SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ROCK-TENN COMPANY
(Exact name of registrant as specified in its charter)
GEORGIA 62-0342590
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
504 THRASHER STREET 30071
NORCROSS, GEORGIA (Zip Code)
(Address of principal executive offices)
ROCK-TENN COMPANY
SUPPLEMENTAL RETIREMENT SAVINGS PLAN
(Full title of the plan)
STEVEN C. VOORHEES Copies to:
CHIEF FINANCIAL OFFICER E. WILLIAM BATES, II
ROCK-TENN COMPANY KING & SPALDING LLP
504 THRASHER STREET 1185 AVENUE OF THE AMERICAS
NORCROSS, GEORGIA 30071 NEW YORK, NEW YORK 10036-4003
(Name and address of agent for service)
770-448-2193
(Telephone number, including area code, of
agent for service)
|
CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------------------------------------------------------------------------- TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED REGISTERED OFFERING PRICE PER SECURITY AGGREGATE OFFERING PRICE REGISTRATION FEE ----------------------------------------------------------------------------------------------------------------------------------- Supplemental Retirement Savings Plan Deferred Compensation Obligations (1) $2,000,000 (2) 100% $2,000,000 (2) $161.80 ----------------------------------------------------------------------------------------------------------------------------------- |
(1) The deferred compensation obligations are unsecured obligations of Rock-Tenn Company to pay deferred compensation in the future in accordance with the terms of the Rock-Tenn Company Supplemental Retirement Savings Plan.
(2) Estimated solely for the purpose of computing the registration fee.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been previously filed by us with the Securities and Exchange Commission and are hereby incorporated by reference into this registration statement as of their respective dates:
(a) Our Annual Report on Form 10-K for the fiscal year ended September 30, 2002;
(b) Our Quarterly Report on Form 10-Q for the quarter ended December 31, 2002;
(c) Our Current Report on Form 8-K filed on April 14, 2003; and
(d) Our Current Report on Form 8-K filed on April 22, 2003.
In addition, all documents filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act of 1934, as amended, which we refer to
as the "Exchange Act," subsequent to the date of this registration statement
and prior to the filing of a post-effective amendment to this registration
statement which indicates that all securities offered hereunder have been sold
or which deregisters all such securities then remaining unsold shall be deemed
to be incorporated by reference into this registration statement and to be a
part hereof from the date of the filing of such documents (we refer to such
documents, and the documents enumerated above, as the "Incorporated
Documents").
Any statement contained in an Incorporated Document 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 other subsequently filed Incorporated Document 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
Under the Rock-Tenn Company Supplemental Retirement Savings Plan, which we refer to as the "Plan," we will provide each of our employees and those of our affiliates who is a highly compensated employee and who is designated by the Compensation and Options Committee of our Board of Directors as eligible to participate in the Plan, the opportunity to elect to defer a specified percentage of his or her "eligible base salary", and his or her "eligible bonus", if any, and to have this amount, plus imputed investment gains or losses thereon, paid at a specified time in the future.
The Plan is a nonqualified unfunded deferred compensation plan sponsored and maintained by us, and is intended to provide participants with an opportunity to supplement their retirement income through deferral of current compensation. Amounts deferred and payable under the Plan, which we refer to as the "Obligations," are our unsecured obligations, and will rank equally with our other unsecured and unsubordinated indebtedness outstanding from time to
time. However, our right, and therefore the right of our creditors (including participants in the Plan), to participate in the distribution of the assets of any subsidiary or affiliate of our company upon its liquidation or reorganization or otherwise is necessarily subject to the claims of creditors of the subsidiary or affiliate, except to the extent that claims of our company itself as a creditor of the subsidiary or affiliate may be recognized. To the extent compensation deferred under the Plan by a highly compensated employee is payable to such employee by one of our affiliates, we will direct the affiliate to defer payment of such salary and bonus in accordance with the Plan, and the Obligations arising from such deferred compensation shall also be unsecured general obligations of our affiliate.
