UNITED STATES CAN COMPANY
SALARIED EMPLOYEES SAVINGS AND RETIREMENT
ACCUMULATION PLAN
Amendment and Restatement as of
January 1, 1997
UNITED STATES CAN COMPANY
SALARIED EMPLOYEES SAVINGS AND RETIREMENT
ACCUMULATION PLAN
Pursuant to resolutions duly adopted by the Board of Directors of United States Can Company, the United States Can
Company Salaried Employees Savings and Retirement Accumulation Plan as amended and restated effective January 1, 1997 is
hereby adopted as of February 25, 2002.
United States Can Company
Date:___2/25/02____________________ By:__/s/_Roger B. Farley________
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UNITED STATES CAN COMPANY
SALARIED EMPLOYEES SAVINGS AND RETIREMENT
ACCUMULATION PLAN
Table of Contents
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(Continued)
UNITED STATES CAN COMPANY
SALARIED EMPLOYEES SAVINGS AND RETIREMENT
ACCUMULATION PLAN
Table of Contents
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ARTICLE 1. DEFINITIONS...........................................................................................1
1.01 "Accounts".............................................................................................1
1.02 "Actual Deferral Percentage"...........................................................................1
1.03 "Adjustment Factor"....................................................................................1
1.04 "Affiliated Employer"..................................................................................1
1.05 "After-Tax Contributions"..............................................................................2
1.06 "Annuity Starting Date"................................................................................2
1.07 "Beneficiary"..........................................................................................2
1.08 "Board of Directors"...................................................................................2
1.09 "Break in Service".....................................................................................2
1.10 "Catch-up Contribution"................................................................................2
1.11 "Code".................................................................................................2
1.12 "Committee"............................................................................................2
1.13 "Company"..............................................................................................2
1.14 "Compensation".........................................................................................2
1.15 "Contribution Percentage"..............................................................................3
1.16 "Deferred Account".....................................................................................3
1.17 "Deferred Cash Contributions"..........................................................................3
1.18 "Disability"...........................................................................................4
1.19 "Earnings".............................................................................................4
1.20 "Effective Date".......................................................................................4
1.21 "Employee".............................................................................................4
1.22 "Employer".............................................................................................4
1.23 "Employer Account".....................................................................................4
1.24 "Employer Contributions"...............................................................................4
1.25 "ERISA"................................................................................................4
1.26 "Fund" or "Investment Fund"............................................................................5
1.27 "Highly Compensated Employee"..........................................................................5
1.28 "Hour of Service"......................................................................................6
1.29 "Leased Employee"......................................................................................9
1.30 "Leave of Absence".....................................................................................9
1.31 "Matching Contributions"...............................................................................9
1.32 "Month of Service".....................................................................................9
1.33 "Participant"..........................................................................................9
1.34 "Participant Account"..................................................................................9
1.35 "Plan"................................................................................................10
1.36 "Plan Year"...........................................................................................10
1.37 "Qualified Joint and Survivor Annuity"................................................................10
1.38 "Rollover Account"....................................................................................10
1.39 "Rollover Contributions"..............................................................................10
1.40 "Severance Date"......................................................................................10
1.41 "Spousal Consent".....................................................................................10
1.42 "Statutory Compensation"..............................................................................10
1.43 "Transferred Contribution"............................................................................11
1.44 "Trustee".............................................................................................11
1.45 "Trust Fund" or "Trust"...............................................................................11
1.46 "Valuation Date"......................................................................................11
1.47 "Vested Portion"......................................................................................11
1.48 "Vesting Service".....................................................................................11
ARTICLE 2. PARTICIPATION........................................................................................13
2.01 Participation.........................................................................................13
2.02 [RESERVED]............................................................................................13
2.03 Reemployment of Former Employees and Former Participants..............................................13
2.04 Transferred Participants..............................................................................14
2.05 Termination of Participation..........................................................................14
ARTICLE 3. CONTRIBUTIONS........................................................................................15
3.01 Deferred Cash Contributions...........................................................................15
3.03 After-Tax Contributions...............................................................................17
3.04 Employer Contributions................................................................................17
3.05 Participant Rollover Contributions and Transferred Contributions......................................19
3.06 Change in Contributions...............................................................................19
3.07 Suspension of Contributions...........................................................................20
3.08 Actual Deferral Percentage Test.......................................................................20
3.09 Contribution Percentage Test..........................................................................22
3.10 Aggregate Contribution Limitation.....................................................................25
3.11 Additional Discrimination Testing Provisions..........................................................25
3.12 Maximum Annual Additions..............................................................................26
3.13 Return of Contributions...............................................................................29
3.14 Contributions Not Contingent Upon Profits.............................................................30
3.15 Contributions During Period of Military Leave.........................................................30
ARTICLE 4. INVESTMENT OF CONTRIBUTIONS..........................................................................32
4.01 Investment Funds......................................................................................32
4.02 Investment of Participants' Accounts..................................................................33
4.03 Responsibility for Investments........................................................................33
4.04 Change of Election....................................................................................33
4.05 Reallocation of Accounts Among the Funds..............................................................33
4.06 Limitations...........................................................................................34
4.07 ERISA Section 404(c) Compliance.......................................................................34
4.08 Private Company.......................................................................................34
ARTICLE 5. VALUATION OF THE ACCOUNTS............................................................................35
5.01 Valuation of Accounts.................................................................................35
