.9 FINAL AUTHORITY. Except to the extent otherwise required by law, the decision of the Administrator in matters within its jurisdiction shall be final, binding and conclusive upon each Employer and each Employee, member and beneficiary and every other interested or concerned person or party.
4.10 CLAIMS.
(a) Claims for benefits under the Plan may be made by a Participant or a beneficiary of a Participant on forms supplied by the Plan Administrator. Written notice of the disposition of a claim shall be furnished to the claimant by the Administrator within ninety (90) days after the application is filed with the Administrator, unless special circumstances require an extension of time for processing, in which event action shall be taken as soon as possible, but not later than one hundred eighty (180) days after the application is filed with the Administrator; and, in the event that no action has been taken within such ninety (90) or one hundred eighty (180) day period, the claim shall be deemed to be denied for the purposes of section 4.10(b). In the event that the claim is denied, the denial shall be written in a manner calculated to be understood by the claimant and shall include the specific reasons for the denial, specific references to pertinent Plan provisions on which the denial is based, a description of the material information, if any, necessary for the claimant to perfect the claim, an explanation of why such material information is necessary and an explanation of the claim review procedure.
(b) If a claim is denied (either in the form of a written
denial or by the failure of the Plan Administrator, within the required
time period, to notify the claimant of the action taken), a claimant or
his duly authorized representative shall have sixty (60) days after the
receipt of such denial to petition the Plan Administrator in writing
for a full and fair review of the denial, during which time the
claimant or his duly authorized representative shall have the right to
review pertinent documents and to submit issues and comments in
writing. The Plan Administrator shall promptly review the claim and
shall make a decision not later than sixty (60) days after receipt of
the request for review, unless special circumstances require an
extension of time for processing, in which event a decision shall be
rendered as soon as possible, but not later than one hundred twenty
(120) days after the receipt of the request for review. If such an
extension is required because of special circumstances, written notice
of the extension shall be furnished to the claimant prior to the
commencement of the extension. The decision of the review shall be in
writing and shall include specific reasons for the decision, written in
a manner calculated to be understood by the claimant, with specific
references to the Plan provisions on which the decision is based.
4.11 APPOINTMENT OF ADVISORS. The Administrator may appoint such accountants, counsel (who may be counsel for an Employer), specialists and other persons that it deems necessary and desirable in connection with the administration of this Plan. The Administrator, by action of its Board of Directors, may designate one or more of its employees to perform the duties required of the Administrator hereunder.
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ARTICLE V
ELIGIBILITY AND PARTICIPATION
5.1 CURRENT PARTICIPANTS. Any Employee who was a Participant in this Plan on the Effective Date of this amendment and restatement of the Plan shall remain as a Participant in the Plan.
5.2 ELIGIBILITY AND PARTICIPATION.
(a) Except as provided in section 5.1 above, any Employee of an Employer shall be eligible to become a Participant in the Plan upon the later of completing 90 consecutive days of service (one Year of Service for Plan Years prior to January 1, 2000) and attaining age 18 (age 21 prior to October 1, 1998).
(b) Upon completion of the eligibility requirements described above, an Employee shall enter the Plan as a Participant, if he is still an Employee of an Employer, on the first Entry Date concurring therewith or occurring thereafter. An Employee who has completed the eligibility requirements prior to becoming an Employee of an Employer shall enter the Plan as a Participant on the date he becomes an Employee of an Employer (or, if later, on the first Entry Date following the completion of his eligibility requirements).
5.3 FORMER EMPLOYEES.
(a) A Participant who separates from service with the Employer and who subsequently reenters the employ of an Employer as an Employee shall be eligible again to become an active Participant on the date of his reemployment, regardless of whether such date is a normal Entry Date. This requirement is satisfied if such Employee is permitted to commence or resume, as the case may be, making elective contributions no later than the beginning of the first payroll period commencing after the Employee's date of reemployment.
(b) An Employee who satisfies the eligibility requirements set forth above and who terminates employment with the Employer prior to becoming a Participant will become a Participant on the later of (A) the Entry Date on which he would have entered the Plan had he not terminated employment or (B) the date of his reemployment.
(c) An Employee who incurs a Break in Service prior to satisfying the eligibility requirements set forth above shall be eligible to become a Participant upon completion of such requirements.
5.4 CHANGE IN EMPLOYMENT CLASSIFICATION.
(a) A Participant who ceases to be an Employee of an Employer will no longer actively participate in the Plan after the date he ceases to be an Employee of an Employer although he will continue to be credited with Years of Service for purposes of Article VIII. If such
individual subsequently resumes his status as an Employee of an Employer, he shall be eligible again to become an active Participant on the date of his reemployment, regardless of whether such date is a normal Entry Date. This requirement is satisfied if such Employee is permitted to commence or resume, as the case may be, making elective contributions no later than the beginning of the first payroll period commencing after the date he resumes his status as an Employee of an Employer.
(b) If an individual who is employed by an Employer but who is not an Employee becomes an Employee, such Employee shall enter the Plan as an active Participant on the later of (1) the date the individual becomes an Employee of an Employer or (2) the Entry Date on which he would have entered the Plan had he been an Employee throughout his employment with the Employer. If the Employee enters the Plan as an active Participant on the date the he becomes an Employee, then he shall be permitted to commence making elective contributions no later than the beginning of the first payroll period commencing after the date he becomes an Employee.
ARTICLE VI
CONTRIBUTIONS TO THE TRUST
6.1 PARTICIPANTS' ESOP ELECTIVE CONTRIBUTIONS AND NON-ESOP ELECTIVE CONTRIBUTIONS.
(a) Each Employer shall contribute to the Trust, on behalf of each Participant, an Elective Contribution as specified in a salary reduction agreement (if any) between the Participant and such Employer under which the Participant elects, pursuant to the terms of this Plan, to reduce the compensation otherwise payable to him by an amount allocable to his Elective Contributions Account.
(1) Each Elective Contribution made on behalf of the Participant that is initially invested in the ESOP Company Stock Fund pursuant to Article XI shall be deemed to be an ESOP Contribution.
(2) Each Elective Contribution made on behalf of the Participant that is initially invested in a Fund other than the ESOP Company Stock Fund pursuant to Article XI shall be deemed to be a Non-ESOP Contribution.
(b) The Elective Contribution for a Participant for Plan Years beginning on and after January 1, 2001 shall not exceed the lesser of
(1) (A) $10,500 (adjusted under such regulations as may be issued from time to time by the Secretary of the Treasury) with respect to any calendar year,
(B) reduced, during the calendar year immediately following the year of a Participant's Hardship withdrawal, pursuant to section 10.1, by the amount of such Participant's aggregate Elective Contributions for the year of the Hardship withdrawal, or
(2) 15% of the Participant's Compensation for such Plan Year (or such lower percentage as may be selected by the Board of Directors for the Plan Year).
The minimum contribution made on behalf of a Participant electing to make a contribution pursuant to this section 6.1 for any Plan Year shall be 1% of his Compensation.
(c) (1) If a Participant's Elective Contributions made pursuant to section 6.1(a), together with any elective contributions by the Participant to any other plans of his Employer or an Affiliate intended to qualify under Sections 401(k) or 403(b) of the Code, exceed the limitation set forth in section 6.1(b)(1) for any calendar year, the Administrator, upon notification from the Participant or his
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Employer, shall refund to such Participant the portion of such excess that is attributable to contributions made pursuant to section 6.1(a), increased by the earnings thereon for such calendar year (such earnings shall be determined by the Plan Administrator, as of the last day of the calendar year preceding the date the refund is made, in a manner consistent with the provisions of section 7.5(a) and Treasury Regulation Section 1.402(g)-1(e)(5)) and reduced by any excess Elective Contributions, and earnings, for the Plan Year beginning with or within the calendar year that have been previously distributed to the Participant in accordance with the provisions of section 6.1(h). Any such refund shall be made on or before April 15 of the calendar year following the calendar year in which the excess Elective Contributions are made.
(2) If a Participant's Elective Contributions made pursuant to section 6.1(a), together with any elective contributions by the Participant to any other plans intended to qualify under Sections 401(k), 403(b), 408(k) or 457 of the Code, exceed the limitation set forth in section 6.1(b)(1) for any calendar year (after the application of section 6.1(c)(1)), the Administrator may refund to such Participant, at the Participant's request, the portion of such excess that is attributable to contributions made pursuant to section 6.1(a) increased by the earnings thereon for such calendar year (determined as provided in section 6.1(c)(1)) and reduced by any excess Elective Contributions, and earnings, for the Plan Year beginning with or within the calendar year that have been previously distributed to the Participant in accordance with the provisions of section 6.1(h). Any such refund shall be made on or before April 15 of the calendar year following the calendar year in which the excess Elective Contributions are made.
(3) Excess Elective Contributions, and earnings, shall be determined for purposes of sections 6.1(b)(1), 6.1(c)(1) and 6.1(c)(2) after taking into account any previous refunds to the Participant of excess Elective Contributions, and earnings, for the Plan Year ending with or within the calendar year made in accordance with the provisions of section 6.1(h).
(d) Any salary reduction agreement with respect to Elective Contributions shall be executed (or otherwise communicated to the Plan Administrator in a manner selected by the Administrator) and in effect prior to the date selected by the Administrator for the first pay period to which it applies. Any such agreement may be revised by the Participant in accordance with rules and procedures established by the Plan Administrator and communicated to Participants, and shall also be effective as to any bonus provided to the Participant.
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(e) The Administrator shall have the right to require any Participant to reduce his Elective Contributions under any such agreements, or to refuse deferral of all or part of the amount set forth in such agreements, if necessary to comply with the requirements of this Plan and the Code.
(f) A Participant may suspend further Elective Contributions to the Plan at any time, provided the request for such suspension is received by the Plan Administrator prior to the date selected by the Administrator for the first pay period to which such suspension applies. Any Participant who suspends further contributions relating to periodic pay may reinstate such contributions by providing written notice to the Plan Administrator (or other communication in a manner selected by the Administrator) for any month thereafter (and as of the date within such month as determined by the Administrator). Any such notice shall be delivered within the time period designated by the Plan Administrator.
(g) In the event that a Participant receives a withdrawal of his Elective Contributions pursuant to section 10.1, such Participant shall not be permitted to make any further Elective Contributions pursuant to section 6.1(a) for a period of 12 months following the date of such withdrawal. After the completion of the 12-month period, the Participant may reinstate Elective Contributions in accordance with the provisions of section 6.1(f).
(h) (1) In the event that the Elective Contributions of Highly Compensated Employees made as ESOP Contributions pursuant to section 6.1(a)(1) or made as Non-ESOP Contributions pursuant to section 6.1(a)(2) exceed the limitations set forth in section 6.5, the aggregate excess Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions (plus the earnings thereon for the Plan Year to which the excess contributions relate), determined as set forth in section 6.1(h)(2) below, shall be distributed to the Highly Compensated Employees as provided in section 6.1(h)(3) below on or before the 15th day of the third month after the close of the Plan Year to which the excess contributions relate. Notwithstanding the preceding sentence, the Plan Administrator may delay the distribution of any excess Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions (plus the earnings thereon for the Plan Year to which the excess contributions relate) attributable to an Employer beyond the 15th day of the third month of such Plan Year, if the Employer consents to such delay and the Administrator refunds all such excess amounts not later than 12 months after the close of the Plan Year to which the excess contributions relate.
(2) For purposes of section 6.1(h)(1), effective for Plan Years beginning on or after January 1, 1997, the amount of the aggregate excess Elective Contributions made as ESOP
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Contributions (for Plan Years beginning on and after January 1, 2001) or as Non-ESOP Contributions for the Plan Year shall be equal to the sum of the amounts of such excess contributions attributable to each Highly Compensated Employee for the Plan Year.
(A) In order to determine the amount of the excess Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions attributable to each Highly Compensated Employee, the Plan Administrator shall first reduce the Actual Deferral Ratio of the Highly Compensated Employee with the highest Actual Deferral Ratio for the Plan Year to the extent required to:
(i) enable the arrangement to satisfy the limitations set forth in section 6.5, or
(ii) cause such Highly Compensated Employee's Actual Deferral Ratio to equal the Actual Deferral Ratio of the Highly Compensated Employee with the next highest Actual Deferral Ratio.
Then, if necessary, the Plan Administrator shall reduce the Actual Deferral Ratios of the Highly Compensated Employees with the next highest Actual Deferral Ratio for the Plan Year (including the Actual Deferral Ratio(s) of the Highly Compensated Employee(s) whose Actual Deferral Ratio the Plan Administrator already has reduced) to the extent required to comply with section 6.1(h)(2)(A)(i) or 6.1(h)(2)(A)(ii). This process shall then be repeated until the Actual Deferral Percentage for the Highly Compensated Employees satisfies the limitations set forth in section 6.6.
(B) The amount of the excess Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions that are attributable to each Highly Compensated Employee shall equal the remainder of
(i) the total Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions (and any Non-Elective Contributions treated as Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions) on behalf of the Participant (determined prior to the application of this section 6.1(h)(2)), minus
(ii) the amount determined by multiplying the Participant's Actual Deferral Ratio (determined after application
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of section 6.1(h)(2)(A)) by his Compensation used in determining such ratio.
(3) In order to determine the dollar amount of the excess Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions that are distributable to each Highly Compensated Employee pursuant to section 6.1(h)(1) effective for Plan Years beginning on or after January 1, 1997, the Plan Administrator shall first reduce the Elective Contributions made as ESOP Contributions (for Plan Years beginning on and after January 1, 2001) or as Non-ESOP Contributions of the Highly Compensated Employee(s) with the highest dollar amount of Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions for the Plan Year by a dollar amount equal to the lesser of
(A) the aggregate excess Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions determined under section 6.1(h)(2), or
(B) the dollar amount necessary to reduce such Highly Compensated Employee's Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions to a dollar amount that is equal to the dollar amount of Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions of the Highly Compensated Employee with the next highest dollar amount of such Elective Contributions.
Then, if necessary, the Plan Administrator shall reduce the Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions of the Highly Compensated Employees with the next highest dollar amount of such Elective Contributions for the Plan Year (including the Highly Compensated Employee(s) whose Elective Contributions the Plan Administrator already has reduced) to the extent required to comply with section 6.1(h)(2). This process shall then be repeated until the aggregate excess Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions and determined under section 6.1(h)(2) or 6.1(h)(3)(B) have been eliminated. The reduced amounts shall be distributed in accordance with section 6.1(h)(1) to the Highly Compensated Employees to whom the reductions are attributable under this section 6.1(h)(3). For purposes of this section 6.1(h)(3), Elective Contributions shall include amounts treated as elective contributions.
(4) The amount of excess Elective Contributions made as ESOP Contributions or as Non-ESOP Contributions that may be distributed under this section 6.1(h) with respect to a Participant for a Plan Year shall be reduced by any excess
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deferrals previously distributed to such Participant under section 6.1(c) for the Participant's taxable year ending with or within such Plan Year.
(5) The Plan Administrator may use any reasonable
method for computing the income allocable to excess
contributions, provided that the method does not violate
Section 401(a)(4) of the Code, is used consistently for all
Participants and for all corrective distributions under the
Plan for the Plan Year, and is used by the Plan for allocating
income to Participants' Accounts.