Each participant elects the amount of eligible base salary and eligible bonus to be deferred. Each Obligation will be payable on a date selected by us pursuant to the terms of the Plan. The Obligations generally are payable after termination of the participant's employment or in certain emergency situations. Each participant's account will be adjusted for investment gains and losses as if the credits to the participant's account had been invested in the benchmark investment alternatives available under the Plan in accordance with the participant's investment election or elections (or default election or elections) as in effect from time to time. All such adjustments will be made at the same time and in accordance with the same procedures followed under our 401(k) Plan for crediting investment gains and losses to a participant's account under the 401(k) Plan. The Obligations are denominated and payable in United States dollars.
The benchmark investment alternatives available under the Plan are the
same as the investment alternatives available under the Rock-Tenn Company
401(k) Retirement Savings Plan for Salaried and Non-Union Hourly Employees, as
amended from time to time, which we refer to as the "401(k) Plan", or are in
our view comparable to the investment alternatives available under our 401(k)
Plan. The benchmark investment alternatives available under the Plan will
initially include the following:
- Putnam Asset Allocation: Growth Portfolio; Putnam Asset
Allocation: Balanced Portfolio; Putnam Asset Allocation:
Conservative Portfolio; Putnam New Opportunities Fund; Putnam
OTC & Emerging Growth Fund; Putnam International Equity Fund;
Putnam Research Fund; The Putnam Fund for Growth and Income;
and Putnam Money Market Fund (Class A shares), which are
managed by Putnam Investment Management, LLC;
- PIMCO Total Return Fund, which is a separate investment portfolio managed by Pacific Investment Management Company LLC; and
- ABN AMRO/Montag & Caldwell Growth Fund, which is a separate investment portfolio managed by Montag & Caldwell, Inc., a wholly-owned subsidiary of ABN AMRO Asset Management Holdings, Inc.
The prospectus relating to the Plan includes additional information regarding the benchmark investment alternatives. If we change any of the benchmark investment alternatives offered, we will supplement the prospectus accordingly and distribute a new prospectus to all Plan participants.
A participant's right or the right of participant's beneficiary, if any, to the Obligations cannot be alienated, assigned, commuted or otherwise encumbered.
The Obligations are not subject to redemption, in whole or in part, prior to the individual payment dates specified by each participant, at our option or through operation of a mandatory or optional sinking fund or analogous provision. However, we reserve the right to amend or terminate the Plan at any time, provided the balance credited to each participant's account immediately after any such amendment or termination shall be no less than the balance credited to each such account immediately before such amendment or termination and no amendment or termination shall adversely affect the right of a participant or his or her beneficiary, if any, to the distribution of the balance of such participant's account.
The Obligations are not convertible into another security of our Company and will not have the benefit of a negative pledge or any other affirmative or negative covenant on our part. No trustee has been appointed having the authority to take action with respect to the Obligations and each participant will be responsible for acting independently with respect to, among other things, the giving of notices, responding to any request for consent, waivers, or amendments pertaining to the Obligations, enforcing covenants, and taking action upon a default.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the offering of the securities registered hereby have been passed upon for us by Robert B. McIntosh, Senior Vice President, General Counsel and Secretary of our company. As of April 25, 2003, Mr. McIntosh owned 10,311 shares of our Class A common stock, par value $.01 per share ("Class A Common Stock"), and had options to acquire 86,400 shares of Class A Common Stock
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our restated and amended articles of incorporation eliminate, to the
fullest extent permitted by applicable law, the personal liability of our
directors or our shareholders for monetary damages for breach of duty of care
or any other duty owed to us as a director. The Georgia Business Corporation
Code, or the Code, currently provides that such provision shall not eliminate
or limit the liability of a director (a) for any appropriation, in violation of
his duties, of any business opportunity of our company, (b) for acts or
omissions that involve intentional misconduct or a knowing violation of law,
(c) for unlawful corporate distributions or (d) for any transaction from which
the director received an improper personal benefit.
Under Article VI of our bylaws, and certain agreements entered into by
us and our directors, we are required to indemnify our directors and officers
and we are permitted to indemnify our employees or agents against the
obligation to pay any judgment, settlement, penalty or fine, and against
expenses (including attorney's fees and expenses), incurred in connection with
any action, suit or proceeding brought against such person because he was a
director, officer, employee or agent of our company, without regard to any
limitations in the Code; provided, however, that we shall have no obligation to
indemnify any such person in connection with any such proceeding if such person
is adjudged liable to us or is subjected to injunctive relief in favor of us
(a) for any appropriation, in violation of such person's duties, of
any business opportunity of our company, (b) for acts or omissions that involve intentional misconduct or a knowing violation of law, (c) for unlawful corporate distributions or (d) for any transaction from which such person received an improper personal benefit. Our directors and officers are insured against losses arising from any claim against them as such for wrongful acts or omissions, subject to certain limitations.