5.02 Discretionary Power of the Committee..................................................................35
5.03 Annual Statements.....................................................................................35
ARTICLE 6. VESTED PORTION OF ACCOUNTS...........................................................................36
6.01 Participant Account, Deferred Account and Rollover Account............................................36
6.02 Employer Account......................................................................................36
6.03 Disposition of Forfeitures............................................................................36
ARTICLE 7. WITHDRAWA\LS WHILE STILL EMPLOYED....................................................................38
7.01 Rules and Procedures..................................................................................38
7.02 Withdrawal of After-Tax Contributions.................................................................38
7.03 Withdrawal of Rollover Contributions..................................................................39
7.04 Withdrawal After Age 59 1/2..............................................................................39
7.05 Hardship Withdrawal...................................................................................39
7.06 Separate Contracts....................................................................................41
ARTICLE 8. LOANS TO PARTICIPANTS................................................................................42
8.01 Amount Available......................................................................................42
8.02 Terms.................................................................................................42
ARTICLE 9. DISTRIBUTION AFTER TERMINATION OF EMPLOYMENT.........................................................44
9.01 Eligibility...........................................................................................44
9.02 Forms of Distribution.................................................................................44
9.03 Commencement of Payments..............................................................................45
9.04 [RESERVED]............................................................................................45
9.05 Age 70 1/2Required Distribution.........................................................................45
9.06 Death Benefits........................................................................................46
9.07 Small Benefits........................................................................................48
9.08 Status of Accounts Pending Distribution...............................................................48
9.09 Proof of Death and Right of Beneficiary or Other Person...............................................48
9.10 Distribution Limitation...............................................................................48
9.11 Direct Rollover of Certain Distributions..............................................................48
9.12 Waiver of Notice Period...............................................................................50
9.13 Disposition of Employer Stock.........................................................................50
ARTICLE 10. ADMINISTRATION OF PLAN..............................................................................53
10.01 Appointment of Pension and Annuity Committee..........................................................53
10.02 Duties of Committee...................................................................................53
10.03 Individual Accounts...................................................................................53
10.04 Meetings..............................................................................................53
10.05 Action of Majority....................................................................................53
10.06 Compensation and Bonding..............................................................................54
10.07 Establishment of Rules................................................................................54
10.08 Prudent Conduct.......................................................................................54
10.09 Service in More Than One Fiduciary Capacity...........................................................54
10.10 Limitation of Liability...............................................................................54
10.11 Indemnification.......................................................................................54
10.12 Appointment of Investment Manager.....................................................................55
10.13 Named Fiduciary.......................................................................................55
10.14 Claims Procedures.....................................................................................55
ARTICLE 11. MANAGEMENT OF FUNDS.................................................................................57
11.01 Trust Agreement.......................................................................................57
11.02 Exclusive Benefit Rule................................................................................57
11.03 Payment of Expenses...................................................................................57
ARTICLE 12. AMENDMENT. MERGER AND TERMINATION...................................................................58
12.01 Amendment of Plan.....................................................................................58
12.02 Merger, Consolidation or Transfer.....................................................................59
12.03 Additional Participating Employers....................................................................59
12.04 Termination of Plan...................................................................................59
12.05 Distribution of Accounts Upon a Sale of Assets or a Sale of a Subsidiary..............................60
ARTICLE 13. GENERAL PROVISIONS..................................................................................61
13.01 Nonalienation.........................................................................................61
13.02 Conditions of Employment Not Affected by Plan.........................................................61
13.03 Facility of Payment...................................................................................61
13.04 Information...........................................................................................62
13.05 Top-Heavy Provisions..................................................................................62
13.06 Prevention of Escheat.................................................................................63
13.07 Written Elections.....................................................................................64
13.08 Construction..........................................................................................64
13.09 Electronic Communications.............................................................................64
UNITED STATES CAN COMPANY
SALARIED EMPLOYEES SAVINGS AND RETIREMENT
ACCUMULATION PLAN
The United States Can Company, a Delaware corporation (hereinafter referred to as the "Company") established a money
purchase pension plan known as the United States Can Company Salaried Employees Retirement Accumulation Plan as of
January 1, 1984. As of January 1, 1988, the Plan was amended and restated to eliminate the mandatory money purchase plan
contributions, add other employer contributions and employee contributions (including Section 401(k) salary deferral
contributions), and re-named the Plan as the United States Can Company Salaried Employees Savings and Retirement
Accumulation Plan (hereinafter referred to as the "Plan"). The Company restated the Plan as of January 1, 1989 to bring
the Plan into compliance with the requirements of the Tax Reform Act of 1986 as well as the applicable requirements of
later statutes, regulations, court decisions and pronouncements of the Internal Revenue Service and Department of Labor
affecting the Plan. The Company amended the Plan on several occasions after the Plan was first amended and restated.
The Company has again restated the Plan as of January 1, 1997 to bring the Plan into compliance with the requirements of
the Uruguay Round Agreements Act of 1994, the Uniform Services Employment and Reemployment Rights Act of 1994, the Small
Business Job Protection Act of 1996, the Taxpayer Relief Act of 1997, the Internal Revenue Restructuring and Reform Act
of 1998 and the Community Renewal Tax Relief Act of 2000.
Effective January 1, 2002, the Company is further amending the Plan to bring the Plan into compliance with the
requirements of the Economic Growth and Tax Relief Reconciliation Act of 2001.
Page 31
UNITED STATES CAN COMPANY
SALARIED EMPLOYEES SAVINGS AND RETIREMENT
ACCUMULATION PLAN
Amended and Restated January 1, 1989
ARTICLE 1. DEFINITIONS
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1.01 "Accounts"(a) relate to compensation that either would have been received by the Employee in the Plan Year
but for the deferral election, or are attributable to services performed by the employee in the Plan
Year and would have been received by the employee within 2-1/2 months after the close of the Plan
Year but for the deferral election,
(b) are allocated to the Employee as of a date within that Plan Year and the allocation is not
contingent on the participation or performance of service after such date, and
(c) are actually paid to the Trustee no later than 12 months after the end of the Plan Year to which the
contributions relate.