6.2 ESOP MATCHING CONTRIBUTIONS AND NON-ESOP MATCHING CONTRIBUTIONS.
(a) (1) For Plan Years beginning on and after January 1, 2000, each Employer, at the discretion of the Board of Directors of the Company, may contribute to the Trust an ESOP Matching Contribution on behalf of each eligible Participant (as determined pursuant to section 6.2(b)) for whom an Elective Contribution is made to the Plan during the Plan Year. The amount of any ESOP Matching Contribution made pursuant to this section 6.2(a)(1), if any, shall be determined by the Board of Directors for the Company; provided, however, that no ESOP Matching Contribution shall be made for a Participant for that portion of his Elective Contribution that is in excess of 6% of the Participant's Compensation for the Plan Year; and, provided, further, that the Employers shall make an aggregate ESOP Matching Contribution sufficient to permit the scheduled repayment of any loan used to purchase Employer Securities (after consideration of any contributions made pursuant to sections 6.3(a) and 6.4(a)). The amount allocable to a Participant eligible to share in the ESOP Matching Contribution under this section 6.2(a)(1) of Article VI for the Plan Year shall be
(A) the amount that shall bear the same ratio to the total of such contribution for the Plan Year
(B) as the Participant's Recognized Elective Contribution for such Plan Year bears to the aggregate Recognized Elective Contributions of all Participants employed by the Employers who are eligible to share in the contribution for such Plan Year.
(2) Each Employer, at the discretion of the Board of Directors of the Company, may contribute to the Trust a Non-ESOP Matching Contribution on behalf of each eligible Participant (as determined pursuant to section 6.2(b)) for whom an Elective Contribution is made to the Plan for the Plan Year. The amount of any Non-ESOP Matching Contribution made pursuant to this section 6.2(a)(2), if any, shall be determined by the Board of Directors for the Company; provided, however, that no Non-ESOP Matching Contribution
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shall be made for that portion of his Recognized Elective Contribution that is in excess of 6% of the Participant's Compensation for the Plan Year. The amount allocable to a Participant eligible to share in the Non-ESOP Matching Contribution for the Plan Year shall be
(A) the amount that shall bear the same ratio to the total of such contribution for the Plan year
(B) as the Participant's Recognized Elective Contribution for such Plan Year bears to the aggregate Recognized Elective Contributions of all Participants employed by such Employer who are eligible to share in the contribution for such Plan Year.
(3) For purposes of sections 6.2(a)(1) and 6.2(a)(2), a Participant's Recognized Elective Contribution for each Plan Year shall be the aggregate amount of his Elective Contribution made to the Plan pursuant to section 6.1(a) (after consideration of the refund requirements of sections 6.1(c) and 6.1(h)).
(b) (1) Except as otherwise provided in this section 6.2(b), a Participant shall be eligible to share in the ESOP Matching Contribution or Non-ESOP Matching Contribution, described in section 6.2(a)(1) or 6.2(a)(2), for a Plan Year if he has completed a Period of Service of at least 180 days during the Plan Year and, if he is employed by his Employer on the last day of such Plan Year (or if his employment is terminated by his disability [as defined in section 8.2(b)] or death).
(2) In the event that the eligibility requirements
set forth in section 6.2(b)(1) would cause this Plan to fail
to meet the coverage requirements of this section 6.2(b)(2)
for any Plan Year, a Participant shall also be entitled to
share in the ESOP Matching Contribution or Non-ESOP Matching
Contribution if he meets the requirements of section
6.2(b)(3). In order to meet the coverage requirements of this
section 6.2(b)(2) for the Plan Year, the Plan's "ratio
percentage" for the Plan Year shall be at least seventy
percent (70%). For purposes of this section 6.2(b)(2), the
Plan's "ratio percentage" shall mean the percentage (rounded
to the nearest hundredth of a percentage point) determined by
dividing the percentage of the Non-Highly Compensated
Employees who benefit under the Plan by the percentage of the
Highly Compensated Employees who benefit under the Plan. The
percentage of the Non-Highly Compensated Employees who benefit
under the Plan shall be determined by dividing the number of
Non-Highly Compensated Employees who are Participants in the
Plan and are entitled to share in ESOP Matching Contributions
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or Non-ESOP Matching Contributions under the Plan by the total number of Non-Highly Compensated Employees who have met the eligibility and participation requirements of Article V. The percentage of the Highly Compensated Employees who benefit under the Plan shall be determined by dividing the number of Highly Compensated Employees who are Participants in the Plan and are entitled to share in ESOP Matching Contributions or Non-ESOP Matching Contributions under the Plan by the total number of Highly Compensated Employees who have met the eligibility and participation requirements of Article V. The Plan's "ratio percentage" shall be determined as of the last day of the Plan Year, taking into account all Employees who were Employees on any day during the Plan Year.
(3) If this Plan would otherwise fail to meet the coverage requirements of section 6.2(b)(2) for a Plan Year, a Participant shall be entitled to share in the ESOP Matching Contributions or Non-ESOP Matching Contributions pursuant to this section 6.2(b)(3) if:
(A) he is a Non-Highly Compensated Employee;
(B) he completes 500 Hours of Service during such Plan Year, regardless of whether such Plan Year constitutes a Year of Service for such Participant or whether he is employed by his Employer on the last day of the Plan Year; and
(C) the allocation of an ESOP Matching Contribution or Non-ESOP Matching Contribution to the Participant is required by this section 6.2(b)(3)(C). The number of Participants entitled to an allocation required by this section 6.2(b)(3)(C) (the "Required Number of Participants"), when added to the Non-Highly Compensated Employees who are eligible to receive an allocation pursuant to the provisions of section 6.2(b)(1), shall be equal to the minimum number of Non-Highly Compensated Employees who are required to be eligible for an ESOP Matching Contribution or Non-ESOP Matching Contribution from the Plan during the Plan Year in order to meet the minimum coverage requirements of section 6.2(b)(2). An allocation is required by this section 6.2(b)(3)(C)) if a Participant is among the Required Number of Participants paid the lowest Compensation by their Employers for the Plan Year (determined without regard to those Participants who are entitled to an allocation pursuant to section 6.2(b)(1) above). If two or more Participants would otherwise be determined to have been paid the same amount of Compensation by their Employers for the Plan Year, then the Participant who was first credited with an
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Hour of Service for his Employer or any Affiliate thereof shall be deemed to paid the lowest Compensation of such two or more Participants and the Participant who was next credited with an Hour of Service for his Employer or any Affiliate thereof shall be deemed to paid the next lowest Compensation and the process shall be repeated until the Plan Administrator has determined the Participants who are among the Required Number of Participants paid the lowest Compensation by their Employers for the Plan Year.
(c) (1) Except as noted in section 6.2(d), any ESOP Matching Contribution made by an Employer on account of an Elective Contribution that has been refunded pursuant to the terms of the Plan shall be forfeited. Unless otherwise required by section 8.3(d)(3) such forfeiture (together with any additional unallocated forfeitures) shall be used to reduce ESOP Matching Contributions for the Plan Year in which the forfeiture occurs. In the event that forfeitures arising pursuant to this section 6.2(c)(1) exceed the amount that may be used to reduce ESOP Matching Contributions for the Plan Year, any additional forfeitures shall be allocated as additional ESOP Matching Contributions.
(2) Except as noted in section 6.2(d), any Non-ESOP Matching Contribution made by an Employer on account of an Elective Contribution that has been refunded pursuant to the terms of the Plan shall be forfeited. Unless otherwise required by section 8.3(d)(3) such forfeiture (together with any additional unallocated forfeitures) shall be used to reduce Non-ESOP Matching Contributions for the Plan Year in which the forfeiture occurs. In the event that forfeitures arising pursuant to this section 6.2(c)(2) exceed the amount that may be used to reduce Non-ESOP Matching Contributions for the Plan Year, any additional forfeitures shall be allocated as additional Non-ESOP Matching Contributions.
(d) In the event that the ESOP Matching Contributions or Non-ESOP Matching Contributions of Highly Compensated Employees exceed the limitations of section 6.5:
(1) (A) The nonvested portion of such aggregate excess ESOP Matching Contributions or Non-ESOP Matching Contributions (including earnings thereon for the Plan Year for which the excess contributions relate), if any, determined as set forth in section 6.2(d)(2), shall be forfeited and used as an additional ESOP Matching Contribution or Non-ESOP Matching Contribution, respectively, for the Plan Year in which the forfeiture occurs.
(B) The vested portion of such aggregate excess ESOP Matching Contributions or Non-ESOP Matching Contributions (including earnings thereon for the Plan Year to which the excess contributions relate), if any, determined as set forth in section 6.2(d)(2), shall be distributed to the Highly Compensated Employees as provided in section 6.2(d)(3) on or before the 15th day of the third month after the close of the Plan Year to which the ESOP Matching Contributions or Non-ESOP Matching Contributions relate. Notwithstanding the preceding sentence, the Plan Administrator may delay the distribution of
VI-9
any excess ESOP Matching Contributions or Non-ESOP Matching Contributions (plus the earnings thereon for the Plan Year to which the excess contributions relate) attributable to an Employer beyond the 15th day of the third month of such Plan Year, if the Employer consents to such delay and the Administrator refunds all such excess amounts not later than 12 months after the close of the Plan Year to which the excess contributions relate.
(2) For purposes of section 6.2(d)(1), effective for Plan Years beginning on or after January 1, 1997, the amount of the aggregate excess ESOP Matching Contributions (for Plan Years beginning on and after January 1, 2000) or Non-ESOP Matching Contributions for the Plan Year shall be equal to the sum of the amounts of such excess contributions attributable to each Highly Compensated Employee for the Plan Year.
(A) In order to determine the amount of the excess ESOP Matching Contributions or Non-ESOP Matching Contributions attributable to each Highly Compensated Employee, the Plan Administrator shall first reduce the Actual Contribution Ratio of the Highly Compensated Employee with the highest Actual Contribution Ratio for the Plan Year to the extent required to:
(i) enable the arrangement to satisfy the limitations set forth in section 6.5 or
(ii) cause such Highly Compensated Employee's Actual Contribution Ratio to equal the Actual Contribution Ratio of the Highly Compensated Employee with the next highest Actual Contribution Ratio.
Then, if necessary, the Plan Administrator shall reduce the Actual Contribution Ratios of the Highly Compensated Employees with the next highest Actual Contribution Ratio for the Plan Year (including the Actual Contribution Ratio(s) of the Highly Compensated Employee(s) whose Actual Contribution Ratio the Plan Administrator already has reduced) to the extent required to comply with section 6.2(d)(2)(A)(i) or 6.2(d)(2)(A)(ii). This process shall then be repeated until the Actual Contribution Percentage for the Highly Compensated Employees satisfies the limitations set forth in section 6.5.
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(B) The amount of the excess ESOP Matching Contributions or Non-ESOP Matching Contributions attributable to each Highly Compensated Employee shall equal the remainder of
(i) the total ESOP Matching Contributions and Non-ESOP Matching Contributions, (and Non-Elective Contributions treated as ESOP Matching Contributions or Non-ESOP Matching Contributions) on behalf of the Participant (determined prior to the application of this section 6.2(d)(2)), minus
(ii) the amount determined by multiplying the Participant's Actual Contribution Ratio (determined after application of section 6.2(d)(2)(A)) by his Compensation used in determining such ratio.
(C) In determining the amount of the excess ESOP Matching Contributions and Non-ESOP Matching Contributions, Actual Contribution Ratios shall be rounded to the nearest one-hundredth of one percent of the Employee's Compensation. In no case shall the amount of such excess with respect to any Highly Compensated Employee exceed the amount of ESOP Matching Contributions and Non-ESOP Matching Contributions on behalf of such Highly Compensated Employee for such Plan Year.
(3) In order to determine the dollar amount of the excess ESOP Matching Contributions and Non-ESOP Matching Contributions forfeitable with respect to, and/or distributable to, each Highly Compensated Employee pursuant to section 6.2(d)(1) effective for Plan Years beginning on or after January 1, 1997, the Plan Administrator shall first reduce the ESOP Matching Contributions (for Plan Years beginning on and after January 1, 2000) or Non-ESOP Matching Contributions of the Highly Compensated Employee(s) with the highest dollar amount of ESOP Matching Contributions and Matching Contributions, for the Plan Year by a dollar amount equal to the lesser of
(A) the aggregate excess ESOP Matching Contributions or Non-ESOP Matching Contributions, determined under section 6.2(d)(2), or
(B) the dollar amount necessary to reduce such Highly Compensated Employee's ESOP Matching Contributions or Non-ESOP Matching Contributions, to a dollar amount that is equal to the dollar amount of ESOP Matching Contributions or Non-ESOP Matching Contributions, of the Highly Compensated Employee
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with the next highest dollar amount of ESOP Matching Contributions or Non-ESOP Matching Contributions.
Then, if necessary, the Plan Administrator shall reduce the ESOP Matching Contributions or Non-ESOP Matching Contributions of the Highly Compensated Employees with the next highest dollar amount of ESOP Matching Contributions or Non-ESOP Matching Contributions for the Plan Year (including the Highly Compensated Employee(s) whose ESOP Matching Contributions or Non-ESOP Matching Contributions the Plan Administrator already has reduced) to the extent required to comply with sections 6.2(d)(3)(A) or 6.2(d)(3)(B). This process shall then be repeated until the aggregate excess ESOP Matching Contributions or Non-ESOP Matching Contributions determined under section 6.2(d)(2) have been eliminated. The reduced amounts shall be forfeited and/or distributed in accordance with section 6.2(d)(1) to the Highly Compensated Employees to whom the reductions are attributable under this section 6.2(d)(3). For purposes of this subparagraph, ESOP Matching Contributions or Non-ESOP Matching Contributions shall include amounts treated as ESOP Matching Contributions or Non-ESOP Matching Contributions.
(4) The Plan Administrator may use any reasonable method for computing the income allocable to excess contributions, provided that the method does not violate Section 401(a)(4) of the Code, is used consistently for all Participants and for all corrective distributions under the Plan for the Plan Year, and is used by the Plan for allocating income to Participants' Accounts.
6.3 EMPLOYER CONTRIBUTIONS.
(a) Effective for Plan Years beginning on and after January 1, 2000, an Employer may make ESOP Employer Contributions to the Employer Contributions Accounts of Participants who have completed a Period of Service of at least 180 days during the Plan Year and are employed by their Employer on the last day of the Plan Year (or if employment is terminated due to disability [as defined in section 8.2(b)] or death). The amount, if any, to be contributed to the Trust by an Employer as an ESOP Employer Contribution for each Plan Year shall be determined by the Board of Directors of the Company. If elected by the Board of Directors of the Company, the Employers shall make an aggregate ESOP Employer Contribution sufficient to make all or any portion of the scheduled repayment of any loan used to purchase Employer Securities.
(b) An Employer may make Non-ESOP Employer Contributions to the Employer Contributions Accounts of Participants who have completed a Period of Service of at least 180 days during the Plan Year and are employed by their Employer on the last day of the Plan Year. The
VI-12
amount, if any, to be contributed to the Trust by an Employer as a Non-ESOP Employer Contribution for each Plan Year shall be determined by the Board of Directors of the Company.
6.4 NON-ELECTIVE CONTRIBUTIONS.
(a) An Employer, at the discretion of the Board of Directors of the Company, may make Non-Elective Contributions in the form of ESOP Contributions to the Qualified Non-Elective Contributions Accounts of eligible Participants, as described in section 7.5(b)(6). If elected by the Board of Directors of the Company, the Employers shall make an aggregate Non-Elective Contribution in the form of an ESOP Contribution sufficient to make all or any portion of the scheduled repayment of any loan used to purchase Employer Securities.
(b) An Employer, at the discretion of the Board of Directors of the Company, may make Non-Elective Contributions in the form of Non-ESOP Contributions to the Qualified Non-Elective Contributions Accounts of eligible Participants, as described in section 7.5(b)(6).