We have entered into indemnification agreements with each of our directors. The indemnification agreements require, among other things, that we indemnify our directors to the fullest extent permitted by law, and advance to directors all related expenses, subject to reimbursement if it is subsequently determined the indemnification is not permitted. We are also required to indemnify in advance all expenses incurred by directors seeking to enforce their rights under the indemnification agreements and to cover directors under our directors' and officers' liability insurance. Although the form of indemnification agreement offers substantially the same scope of coverage afforded by provisions in our restated and amended articles of incorporation and bylaws, it provides greater assurance to directors that indemnification will be available, because, as a contract, it may not be modified to eliminate the rights it provides unilaterally by our board of directors or our shareholders in the future.
Our directors and executive officers are insured against damages from actions and claims incurred in the course of performing their duties, and we are insured against expenses incurred in defending lawsuits arising from certain alleged acts against directors and executive officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Rock-Tenn Company Supplemental Retirement Savings Plan.
5.1 Opinion of Robert B. McIntosh, Esq.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Robert B. McIntosh, Esq. (included as part of Exhibit 5.1).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes as follows:
(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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and 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 the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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 of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange 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
Pursuant to the requirements of the Securities Act of 1933, 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 Norcross, State of Georgia, on the 29th day of April, 2003.
ROCK-TENN COMPANY
By: /s/ James A. Rubright ---------------------------------------- James A. Rubright Chairman of the Board and Chief Executive Officer |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints James A. Rubright and Steven C. Voorhees and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for such person and in his or her name, place and stead, in any and all capacities, to sign any and all amendments 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 said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, and any of them, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as this registration statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ James A. Rubright Director, Chairman of the Board and Chief April 29, 2003 ------------------------------------------- Executive Officer (Principal Executive James A. Rubright Officer) |
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Steven C. Voorhees Executive Vice President and Chief April 29, 2003
------------------------------------------- Financial Officer (Principal Financial
Steven C. Voorhees and Accounting Officer)
/s/ Stephen G. Anderson Director April 25, 2003
-------------------------------------------
Stephen G. Anderson
April 25, 2003
/s/ J. Hyatt Brown Director
-------------------------------------------
J. Hyatt Brown
April 25, 2003
/s/ Robert B. Currey Director
-------------------------------------------
Robert B. Currey
April 25, 2003
/s/ Russell M. Currey Director
-------------------------------------------
Russell M. Currey
April 25, 2003
/s/ G. Stephen Felker Director
-------------------------------------------
G. Stephen Felker
/s/ Lawrence L. Gellerstedt, III Director April 25, 2003
-------------------------------------------
Lawrence L. Gellerstedt, III
/s/ John D. Hopkins Director April 25, 2003
-------------------------------------------
John D. Hopkins
/s/ James W. Johnson Director April 25, 2003
-------------------------------------------
James W. Johnson
/s/ John W. Spiegel Director April 25, 2003
-------------------------------------------
John W. Spiegel
|
EXHIBIT INDEX
EXHIBIT SEQUENTIAL NUMBER DESCRIPTION OF EXHIBIT PAGE NO. ------- ---------------------- ---------- 4.1 Rock-Tenn Company Supplemental Retirement Savings Plan. 5.1 Opinion of Robert B. McIntosh, Esq. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Robert B. McIntosh, Esq. (included as part of Exhibit 5.1). |
EXHIBIT 4.1
04032003
ROCK-TENN COMPANY
SUPPLEMENTAL RETIREMENT SAVINGS PLAN
AS EFFECTIVE AS OF
MAY 15, 2003
TABLE OF CONTENTS
Page
----
ss. 1 EFFECTIVE DATE.............................................................................................1
ss. 2 PURPOSE....................................................................................................1
ss. 3 DEFINITIONS................................................................................................1
3.1. Account.........................................................................................1
3.2. Affiliate.......................................................................................1
3.3. Base Salary.....................................................................................1
3.4. Beneficiary.....................................................................................2
3.5. Bonus...........................................................................................2
3.6. Chairman........................................................................................2
3.7. Code............................................................................................2
3.8. Committee.......................................................................................2
3.9 Compensation Limit..............................................................................2
3.10. Deferral Account................................................................................2