1.03 "Adjustment Factor"For Plan Years commencing before January 1, 1997, if a Participant is a greater than five
percent (5%) owner of an Employer or any Affiliated Employer (within the meaning of Section 416(i) of the
Code) or a person who is a Highly Compensated Employee, and one of the ten (10) persons paid the highest
compensation by an Employer and all its Affiliated Employers during the Plan Year, the aggregate Compensation
of the Participant, the Participant's spouse (if the spouse is also a Participant) and any of the
Participant's lineal descendants who have not reached age nineteen (19) before the end of the Plan Year (if
the lineal descendants are also Participants) shall not exceed the applicable dollar limit for the Plan Year
under Section 401(a)(17) of the Code. To determine the maximum amount of earnings of each of the
aforementioned individuals that shall be treated as Compensation for purposes of this Plan, the applicable
dollar limit on aggregate Compensation shall be prorated among the affected Participants in the ratio of
their individual Compensation (without limitation) to the total Compensation (without limitation) of all
aggregated Participants.
1.15 "Contribution Percentage"For Plan Years commencing on or after January 1, 1998, the Contribution Percentage
will not take into account Matching Contributions.
1.16 "Deferred Account"Effective for Plan Years commencing on or after January 1, 1999, Employee shall mean an
employee of the Employer who (i) is not eligible to participate in the United States Can Company Retirement
Profit Sharing Plan or the United States Can Company for Hourly Employees Retirement, (ii) is not a Leased
Employee, and (iii) is not an individual who performs services for the Employer but is characterized by the
Employer as an independent contractor or a contractor's employee as evidenced by the Employer's failure to
withhold employment taxes from his or her compensation. In the event any individual initially characterized
by the Employer as an individual described in (iii) above is subsequently recharacterized by the Employer or
a Court of competent jurisdiction as an Employee within the meaning of this Section 1.21, for purposes of the
Plan, such "Employee" shall be eligible for membership in the Plan on a prospective basis only, determined as
of the date such individual is recharacterized regardless of whether such recharacterization is applied on a
retroactive basis for some other purpose.
1.22 "Employer"(i) was at any time for such Plan Year or the prior Plan Year, a 5% owner of the Employer or an
Affiliated Employer (as defined in Section 416(i) of the Code); or
(ii) during the preceding Plan Year received Statutory Compensation from the Employer or the Affiliated
Employer in excess of $80,000; and was a member of the "top-paid group" for the preceding year. The
$80,000 amount in the preceding sentence shall be adjusted from time to time for cost of living in
accordance with Section 415(d) of the Code except that the base period is the calendar quarter
ending September 30, 1986. For this purpose, the applicable year of the Plan for which a
determination is being made is called a "determination year" and the preceding 12-month period is
"look-back year."
The "top-paid group" is the highest 20% of employees for that year when ranked by Statutory
Compensation paid by the Employer for that year excluding, for purposes of determining the number of
employees in the top-paid group, for purpose of determining the number of employees in the top-paid
group, the following employees:
(a) employees who have not completed 6 months of service;
(b) employees who normally work less than 17 1/2hours per week;
(c) employees who normally work not more than 6 months during any year;
(d) employees who have not attained age 21;
(e) employees who are included in a unit of employees covered by a collective bargaining
agreement between an Affiliated Employer and a union; and
(f) employees who are nonresident aliens and who receive no earned income from an Affiliated
Employer which constitutes income from services within the United States.
The Employer may elect to substitute a shorter period of service, time, or age than that specified
under (a), (b), (c) or (d) above.
The Employer's top-paid group election as described above, shall be used consistently in determining
Highly Compensated Employees for determination years of all employee benefit plans for the Employer
and Affiliated Employers for which Section 414(q) of the Code applies (other than a multiemployer
plan) that begin with or within the same calendar year until such election is changed by Plan
amendment in accordance with IRS requirements. Notwithstanding the foregoing, the consistency
provision in the preceding sentence shall not apply for the Plan Year beginning in 1997 and for Plan
Years beginning in 1998 and 1999, shall apply only with respect to all qualified retirement plans
(other than a multiemployer plan) of the Employer and Affiliated Employers.
Determination of an individual's classification as a Highly Compensated former Employee is based on the rules
applicable to such determination as in effect for that determination year in accordance with Section
1.414(q)-1T, A-4 of the temporary IRS Regulations and IRS Notice 97-45.
The provisions of this Section shall be further subject to such additional requirements as shall be described
in Section 414(q) of the Code and its applicable regulations, which shall override any aspect of this Section
inconsistent therewith.
1.28 "Hour of Service"(a) An employee shall be credited with one Hour of Service for each hour for which he is
directly or indirectly paid, or entitled to payment, by the Employer or an Affiliated Employer for
the performance of duties.
(b) (1) An employee shall be credited with one Hour of Service (on the basis set forth in
subparagraph (3) below) for each hour for which he is directly or indirectly paid, or
entitled to payment, by the Employer or an Affiliated Employer on account of a period of
time during which he performs no duties (irrespective of whether or not the employment
relationship has terminated) due to vacation, holiday, illness, incapacity, layoff, jury
duty or leave of absence; provided, however, that:
(A) No more than 501 Hours of Service shall be credited under this Section to an
employee on account of any single continuous period during which he performs no
duties;
(B) An hour for which an employee is directly or indirectly paid, or entitled to
payment, on account of a period during which he performs no duties 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 worker's compensation or
disability insurance laws; and
(C) Hours of Service shall not be credited for a payment which solely reimburses an
employee for medical or medically related expenses incurred by the employee.