6.5 LIMITATIONS ON ELECTIVE CONTRIBUTIONS AND MATCHING CONTRIBUTIONS. Effective for Plan Years beginning on or after January 1, 1997, the amounts contributed as ESOP Elective Contributions (for Plan Years beginning on or after January 1, 2001), Non-ESOP Elective Contributions, ESOP Matching Contributions (for Plan Years beginning on or after January 1, 2000) and Non-ESOP Matching Contributions shall be limited as follows:
(a) The Actual Deferral Percentage (calculated separately with respect to ESOP Contributions and Non-ESOP Contributions) for the group of eligible Highly Compensated Employees for the Plan Year shall bear a relationship to the Actual Deferral Percentage (for corresponding ESOP Contributions or Non-ESOP Contributions) for all other eligible Employees for the prior Plan Year (or the current Plan Year if elected by the Company; provided, however, that if such an election is made, it may not be changed except as provided by the Secretary of the Treasury) which meets either of the following tests:
(1) The Actual Deferral Percentage for the group of eligible Highly Compensated Employees for a Plan Year shall not exceed the Actual Deferral Percentage for the group of all other eligible Employees multiplied by 1.25, or
(2) The excess of the Actual Deferral Percentage for the group of eligible Highly Compensated Employees for a Plan Year over the Actual Deferral Percentage for the group of all other eligible Employees shall not exceed two (2) percentage points (or such lesser amount as may be required by the Secretary of the Treasury, through regulations or otherwise); and the Actual Deferral Percentage for the group of eligible
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Highly Compensated Employees shall not exceed the Actual Deferral Percentage for the group of all other eligible Employees, multiplied by 2.0 (or such lesser amount as may be required by the Secretary of the Treasury, through regulations or otherwise).
(b) (1) The Actual Contribution Percentage (calculated separately with respect to ESOP Contributions and Non-ESOP Contributions) for the group of eligible Highly Compensated Employees for the Plan Year shall bear a relationship to the Actual Contribution Percentage for corresponding ESOP Contributions or Non-ESOP Contributions) for all other eligible Employees for the prior Plan Year which meets either of the following tests:
(A) The Actual Contribution Percentage for the group of eligible Highly Compensated Employees for a Plan Year shall not exceed the Actual Contribution Percentage for the group of all other eligible Employees multiplied by 1.25, or
(B) The excess of the Actual Contribution Percentage for the group of eligible Highly Compensated Employees for a Plan Year over the Actual Contribution Percentage for the group of all other eligible Employees shall not exceed two (2) percentage points (or such lesser amount as may be required by the Secretary of the Treasury, through regulations or otherwise); and the Actual Contribution Percentage for the group of eligible Highly Compensated Employees shall not exceed the Actual Deferral Percentage for the group of all other eligible Employees, multiplied by 2.0 (or such lesser amount as may be required by the Secretary of the Treasury, through regulations or otherwise).
(2) The Actual Contribution Percentage for the group of eligible Employees who are not Highly Compensated Employees may be determined on the basis of the current Plan Year rather than the prior Plan Year if the Employer so elects; provided, however, that if such an election is made, it may not be changed except as provided by the Secretary of the Treasury.
(c) If the Plan Administrator determines, in accordance with the provisions of Section 1.401(m)-2 of the Treasury Regulations (and after consideration of Sections 1.401(k)-1(g)(11) and 1.410(b)-7(c)(2) of the Treasury Regulations), that a multiple use of the alternative limitation has occurred with respect to Elective Contributions and Matching Contributions, such multiple use shall be corrected by reducing the Actual Contribution Percentage of Highly Compensated Employees in the manner described in Section 1.401(m)-2(c) of the Treasury Regulations and section 6.2. The provisions of Section 1.401(m)-2 of the Treasury Regulations are incorporated herein by reference.
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(d) The Actual Deferral Percentages, the Actual Contribution Percentages and multiple use limitations for the group of Highly Compensated Employees and for the group of all other eligible Employees, computed in accordance with sections 6.5(a), 6.5(b), and 6.5(c) for purposes of limiting contributions in sections 6.1 and 6.2, shall be separately determined, and applied, with respect to ESOP Contributions and Non-ESOP Contributions, and may be separately determined, and applied, for the Employees within each group of Employees that may be separately tested in accordance with applicable Treasury Regulations.
(e) For purposes of this section 6.5, if two or more plans of an Employer to which elective salary reduction contributions, voluntary contributions or matching contributions are made are elected by the Employer to be treated as one Plan for purposes of Section 410(b)(6) of the Code, such plans shall be treated as a single plan for purposes of determining the Actual Deferral Percentage and the Actual Contribution Percentage. For purposes of determining the Actual Deferral Percentages and the Actual Contribution Percentages for the group of Highly Compensated Employees and the group of all other eligible Employees, all Employees of the respective group who are directly or indirectly eligible to receive allocations of elective contributions and/or matching contributions under the Plan for any portion of the Plan Year, and all Employees of the respective group who elect not to enter into salary reduction agreements pursuant to section 6.1 or whose eligibility to enter into salary reduction agreements has been suspended or otherwise limited because of an election not to participate, a withdrawal, a loan, or a restriction on Annual Additions as set forth in section 7.7, shall be included. For purposes of determining the Actual Deferral Ratio and the Actual Contribution Ratio for a Highly Compensated Employee, all cash or deferred arrangements in which the Employee is eligible to receive allocations of elective contributions and/or matching contributions shall be taken into account, unless otherwise required by Treasury Regulation Sections 1.401(k)-1(g)(1)(ii)(B) and 1.401(m)-1(f)(1)(ii)(B).
(f) Initial Plan Year: In the case of the first Plan Year of
the Plan (and any other Plan Year which may properly be subject to
Section 401(k)(3)(E) and/or 401(m)(3) of the Code (including the Plan
Year ending December 31, 2001, for ESOP Contributions subject to the
Actual Deferral Percentage test and, for the Plan Year ending December
31, 2000, for ESOP Contributions subject to the Actual Contribution
Percentage test)), the amount taken into account as the Actual Deferral
Percentage (calculated separately with respect to ESOP Contributions
and Non-ESOP Contributions) and the Actual Contribution Percentage
(calculated separately with respect to ESOP Contributions and Non-ESOP
Contributions) for the group of eligible Employees who are not Highly
Compensated Employees for the preceding Plan Year shall be:
(1) 3%; or
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(2) if elected by the Company under this section 6.5(f), the Actual Deferral Percentage (calculated separately with respect to ESOP Contributions and Non-ESOP Contributions) and the Actual Contribution Percentage (calculated separately with respect to ESOP Contributions and Non-ESOP Contributions) for the group of eligible Employees who are not Highly compensated Employees for such first Plan Year.
6.6 FORM AND TIMING OF CONTRIBUTIONS. Payments on account of ESOP Contributions due from an Employer for any Plan Year shall be made in Employer Securities and/or cash to the Trustee. Payments on account of Non-ESOP Contributions due from an Employer for any Plan Year shall be made in cash to the Trustee. Such payments may be made by a contributing Employer at any time, but payment of Employer contributions for any Plan Year shall be completed on or before the time prescribed by law, including extensions thereof, for filing such Employer's federal income tax return for its taxable year with which or within which such Plan Year ends. Payment of any Elective Contribution shall be made not later than the earliest date on which such contribution can reasonably be segregated from the Employer's general assets (and, if earlier, not later than the 15th business day of the month following the month in which it is withheld from a Participant's pay).
6.7 ROLLOVER CONTRIBUTIONS. Each Employee at any time during a Plan Year, with the consent of the Plan Administrator and in such manner as prescribed by the Plan Administrator, may pay or cause to be paid to a Trustee a rollover contribution (as defined in the applicable sections of the Code, except that for this purpose "rollover contribution" shall be deemed to include both a direct payment from an Employee and a direct transfer from a trustee of another qualified plan in which the Employee is or was a participant).
6.8 NO DUTY TO INQUIRE. The Trustees shall have no right or duty to inquire into the amount of any contribution made by an Employer or any Participant or the method used in determining the amount of any such contribution, or to collect the same, but each Trustee shall be accountable only for funds actually received by it.
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ARTICLE VII
PARTICIPANTS' ACCOUNTS
7.1 COMMON FUND. Except as otherwise provided in this Plan or in the Agreement and Declarations of Trust, the assets of each Trust (or, to the extent provided in Article XI, the assets of each Fund) shall constitute a common fund in which each Participant (or each Participant who has directed that a portion of his Account be invested in such Fund) shall have an undivided interest.
7.2 ESTABLISHMENT OF ACCOUNTS.
(a) The Plan Administrator shall establish and maintain with respect to each Participant four accounts, designated as an Elective Contributions Account, Employer Contributions Account, Matching Contributions Account and Qualified Non-Elective Contributions Account.
(b) (1) For each Participant who has been credited with a rollover contribution or a transfer from another qualified plan pursuant to Article VI, the Plan Administrator shall also establish and maintain a Rollover/Merger Account.
(2) In the case of a direct transfer of assets from
another plan, the protected benefits (within the meaning of
Section 411(d)(6) of the Code) attributable to the transferor
plan shall apply to the assets in the Participant's
Rollover/Merger Account.
(c) The Plan Administrator shall establish and maintain with respect to each of the Participant's Accounts one or more ESOP Accounts and one or more Non-ESOP Accounts in order to further reflect the Participant's interest in the Trust Fund with respect to employee stock ownership plan investments and non-employee stock ownership plan investments attributable to such Accounts. The Participant's ESOP Accounts shall include amounts invested in the ESOP Company Stock Fund from time to time. The Participant's Non-ESOP Accounts shall include amounts invested in Funds other than the ESOP Company Stock Fund from time to time.
(d) The Plan Administrator may establish such additional Accounts as are necessary to reflect a Participant's interest in the Trust Fund.
7.3 SUSPENSE ACCOUNTS. The Plan Administrator shall establish and maintain a suspense account to which shall be credited any units of Employer Securities purchased by the Trustee with borrowed funds (such term including, for all purposes of this Plan, purchase-money transactions). A separate suspense account shall be maintained for each such purchase. The shares released from a suspense account each year, if any, shall be allocated as of each Valuation Date that is the last day of a Plan Year (and as of such other dates as may be
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required by this Plan) to the Participants' ESOP Accounts under the provisions of section 7.5 as Employer Securities attributable to ESOP Matching Contributions pursuant to section 6.2(a)(1), ESOP Employer Contributions pursuant to section 6.3(a), and/or Non-Elective Contributions pursuant to section 6.4(a). The number of units of Employer Securities to be released from a suspense account each Plan Year shall be determined under one of the following methods, as selected by the Plan Administrator with respect to a particular suspense account:
(a) The number of units to be released shall equal the number of units held in the suspense account immediately before the release for the current Plan Year (or other applicable period) multiplied by a fraction, the numerator of which is the amount of principal and interest paid by the Trustee for the Plan Year (or other applicable period) with respect to the loan in question and the denominator of which is the sum of the numerator plus the amount of principal and interest to be paid with respect to such loan for all future Plan Years (or other applicable periods); or
(b) The number of units to be released shall equal the number of units held in the suspense account immediately before the release for the current Plan Year (or other applicable period) multiplied by a fraction, the numerator of which is the amount of principal paid by the Trustee for the Plan Year (or other applicable period) with respect to the loan in question and the denominator of which is the sum of the numerator plus the amount of principal to be paid with respect to such loan for all future Plan Years (or other applicable periods); provided, however, that the terms of each of the following conditions are met:
(1) The loan must provide for annual payments of principal and interest at a cumulative rate that is not less rapid at any time than level annual payments of such amounts for ten years (this term is not satisfied from the time that, by reason of a renewal, extension or refinancing, the sum of the expired duration of the loan, the renewal period, the extension period and the duration of a new exempt loan (used to refinance) exceeds ten years); and
(2) Interest included in any repayment can be disregarded for release purposes only to the extent that it would be determined to be interest under standard loan amortization tables.
7.4 INTERESTS OF PARTICIPANTS. The interest of a Participant in the Trust Fund shall be the vested balance remaining from time to time in his Accounts after making the adjustments required in section 7.5.
7.5 ADJUSTMENTS TO ACCOUNTS. Subject to the provisions of section 7.7, the Accounts of a Participant shall be adjusted from time to time as follows:
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(a) Each Participant's Accounts shall be credited or charged, as the case may be, with a share of the earnings of the Trust Fund for the Valuation Period ending with such current Valuation Date as follows:
(1) As of each Valuation Date, the portions of each Participant's ESOP Accounts credited to Employer Securities Accounts shall be credited with any stock dividends (as well as the aggregate unrealized appreciation or depreciation, if Employer Securities Accounts are not accounted for in shares) for the Valuation Period ending with such current Valuation Date that are received on (or attributable to) shares of Employer Securities allocated to the Participant's Employer Securities Accounts (and that are not used, pursuant to section 7.6 to repay a loan).
(2) As of each Valuation Date, the Administrator shall credit any stock dividends (as well as the aggregate unrealized appreciation or depreciation, if Employer Securities Accounts are not accounted for in shares) for the Valuation Period ending with such date, that are received on (or attributable to) shares of Employer Securities allocated to suspense accounts pursuant to section 7.3 maintained as of such date (and that are not used, pursuant to section 7.6 to repay a loan), to such suspense accounts.
(3) As of each Valuation Date, the portions of the Participant's ESOP Accounts credited to Other Investments Accounts shall be credited or charged, as the case may be, with the share of the Earnings for the Valuation Period ending with such current Valuation Date. Each Participant's share of the Earnings of his Other Investments Accounts for any Valuation Period shall be determined by the Plan Administrator on a weighted average basis, so that each Participant with a balance in such Other Investments Accounts shall receive a pro rata share of the Earnings of such Other Investments Accounts, taking into account the period of time that each dollar invested in such Other Investments Accounts has been so invested.
(4) To the extent not otherwise provided for in the preceding provisions of this section 7.5(a), the portions of the Participant's ESOP Accounts credited to Employer Securities Accounts and Other Investments Accounts shall be further credited and charged with (A) the proceeds of any short-term interim investments that may be made by the Trustee during periods prior to purchase dates for the acquisition of Employer Securities by a Trustee, and (B) direct or indirect purchases of the Employer Securities with assets other than Employer Securities, and purchases of assets other than the Employer Securities in connection with the sale of Employer Securities.
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(5) As of each Valuation Date, any portion of the Participant's Non-ESOP Accounts that is invested in a Pooled Investment Fund established under section 11.1 (other than an ESOP Company Stock Fund) shall be credited or charged, as the case may be, with a share of the Earnings of such Pooled Investment Fund for the Valuation Period ending with such current Valuation Date. Each Participant's share of the Earnings of a Pooled Investment Fund for any Valuation Period shall be determined by the Plan Administrator on a weighted average basis, so that each Participant with a balance in such Pooled Investment Fund shall receive a pro rata share of the Earnings of such Pooled Investment Fund, taking into account the period of time that each dollar invested in such Pooled Investment Fund has been so invested.
(6) As of each Valuation Date, the portion of the Participant's Non-ESOP Accounts that is invested in each Segregated Investment Fund established under section 11.1 (other than an ESOP Company Stock Fund) shall be credited or charged, as the case may be, with the Earnings attributable to the Participant's investment in such Segregated Investment Fund for the Valuation Period ending with such current Valuation Date.
(b) As of each Valuation Date, each Participant's Accounts shall be credited with contributions made for the Plan Year as follows:
(1) The Elective Contributions Account of a Participant shall be credited with any Elective Contributions made by his Employer on his behalf and not previously credited to the Participant.
(2) The Matching Contributions Account of an eligible Participant shall be credited with any ESOP Matching Contributions made by the Employers on his behalf with respect to such Plan Year as provided by section 6.2(a)(1) (which shall include any forfeitures increasing such contributions as provided in section 6.2(c)). A Participant will not be entitled to share in the ESOP Matching Contributions unless he meets the requirements of section 6.2(b) for the Plan Year. Any such ESOP Matching Contributions shall be credited to an ESOP Account (and to an Employer Securities Account or an Other Investments Account, as appropriate) on behalf of the Participant. The Participant's Employer Securities Account and Other Investments Account attributable to his ESOP Matching Contributions Account shall be further credited and debited to reflect direct or indirect purchases of Employer Securities with assets other than Employer Securities, and purchases of assets other than Employer Securities in connection with the sale of Employer Securities.