3.11. Distribution Date...............................................................................2
3.12. 401(k) Plan.....................................................................................2
3.13. Highly Compensated Employee.....................................................................2
3.14. Matching Account................................................................................3
3.15. Participant.....................................................................................3
3.16. Plan............................................................................................3
3.17. Plan Sponsor....................................................................................3
3.18. TPA.............................................................................................3
ss. 4 DEFERRAL ELECTIONS.........................................................................................3
4.1. Elections.......................................................................................3
4.2. Non-Forfeitable Account.........................................................................4
4.3. Effective Deferral Election.....................................................................4
4.4. Election Deadlines..............................................................................4
4.5. Irrevocable Election............................................................................5
4.6. Election Expiration.............................................................................5
ss. 5 MATCHING CREDITS...........................................................................................5
5.1. Matching Credits................................................................................5
5.2. Non-Forfeitable.................................................................................5
ss. 6 ADJUSTMENT TO ACCOUNTS.....................................................................................5
ss. 7 DISTRIBUTION...............................................................................................6
7.1. Lump Sum or Installments........................................................................6
7.2. Effective Elections.............................................................................6
|
7.3. Death...........................................................................................6
7.4. Emergency.......................................................................................7
7.5. Claims Procedure................................................................................7
ss. 8 ADMINISTRATION.............................................................................................7
8.1. Powers..........................................................................................7
8.2. Expenses and Reliance...........................................................................8
8.3. Statements......................................................................................8
8.4. Incompetents....................................................................................8
8.5. Address.........................................................................................8
ss. 9 AMENDMENT AND TERMINATION..................................................................................8
ss. 10 MISCELLANEOUS.............................................................................................9
10.1. General Assets..................................................................................9
10.2. No Liability....................................................................................9
10.3. No Assignment; Binding Effect...................................................................9
10.4. Construction....................................................................................9
10.5. No Contract of Employment.......................................................................9
|
ss. 1
EFFECTIVE DATE
This Plan is adopted by Rock-Tenn Company effective as of May 15, 2003.
ss. 2
PURPOSE
The purpose of this Plan is to let a Highly Compensated Employee elect to defer compensation which exceeds the level of compensation which he or she can elect to defer under the 401(k) Plan.
ss. 3
DEFINITIONS
3.1. ACCOUNT for purposes of this Plan shall mean the bookkeeping account maintained by, or on behalf of, the Plan Sponsor to show for each Participant as of any date all credits made by or on behalf of such Participant under this Plan, any adjustments to such credits made in accordance with ss. 6, and any distributions to such Participant under ss. 7, which Account shall include two sub-accounts--a Deferral Account and a Matching Account.
3.2. AFFILIATE for purposes of this Plan shall mean an "Affiliate" as defined in the 401(k) Plan.
3.3. BASE SALARY for purposes of this Plan shall mean for each Highly Compensated Employee for each calendar year (a) minus (b), where
(a) is the sum of (1) his or her "Compensation" as
determined under ss. 2.14(b) of the 401(k) Plan for such year
(but excluding any commissions paid to him or her) without
regard to the Compensation Limit for such "Compensation" and
(2) the deferral elected for such year under ss. 4.1(a) of
this Plan, and
(b) is the lesser of (1) the Compensation Limit for such "Compensation" for such year or (2) the level of his or her "Compensation" as determined under ss. 2.14(b) of the 401(k) Plan for such year when his or her "Before-Tax Contributions" under the 401(k) Plan equal the dollar limit for such year under ss. 402(g) of the Code.
3.4. BENEFICIARY for purposes of this Plan shall mean for each Participant the person designated as such by the Participant on the form provided for this purpose or, if no such person is so designated or if no such person survives the Participant, the Participant's estate.
3.5. BONUS for purposes of this Plan shall mean a Highly Compensated Employee's cash bonus which is payable under the Plan Sponsor's Key Employee Incentive Plan before any deductions are made for any reason from such bonus.