(2) Notwithstanding the provisions of the foregoing paragraph (b)(1), an employee shall be
credited with Hours of Service (on the basis set forth in paragraph (3) below) for each of
the following periods of absence from active employment, whether or not he is directly or
indirectly paid, or entitled to payment, by the Employer or an Affiliated Employer:
(A) That portion of any period of absence during which an employee is on an approved
Leave of Absence which is designated as creditable service by the Committee; and
(B) The first six months of any period of absence due to layoff. Layoff means an
absence from work due to an approved layoff pursuant to a formalized policy of the
Employer relating to layoffs.
(3) For the purpose of this paragraph (b), employees shall be credited with Hours of Service on
the basis of their regularly scheduled working hours per week (or per day if they are paid
on a daily basis) or, in the case of employees without a regular work schedule, on the
basis of their average number of hours worked per week (or per day) during the three-month
period immediately preceding the period of time during which he performed no duties.
Notwithstanding the foregoing provisions of this paragraph (b), an employee shall not be
credited with a greater number of Hours of Service for a period during which no duties are
performed than the number of hours regularly scheduled for the performance of duties during
such period by his work group.
(4) In the case of an Employer that does not maintain records of actual hours worked for
certain Employees, such Employees' Hours of Service hereunder shall be equal to the
following:
(A) the Employee's earnings for the calendar year divided by the Employee's lowest
hourly rate of compensation (determined in accordance with U.S. Department of
Labor regulation 2530.200b-3(f)) during the calendar year;
(B) if the result of (A) above is 750 hours or more, the Employee shall be credited
with 1,000 Hours of Service;
(C) if the result of (A) is less than 750 hours but more than 374 hours, the Employee
shall be credited with 501 Hours of Service; or
(D) if the result of (A) is 374 or less, the Employee shall be credited with Hours of
Service equal to the product of (A) above.
In addition to the Hours of Service credited to an Employee pursuant to the above
calculations, such Employee will be credited with Hours of Service, if any, credited
pursuant to Section 1.28(b)(2).
(c) An employee shall be credited with one Hour of Service for each hour for which back pay,
irrespective of mitigation of damages, has been either awarded or agreed to by the Employer or an
Affiliated Employer; provided, however, that:
(1) hours shall not be credited under both paragraphs (a) or (b), as the case may be, and (c)
of this Section; and
(2) the crediting of Hours of Service for back pay awarded or agreed to with respect to periods
described in subparagraph (b)(1) above shall be subject to the limitations and provisions
set forth in paragraph (b).
(d) Solely for purposes of determining whether an employee has incurred a Break in Service under the
Plan, an employee shall be credited with one Hour of Service for each hour for which he would
normally be credited under paragraphs (a) through (c) above during a period in which the employee is
absent from work because of the pregnancy of the employee, the birth of a child of the employee or
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 such child for a period beginning immediately following such
birth or placement, but not more than 501 hours for any single such period, provided, however, that
the number of hours credited to an employee under this paragraph (d) during the computation period
in which such absence began, shall be zero if 501 or more hours are credited to the employee under
paragraphs (a) through (c) above during such computation period. In the event the number of hours
credited under this paragraph (d) for the computation period in which the absence began is zero, the
provisions of this paragraph (d) shall apply as though the absence began in the immediately
following computation period.
(e) No hour shall be credited more than once or be counted as more than one Hour of Service even though
the employee may receive more than straight time pay for such hour (e.g. only one Hour of Service
shall be credited for an hour worked, even though a premium rate is paid for such hour of work).
(f) Hours of Service shall be credited in accordance with the provisions of Department of Labor
Regulationss.2530.200b-2(c), which provisions are incorporated herein by reference, as they may be
amended from time to time.
(g) Notwithstanding the foregoing, services performed for Sherwin-Williams Company, Southern Can
Company, Continental Can Company, Steeltin Can Corporation, Eastern Container Company, Inc. and
General Can Company ("predecessor companies") by employees who were employed by such predecessor
companies immediately before the acquisition date and by United States Can Company immediately after
the acquisition date, at facilities acquired from such predecessor companies, shall be credited with
service for vesting purposes under Section 6.02. With regard to Employer Retirement Contributions
and Employer Matching Contributions, said service shall be credited as if such service with the
predecessor companies was with an Employer or Affiliated Employer; however, with regard to Employer
Stock Contributions and Employer Additional Cash Contributions, only such service on and after
December 1, 1983 shall be so credited.
1.29 "Leased Employee"(a) such services are provided pursuant to an agreement between the Employer and a
leasing organization;
(b) such person has performed such services for the Employer (or for the Employer and related persons)
on a substantially full-time basis for a period of at least one year; and
(c) such services are performed under the primary direction or control of the Employer.
The entire period during which the Leased Employee has performed services for the Employer or Affiliated
Employer in such capacity shall be treated as Eligibility and Vesting Service hereunder for all purposes of
the Plan, except that, by reason of such status as a Leased Employee, he shall not become a Participant.
However, a Leased Employee shall not be considered an employee of the Employer for any purpose if Leased
Employees do not constitute more than 20% of the Employer's nonhighly compensated workforce and such Leased
Employee is covered by a money purchase pension plan providing:
(a) a nonintegrated employer contribution rate of at least 10% of statutory Compensation,
(b) immediate participation, and
(c) full and immediate vesting.