(3) The Matching Contributions Account of an eligible Participant shall be credited with any Non-ESOP Matching Contributions made by the Employers on his behalf with respect
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to such Plan Year as provided by section 6.2(a)(2) (which shall include any forfeitures increasing such contributions as provided in section 6.2(c)). A Participant will not be entitled to share in the Non-ESOP Matching Contributions unless he meets the requirements of section 6.2(b) for the Plan Year. Any such Matching Contributions shall be credited to a Non-ESOP Account on behalf of the Participant.
(4) (A) The Employer Contributions Account of an eligible Participant shall be credited with his share of the ESOP Employer Contribution, if any, made by the Employers with respect to the Plan Year and not previously credited to the Participant. The amount allocable to a Participant entitled to a share of the contribution for the Plan Year shall be the amount that shall bear the same ratio to the total of such contribution as the Participant's Compensation for such Plan Year ending with such Valuation Date bears to the aggregate of the Compensation of all Participants for that period who are entitled to share in the ESOP Employer Contribution for such Plan Year. A Participant shall be entitled to share in the ESOP Employer Contribution if he meets the requirements of section 6.3. The Participant's Employer Securities Account and Other Investments Account attributable to his Employer Contributions Account shall be further credited and debited to reflect direct or indirect purchases of Employer Securities with assets other than Employer Securities, and purchases of assets other than Employer Securities in connection with the sale of Employer Securities.
(B) The Employer Contributions Account of an eligible Participant shall be credited with his share of the Non-ESOP Employer Contribution, if any, made by the Employers with respect to the Plan Year and not previously credited to the Participant. The amount allocable to a Participant entitled to a share of the contribution for the Plan Year shall be the amount that shall bear the same ratio to the total of such contribution as the Participant's Compensation for such Plan Year ending with such Valuation Date bears to the aggregate of the Compensation of all Participants for that period who are entitled to share in the Non-ESOP Employer Contribution for such Plan Year. A Participant shall be entitled to share in the Non-ESOP Employer Contribution if he meets the requirements of section 6.3.
(C) For each Plan Year in which this Plan is a Top Heavy Plan, a Participant who is employed by an Employer on the last day of such Plan Year and who is a Non-Key Employee for such Plan Year shall be entitled to share in the ESOP Employer Contribution
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or Non-ESOP Employer Contribution to the extent such allocation does not exceed at least three percent (3%) of his Section 415 Compensation (or, if less, the highest percentage of such Section 415 Compensation allocated to a Key Employee's Accounts hereunder (other than any amount allocated to a Rollover / Merger Account), as well as his employer contribution accounts under any other defined contribution plan maintained by such Employer or an Affiliate, including any elective contribution to any plan subject to Code Section 401(k)), regardless of whether the preceding requirements of section 6.3 and this section 7.5(b)(4) have been met for such Participant.
(5) The Qualified Non-Elective Contributions Account of an eligible Participant shall be credited with his share of the Non-Elective Contribution, if any, made pursuant to section 6.4 by the Employers with respect to the Plan Year and not previously credited to the Participant as provided by this section 7.5(b)(5). Any Non-Elective Contribution made pursuant to section 6.4(a) shall be credited to ESOP Accounts within the Qualified Non-Elective Contributions Accounts of eligible Participants. Any Non-Elective Contribution made pursuant to section 6.4(b) shall be credited to Non-ESOP Accounts within the Qualified Non-Elective Contributions Accounts of eligible Participants. The amount of any Non-Elective Contribution shall be credited, to the extent available, first to the Participant who is a Non-Highly Compensated Employee and whose Compensation for the Plan Year is the lowest of all Participants in an amount that does not exceed the limitations on Annual Additions described in section 7.7 after taking into consideration all other contributions allocable to the Participant pursuant to section 7.5(b). If any Non-Elective Contribution remains to be credited to Participants, then such Non-Elective Contribution shall next be credited, to the extent available, to the Participant who is the Non-Highly Compensated Employee whose Compensation for the Plan Year is the second lowest of all Participants in the same manner as the first level of crediting and such crediting process shall continue until all of the Non-Elective Contribution is credited. In no event shall a Participant who is a Highly Compensated Employee be eligible to be credited with any portion of any Non-Elective Contribution.
(6) The Rollover/Merger Account of an Employee shall be credited with the Rollover Contributions, if any, made by the Employee pursuant to section 6.7 and not previously credited to the Participant.
(7) As of each Valuation Date, each Account of a Participant shall be charged with the amount of any distribution made to, or withdrawal made by the Participant or his beneficiary from such Account during the Valuation Period ending with such Valuation Date.
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(c) The Trust Fund, each Fund, and the assets thereof shall be
valued at their fair market value as of each Valuation Date. Employer
Securities shall be accounted for as provided in Treasury Regulation
Section 1.402(a)-1(b)(2)(ii), or any successor regulation or statute.
The Plan Administrator may adopt such additional accounting procedures
as are necessary to accurately reflect each Participant's interests in
the Trust Fund or in any Fund. Such accounting procedures shall include
any procedures necessary to appropriately reflect any earnings and
losses that may result from delays that may occur in completing
scheduled transactions. All such procedures shall be applied in a
consistent, nondiscriminatory manner.
(d) If the Plan Administrator determines in making any valuation, allocation or adjustments to any Participant's Account under the provisions of the Plan that the strict application of the provisions of the Plan will not produce equitable and nondiscriminatory allocation among the Participants' Accounts, it may modify any procedures specified in the Plan for purposes of achieving an equal and nondiscriminatory allocation in accordance with the general concepts and purposes of the Plan; provided, however, that any such modification shall not be inconsistent with the provisions of Section 401(a)(4) of the Code.
7.6 ALLOCATION OF DIVIDENDS. Notwithstanding anything contained in this Plan to the contrary, dividends attributable to Employer Securities that are credited to Participants' ESOP Accounts, as well as to suspense accounts established pursuant to section 7.3, shall be used, to the extent required by this section 7.6, to repay any loan used to purchase the Employer Securities on account of which the dividends were paid. In addition, cash dividends paid with respect to units of Employer Securities that are credited to Participants' Employer Securities Accounts may be distributed to Participants or allocated to Participants' Other Investments Accounts in accordance with the provisions of this section 7.6.
(a) With respect to any Plan Year for which the aggregate units of Employer Securities (including fractional shares) allocated to each Participant's Employer Securities Account (as a result of ESOP Employer Contributions made pursuant to section 6.3(a)) equal or exceed the cash dividends paid with respect to units of Employer Securities (including fractional shares) allocated to the Participant's Employer Securities Account, such cash dividends shall be used, if the Company so directs, to make payments on any loans entered into by the Trustee for the purpose of purchasing Employer Securities.
(b) Cash dividends paid with respect to units of Employer Securities (including fractional shares) allocated to any Suspense Account as of the payment date shall be used, if the Company so directs, to make payments on any loans entered into by the Trustee for the purpose of purchasing Employer Securities.
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(c) All other cash dividends paid with respect to units of Employer Securities shall be retained by the Trustee and allocated in the same manner as other income of the Trust Fund. Cash dividends allocated to each Participant's Employer Securities Account may be exchanged by the Trustee for additional units of Employer Securities (including fractional shares) allocated to a Suspense Account. Any cash dividends transferred to a Suspense Account by the Trustee in accordance with this section 7.6(c) shall be used, if the Company so directs, to make payments on any loan obtained by the Trustee, pursuant to section 7.3, for the purpose of purchasing Employer Securities.
(d) Stock dividends paid with respect to units of Employer Securities (including fractional shares) allocated to each participant's Employer Securities Account as of a payment date shall be retained by the Trustee and allocated to such Employer Securities Account.
(e) Stock dividends paid with respect to units of Employer Securities (including fractional shares) allocated to any Suspense Account as of the payment date, shall be used, directly or indirectly, to make payments on any loan obtained by the Trustee, pursuant to section 7.3, for the purpose of purchasing Employer Securities.
7.7 LIMITATION ON ALLOCATION OF CONTRIBUTIONS.
(a) Effective January 1, 1997, and notwithstanding anything
contained in this Plan to the contrary, the aggregate Annual Additions
to a Participant's Accounts under this Plan and under any other defined
contribution plans maintained by an Employer or an Affiliate for any
Limitation Year shall not exceed the lesser of $30,000 (or, if greater,
the dollar limitation established by the Secretary of the Treasury
pursuant to Section 415(d)(1) of the Code) or 25% of the Participant's
Section 415 Compensation for such Plan Year.
(b) In the event that the Annual Additions, under the normal administration of the Plan, would otherwise exceed the limits set forth above for any Participant, or in the event that any Participant participates in both a defined benefit plan and a defined contribution plan maintained by any Employer or any Affiliate and the aggregate annual additions to and projected benefits under all of such plans, under the normal administration of such plans, would otherwise exceed the limits provided by law, then the Plan Administrator shall take such actions, applied in a uniform and nondiscriminatory manner, as will keep the annual additions and projected benefits for such Participant from exceeding the applicable limits provided by law. Excess Annual Additions shall be disposed of as provided in section 7.7(c). Adjustments shall be made to this Plan, if necessary to comply with such limits, before any adjustments may be made to any other Plan.
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(c) If as a result of the allocation of forfeitures, a reasonable error in estimating a Participant's Section 415 Compensation or other circumstances permitted under Section 415 of the Code, the Annual Additions attributable to Employer contributions for a particular Participant (including elective, matching and voluntary contributions) would cause the limitations set forth in this section 7.7 to be exceeded, the excess amount shall be deemed first to consist of the Participant's Elective Contributions in excess of any amount subject to a Matching Contribution (pursuant to section 6.2(a)(1) or 6.2(a)(2)) for the Plan Year, which excess shall be returned to the Participant. The remaining excess shall be deemed to consist of Elective Contributions and corresponding Matching Contributions (pursuant to section 6.2(a)(1) or 6.2(a)(2)), in which case the excess elective contributions shall be returned to such Participant and the corresponding Matching Contributions (pursuant to section 6.2(a)(1) or 6.2(a)(2)) shall be held and allocated in the manner described below. Any remaining excess shall be deemed to consist of Employer Contributions (pursuant to section 6.3(a) or 6.3(b)) and shall be held and allocated as described below. Any excess amount attributable to Matching Contributions and Employer Contributions shall be held unallocated in a suspense account for the Limitation Year, used to reduce Matching Contributions or Employer Contributions on behalf of such Participant for the next Limitation Year, and allocated to such Participant in lieu of such reduced contribution as of the end of the next Limitation Year under the terms of section 7.5(b). Any such allocations shall be treated as Annual Additions to the Account of the Participant in the Limitation Year that they are allocated in lieu of such reduced contributions. In the event that the Participant terminates his participation in this Plan before all of the amounts in a suspense account are allocated to his Account, then such excess amounts shall be retained in such suspense account, to be reallocated to other Participants as of the end of the next Limitation Year and any succeeding Limitation Years until all amounts in the suspense account are exhausted.
(d) Effective for Plan Years beginning before January 1, 2000, in the event that any Participant participates in both a defined benefit plan and a defined contribution plan maintained by his Employer or an Affiliate thereof, then the sum of the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction for any Limitation Year shall not exceed 1.0. For these purposes,
(1) The Defined Benefit Plan Fraction is a fraction, the numerator of which is the projected annual benefit of the Participant under the defined benefit plan determined as of the close of the Limitation Year and the denominator of which is the lesser of
(A) the product of 1.25 times the dollar limitation in effect under Section 415(b)(1)(A) of the Code for such Limitation Year or
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(B) the product of 1.4 times the amount that may be taken into account under Section 415(b)(1)(B) of the Code with respect to such Participant for such Limitation Year.
(2) The Defined Contribution Plan Fraction is a
fraction, the numerator of which is the sum of the Annual
Additions to the Participant's Accounts as of the close of the
Limitation Year (less any amount that may be subtracted from
the numerator in accordance with any applicable statutes,
notices or rulings) and the denominator of which is the sum of
the lesser of the following amounts determined for such year
and for each prior Year of Service with the Employer: (1) the
product of 1.25 times the dollar limitation in effect under
Section 415(c)(1)(A) of the Code for such Limitation Year
(determined without regard to Section 415(c)(6) of the Code)
or (2) the product of 1.4 times the amount that may be taken
into account under Section 415(c)(1)(B) of the Code with
respect to such Participant for such Limitation Year.
(3) The figure "1.0" shall be substituted for the
figure "1.25" set forth in sections 7.7(d)(1) and 7.7(d)(2)
for each year in which this Plan is a Top Heavy Plan unless
(1) the defined benefit plan provides a minimum benefit equal
to 3% of each Participant's Compensation times the number of
years (not exceeding 10) the Plan is a Top Heavy Plan or the
defined contribution plan provides a minimum contribution
equal to 4% (7 1/2% if the Participant participates in both
the defined benefit plan and the defined contribution plan) of
each Participant's Section 415 Compensation, and (2) the
present value of the cumulative accrued benefits (not
including rollover contributions made after December 31,
1983), of the Key Employees for such year does not exceed 90%
of the present value of the accrued benefits (not including
rollover contributions made after December 31, 1983) under all
plans. Such values shall be determined in the same manner as
described in the "Top Heavy" definition in Article I.
(4) If any Employer maintained both a defined contribution plan and a defined benefit plan on May 6, 1986 and if the plans satisfied the requirements of Section 415 of the Code for the Limitation Year beginning in 1986, the numerator under section 7.7(d)(2) for any Employee who participated in such defined contribution plan on the last day of the Limitation Year beginning before January 1, 1987 (the "determination date") shall be permanently reduced by an amount equal to the product of (1) the sum of the Defined Contribution Plan Fraction and the Defined Benefit Plan Fraction as of the determination date reduced by 1.0, multiplied by (2) the denominator of the Defined Contribution Plan Fraction as of the determination date. For purposes of the preceding sentence, the Defined Contribution Plan Fraction and the Defined Benefit Plan Fraction shall be computed in
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accordance with Section 415 of the Code as amended in 1986, and changes in the terms and conditions of the defined contribution plan after May 5, 1986 shall not be taken into account. The Annual Addition for any Limitation Year beginning before January 1, 1987 shall not be recomputed to treat Employee contributions as Annual Additions.
(e) For purposes of applying the limitations of this section 7.7 for a particular Limitation Year;
(1) all qualified defined benefit plans (without regard to whether a plan has been terminated) ever maintained by the Employer will be treated as one defined benefit plan, and
(2) all qualified defined contribution plans (without regard to whether a plan has been terminated) ever maintained by the Employer will be treated as one defined contribution plan.
7.8 LIMITATION ON ALLOCATION OF ACCOUNTS WITH RESPECT TO SHAREHOLDER ELECTING GAIN DEFERRAL. Notwithstanding any provisions in this Plan to the contrary, if shares of Employer Securities are sold to the Plan by a shareholder of an Employer or Affiliate in a transaction for which special tax treatment is elected by such shareholder (or his representative) pursuant to Section 1042 of the Code, no assets attributable to such Employer Securities may be allocated to the Employer Securities Accounts of:
(a) any person who owns (after application of Section 318(a) of the Code) more than 25% in value of the outstanding securities of the Employer; and
(b) the shareholder, and any person who is related to such shareholder (within the meaning of Section 267(b) of the Code, but excluding lineal descendants of such shareholder as long as no more than 5% of the aggregate amount of all Employer Securities sold by such shareholder in a transaction to which Section 1042 of the Code applies is allocated to lineal descendants of such shareholder) during the "nonallocation period" (as defined below).