3.6. CHAIRMAN for purposes of this Plan shall mean the Chairman of the Board of Directors of the Plan Sponsor.
3.7. CODE for purposes of this Plan shall mean the Internal Revenue Code of 1986, as amended.
3.8. COMMITTEE for purposes of this Plan shall mean the Compensation and Options Committee of the Board of Directors of the Plan Sponsor.
3.9. COMPENSATION LIMIT for purposes of this Plan shall mean the dollar limit as determined by the Plan Sponsor for the 401(k) Plan under ss. 401(a)(17) of the Internal Revenue Code of 1986, as amended, or successor to such section or such statute.
3.10. DEFERRAL ACCOUNT for purposes of this Plan shall mean the sub-account maintained under a Participant's Account to show the credits which have been made to his or her Account under ss. 4.
3.11. DISTRIBUTION DATE for purposes of this Plan shall mean for each Participant the date set by the Plan Sponsor for the distribution of his or her Account, which date shall be as soon as practicable after the Plan Sponsor determines that a Participant's employment with Rock-Tenn Company or an Affiliate has terminated (or such Affiliate's status as such has been terminated) or a Participant has an emergency in accordance with ss. 7.4.
3.12. 401(K) PLAN for purposes of this Plan shall mean the Rock-Tenn Company 401(k) Retirement Savings Plan for Salaried and Non-Union Hourly Employees, as amended from time to time.
3.13. HIGHLY COMPENSATED EMPLOYEE for purposes of this Plan shall mean for each calendar year each employee of Rock-Tenn Company or an Affiliate who is eligible to elect to make contributions to the 401(k) Plan for such calendar year and who the Committee acting in its absolute discretion designates as such by directing the Plan Sponsor to make a deferral election available to such employee under ss. 4.
3.14. MATCHING ACCOUNT for purposes of this Plan shall mean the sub-account maintained under a Participant's Account to show the credits which have been made to his or her Account under ss. 5.
3.15. PARTICIPANT for purposes of this Plan shall mean an individual for whom an Account is maintained under this Plan.
3.16. PLAN shall mean this Rock-Tenn Company Supplemental Retirement Savings Plan, as amended from time to time.
3.17. PLAN SPONSOR for purposes of this Plan shall mean the "Plan Sponsor" as defined in the 401(k) Plan.
3.18. TPA for purposes of this Plan shall mean the person employed from time to time by the Plan Sponsor to provide recordkeeping services for this Plan.
ss. 4
DEFERRAL ELECTIONS
4.1. Elections.
(a) Base Salary. A Highly Compensated Employee may elect for any calendar year under this ss. 4 on the form provided for this purpose to defer in 1% increments from 1% to 6% of his or her Base Salary for such calendar year and which is otherwise payable to him or to her by Rock-Tenn Company or an Affiliate on any payday during such calendar year.
(b) Bonus. A Highly Compensated Employee may elect for any calendar year under this ss. 4 on the form provided for this purpose to defer in 1% increments from 1% to 6% of his or her Bonus which is otherwise payable to him or to her by Rock-Tenn Company or an Affiliate on any day during such calendar year.
(c) Credits. The deferrals described in this ss. 4.1 shall be credited to the Participant's Deferral Account in accordance with the procedures established by the TPA; provided such credits shall be made no later than the deferral deadline under applicable U. S. Department of Labor regulations for crediting deferrals elected under the 401(k) Plan.
(d) No Double Deduction. If a deferral is made as of any payday for a Highly Compensated Employee with respect to the 401(k) Plan, no deferral shall be made under this Plan with respect to the Base Salary paid on such payday.
4.2. Non-Forfeitable Account. A Participant's interest in his or her Deferral Account shall be non-forfeitable.
4.3. Effective Deferral Election. Any deferral election described in ss. 4.1 shall become effective for a calendar year only if the related election form is completed and delivered to the Plan Sponsor by the deadline set forth in ss. 4.4. If a Participant wants to elect deferrals under ss. 4.1 for more than one calendar year, a new election form must be completed and delivered to the Plan Sponsor by the deadline set forth in ss. 4.4 for each such calendar year.
4.4. Election Deadlines.
(a) General Rule. A deferral election under this ss. 4 shall be effective for a calendar year only if such election is completed and delivered to the Plan Sponsor before the beginning of such calendar year, in which event such election shall be effective as of January 1 of such calendar year.