1.30 "Leave of Absence"Statutory Compensation shall not exceed the applicable dollar limit under Section
401(a)(17) of the Code for any Plan Year, provided that such limit shall not be applied in determining Highly
Compensated Employees under Section 1.27.
For Plan Years commencing before January 1, 1997, if a Participant is a greater than five percent (5%) owner of an
Employer or any Affiliated Employer (within the meaning of Section 416(i) of the Code) or a person who is a
Highly Compensated Employee, and one of the ten (10) persons paid the highest compensation by an Employer and
all its Affiliated Employers during the Plan Year, the aggregate Statutory Compensation of the Participant,
the Participant's spouse (if the spouse is also a Participant) and any of the Participant's lineal
descendants who have not reached age nineteen (19) before the end of the Plan Year (if the lineal descendants
are also Participants) shall not exceed the applicable dollar limit for the Plan Year under Section
401(a)(17) of the Code. To determine the maximum amount of earnings of each of the aforementioned individuals
that shall be treated as Statutory Compensation for purposes of this Plan, the applicable dollar limit on
aggregate Statutory Compensation shall be prorated among the affected Participants in the ratio of their
individual Statutory Compensation (without limitation) to the total Statutory Compensation (without
limitation) of all aggregated Participants.
1.43 "Transferred Contribution"(a) If his employment terminates and he is reemployed after he has incurred a
Break in Service, his Vesting Service after reemployment shall be aggregated with his previous
period or periods of Vesting Service after he completes a Year of Vesting Service if (i) he had a
balance in his Deferred Account, (ii) he was fully or partially vested in his Employer Account or
(iii) the period from his Break in Service date to his subsequent reemployment does not equal or
exceed the greater of five years or his period of Vesting Service before his Break in Service date.
(b) If an Employee leaves or left work to enter into active service in the Armed Forces of the United
States and thereafter returns to work with reemployment rights under federal law, including without
limitation the Uniformed Services Employment and Reemployment Rights Act of 1994 and Section 414(u)
of the Code, his status with respect to participation and benefits under the Plan shall take into
account all rights to which he shall be entitled pursuant to such federal law.
ARTICLE 2. PARTICIPATION
------------------------
2.01 Participation
(a) Prior to January 1, 1995 an Employee, and on and after January 1, 1995 a regular full-time Employee,
shall become a Participant entitled to make Deferred Cash Contributions or After-Tax Contributions
on the later of: (i) his date of hire; or (ii) the date on which he becomes an Employee.
Notwithstanding the foregoing, any individual who became an Employee on January 20, 1994 in
connection with the Company's acquisition of the stock of Steeltin Can Corporation and of certain
assets of Eastern Container Company, Inc. became a Participant entitled to make Deferred Cash
Contributions or After-Tax Contributions as of March 28, 1994.
For purposes of this Section, a regular full-time Employee shall mean a regular Employee normally
scheduled to work 35 hours or more per week.
(b) On or after January 1, 1995, an Employee, other than a regular full-time Employee, shall not be
entitled to make Deferred Cash Contributions or After-Tax Contributions until the first January 1 or
July 1 following the first anniversary of his original commencement of employment. Notwithstanding
any other provision of this Section, cooperative education students employed by an Employer shall
not be entitled to make Deferred Cash Contributions or After-Tax Contributions.
(c) A Participant shall be eligible to commence Deferred Cash Contributions or After-Tax Contributions
on (or as soon as administratively practicable thereafter) the date he: (1) designates the
percentage of Compensation he wishes to contribute under the Plan under Section 3.02 or makes the
election described in Section 3.01, or both; (2) authorizes the Employer to make regular payroll
deductions or to reduce his Compensation, or both; (3) makes an investment election; and (4) names a
Beneficiary; in the manner prescribed by the Committee.
2.02 [RESERVED]
2.03 Reemployment of Former Employees and Former Participants
A Participant who has a Break in Service and has a nonforfeitable interest in a Plan Account shall continue
to be a Participant upon his reemployment.
An Employee who terminates employment and is later reemployed will be eligible to make Deferred Cash
Contributions, Catch-up Contributions or After-Tax Contributions on his reemployment date.
If a person who had no nonforfeitable interest in any Account at his prior termination of employment is
reemployed after incurring five consecutive one-year Breaks in Service, he shall be treated as a new employee
and his prior periods of employment shall be disregarded for purposes of determining whether he has met the
requirements of Section 2.01.
2.04 Transferred Participants
A Participant who remains in the employ of the Employer or an Affiliated Employer but ceases to be an
Employee shall continue to be a Participant of the Plan but shall not be eligible to make After-Tax
Contributions, Catch-up Contributions or Deferred Cash Contributions or receive allocations of Employer
Contributions (pursuant to Section 3.04) for any period of employment during which his employment status is
other than as an Employee. Notwithstanding the preceding sentence, a Participant's participation in the Plan
shall terminate if his benefits under the Plan are transferred to another plan or distributed.
2.05 Termination of Participation
A Participant's participation shall terminate on the date he is no longer employed by the Employer or any
Affiliated Employer unless the Participant is entitled to benefits under the Plan, in which event his
participation shall terminate when those benefits are distributed to him.
ARTICLE 3. CONTRIBUTIONS
------------------------
3.01 Deferred Cash Contributions
(a) A Participant may elect on his designation filed under Section 2.01 to reduce his Compensation payable while a
Participant by at least 1% and not more than 50% (prior to January 1, 2002, 12%), in multiples of
1%, and have that amount contributed to the Plan by the Employer as Deferred Cash Contributions.