(c) Further, no allocation of Employer contributions may be made to the Accounts of such persons unless additional allocations are made to other Participants, to satisfy the coverage and nondiscrimination requirements of Sections 401(a) and 410 of the Code. The term "nonallocation period" means the period beginning on the date of sale and ending on the later of ten years after the date of sale or the date of the allocation attributable to the final payment on the loan incurred with respect to the sale of Employer Securities to the Plan.
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ARTICLE VIII
BENEFITS UNDER THE PLAN
8.1 RETIREMENT BENEFIT.
(a) A Participant shall be entitled to a retirement benefit upon reaching his Normal Retirement Date, whether or not he has actually retired. Until a Participant actually retires from the employ of his Employer, he shall continue to be treated in all respects as a Participant; provided, however, that, effective for Plan Years beginning on or after January 1, 1997, a Participant who is a 5% owner of the Company (or any Affiliate) and who attains age 70 1/2 shall begin receiving payment of his retirement benefit no later than the April 1 after the end of the calendar year in which he attains age 70 1/2. In addition, upon giving thirty (30) days written notice, a Participant may take an early retirement commencing on or after the occurrence of such Participant's Early Retirement Date.
(b) Upon the attainment of his Normal Retirement Date and subject to adjustment as provided in section 9.7(b), such Participant shall be entitled to a retirement benefit in an amount equal to 100% of the balance in his Accounts as of the Valuation Date immediately preceding or concurring with his Normal Retirement Date, plus the amount of any contributions allocated subsequent to such Valuation Date.
8.2 DISABILITY BENEFIT.
(a) In the event a Participant's employment with his Employer is terminated by reason of his total and permanent disability and subject to adjustment as provided in section 9.7(b), such Participant shall be entitled to a disability benefit in an amount equal to 100% of the balance in his Accounts as of the Valuation Date immediately preceding or concurring with the date of the severance of his service, plus the amount of any contributions allocated subsequent to such Valuation Date.
(b) Total and permanent disability shall mean the total incapacity of a Participant to perform the usual duties of his employment with his Employer and will be deemed to have occurred only when certified by a physician who is acceptable to the Plan Administrator and only if such proof is received by the Administrator within sixty (60) days after the date of the termination of such Participant's employment.
8.3 SEVERANCE OF SERVICE BENEFIT.
(a) In the event a Participant's service with his Employer is severed for reasons other than retirement, total and permanent disability or death, and subject to adjustment as provided in section
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9.7(b), such Participant shall be entitled to a severance of service benefit in an amount equal to his vested interest in the balance in his Accounts as of the Valuation Date immediately preceding or concurring with the date of the severance of his service, plus his vested interest in the amount of any contributions allocated subsequent to such Valuation Date.
(b) (1) Effective for Plan Years beginning on and after January 1, 2000, the vested interest in the Employer Contributions Account and Matching Contributions Account of each Participant shall be a percentage of the balance of such Account as of the applicable Valuation Date, based upon such Participant's Years of Service as of the date of the severance of his service, as follows:
TOTAL NUMBER OF VESTED
YEARS OF SERVICE INTEREST
---------------- --------
Less than 1 Year of Service 0%
1 year, but less than 2 years 20%
2 years, but less than 3 years 40%
3 years, but less than 4 years 60%
4 years, but less than 5 years 80%
5 years or more 100%
|
(2) If at any time this Plan ceases to be a Top Heavy Plan after being a Top Heavy Plan for one or more Plan Years, the change from being a Top Heavy Plan shall be treated as if it were an amendment to the Plan's vesting schedule for purposes of sections 14.1(c) and (e).
(3) Notwithstanding the foregoing, a Participant shall be 100% vested in his Employer Contributions Account and Matching Contributions Account upon attaining his Normal or Early Retirement Date. A Participant's vested interest in his Elective Contributions Account, Qualified Non-Elective Contributions Account, and Rollover / Merger Account shall be 100% regardless of the number of his Years of Service.
(c) (1) If the termination of employment results in five consecutive Breaks in Service, then upon the occurrence of such five consecutive Breaks in Service, the nonvested interest of the Participant in his Employer Contributions Account and Matching Contributions Account as of the Valuation Date immediately preceding or concurring with the date of his completion of five consecutive Breaks in Service shall be deemed to be forfeited and such forfeited amount shall be reallocated, pursuant to the provisions of sections 8.3(d)(3) and 6.2(c) at the end of the Plan Year concurring with the date the fifth such consecutive Break in Service occurs. If the Participant is later reemployed by an Employer or an Affiliate, the unforfeited
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balance, if any, in his Employer Contributions Account and Matching Contributions Account that has not been distributed to such Participant shall be set aside in a separate account, and such Participant's Years of Service after any five consecutive Breaks in Service resulting from such termination of employment shall not be taken into account for the purpose of determining the vested interest of such Participant in the balance of his Employer Contributions Account and Matching Contributions Account that accrued before such five consecutive Breaks in Service. If any portion of an ESOP Account attributable to a Participant's Employer Contributions Account and Matching Contributions Account is forfeited, his Employer Securities Accounts and Other Investments Accounts shall be treated as a single account for purposes of this section 8.3(c) and Employer Securities that were purchased with borrowed funds and allocated to such Participant's Employer Securities Account after release from a suspense account shall be forfeited only after all other assets in such Participant's Accounts. If interests in more than one class of Employer Securities have been so allocated to such Participant's Accounts, the Participant shall forfeit the same proportion of each such class.
(2) Notwithstanding any other provision of this section 8.3, if a Participant is reemployed by an Employer or an Affiliate and, as a result, no five consecutive Breaks in Service occur, the Participant shall not be entitled to any severance of service benefit as a result of such termination of employment; provided, however, that nothing contained herein shall require or permit the Participant to return or otherwise have restored to his Employer Contributions Account and Matching Contributions Account any funds distributed to him prior to his reemployment and the determination that no five consecutive Breaks in Service would occur.
(3) If a Participant is less than 100% vested in his Employer Contributions Account and Matching Contributions Account and he receives all or a part of his severance of service benefit, then, if the Participant resumes employment with an Employer or an Affiliate before the occurrence of five consecutive Breaks in Service, until such time as there is a fifth consecutive Break in Service, the Participant's vested portion of the balance in his Employer Contributions Account at any time shall be equal to an amount ("X") determined by the formula X = P(AB + D) - D, where "P" is the vested percentage of the Participant at such time, "AB" is the balance in the Participant's Employer Contributions Account at such time and "D" is the amount distributed as a severance of service benefit.
(d) (1) Notwithstanding any other provision of this section 8.3, if at any time a Participant is less than 100% vested in his Employer Contributions Account and Matching Contributions Account, and, as a result of his severance of service, he receives his entire vested severance of service benefit pursuant to the provisions of Article IX,
VIII-3
and the distribution of such benefit is made not later than the close of the fifth Plan Year following the Plan Year in which such termination occurs (or such longer period as may be permitted by the Secretary of the Treasury, through regulations or otherwise), then upon the occurrence of such distribution, the nonvested interest of the Participant in his Employer Contributions Account and Matching Contributions Account shall be deemed to be forfeited and such forfeited amount shall be reallocated, pursuant to the provisions of sections 8.3(d)(3) and 6.2(c) at the end of the Plan Year immediately following or concurring with the date such distribution occurs.
(2) If a Participant is not vested as to any portion of his Employer Contributions Account and Matching Contributions Account, he will be deemed to have received a distribution immediately following his severance of service. Upon the occurrence of such deemed distribution, the nonvested interest of the Participant in his Employer Contributions Account and Matching Contributions Account shall be deemed to be forfeited and such forfeited amount shall be reallocated, pursuant to the provisions of sections 8.3(d)(3) and 6.2(c), at the end of the Plan Year immediately following or concurring with the date such distribution occurs.
(3) If a Participant whose interest is forfeited under this section 8.3(d) is reemployed by an Employer or an Affiliate prior to the occurrence of five consecutive Breaks in Service commencing after his distribution, then such Participant shall have the right to repay to the Trust, before the date that is the earlier of (1) five years after the Participant's resumption of employment, or (2) the close of a period of five consecutive Breaks in Service, the full amount of the severance of service benefit previously distributed to him. If the Participant elects to repay such amount to the Trust within the time periods prescribed herein, or if a nonvested Participant whose interest was forfeited under this section 8.3(d) is reemployed by an Employer or an Affiliate prior to the occurrence of five consecutive Breaks in Service, the nonvested interest of the Participant previously forfeited pursuant to the provisions of this section 8.3(d) shall be restored to the Employer Contributions Account and Matching Contributions Account of the Participant, such restoration to be made from forfeitures of nonvested interests and, if necessary, by contributions of his Employer, so that the aggregate of the amounts repaid by the Participant and restored by the Employer shall not be less than the Employer Contributions Account and Matching Contributions Account balance of the Participant at the time of forfeiture unadjusted by any subsequent gains or losses.
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8.4 DEATH BENEFIT.
(a) In the event of the death of a Participant while he is employed by an Employer and subject to adjustment as provided in section 9.7(b), his beneficiary shall be entitled to a death benefit in an amount equal to 100% of the balance in his Accounts as of the Valuation Date immediately preceding or concurring with the date of his death plus the amount of any contributions allocated subsequent to such Valuation Date.
(b) Subject to the provisions of sections 8.4(c), 9.4 and 9.5 at any time and from time to time, each Participant shall have the unrestricted right to designate a beneficiary to receive his death benefit and to revoke any such designation. Each designation or revocation shall be evidenced by written instrument filed with the Plan Administrator, signed by the Participant and bearing the signatures of at least two persons as witnesses to his signature. In the event that a Participant has not designated a beneficiary or beneficiaries, or if for any reason such designation shall be legally ineffective, or if such beneficiary or beneficiaries shall predecease the Participant, then the Participant's surviving Eligible Spouse, and if none, his issue, per stirpes, and if none, the personal representative of the estate of such Participant shall be deemed to be the beneficiary designated to receive such death benefit, or if no personal representative is appointed for the estate of such Participant, then his next of kin under the statute of descent and distribution of the State of such Participant's domicile at the date of his death shall be deemed to be the beneficiary or beneficiaries to receive such death benefit.
(c) Notwithstanding the foregoing and except as otherwise provided by sections 9.4 and 9.5, if the Participant is married as of the date of his death, the Participant's surviving Eligible Spouse shall be deemed to be his designated beneficiary and shall receive the full amount of the death benefit attributable to the Participant unless the spouse consents or has consented to the Participant's designation of another beneficiary. Any such consent to the designation of another beneficiary must acknowledge the effect of the consent, must be witnessed by a Plan representative or by a notary public and shall be effective only with respect to that spouse. A spouse's consent may be either a restricted consent (which may not be changed as to the beneficiary or (except as otherwise permitted by law) form of payment unless the spouse consents to such change in the manner described herein) or a blanket consent (which acknowledges that the spouse has the right to limit consent only to a specific beneficiary or a specific form of payment, and that the spouse voluntarily elects to relinquish one or both of such rights). Notwithstanding the preceding provisions of this section 8.4(c), a Participant shall not be required to obtain spousal consent to his designation of another beneficiary if the Participant is legally separated or the Participant has been abandoned, and the Participant provides the Administrator with a court order to such effect, or the spouse cannot be located.
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ARTICLE IX
PAYMENTS OF BENEFITS
9.1 TIME FOR DISTRIBUTION OF BENEFITS.
(a) Except as otherwise provided under this Article IX, the amount of the benefit to which a Participant is entitled under section 8.1, 8.2, 8.3 or 8.4 shall be paid to him or, in the case of a death benefit, shall be paid to said Participant's beneficiary or beneficiaries, beginning as soon as practicable following the Participant's retirement, disability, death, or other severance of service as the case may be.
(b) Effective for Plan Years beginning on and after January 1, 1997, any distribution paid to a Participant (or, in the case of a death benefit, to his beneficiary or beneficiaries) pursuant to section 9.1(a) shall commence not later than the earlier of:
(1) the 60th day after the last day of the Plan Year in which the Participant's employment is severed or, if later, in which occurs the Participant's Normal Retirement Date; or
(2) in the case of a Participant who is considered to own at least 5% of the Company or an Affiliate, April 1 of the year immediately following the calendar year in which he reaches age 70 1/2.
(c) Notwithstanding the foregoing, no distribution shall be made of the retirement, disability or severance of service benefit to which a Participant is entitled under Article VIII prior to his Normal Retirement Date (or, if later, the date he attains age 62) unless the value of his benefit does not exceed $5,000 ($3,500 for Plan Years beginning prior to August 6, 1997), or unless the Participant consents to the distribution. For Plan Years beginning on or after January 1, 2002, the Plan Administrator shall provide each Participant entitled to a distribution of more than $5,000 with a written notice of his rights, which shall include an explanation of the alternative dates for distribution of benefits. The Participant may elect to exercise such rights, no less than 30 days and no more than 90 days before the first date upon which distribution of the Participant's vested Account balances may be made; provided, however, that such distribution may be made less than 30 days after the exercise of such rights if
(1) the Plan Administrator informs the Participant of his right to such thirty to ninety day period, and
(2) the Participant, after receiving such notice from the Plan Administrator, affirmatively elects a distribution in less than 30 days. In the event that a Participant does not consent to a distribution of a benefit in excess of $5,000 to which he is entitled under section 8.1, 8.2 or 8.3, the amount
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of his benefit shall be paid to the Participant in such subsequent Plan Year as the Participants, at any time, select, but not later than sixty (60) days after the last day of the Plan Year in which the Participant reaches his Normal Retirement Date.
9.2 FORM OF PAYMENT.
(a) The benefits payable under sections 8.1, 8.2, 8.3 and 8.4 shall be paid to the Participant (or, if applicable, his beneficiary or beneficiaries), to the extent possible, in cash or, with respect to Plan Years beginning on or after January 1, 2001, in units of Employer Securities (except that no fractional shares shall be issued and the value of any fractional shares to which a Participant would otherwise be entitled shall be paid in cash), as elected by the Participant (or his beneficiary or beneficiaries). If the Participant elects to receive all or any portion of the vested balance in his Accounts in units of Employer Securities, then, during the sixty (60) day period immediately preceding the proposed distribution date of the benefit which the Participant is entitled to receive under the Plan, the Trustee, to the extent possible, shall apply (net of any brokerage commissions) such portion of the Participant's Accounts to the purchase of the maximum number of whole units of Employer Securities at their then Fair Market Value, which units shall be allocated to the Participant's Employer Securities Accounts. If the Trustee is unable to apply any elected portion of the balance of such Accounts to the purchase of whole units of Employer Securities within the said sixty (60) day period, such elected portion shall be paid in cash.
(b) Notwithstanding the provisions of section 9.2(a), if the amount to which any Participant is entitled under Article VIII is less than $5,000 ($3,500 for Plan Years beginning prior to August 6, 1997), the Plan Administrator, in accordance with a uniform and nondiscriminatory policy, may pay such amount to the Participant or his beneficiary in the form of cash rather than Employer Securities unless the Participant or his beneficiary demands that such amount be distributed in the form of Employer Securities; provided, however, that prior to distributing any such amount in cash, the Participant's right to demand a distribution in the form of Employer Securities instead of cash shall have been communicated to the Participant or his beneficiary in writing by the Plan Administrator.
9.3 MANNER OF PAYMENT. Effective for Plan Years beginning on or after January 1, 2002, a Participant's retirement, disability, severance of service or death benefit payable pursuant to section 8.1, 8.2, 8.3 or 8.4 shall be distributed in a lump sum payment.
9.4 QUALIFIED JOINT AND SURVIVOR ANNUITY REQUIREMENTS BEFORE 2002. Notwithstanding the provisions of section 9.3, for Plan Years beginning before January 1, 2002 a Participant's retirement, disability or severance of service
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benefit payable pursuant to section 8.1, 8.2 or 8.3 shall be distributed pursuant to this section 9.4 and section 9.6.