(b) Special New Employee Rule. If an individual is designated as a Highly Compensated Employee on or before the first date that he or she is eligible to participate in the 401(k) Plan, he or she may make a deferral election for the calendar year which includes such date if the election is completed and delivered to the Plan Sponsor before the end of the 30-day period which starts on such date, and such election shall be effective for any Base Salary and Bonus which is otherwise payable after the end of such 30-day period.
(c) Special Start Up Rule.
(1) Election. A Highly Compensated Employee for 2003 shall have the right to make a deferral election for calendar year 2003 for any Base Salary and any Bonus otherwise payable on or after May 15, 2003 if he or she completes and delivers such election to the Plan Sponsor before May 15, 2003. Any such election shall be effective as of May 15, 2003.
(2) Additional Deferral. The Plan Sponsor shall deduct as an additional deferral from a Highly Compensated Employee's Base Salary otherwise payable on the first payday which comes on or after May 15, 2003 an amount equal to the percentage of his or her Base Salary which he or she elected to defer under ss. 4.4(c)(1) which was paid in each payday on or after April 1, 2003 and before May 15, 2003.
4.5. Irrevocable Election. Any election made under this ss. 4 which is effective on any date in any calendar year shall be irrevocable for the calendar year or, subject to ss. 4.4(b) and ss. 4.4(c), for the remainder of the calendar year for which the election is made.
4.6. Election Expiration. A deferral election which has become effective for any calendar year automatically shall expire at the end of such calendar year.
ss. 5
MATCHING CREDITS
5.1. Matching Credits. A credit shall be made to each Participant's Matching Account under this Plan as of each day in each calendar year as of which a credit is made to his or her Deferral Account pursuant to an election under ss. 4.1, and the credit to his or her Matching Account under this Plan shall equal 50% of the deferral which is credited as of such day to his or her Deferral Account pursuant to such election under ss. 4.1.
5.2. Non-Forfeitable. A Participant's interest in his or her Matching Account will be forfeitable or will be non-forfeitable on any date to the same extent that his or her matching contributions under the 401(k) Plan are forfeitable or are non-forfeitable under the 401(k) Plan on such date.
ss. 6
ADJUSTMENT TO ACCOUNTS
The TPA shall adjust each Participant's Account for investment gains and losses as if the credits to such Account had been invested in the investment benchmark alternatives available under the Plan in accordance with the Participant's investment benchmark alternative election or elections (or default election or elections) as in effect from time to time. Each Participant may make and may change his or her investment benchmark alternative election under this ss. 6 in accordance with such procedures as established by the Plan Sponsor, and the Plan Sponsor shall have the right to change such procedures at any time with or without notice to any Participant. The investment benchmark alternatives available under the Plan shall be the same as the actual investment alternatives available under the 401(k) Plan or in actual investment alternatives deemed by the Plan Sponsor to be comparable to the actual investment alternatives available under the 401(k) Plan. All such adjustments shall be made in accordance with the same procedures followed under the 401(k) Plan for crediting actual investment gains and losses to a Participant's account under the 401(k) Plan.
ss. 7
DISTRIBUTION
7.1. Lump Sum or Installments. The Plan Sponsor shall distribute, or shall begin to distribute, a Participant's Account in cash as of his or her Distribution Date. A Participant shall have the right (on the form provided for this purpose) to elect whether the distribution of his or her Account shall be made in either:
(a) a lump sum; or
(b) quarterly installments of at least $100.00 paid over a period which is not less than 3 years and not more than 10 years, where the amount of each such quarterly installment shall be determined by dividing the balance in a Participant's Account immediately before the date as of which such installment is paid by the number of quarterly installments then remaining to be paid (including in such number the then payable quarterly installment).
7.2. Effective Elections.
(a) General Rules.
(1) Subject to ss. 7.2(b), an election made under ss. 7.1 shall be effective on a Participant's Distribution Date only if such Distribution Date is on or after the first anniversary of the date the related election form is completed and delivered to the Plan Sponsor.
(2) If a Participant has completed and delivered more than one election form to the Plan Sponsor, the distribution to the Participant shall be made in accordance with the most recent election form which satisfies the requirements of ss. 7.2(a)(1).
(3) If a Participant fails to make an election under ss. 7.1, the distribution shall be made in a lump sum.