Deferred Cash Contributions shall be further limited as provided below and in Sections 3.07(a),
3.08(a) and 3.09. Any Deferred Cash Contributions shall be paid to the Trustee holding assets other
than those attributable to Employer Stock Contributions as soon as practicable and credited to the
electing Participant's Deferred Account.
(b) In no event shall the Participant's Deferred Cash Contributions and similar contributions made on his behalf by
the Employer or an Affiliated Employer to all plans, contracts or arrangements subject to the
provisions of Section 401(a)(30) of the Code in any calendar year exceed $11,000 multiplied by the
Adjustment Factor, except as provides in subsection (e) below (prior to January 1, 2002, $7,000
multiplied by the Adjustment Factor). If a Participant's Deferred Cash Contributions in a calendar
year reach that dollar limitation, his election of Deferred Cash Contributions for the remainder of
the calendar year will be canceled. Each Participant affected by this paragraph (b) may elect to
change or suspend the rate at which he makes After-Tax Contributions. As of the first pay period of
the calendar year following such cancellation, the Participant's election of Deferred Cash
Contributions shall again become effective in accordance with his previous election.
(c) In the event that the sum of the Deferred Cash Contributions and similar contributions to any other
qualified defined contribution plan maintained by the Employer or an Affiliated Employer exceeds the
dollar limitation in Section 3.01(b) for any calendar year, the Participant shall be deemed to have
elected a return of Deferred Cash Contributions in excess of such limit ("excess deferrals") from
this Plan. The excess deferrals, together with Earnings, shall be returned to the Participant no
later than the April 15 following the end of the calendar year in which the excess deferrals were
made. The amount of excess deferrals to be returned for any calendar year shall be reduced by any
Deferred Cash Contributions previously returned to the Participant under Section 3.07 for that
calendar year. In the event any Deferred Cash Contributions returned under this paragraph (c) were
matched by Matching Contributions, those Matching Contributions, together with Earnings, shall be
forfeited and used to reduce Employer contributions.
(d) If a Participant makes tax-deferred contributions under another qualified defined contribution plan
maintained by an employer other than the Employer or an Affiliated Employer for any calendar year and
those contributions when added to his Deferred Cash Contributions exceed the dollar limitation under
Section 3.01(b) for that calendar year, the Participant may allocate all or a portion of such excess
deferrals to this Plan. In that event, such excess deferrals, together with Earnings, shall be
returned to the Participant no later than the April 15 following the end of the calendar year in which
such excess deferrals were made. However, the Plan shall not be required to return excess deferrals
unless the Participant notifies the Committee, in writing, by March 1 of that following calendar year
of the amount of the excess deferrals allocated to this Plan. The amount of any such excess deferrals
to be returned for any calendar year shall be reduced by any Deferred Cash Contributions previously
returned to the Participant under Section 3.07 for that calendar year. In the event any Deferred Cash
Contributions returned under this paragraph (d) were matched by Matching Contributions, those Matching
Contributions, together with Earnings, shall be forfeited and used to reduce Employer contributions.
(e) For Plan Years commencing on or after January 1, 2002, a Participant may make a Catch-up Contribution
for a Plan Year if he has attained age fifty (50) before the close of the Plan Year and may not make
any additional Deferred Cash Contributions for the Plan Year because of the application of the annual
limit on elective deferrals under Sections 402(g) and 415(c) of the Code or any comparable limitation
or restriction contained in the terms of the Plan. An eligible Participant may make Catch-up
Contributions at the same time and in the same manner as Deferred Cash Contributions pursuant to
procedures established by the Committee. If a Participant makes any Catch-up Contributions for a Plan
Year, such contributions shall be credited to the Participant's Deferred Cash Contribution Account.
For any Plan Year, a Participant may make Catch-up Contributions that equal the lesser of:
(1) the "applicable dollar amount" or
(2) the Participant's Compensation for the Plan Year reduced by any other Deferred Cash
Contributions of the Participant made for the Plan Year.
For purposes of this subsection (e), the "applicable dollar amount" shall be the amount described in
Section 414(v)(2)(C) of the Code, but in no event shall exceed $1,000 for the Plan Year commencing on
January 1, 2002. The amount of Catch-up Contributions that a Participant may contribute for a Plan
Year shall be determined at the end of the Plan Year. If the amount of Catch-up Contributions that a
Participant makes for any Plan Year exceeds the limits of (1) and (2) above, any excess shall be
either returned to the Participant pursuant to procedures specified in subsection (d) above or used to
make additional Deferred Cash Contributions for the Plan Year, if possible under this section, as
determined by the Committee pursuant to guidelines established by the Internal Revenue Service.
Catch-up Contributions shall not be subject to any other contribution limits or any nondiscrimination
tests under Section 401(k) of the Code and shall not be taken into account in applying other
contribution limits to other contributions or benefits as provided in Section 414(v)(6) of the Code
and shall not be considered in determining the maximum amount deductible by the Participating Employer
for such Plan Year for federal tax purposes under Section 404 of the Code.
(f) The Committee shall implement the percentage increase in Deferred Cash Contributions and the Catch-up
Contributions during the 2002 Plan Year in accordance with procedures established by the Committee.
(g) Catch-up Contributions shall be treated as Deferred Cash Contributions for purposes of Section 3.02
and other provisions of the Plan.