(a) In the case of a vested Participant who is living on his Annuity Starting Date, any benefit provided in section 8.1, 8.2 or 8.3 shall be paid in the form having the effect of a Qualified Joint and Survivor Annuity, unless the Participant elects in writing not to take a Qualified Joint and Survivor Annuity.
(b) Any such election shall be invalid and shall not take effect unless:
(1) it is made by the Participant and received by the Plan Administrator during the 90-day period ending on the Annuity Starting Date; and
(2) in the case of Participant who has an Eligible Spouse, the Eligible Spouse consents or has consented in writing to such election, such consent acknowledges the effect of such election and such consent is witnessed by a representative of the Plan or a notary public; or the Participant or his beneficiary establishes to the satisfaction of the Plan Administrator that the consent otherwise required may not be obtained because there is no Eligible Spouse, because the Eligible Spouse cannot be located or because of such other circumstances as may be prescribed by the Secretary of the Treasury. Any consent by an Eligible Spouse shall only be effective with respect to such spouse. A spouse's consent shall be a restricted consent (which may not be changed as to either the beneficiary or (except as otherwise permitted by law) form of payment unless the spouse consents to such change in the manner described herein). Notwithstanding the preceding provisions of this subsection (b), a Participant shall not be required to obtain spousal consent if (A) the Participant is legally separated or the Participant has been abandoned, and the Participant provides the Plan Administrator with a court order to such effect, or (B) the spouse cannot be located.
(c) At least 30 days, but no more than 90 days before the
Annuity Starting Date, a Participant shall be provided a form for the
purpose of making the appropriate elections under the foregoing
provisions of this section 9.4. Accompanying such election form shall
be a written explanation of (1) the terms and conditions of a Qualified
Joint and Survivor Annuity; (2) the Participant's right to make, and
the effect of, an election to waive the Qualified Joint and Survivor
Annuity form of benefit; (3) the material features, and an explanation
of the relative values, of the optional forms of benefit available
under the Plan; (4) the rights of a Participant's Eligible Spouse; and
(5) the right to make, and the effect of, a revocation of a previous
election to waive the Qualified Joint and Survivor Annuity. Once an
election is made, it may be revoked in writing. Thereafter, another
election may be made; provided, however, that the new election is
received by the Plan Administrator prior to the date on which payment
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of benefits commences and the other provisions of this section 9.4 are met with respect to such new election. Notwithstanding the foregoing, a Participant can affirmatively elect to receive payment of benefits prior to the expiration of the aforementioned 30 day period if (1) the Plan Administrator provides information to the Participant that clearly indicates that the Participant has at least 30 days to consider his election, (2) the Participant is permitted to revoke such election anytime prior to date payment of benefits commence and (3) the payment of benefits shall not commence until at least the eighth (8th) day following the day the Participant is provided with aforementioned election form and written explanation regarding the payment of benefits.
9.5 QUALIFIED PRERETIREMENT SURVIVOR ANNUITY REQUIREMENTS BEFORE 2002. Notwithstanding the provisions of section 9.3, for Plan Years beginning before January 1, 2002 a Participant's death benefit payable pursuant to section 8.4 shall be subject to this section 9.5 and section 9.6.
(a) If a vested Participant dies before his Annuity Starting Date and has an Eligible Spouse on the date of his death, any death benefit provided under section 8.4 shall be paid in the form having the effect of a Qualified Preretirement Survivor Annuity unless the Participant elects in writing not to receive a Qualified Preretirement Survivor Annuity.
(b) Such election shall be invalid and shall not take effect unless:
(1) it is made by the Participant and received by the Plan Administrator during the period that begins on the first day of the Plan Year in which the Participant reaches age 35 and that ends on the date of the Participant's death (subject to such regulations as may be issued by the Secretary of Treasury); and
(2) the Participant's Eligible Spouse consents or has
consented in writing to such election, such consent
acknowledges the effect of such election and such consent is
witnessed by a representative of the Plan or a notary public;
or the Participant or his beneficiary establishes to the
satisfaction of the Plan Administrator that the consent
otherwise required may not be obtained because there is no
Eligible Spouse, because the spouse cannot be located or
because of such other circumstances as may be prescribed by
the Secretary of the Treasury. Any consent by an Eligible
Spouse shall only be effective with respect to such spouse. A
spouse's consent shall be a restricted consent (which may not
be changed as to the beneficiary or (except as otherwise
permitted by law) form of payment unless the spouse consents
to such change in the manner described herein).
Notwithstanding the preceding provisions of this subsection
(b), a Participant shall not be required to obtain spousal
consent if (A) the Participant is legally separated or the
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Participant has been abandoned, and the Participant provides the Plan Administrator with a court order to such effect, or (B) the spouse cannot be located.
(c) A Participant shall be provided a form for the purpose of making the appropriate elections under the foregoing provisions of this section 9.5. Such form shall be provided (subject to such regulations as may be issued by the Secretary of the Treasury) during such of the following periods as shall end last:
(1) the period beginning with the first day of the Plan Year in which the Participant attains age 32 and ending with the last day of the Plan Year preceding the Plan Year in which the Participant attains age 35;
(2) a reasonable period after he becomes a Participant; or
(3) a reasonable period after his employment is severed in the case of a Participant whose employment is severed before he attains age 35.
Accompanying such election form shall be a written explanation of the terms and conditions and the financial effect of the election and of the rights of the Participant's Eligible Spouse. Once an election is made, it may be revoked in writing. Thereafter, another election may be made; provided, that the new election is received by the Plan Administrator prior to the Participant's death and the other provisions of this section 9.5 are met with respect to such new election.
(d) If the Participant's death benefit is payable to his Eligible Spouse as a Qualified Preretirement Survivor Annuity under subsection (a), or if an Eligible Spouse executes a restricted consent waiving a Qualified Preretirement Survivor Annuity as provided in subsection (b)(2), the Eligible Spouse, or the Participant's designated beneficiary, as the case may be, may waive the annuity form of benefit after the Participant's death and select an optional form of benefit as provided in section 9.6.
9.6 ALTERNATIVE METHODS OF PAYMENT BEFORE 2002. Notwithstanding the provisions of 9.3, for Plan Years beginning before January 1, 2002, a Participant's retirement, disability, severance of service or death benefit payable pursuant to section 8.1, 8.2, 8.3 or 8.4 shall be subject to this section 9.6.
(a) Notwithstanding sections 9.4 and 9.5, if the value of a Participant's benefit does not exceed $5,000 ($3,500 for Plan Years beginning prior to August 6, 1997), such benefit shall be paid in the form of a lump sum as soon as practicable following the Participant's retirement, disability, severance of employment, or death, as provided in Article VIII.
(b) In the case of any Participant to whom the provisions of sections 9.4, and 9.5 do not apply, the manner of payment of his
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retirement, disability, severance of employment or death benefit shall be determined by such Participant or, in case such Participant has died, his beneficiary or beneficiaries. The options are:
(1) OPTION A - Such amount shall be paid or applied in monthly, quarterly, semi-annual or annual installments as nearly equal as practicable; provided, however, that the Participant or his beneficiary may elect to accelerate the payment of any part or all of the unpaid installments or to provide that the unpaid balance shall be used for the benefit of the Participant or his beneficiary under Option B. In the event this option is selected, the portion of the Account of a Participant, or, in case such Participant is dead, of his beneficiary or beneficiaries, that is not needed to make the installment payments during the then current Plan Year shall remain a part of the Trust Fund under Article VII and shall participate in the net increase or net decrease in the value of said Trust Fund as provided therein. Installments shall be made as follows:
(A) In the case of a retirement, disability or termination benefit, in no event shall payments under this Option A extend beyond the life expectancy of the Participant or the joint life expectancy of the Participant and his designated beneficiary. If the Participant dies before receiving the entire amount payable to him, the balance shall be paid to his designated beneficiary or, if there is none, to the beneficiary specified in Article VIII; in each case the balance shall be distributed at least as rapidly as under the method being used prior to the Participant's death.
(B) In the case of a death benefit, payment under this Option A:
(i) to the designated beneficiary shall begin within one year following the Participant's death and shall not, in any event, extend beyond the life expectancy of the designated beneficiary (unless the designated beneficiary is the Participant's surviving spouse, in which case such benefit shall begin no later than the date the Participant would have reached age 70 1/2); or
(ii) to any other beneficiary shall be totally distributed within five years from the date of the Participant's death.
(2) OPTION B - Such amount shall be paid as a straight life annuity.
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(3) OPTION C - Such amount shall be paid in an annuity for the life of the Participant with a 75% or 100% survivor annuity for the life of his Eligible Spouse.
(4) OPTION D - Such amount shall be paid in a lump sum.
(c) Life expectancies will be recalculated using the return multiples in Tables V and VI of Treasury Regulation Section 1.72-9 for purposes of distributions hereunder.
9.7 LIQUIDATION OF INVESTMENTS, PERIODIC ADJUSTMENTS, AND INCIDENTAL BENEFITS.
(a) Notwithstanding any other provision of this Plan, whenever a Participant is entitled to a distribution or withdrawal from the Plan pursuant to Article IX or X, the Plan Administrator and the Trustee shall be entitled to liquidate all, or any portion, of the investments attributable to the Participant's Accounts at any time during the five business days preceding the date upon which the distribution or withdrawal is scheduled to occur in order to facilitate the payment of benefits. In the event that the Plan Administrator and the Trustee elect to liquidate investments in order to facilitate a distribution or withdrawal, the liquidated funds may be placed in a money market fund or similar investment fund (or, when reasonable, may be held in cash, without liability for interest thereon). The Plan Administrator may adopt such accounting procedures as are necessary to accurately reflect the Participant's interest in such liquidated funds.
(b) Except as otherwise provided in section 9.7(a), to the extent the balance of a Participant's Accounts has not been distributed and remains in the Plan, the value of such remaining balance shall be subject to adjustment from time to time pursuant to the provisions of Article VII.
(c) (1) Notwithstanding the foregoing, payments under any of the options described in this section shall satisfy the incidental death benefit requirements and all other applicable provisions of Section 401(a)(9) of the Code, the regulations issued thereunder (including Prop. Reg. Section 1.401(a)(9)-2), and such other rules thereunder as may be prescribed by the Commissioner.
(2) With respect to distributions under the Plan made for calendar years beginning on or after January 1, 2001, the Plan Administrator shall 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 on January 17, 2001, notwithstanding any provision of the Plan to the contrary. This section 9.7(c)(2)
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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) of the Code or such other date as may be specified in guidance published by the Internal Revenue Service.
9.8 DIRECT ROLLOVER DISTRIBUTIONS. Notwithstanding any provision of the plan to the contrary, a Distributee may elect, at the time and in the manner prescribed by the Plan Administrator, to have all or any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. In the event that a Distributee elects to have only a portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan, the portion must not be less than $500 (adjusted under such regulations as may be issued from time to time by the Secretary of the Treasury).
9.9 DISTRIBUTION FOR A MINOR BENEFICIARY. In the event a distribution is to be made to a beneficiary who is a minor under the laws of the state in which the beneficiary resides, the Plan Administrator may, in the Plan Administrator's sole discretion, direct that such distribution be paid to the legal guardian or custodian of such beneficiary as permitted by the laws of the state in which said beneficiary resides. A payment to the legal guardian or custodian of a minor beneficiary shall fully discharge the Trustee, Employer, Plan Administrator, and Plan from further liability on account thereof.
9.10 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN. In the event that all, or any portion of the distribution payable to a Participant or his beneficiary, hereunder shall remain unpaid after the later of the Participant's attainment of age 62 or his Normal Retirement Date solely by reason of the inability of the Plan Administrator, after sending a registered letter, return receipt requested, to the last known address, and after further diligent effort, to ascertain the whereabouts of such Participant or his Beneficiary, the amount so distributable shall be treated as a forfeiture pursuant to the provisions of Article VIII. In the event a Participant or beneficiary of such Participant is located subsequent to his benefit being forfeited, the amount forfeited (unadjusted for gains and losses) shall be restored to the Participant's Accounts. Such restoration shall be made from forfeitures occurring in the Plan Year of the restoration and, if necessary, by contributions of his Employer.
9.11 PUT OPTIONS.
(a) The provisions of this section 9.11 relate to all Employer Securities held as assets of the Trust. Except to the extent hereinafter provided in this section 9.11, except as provided in section 9.12, or except as otherwise required by applicable law, no such Employer Securities may be subject to a put, call or other option, or buy-sell or similar arrangement while held by and when distributed from the Plan.
(b) If any such Employer Securities, when distributed to or for the benefit of a Participant, are not then listed on a national securities exchange registered under section 6 of the Securities Exchange Act of 1934 (the "1934 Act") or are not then quoted on a system sponsored by a national securities association registered under section 15A(b) of the 1934 Act, or, if so listed or quoted, are then
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subject to a trading limitation (a restriction under any federal or
state securities law, any regulation thereunder or any permissible
agreement affecting such Employer Securities, that makes such Employer
Securities not as freely tradable as Employer Securities not subject to
such restriction), then the Participant, the Participant's beneficiary
or beneficiaries, the persons to whom such shares are transferred by
gift from the Participant, or any person to whom such Employer
Securities pass by reason of the death of the Participant or a
beneficiary of the Participant, as the case may be, shall be granted an
option to put any of the units of such Employer Securities to the
Company. The put option shall provide that, for a period of fifteen
(15) months after such shares are distributed, the Participant, the
Participant's beneficiary or beneficiaries, the persons to whom such
shares are transferred by gift from the Participant, or any person to
whom such Employer Securities pass by reason of the death of the
Participant or a beneficiary of the Participant, as the case may be,
shall have the right to have the Company purchase such units at their
Fair Market Value on the date the put option is exercised. Any such put
option shall be exercised by the holder notifying the Company in
writing that the put option is being exercised; the date of exercise
shall be the date the Company receives such written notice. Payment of
the purchase price shall be made by the Company, at the election of the
Company, either in cash within 30 days after the date of exercise or by
an installment purchase. Any installment purchase must provide for
adequate security, a reasonable interest rate and a payment schedule
providing for cumulative payments at any time not less than the
payments that would be made if made in substantially equal annual
installments beginning within 30 days and ending not more than five
years (which may be extended to a date no later than the earlier of ten
years after the date of exercise or the date the proceeds of the loan
used by the Plan to acquire the securities in question are entirely
repaid) after the date the put option is exercised.
(c) The following special rules shall apply to any put option granted with respect to any such Employer Securities:
(1) At the time that any such put option is exercised, the Plan shall have an option to assume the rights and obligations of the Company under the put option.
(2) If it is known at the time that a loan is made to the Plan to enable it to purchase Employer Securities that federal or state law will be violated by the Company honoring the put option provided in this section 9.11, the holder of any such put option shall have the right to put such Employer Securities to a third party that has substantial net worth at the time the loan is made and whose net worth is reasonably expected to remain substantial, the identity of such third party to be selected by the Plan Administrator.
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(3) If any such Employer Securities are publicly traded without restriction when distributed, but cease to be so traded within 15 months after distribution, the Company shall notify each holder of such Employer Securities, in writing, on or before the tenth day after the date such Employer Securities cease to be so traded, that for the remainder of the 15-month period, such Employer Securities are subject to a put option. Such notice shall also inform the holder of the terms of such put option (which terms shall be consistent with the provisions of this section 9.11). If such notice is given after the tenth day after the date such Employer Securities cease to be so traded, the duration of the put option shall be extended by the number of days between such tenth day and the date on which notice is actually given.
(4) The period during which a put option is exercisable shall not include any time when a distributee is unable to exercise it because the party bound by the put option is prohibited from honoring it by applicable federal or state law.
(d) Except as otherwise permitted by law, the provisions of this section 9.11 are not terminable for any reason, including as a result of the repayment of any loan used to acquire Employer Securities or by the cessation of the Plan as an employer stock ownership plan.