(b) Special First Deferral Election Rule. An election which is completed and delivered to the Plan Sponsor by a Participant under ss. 7.1 at the same time that he or she makes his or her first deferral election under ss. 4 shall be effective as of the date such deferral election is effective under ss. 4.
7.3. Death. If a Participant dies before the complete distribution of his or her Account, any remaining balance shall be distributed to the Participant's
Beneficiary in the distribution form then in effect for such Participant's Account if such Beneficiary is an individual, and such Beneficiary shall have the same rights under this Plan under ss. 6 and ss. 7.4 as the Participant had before his or her death. If such Beneficiary is not an individual, then the distribution shall be made in a lump sum as soon as practicable following the date of the Participant's death.
7.4. Emergency. If a Participant experiences a severe financial hardship or rapidly failing health, he or she shall have the right to request (1) an immediate revocation of any election in effect under ss. 4, (2) an immediate distribution of all or a portion of the balance credited to his or her Account or (3) such a revocation and such a distribution. Any such request shall be made in writing to the Plan Sponsor, and the Participant making such request shall provide to the Plan Sponsor such evidence of such severe financial hardship or rapidly failing health as the Plan Sponsor shall request in addition to whatever evidence he or she desires that the Plan Sponsor consider in reviewing his or her request. A request shall be granted if the Plan Sponsor determines that the Participant in fact has a severe economic hardship which, if not cured, might adversely affect his or her performance as an employee or that his or her health in fact is rapidly failing; provided, however, if a Participant makes such a request based on a severe financial hardship, the deferral election or distribution made pursuant to his or her request shall not exceed the amount which the Plan Sponsor deems sufficient to cure such severe financial hardship.
7.5. Claims Procedure. If a Participant makes a claim for the distribution of his or her Account and the Plan Sponsor for any reason denies such claim, the Plan Sponsor shall effect such denial in accordance with the same claims procedure as then in effect under the 401(k) Plan, and the Participant shall have the right to appeal such denial in accordance with such procedure and, if the denial is appealed, the appeal shall be processed in accordance with such procedure.
ss. 8
ADMINISTRATION
8.1. Powers. This Plan shall be administered by the Plan Sponsor, and the Plan Sponsor shall have the absolute and complete authority, duty and power to interpret and construe the provisions of this Plan as the Plan Sponsor deems appropriate, including the final authority to determine a Participant's benefits under this Plan, and to take any other action in connection with the operation or administration of this Plan which the Plan Sponsor deems fair and appropriate under the circumstances. All interpretations, determinations, regulations and calculations made by the Plan Sponsor shall be final and binding on all affected persons. The Plan Sponsor shall act through its Chairman or his delegate; provided, however, for purposes of approving or denying a request made under ss. 7.4, if the Chairman is the Participant making such request, the Plan Sponsor shall act through the Committee.
8.2. Expenses and Reliance. Any expenses incurred in the administration of this Plan shall be paid by the Plan Sponsor. The Plan Sponsor shall be entitled to rely on all tables, valuations, certificates, opinions, data and reports furnished by any actuary, accountant, controller, counsel or other person employed or retained by the Plan Sponsor with respect to this Plan.
8.3. Statements. The Plan Sponsor shall furnish individual annual statements of Account balances to each Participant and each Beneficiary in such form as determined by the Plan Sponsor.
8.4. Incompetents. If the Plan Sponsor determines that an individual is unable to manage his or her financial affairs, the Plan Sponsor may pay such individual's Account to a conservator or other person legally charged with such individual's care, or to the institution then contributing toward or providing for the care and maintenance of such individual. Any such payment shall constitute a complete discharge of any liability of the Plan Sponsor and any Affiliate under this Plan for such individual.
8.5. Address. Each Participant shall keep the Plan Sponsor informed of his or her current address and the current address of his or her Beneficiary. The Plan Sponsor shall not be obligated to search for any person. If such person is not located within three (3) years after the date on which payment of the Participant's benefits payable under this Plan may first be made, payment may be made as though the Participant or his or her Beneficiary had died at the end of such three-year period.