3.02 After-Tax Contributions
Any Participant may make After-Tax Contributions under this Section whether or not he has elected to have
Deferred Cash Contributions made on his behalf pursuant to Section 3.01. The amount of After-Tax
Contributions shall be at least 1% and not more than 10% of his Compensation while a Participant, in
multiples of 1%; provided, however, if the Participant has made an election under Section 3.01, the maximum
percentage of Compensation which the Participant may elect to contribute under this Section shall be equal to
the excess of 12% over the percentage elected by the Participant under Section 3.01. The After-Tax
Contributions of a Participant shall be made through payroll deductions and shall be paid to the Trustee
holding assets other than those attributable to Employer Stock Contributions as soon as practicable.
After-Tax Contributions shall be credited to the Participant Account of the contributing Participant.
3.03 Employer Contributions
(a) Employer Matching Contributions. The Employer shall contribute on behalf of each Participant who is an eligible
--------------------------------
Employee for the Plan Year and makes the election described in Section 3.01 an amount equal to a
percentage of his Deferred Cash Contributions for the Plan Year up to the first 6% of the
Participant's Compensation for the Plan Year. The percentage and the portion of Deferred Cash
Contributions (up to the first 6% of the Participant's Compensation for the Plan Year) to be used in
computing the Matching Contribution shall be determined from time to time by the Board of Directors
of the Employer based on the performance of the Employer. The Compensation Committee of the
Employer shall recommend performance standards to the Board.
Effective January 1, 1999, the Employer shall contribute on behalf of each Participant who is an
eligible Employee for the Plan Year and makes the election described in Section 3.01, an amount
equal to 100% of his Deferred Cash Contribution for the Plan Year up to the first 3% of his Plan
Year Compensation; and 50% of his Deferred Cash Contributions for the Plan Year over 3% and up to 5%
of the Participant's Plan Year Compensation. The Employer may at its discretion make estimated
Matching Contributions during the Plan Year.
(b) Employer Retirement Contributions. The Employer shall contribute on behalf of each Participant who
-----------------------------------
is an eligible Employee for the Plan Year an amount to be determined by the Board of Directors of
the Employer as of the last day of the Plan Year. In the absence of a determination by the Employer
to the contrary, the amount contributed on behalf of each such Participant shall be equal to 4% of
such Participant's Compensation for the Plan Year.
Effective January 1, 1999, the Employer shall contribute on behalf of each Participant who is an
eligible Employee on the last day of each calendar quarter (March 31, June 30, September 30 and
December 31) or who terminated employment during the quarter after attaining age 65, an amount to be
determined by the Board of Directors of the Employer as of the last day of such calendar quarter.
In the absence of a determination by the Employer to the contrary, the amount contributed on behalf
of each such Participant shall be equal to 2% of Compensation paid the Participant for such calendar
quarter; such Employer Retirement Contributions shall be made as soon as administratively feasible
following the end of such calendar quarter.
(c) Employer Stock Contributions and Additional Cash Contributions. The Employer may make additional
------------------------------------------------------------------
contributions to the Plan for a Plan Year on behalf of each Participant who is an eligible Employee
for the Plan Year. The amount to be contributed, if any, for a Plan Year shall be determined by the
Board of Directors of the Employer, in its sole discretion. Contributions made pursuant to this
paragraph (d) for a Plan Year shall be credited to the Accounts of all Participants who are eligible
Employees in the same proportion as each such Participant's Compensation during that Plan Year bears
to the total Compensation of all such Participants during that Plan Year. A contribution made by the
Employer pursuant to this paragraph (d) on account of any Plan Year may be made in the form of cash
or stock of U.S. Can Corporation (of which the Company is a wholly-owned subsidiary) or both, at the
discretion of the Board of Directors of the Employer. To the extent that the contribution is made in
stock, the contribution shall be known as the "Employer Stock Contribution" and to the extent that
the contribution is made in cash, the contribution shall be known as the "Additional Cash
Contribution." There shall be no Employer Stock Contributions made by the Employer after the Plan
Year ending on December 31, 1993.
(d) Payment of Contributions. Contributions other than Employer Stock Contributions will be paid to the
------------------------
Trustee holding assets other than those attributable to Employer Stock Contributions only in cash.
Employer Stock Contributions shall be made to the Trustee holding assets attributable to Employer
Stock Contributions only in the form of the common stock of U.S. Can Corporation, a Delaware
corporation. All contributions made by the Employer shall be delivered to the appropriate Trustee no
later than the due date (with extensions) of the Employer's tax return for the fiscal year to which
the contribution relates. A Participant's allocable share of Employer Contributions shall be
credited to the Participant's Employer Account.
(e) Offset for Foreign Contributions. Notwithstanding any other provision of Section 3.03 to the
-----------------------------------
contrary, Employer Contributions allocable to a Participant who is a non-resident alien and who is
eligible to participate in a retirement plan sponsored by the Employer or an Affiliated Employer in
a country other than the United States, shall have their Employer Contributions under the Plan for
any Plan Year offset by, in the case of a defined contribution plan, the amount of contributions
made on behalf of the Participant under such foreign plan for such year, and, in the case of a
defined benefit plan, the present value of the benefit accrued by the Participant under such foreign
plan for such year. Such offset shall be applied first against the contributions described in
paragraph (c) above, then (b) then (a); such offset shall be determined and applied in accordance
with procedures adopted by the Committee. Such offsets shall not be applied to any Deferred Cash
Contributions and/or After-tax Contributions made by such non-resident alien Participant.