9.12 RIGHT OF FIRST REFUSAL. The Employer or, if the Employer does not exercise such right, the Plan, shall have a right of first refusal with respect to any Employer Securities constituting stock or another equity security or a debt security convertible into stock or another equity security that are distributed for the benefit of a Participant or his beneficiary under this Plan. Such right of first refusal shall be subject to the following terms and conditions:
(a) At the time the right of first refusal may be exercised, the Employer Securities subject thereto must not then be listed on a national securities exchange registered under section 6 of the Securities Exchange Act of 1934 (the "1934 Act") or must not then be quoted on a system sponsored by a national securities association registered under section 15A(b) of the 1934 Act.
(b) If at any time the person owning or otherwise having the right to sell such Employer Securities subject to the right of first refusal (whether or not such person received such securities from the Trust or as a result of a gift, a pledge or otherwise) desires to sell such securities, or any portion thereof, such person shall provide notice in writing to the Employer and to the Trustee (on behalf of the Plan), with such notice to include the name and address of the person to whom it is proposed that the securities be sold and of the person proposing to make the sale, the proposed purchase price therefore and the proposed terms of payment. The Employer and/or the Trustee shall
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have fourteen (14) days from the giving of such notice within which to give notice in writing to the person proposing to make the sale of the desire to exercise the right of first refusal. If both the Employer and the Trustee (on behalf of the Plan) exercise such right of first refusal, the Employer shall have the priority to make the purchase.
(c) If the Employer or the Trustee exercises the right of first refusal, the purchase of the shares shall take place as soon thereafter as is practicable at the offices of the purchaser. The purchase price and other terms of the purchase shall not be less favorable to the seller than the greater of the Fair Market Value of the securities in question or the purchase price and other terms offered by the proposed purchaser (other than the Employer or the Plan), making a good faith offer to purchase the security.
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ARTICLE X
PRERETIREMENT WITHDRAWALS AND DIVERSIFICATION ELECTIONS
10.1 HARDSHIP WITHDRAWALS.
(a) A Participant will be eligible to receive a withdrawal of any amounts credited to his Elective Contributions Account on account of Hardship. Notwithstanding the foregoing, any withdrawal pursuant to this section 10.1 shall not include amounts credited at any time to the Participant (in this Plan or any plan merged with this Plan) as (1) earnings attributable to elective contributions or (2) qualified non-elective contributions and earnings attributable thereto. If a Participant incurs a Hardship, such Participant may apply to the Administrator for the withdrawal of a portion of his Elective Contributions Account not in excess of the amount of such Hardship. The Administrator shall determine whether an immediate and heavy financial need exists and the amount necessary to meet the need (which amount may include the amount necessary to pay income taxes and penalties reasonably anticipated to result from the withdrawal), or the lesser amount, if any, to be distributed to such Participant, in a uniform and nondiscriminatory manner. If the Administrator approves a Hardship withdrawal, it shall direct the Trustee to distribute such amount to such Participant from his Elective Contributions Account (subject, in each case, to the restrictions set forth hereinabove).
(b) An immediate and heavy financial need shall be deemed to include
(1) expenses of medical care (as defined in Section 213(d) of the Code) incurred by the Participant or his spouse or other dependents (as defined in Section 152 of the Code) or necessary for such persons to obtain such medical care,
(2) payments (other than mortgage payments) directly related to the purchase of the Participant's principal residence,
(3) payment of tuition and related educational fees for the next 12 months of post-secondary education for the Participant or his spouse, children or other dependents,
(4) payments necessary to prevent the eviction of the Participant from his principal residence or the foreclosure on the mortgage of such residence, and
(5) such other events as may be prescribed by the Commissioner of the Internal Revenue Service in revenue rulings, notices and other documents of general applicability.
(c) A financial need shall not fail to qualify as immediate and heavy merely because such need was reasonably foreseeable or voluntarily incurred by the Participant.
(d) A distribution pursuant to this section 10.1 will be deemed necessary to satisfy the financial need of a Participant if
(1) the distribution is not in excess of the amount of the immediate and heavy financial need of the employee (including any amount necessary to pay income taxes and penalties reasonably anticipated to result from the distribution);
(2) the Participant has obtained all distributions, other than hardship distributions, and all nontaxable loans currently available under all plans maintained by an Employer;
(3) the Participant's elective contributions to the Plan or any other qualified or nonqualified plans of deferred compensation maintained by an Employer are suspended and he is not permitted to make further elective contributions until the first day of the quarter of the Plan Year following the expiration of 12 months from the date of such withdrawal; and
(4) the Participant is not permitted to make elective contributions to the Plan or any other plan maintained by an Employer for the Participant's taxable year immediately following the taxable year of the hardship distribution in excess of the applicable limit under Section 402(g) of the Code for such next taxable year less the amount of such Participant's elective contributions for the taxable year of the hardship distribution.
(e) Any Participant who withdraws an amount pursuant to section 10.1(a) shall be subject to the limitations of sections 6.1(b)(1)(B) and 6.1(g).
10.2 DIVERSIFICATION ELECTIONS.
(a) Notwithstanding any restrictions upon Participant directed investments set forth within the provisions of Article XI, a Participant who has attained age 55 and completed at least ten (10) years of participation in the Plan, shall have the right to direct the Trustee to diversify the investment of a portion of his Employer Securities Accounts before his retirement, death, total and permanent disability, or severance of service.
(b) Such a Participant may elect pursuant to this section, within ninety (90) days after the close of the first Plan Year in the Diversification Election Period, to diversify the investment of an
amount not exceeding 25% of the portion of the balance of his Employer Securities Accounts determined as of the last day of such Plan Year.
(c) Within ninety (90) days after the close of the second, third, fourth and fifth Plan Years in the Diversification Election Period, such a Participant may elect pursuant to this section to diversify the investment of an amount equal to the difference between
(1) 25% of the portion of the balance of his Employer Securities Accounts (determined before the application of subsection (b) above), determined as of the last day of such Plan Year, and
(2) the amount with respect to which a diversification election was previously made.
(d) In the final Plan Year of the Diversification Election Period, the Participant may elect pursuant to this section to diversify the investment of an amount equal to the difference between
(1) 50% of the portion of the balance of his Employer Securities Accounts (determined before the application of subsections (b) and (c) above), determined as of the last day of such Plan Year,
(2) and the amount with respect to which a diversification election was previously made.
(e) An eligible Participant's diversification election shall be made in such form as may be approved by the Plan Administrator (or as otherwise permitted by the Plan Administrator), with the Participant designating the amount to be invested in Funds made available pursuant to section 11.1 as a percentage of the portion of his Employer Securities Accounts that is available for reinvestment as described in subsection (a).
(f) Notwithstanding any other provision of this section 10.2, no diversification election shall be made to any Participant unless the value of the Employer Securities allocated to the Participant's Employer Securities Accounts, exceeds $500 as of the Valuation Date immediately preceding the first day on which the Participant may elect an investment diversification.
ARTICLE XI
DIRECTED INVESTMENTS
11.1 INVESTMENT FUNDS.
(a) Each Participant may direct the Plan Administrator to invest his Accounts in one or more Funds that may be made available from time to time. A Participant's Accounts shall be divided into sub-accounts to properly account for the various Funds in which such Accounts are invested. Each sub-account shall be adjusted as of each Valuation Date in accordance with Article VIII to account for distributions, withdrawals, loans, contributions and forfeitures allocated to it and with respect to its share of the income, loss, appreciation and depreciation of such Fund.
(b) Each Fund shall be treated separately for purposes of (1) crediting dividends, interest, and other income on the investments in a particular investment fund, and all realized and unrealized gains shall be credited to that fund, and (2) charging brokerage commissions, taxes, and other charges and expenses in connection with the investments in a particular Fund, and all realized and unrealized losses shall be charged to that Fund. Other charges or fees separately incurred and not charged to a Fund, and incurred as a result of an election made by a Participant associated with the investment of his Accounts, shall be charged against his Accounts in accordance with Article VIII.
(c) Neither the Trustee, the Plan Administrator, nor any other person shall be under any duty to question any election by a Participant or to make any suggestions to him in connection therewith. Any loss occasioned by a Participant's election or failure to change an election of a Fund shall not be the responsibility of the Trustee, the Plan Administrator, or any other person. Nor shall the Trustee or the Plan Administrator be liable to any Participant for failure to make an investment in any Fund elected by him if in the exercise of due diligence the Trustee has not been able to acquire satisfactory securities or other property for that Fund satisfying the specifications and parameters established by the Plan Administrator and reasonable requirements as to price, terms, and other conditions, or for inability to liquidate an investment in a Fund promptly upon receipt of a new election form from the Participant.
11.2 UNIFORM PROCEDURES. The Administrator shall establish uniform procedures regarding Participant investment directions, which procedures shall be communicated to all Participants. The Plan Administrator, at its sole discretion, may prohibit, or otherwise restrict, investment of Participant Account balances in the ESOP Company Stock Fund by any officer, director or 10% shareholder of the Company, or any other Participant who is required to file reports under Section 16(b) of the Securities Exchange Act of 1934, in order to prevent a violation of federal law or an undue administrative burden upon the Plan Administrator.
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11.3 DESIGNATED SECTION 404(C) PLAN.
(a) This Plan is designated as an "ERISA Section 404(c) Plan" providing Participants (and beneficiaries) with the opportunity to exercise control over the investment of assets held in their Accounts and to select, from a broad range of Funds, the manner in which some or all of the assets in their Accounts are invested. The Funds shall be selected and offered by the Company, as the designated plan fiduciary, in accordance with Section 404(c) of ERISA and the regulations thereunder.
(b) Information relating to the purchase, holding or sale of interests in the ESOP Company Stock Fund by Participants, as well as the voting and/or tender of Employer Securities, shall be maintained on a confidential basis by the director of personnel for the Company at all times. The director of personnel for the Company shall be the fiduciary responsible for maintaining all participant information with respect to investments in, and the voting and tender of, the ESOP Company Stock Fund. The director of personnel shall maintain confidential information with respect to participants' investments in the ESOP Company Stock Fund in a manner that will prevent officers, directors and employees of the Company from obtaining access to the information unless they have been specifically authorized to receive the information in connection with their responsibilities with respect to the administration of the plan. The director of personnel also shall be responsible for the periodic review and revision of confidentiality procedures for the Plan.
(c) In the event the fiduciary designated in section 11.3(b) above determines that the direct or indirect exercise of shareholder rights by any Participant who has invested in the ESOP Company Stock Fund may be subject to undue employer influence, the fiduciary shall appoint one or more independent fiduciaries (who are not affiliated with any Employer) to carry out such activities with respect to the ESOP Company Stock Fund as may be required to eliminate such undue employer influence.
11.4 LOANS TO PARTICIPANTS. Participant loans shall be made in accordance with a written loan policy adopted by the Plan Administrator.
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ARTICLE XII
TRUST FUND
12.1 TRUST FUND. The Trust Fund shall be held by Comerica Bank, as Trustee, or by a successor trustee or trustees, for use in accordance with the Plan under the Agreement and Declaration of Trust. The Agreement and Declaration of Trust may from time to time be amended in the manner therein provided. Similarly, the Trustee may be changed from time to time in the manner provided in the Agreement and Declaration of Trust.
12.2 ESOP INVESTMENTS. The Trustee shall invest the portions of the ESOP Company Stock Fund primarily in, and hold for such Account, Employer Securities unless, and to the extent, otherwise required by the Plan or the Plan Administrator. Unless otherwise required by the Agreement and Declaration of Trust, Employer Securities may be purchased or otherwise acquired from any source, including any party that might be a party in interest (within the meaning of Section 3(14) of ERISA) or a disqualified person (within the meaning of Section 4975(e)(2) of the Code); provided, however, that if Employer Securities are purchased or acquired from such a party in interest or disqualified person, the Trustee shall neither pay more than adequate consideration (within the meaning of Section 3(18) of ERISA), nor shall pay any commission to any person in connection with such acquisition.
12.3 POWER TO BORROW. In order to enable it to carry out the purpose for which the Plan and Trust was established and except as otherwise provided by the Agreement and Declaration of Trust, the Trustee shall have the power to borrow money to purchase Employer Securities and for other purposes of the Trust from any source, including from any party that may be a party in interest (within the meaning of Section 3(14) of ERISA) or a disqualified person (within the meaning of Section 4975(e)(2) of the Code), and the Trustee may have a party in interest or disqualified person guarantee any such loan; provided, however, that if funds are borrowed from such a party in interest or disqualified person or such a party or person guarantees the loan, such borrowing shall be primarily for the benefit of the participants and their beneficiaries. The Trustee shall have the power to issue promissory notes as Trustee to evidence any such borrowing.
12.4 VOTING. Unless otherwise required by the Agreement and Declaration of Trust, any voting and other rights with respect to units of Employer Securities held as part of, or otherwise attributable to, each Participant's ESOP Accounts, or as part of any suspense account established pursuant to section 7.3, within the ESOP Company Stock Fund shall be exercised as follows:
(a) If the Employer does not have a registration-type class of securities, as defined in Code Section 409(e), each Participant who is an employee of the Employer shall be entitled to direct the Trustee as to the exercise of any voting rights, attributable to shares allocated
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to his Employer Securities Account, with respect to the approval or disapproval of any corporate merger or consolidation, recapitalization, reclassification, liquidation, dissolution, or sale of substantially all assets of a trade or business.
(b) If the Employer has a registration-type security, as defined in Code Section 409(e), any voting and other rights with respect to units of Employer Securities (including fractional shares) allocated to any Participant's Employer Securities Account shall be exercised by the Trustee in accordance with instructions received from such Participant.
(c) In connection with the exercise of the rights set forth in sections 12.4(a) and (b), the Trustee shall notify each Participant at least thirty (30) days prior to the date upon which such rights are to be exercised; provided, however, that the Trustee shall not be under any obligation to notify the Participants sooner than it receives such information as security holder of record. In the event the notice received by the Trustee makes it impossible for the Trustee to comply with such thirty (30) day notice requirement, the Trustee shall notify the Participants regarding the exercise of such rights as soon as practicable. The notification shall include all information distributed to the security holders of record by the Employer regarding the exercise of such rights. The Trustee shall be entitled to exercise such rights on the units of Employer Securities allocated to a Participant's Employer Securities Account only to the extent that it receives direction from such Participant, and if it does not receive direction, it shall not exercise any rights.
(d) Any voting and other rights with respect to units of Employer Securities (including fractional shares) held by the Trustee that are allocated to any suspense account or that are not subject to sections 12.4 (a) or (b) shall be exercised by the Trustee as directed by the Plan Administrator.
12.5 DIVIDENDS. Unless otherwise required by the Agreement and Declaration of Trust, dividends with respect to units of Employer Securities held as part of, or otherwise allocable to, the Participants' ESOP Accounts shall be dealt with as follows:
(a) Cash dividends with respect to units of Employer Securities (including fractional shares) allocated to a Participant's Employer Securities Account may be paid, at the discretion of the Employer, directly to the Participant by the Employer.
(b) With respect to any Plan Year for which the value of the aggregate units of Employer Securities (including fractional shares) allocated to each Participant's Employer Securities Account for the Plan Year equals or exceeds the cash dividends paid to the Trustee with respect to units of Employer Securities (including fractional shares) allocated to the Participant's Employer Securities Account, such cash
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dividends shall be used, if, and to the extent that, the Employer so directs, to make payments on any loans entered into by the Trustee for the purpose of purchasing Employer Securities.
(c) Cash dividends paid with respect to units of Employer Securities (including fractional shares) allocated to any suspense account, established pursuant to section 7.3, as of the payment date shall be used, if, and to the extent that, the Employer so directs, to make payments on any loans entered into by the Trustee for the purpose of purchasing Employer Securities.