ss. 9
AMENDMENT AND TERMINATION
The Plan Sponsor reserves the right to amend or terminate this Plan at any time by action of the Plan Sponsor. The Plan Sponsor upon the termination of this Plan shall have the right in its sole discretion to accelerate the timing of distributions and make all distributions in the form of a lump sum. No amendment or termination shall directly or indirectly reduce the balance of any Account as of the effective date of such amendment or termination. No additional credits will be made to a Participant's Account under this Plan after termination of this Plan, but adjustments under ss. 6 shall continue to be credited to the Account of each Participant under this Plan until the entire Account has been fully distributed to such Participant or to his or her Beneficiary.
ss. 10
MISCELLANEOUS
10.1. General Assets. All distributions to, or on behalf of, a Participant under this Plan shall be made from the Plan Sponsor's general assets, and any claim by a Participant or by his or her Beneficiary against the Plan Sponsor or any Affiliate for any distribution under this Plan shall be treated the same as a claim of any general and unsecured creditor of the Plan Sponsor or any Affiliate.
10.2. No Liability. No Participant and no Beneficiary shall have the right to look to, or have any claim whatsoever against, any officer, director, employee or agent of the Plan Sponsor or any Affiliate in his or her individual capacity for the distribution of any Account.
10.3. No Assignment; Binding Effect. No Participant or Beneficiary shall have the right to alienate, assign, commute or otherwise encumber an Account for any purpose whatsoever, whether through a domestic relations order or otherwise, and any attempt to do so shall be disregarded as completely null and void. The provisions of this Plan shall be binding on each Participant and Beneficiary and on the Plan Sponsor and each Affiliate.
10.4. Construction. This Plan shall be construed in accordance with the laws of the State of Georgia except to the extent such laws are preempted by federal law. Headings and subheadings have been added only for convenience of reference and shall have no substantive effect whatsoever. All references to sections (ss.) shall be to sections (ss.) to this Plan. All references to the singular shall include the plural and all references to the plural shall include the singular. All definitions in this Plan shall apply exclusively to this Plan.
10.5. No Contract of Employment. A Highly Compensated Employee's participation in this Plan shall not constitute a contract of employment or a right to any particular rate of compensation.
ROCK-TENN COMPANY
EXHIBIT 5.1
April 29, 2003
Rock-Tenn Company
504 Thrasher Street
Norcross, Georgia 30071
Re: Rock-Tenn Company - Registration Statement on Form S-8
Gentlemen:
As general counsel of Rock-Tenn Company, a Georgia corporation (the "Company"), I have participated in the preparation by the Company of a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission relating to the registration under the Securities Act of 1933, as amended, of $2,000,000 of obligations of the Company (the "Obligations") to pay deferred compensation pursuant to the terms of the Rock-Tenn Company Supplemental Retirement Savings Plan (the "Plan"), which becomes effective as of May 15, 2003.
As such counsel, I have examined and relied upon such records, documents, certificates and other instruments as in my judgment are necessary or appropriate to form the basis for the opinions hereinafter set forth. In all such examinations, I have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to me as certified, conformed or photographic copies, and as to certificates of public officials, I have assumed the same to have been properly given and to be accurate.
The opinions expressed herein are limited in all respects to the corporate law of the State of Georgia, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect that such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein.
Based upon the foregoing, and subject to the assumptions, qualifications and limitations set forth herein, I am of the opinion that:
(i) The Obligations have been duly authorized; and
(ii) When issued in accordance with the provisions of the Rock-Tenn Company Supplemental Retirement Savings Plan, the Obligations will be valid and binding obligations of the Company, as appropriate, enforceable against the Company in accordance with their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the rights and remedies of creditors generally and to the effect of general principles of equity.
This opinion is given as of the date hereof, and I assume no obligation to advise you after the date hereof of facts or circumstances that come to my attention or changes in law that occur which could affect the opinions contained herein. This opinion is being rendered solely for the benefit of Rock-Tenn Company in connection with the matters addressed herein. This opinion may not be furnished to or relied upon by any person or entity for any purpose without our prior written consent.
I consent to the filing of this opinion as an Exhibit to the Registration Statement.
Very truly yours,
/s/ Robert B. McIntosh ---------------------------------------- Senior Vice President and General Counsel |
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement (Form S-8) pertaining to the Rock-Tenn Company Supplemental Retirement Savings Plan of our report dated October 24, 2002, with respect to the consolidated financial statements and schedule of Rock-Tenn Company included in its Annual Report (Form 10-K) for the year ended September 30, 2002, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
April 29, 2003
|