(d) Cash dividends paid to the Trustee with respect to units of Employer Securities (including fractional shares) allocated to the Employer Securities Account of a Participant receiving installment payments pursuant to Article IX of the Plan shall be distributed to the Participant (or his beneficiary or beneficiaries) as soon as practicable by the Trustee.
(e) Cash dividends paid to the Trustee with respect to units of Employer Securities (including fractional shares) allocated to the Employer Securities Account of a Participant as of the payment date shall be distributed, if, and to the extent that, the Employer so directs, to the Participant (or his beneficiary or beneficiaries) by the Trustee.
(f) All other cash dividends paid with respect to units of Employer Securities shall be retained by the Trustee and allocated in the same manner as other income of the Trust Fund. Cash dividends allocated to each Participant's Employer Securities Account may be exchanged by the Trustee for additional units of Employer Securities (including fractional shares) allocated to a suspense account.
(g) Stock dividends paid with respect to units of Employer Securities (including fractional shares) allocated to Participants' Employer Securities Accounts and/or suspense accounts as of the payment date, shall be used, if, and to the extent that, the Employer so directs, to make payments, directly or indirectly, on any loans entered into by the Trustee for the purpose of purchasing Employer Securities.
(h) All other stock dividends paid with respect to units of Employer Securities (including fractional shares) allocated to each Participant's Employer Securities Account as of a payment date shall be retained by the Trustee and allocated to such Employer Securities Account.
(i) All other stock dividends paid with respect to units of Employer Securities (including fractional shares) allocated to any suspense account as of a payment date shall be retained by the Trustee and allocated to such suspense account.
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ARTICLE XIII
EXPENSES OF ADMINISTRATION OF THE PLAN AND THE TRUST FUND
13.1 The Company shall bear all expenses of implementing this Plan and the Trust. For its services, any corporate trustee shall be entitled to receive reasonable compensation in accordance with its written agreement with the Company, as in effect from time to time. Any individual Trustee shall be entitled to such compensation as shall be arranged between the Company and the Trustee by separate instrument; provided, however, that no person who is already receiving full-time pay from any Employer or any Affiliate shall receive compensation from the Trust Fund (except for the reimbursement of expenses properly and actually incurred). The Company may pay all expenses of the administration of the Trust Fund, including the Trustee's compensation, the compensation of any investment manager, the expense incurred by the Plan Administrator in discharging its duties, all income or other taxes of any kind whatsoever that may be levied or assessed under existing or future laws upon or in respect of the Trust Fund, and any interest that may be payable on money borrowed by the Trustee for the purpose of the Trust and any Employer may pay such expenses as relate to Participants employed by such Employer. Any such payment by the Company or another Employer shall not be deemed a contribution to this Plan. Such expenses shall be paid out of the assets of the Trust Fund unless paid or provided for by the Company or another Employer. Notwithstanding anything contained herein to the contrary, no excise tax or other liability imposed upon the Trustee, the Plan Administrator or any other person for failure to comply with the provisions of any federal law shall be subject to payment or reimbursement from the assets of the Trust.
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ARTICLE XIV
AMENDMENT AND TERMINATION
14.1 RESTRICTIONS ON AMENDMENT AND TERMINATION OF PLAN. It is the present intention of the Company to maintain the Plan set forth herein indefinitely. Nevertheless, the Company specifically reserves to itself the right at any time, and from time to time, to amend or terminate this Plan in whole or in part; provided, however, that no such amendment:
(a) shall have the effect of vesting in any Employer, directly or indirectly, any interest, ownership or control in any of the present or subsequent funds held subject to the terms of the Trust;
(b) shall cause or permit any property held subject to the terms of the Trust to be diverted to purposes other than the exclusive benefit of the Participants and their beneficiaries or for the administrative expenses of the Plan Administrator and the Trust;
(c) shall either directly or indirectly reduce any vested and nonforfeitable interest of, or the vested percentage in effect with respect to, a Participant determined as of the later of the date the amendment is adopted or the date the amendment is effective, except as permitted by law;
(d) shall reduce the Accounts of any Participant;
(e) shall amend any vesting schedule with respect to any
Participant who has at least three Years of Service at the end of the
election period described below, except as permitted by law, unless
each such Participant shall have the right to elect to have the vesting
schedule in effect prior to such amendment apply with respect to him,
such election, if any, to be made during the period beginning not later
than the date the amendment is adopted and ending no earlier than sixty
(60) days after the latest of the date the amendment is adopted, the
amendment becomes effective or the Participant is issued written notice
of the amendment by his Employer or the Plan Administrator;
(f) shall increase the duties or liabilities of the Trustee without its written consent; or
(g) shall modify, more than once in any six-month period, any provision of the Plan set forth in Article V, sections 6.1, 6.2, 6.3, 6.4, 7.5(b), and 7.6 that is applicable to any officer, director, 10% owner of any Employer, or any other Participant who is required to file reports under Section 16(a) of the Securities Exchange Act of 1934.
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14.2 AMENDMENT OF PLAN. Subject to the limitations stated in section 14.1, the Company shall have the power to amend this Plan in any manner that it deems desirable, and, not in limitation but in amplification of the foregoing, it shall have the right to change or modify the method of allocation of contributions hereunder (except as provided in section 14.1(g)) to change any provision relating to the administration of this Plan and to change any provision relating to the distribution or payment, or both, of any of the assets of the Trust.
14.3 TERMINATION OF PLAN. Any Employer, in its sole and absolute discretion, may permanently discontinue making contributions under this Plan or may terminate this Plan and the Trust (with respect to all Employers if it is the Company, or with respect to itself alone if it is an Employer other than the Company), completely or partially, at any time without any liability whatsoever for such permanent discontinuance or complete or partial termination. In any of such events, the affected Participants, notwithstanding any other provisions of this Plan, shall have fully vested interests in the amounts credited to their respective Accounts at the time of such complete or partial termination of this Plan and the Trust or permanent discontinuance of contributions. All such vested interests shall be nonforfeitable.
14.4 DISCONTINUANCE PROCEDURE. In the event an Employer decides to permanently discontinue making contributions, such decision shall be evidenced by an appropriate resolution of its Board and a certified copy of such resolution shall be delivered to the Plan Administrator and the Trustee. All of the assets in the Trust Fund belonging to the affected Participants on the date of discontinuance specified in such resolutions shall, aside from becoming fully vested as provided in section 14.3, be held, administered and distributed by the Trustee in the manner provided under this Plan. In the event of a permanent discontinuance of contributions without such formal documentation, full vesting of the interests of the affected Participants in the amounts credited to their respective Accounts will occur on the last day of the year in which a substantial contribution is made to the Trust.
14.5 TERMINATION PROCEDURE.
(a) In the event an Employer decides to terminate this Plan and the Trust, such decision shall be evidenced by an appropriate resolution of its Board and a certified copy of such resolution shall be delivered to the Plan Administrator and the Trustee. After payment of all expenses and proportional adjustments of individual accounts to reflect such expenses and other changes in the value of the Trust Fund as of the date of termination, each affected Participant (or the beneficiary of any such Participant) shall be entitled to receive, provided that the requirements set forth in section 14.5(b) are met, any amount then credited to his Accounts in a lump sum.
(b) In the event this Plan and the Trust are terminated, completely or partially, and with respect to any one Employer or with respect to all Employers, distributions may not be made pursuant to this section 14.5 unless:
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(1) the Plan has been completely terminated and no successor plan (within the meaning of Section 401(k)(10) of the Code) has been established;
(2) the Plan has been partially terminated as a result of the sale or other disposition by an Employer to an unrelated corporation of substantially all of the assets used in a trade or business, in which case distribution may be made to employees who continue employment with the acquiring corporation; or
(3) the Plan has been partially terminated as a result of the sale or other disposition by an Employer of its interest in a subsidiary, in which case distribution may be made to employees who continue employment with the subsidiary.
(c) At the election of the Participant, the Plan Administrator may transfer the amount of any Participant's distribution under this section 14.5 to the trustee of another qualified plan or the trustee of an individual retirement account or individual retirement annuity instead of distributing such amount to the Participant. Any such election by a Participant shall be in writing and filed with the Plan Administrator.
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ARTICLE XV
MISCELLANEOUS
15.1 MERGER OR CONSOLIDATION. This Plan and the Trust may not be merged or consolidated with, and the assets or liabilities of this Plan and the Trust may not be transferred to, any other plan or trust unless each Participant would receive a benefit immediately after the merger, consolidation or transfer, if the plan and trust then terminated, that is equal to or greater than the benefit the Participant would have received immediately before the merger, consolidation or transfer if this Plan and the Trust had then terminated.
15.2 ALIENATION.
(a) Except as provided in section 15.2(b) or 15.2(c) no Participant or beneficiary of a Participant shall have any right to assign, transfer, appropriate, encumber, commute, anticipate or otherwise alienate his interest in this Plan or the Trust or any payments to be made thereunder; no benefits, payments, rights or interests of a Participant or beneficiary of a Participant of any kind or nature shall be in any way subject to legal process to levy upon, garnish or attach the same for payment of any claim against the Participant or beneficiary of a Participant; and no Participant or beneficiary of a Participant shall have any right of any kind whatsoever with respect to the Trust, or any estate or interest therein, or with respect to any other property or right, other than the right to receive such distributions as are lawfully made out of the Trust, as and when the same respectively are due and payable under the terms of this Plan and the Trust.
(b) Notwithstanding the provisions of section 15.2(a) the Plan
Administrator shall direct the Trustee to make payments pursuant to a
Qualified Domestic Relations Order as defined in Section 414(p) of the
Code. The Plan Administrator shall establish procedures consistent with
Section 414(p) of the Code to determine if any order received by the
Plan Administrator, or any other fiduciary of the Plan, is a Qualified
Domestic Relations Order. Distribution shall be made to an Alternate
Payee pursuant to any Qualified Domestic Relations Order, if required
by such Qualified Domestic Relations Order, at any time.
(c) Notwithstanding any provision of the Plan to the contrary, an offset to a Participant's Accounts for an amount that the Participant is ordered or required to pay the Plan with respect to a judgment, order or decree issued, or a settlement entered into, on or after August 5, 1997, shall be permitted in accordance with Sections 401(a)(13)(C) and (D) of the Code.
15.3 USERRA REQUIREMENTS. Notwithstanding any provision of this Plan to the contrary, effective December 12, 1994, contributions, benefits and service credit with respect to qualified military service will be provided in accordance
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with Section 414(u) of the Internal Revenue Code and the Uniformed Service Employment and Reemployment Rights Act.
15.4 GOVERNING LAW. This Plan shall be administered, construed and enforced according to the laws of the State of Florida, except to the extent such laws have been expressly preempted by federal law.
15.5 ACTION BY EMPLOYER. Whenever the Company or another Employer under the terms of this Plan is permitted or required to do or perform any act, it shall be done and performed by the Board of Directors of the Company or such other Employer and shall be evidenced by proper resolution of such Board of Directors certified by the Secretary or Assistant Secretary of the Company or such other Employer.
15.6 ALTERNATIVE ACTIONS. In the event it becomes impossible for the Company, another Employer, the Plan Administrator or the Trustee to perform any act required by this Plan, then the Company, such other Employer, the Plan Administrator or the Trustee, as the case may be, may perform such alternative act that most nearly carries out the intent and purpose of this Plan.
15.7 GENDER. Throughout this Plan, and whenever appropriate, the masculine gender shall be deemed to include the feminine and neuter; the singular, the plural; and vice versa.
15.8 ELECTRONIC MEDIA AND OTHER TECHNOLOGY. Notwithstanding any provision of the Plan to the contrary, the Plan Administrator may use telephonic media, electronic media or other technology in administering the Plan to the extent not prohibited by applicable law, regulation or other pronouncement.
IN WITNESS WHEREOF, this Amendment and Restatement has been executed this _______ day of _______________, 2001, and shall be effective as of the dates set forth hereinabove.
IPG ADMINISTRATIVE SERVICES, INC.
By:________________________________
(Corporate Seal) Its: ______________________________
"COMPANY"
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EXHIBIT 5(a)
STIKEMAN ELLIOTT
Barristers & Solicitors
1155 Rene-Levesque Blvd. West, 40th Floor, Montreal, Quebec. Canada H3B 3V2 Tel: (514) 397-3000 Fax: (514) 397-3222 www.stikeman.com
August 15 2001
INTERTAPE POLYMER GROUP INC.
110 E. Montee De Liesse
St. Laurent, Quebec
Canada
H4T IN4
Gentlemen:
We have acted as counsel for Intertape Polymer Group, Inc., a corporation organized under the CANADA BUSINESS CORPORATION Act (the "Company"), in connection with the proposed issuance of common shares, no par value, of the Company to the Intertape Polymer Group Inc. USA Employee's Stock Ownership and Retirement Savings Plan (the "Plan"). The Company intends to file with the Securities and Exchange Commission a Registration Statement on Form S-8 (the "Registration Statement") under the UNITED STATES SECURITIES Act of 1933, as amended (the "Act"), with respect to the common shares to be issued by the Company to the Plan.
In connection with the foregoing, we have examined, considered and
relied upon copies of the following documents (collectively, the "Documents"):
(i) the Company's articles of incorporation and bylaws; (ii) resolutions of the
Company's Board of Directors authorizing the issuance of the common shares to
the Plan; (iii) the Registration Statement and schedules and exhibits thereto;
and (iv) such other documents and instruments that we have deemed necessary for
the expression of the opinions herein contained. In making the foregoing
examinations, we have assumed without investigation, the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
the conformity to authentic original documents of all documents submitted to us
as copies, and the veracity of the Documents. As to various questions of fact
material to the opinion expressed below, we have relied, to the extent we deemed
reasonably appropriate, upon the representations or certificates of officers
and/or directors of the Company and upon documents, records and instruments
furnished to us by the Company, without independently verifying the accuracy of
such certificates, documents, records or instruments.
STIKEMAN ELLIOTT
Based upon the foregoing examination, and subject to the qualifications set forth below, we are of the opinion that the common shares to be issued by the Company to the Plan have been duly and validly authorized, and when issued and fully paid for in accordance with the terms and conditions of the Plan, will be validly issued, fully paid and non-assessable.
We express no opinion as to the laws of any jurisdiction other than the laws of the province of Quebec and the federal laws of Canada applicable therein. The opinions expressed herein concern only the effect of the laws (excluding the principles of conflict of laws) of the province of Quebec and the federal laws of Canada applicable therein as currently in effect. This opinion letter is limited to the matters stated herein and no opinions may be implied or inferred beyond the matters expressly stated herein. The opinions expressed herein are given as of this date, and we assume no obligation to update or supplement our opinions to reflect any facts or circumstances that may come to our attention, or any change in law that may occur or become effective at a later date.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are included within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations promulgated thereunder.
Sincerely,
Stikeman Elliott
Exhibit 23(a)
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANT
We have issued our report dated March 19, 2001, accompanying the consolidated financial statements of Intertape Polymer Group Inc. as at December 31, 2000 and 1999, and for each of the years in the three year period ended December 31, 2000, appearing in the Annual Report on Form 40-F for the fiscal year ended December 31, 2000. We consent to the incorporation by reference in the Registration Statement of Intertape Polymer Group Inc. on Form S-8 of the aforementioned report and to the use of our name as it appears in such Registration Statement.
/s/ RAYMOND CHABOT GRANT THORNTON,
General Partnership
Chartered Accountants
Montreal, Canada
August 14, 2001
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Exhibit 23(b)
CONSENT OF STIKEMAN ELLIOTT
We hereby consent to the reference to us and to our opinion in the Registration Statement of Intertape Polymer Group Inc. on Form S-8. We also consent to the inclusion of this consent in the Registration Statement.
STIKEMAN ELLIOTT
By: /s/ Michael L. Richards
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August 14, 2001
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