3.04 Participant Rollover Contributions and Transferred Contributions
With the permission of the Committee and without regard to any limitations on contributions set forth in
Section 3.08(a), 3.09 or 3.11 or limitations on After-Tax Contributions set forth in Section 3.02, the Plan
may receive in cash:
(i) From an Employee, any amount previously received by him as an eligible rollover distribution
described in Section 9.11(b). The Plan may receive such amount either directly from the Participant
or employee, or from an eligible retirement plan described in Section 9.11(b). Notwithstanding the
foregoing, the Plan shall not accept any amount from the Participant or an eligible retirement plan
described in Section 9.11(b) unless the Participant provides evidence satisfactory to the Committee
that such amount is an eligible rollover distribution. If the Rollover Contributions are paid to the
Participant, they must be paid to the Trustee on or before the 60th day after the day received by
the Participant unless the Participant qualifies for hardship exception for distributions made after
December 31, 2001.
(ii) From a trustee of another qualified plan an amount that is not such an eligible rollover
distribution. In no event shall such Transferred Contributions be received from a plan under which
the Participant or Employee was, at any time, an employee within the meaning of Section 401(c)(1) of
the Code.
3.05 Change in Contributions
The percentages of Compensation designated by a Participant under Sections 3.01 and 3.02 shall automatically
apply to increases and decreases in his Compensation. A Participant may change his election under Sections
3.01 and 3.02 only once each calendar quarter by giving notice to the Committee at the time and in the manner
it prescribes. The changed percentage shall become effective as of the first day of the first payroll period
of the calendar quarter beginning after the expiration of the notice period.
3.06 Suspension of Contributions
(a) A Participant may suspend his contributions under Section 3.02 and/or revoke his election under
Section 3.01 only once each calendar quarter. The suspension or revocation shall become effective as
soon as administratively possible after the Participant provides the Committee notice of the
suspension or revocation at the time and in the manner it prescribes.
(b) A Participant who has suspended his contributions under Section 3.02 may elect to have them resumed
in accordance with Section 3.02 as of the first day of the first payroll period of the calendar
quarter next following notice of that intent given at the time and in the manner the Committee
prescribes. A Participant who has revoked his election under Section 3.01 may apply to the Committee
to have his Compensation reduction resumed in accordance with Section 3.01 as of the first day of
the first payroll period of the calendar quarter next following notice of that intent given at the
time and in the manner the Committee prescribes.
3.07 Actual Deferral Percentage Test
(a) For Plan Years commencing prior to January 1, 1999, the Actual Deferral Percentage for Highly
Compensated Employees who are Participants or eligible to become Participants shall not exceed the
Actual Deferral Percentage for all other Employees who are Participants or eligible to become
Participants multiplied by 1.25. If the Actual Deferral Percentage for Highly Compensated Employees
does not meet the foregoing test, the Actual Deferral Percentage for Highly Compensated Employees
may not exceed the Actual Deferral Percentage for all other Employees who are Participants or
eligible to become Participants by more than two percentage points, and the Actual Deferral
Percentage for Highly Compensated Employees may not be more than 2.0 times the Actual Deferral
Percentage for all other Employees (or such lesser amount as the Committee shall determine to
satisfy the provisions of Section 3.09).
The Committee may implement rules limiting the Deferred Cash Contributions, which may be made on
behalf of some or all Highly Compensated Employees so that this limitation is satisfied. If the
Committee determines that the limitation under this Section has been exceeded in any Plan Year, the
following provisions shall apply:
(i) For Plan Years commencing prior to January 1, 1997, the amount of Deferred Cash
Contributions made on behalf of some or all Highly Compensated Employees shall be reduced
until the provisions of this paragraph are satisfied by leveling the highest percentage
rates elected by the Highly Compensated Employees. Such percentage rates shall be rounded
to the nearest one-hundredth of one percent of the Participant's Statutory Compensation.
Any excess Deferral Cash Contributions ("excess contributions") together with Earnings
thereon, shall be allocated to some or all Highly Compensated Employees in accordance with
paragraph (iii).
(ii) For Plan Years beginning after December 31, 1996 and prior to January 1, 1999, the Actual
Deferral Percentage of the Highly Compensated Employee with the highest Actual Deferral
Percentage shall be reduced to the extent necessary to meet the Actual Deferral Percentage
test or to cause such percentage to equal the Actual Deferral Percentage of the Highly
Compensated Employee with the next highest percentage. This process will be repeated until
the Actual Deferral Percentage test is passed. Each percentage shall be rounded to the
nearest one-hundredth of one percent of the Employee's Statutory Compensation. The amount
of Deferred Cash Contributions made by each Highly Compensated Employee in excess of the
amount permitted under his revised deferral percentage shall be added together and
allocated to some or all Highly Compensated Employees as follows. The Deferred Cash
Contributions of the Highly Compensated Employee with the highest dollar amount of Deferred
Cash Contributions shall be reduced by the lesser of (A) the amount required to cause that
Employee's Deferred Cash Contributions to equal the dollar amount of the Deferred Cash
Contributions of the Highly Compensated Employee with the next highest dollar amount of
Deferred Cash Contributions, or (B) an amount equal to the total excess contributions.
This procedure is repeated until all excess contributions are allocated. The amount of
excess contributions allocated to a Highly Compensated Employee, together with Earnings
thereon shall be distributed to him in accordance with the provision of paragraph (iii)
below.
(iii) Excess contributions together with Earnings thereon, shall be paid to the Participant
before the end of twelve months following the Plan Year in which the excess contributions
were made and, to the extent practicable, within 2 1/2months after the close of the Plan Year
in which the excess contributions were made. However, any excess contributions for any
Plan Year shall be reduced by any Deferred Cash Contributions previously returned to the
Participant under Section 3.01 for that Plan Year. In the event any Deferred Cash
Contributions returned under this Section were matched by Matching Contributions, such
corresponding Matching Contributions, with Earnings thereon, shall be forfeited and used to
reduce Employer Contributions.
(iv) If the Committee adopts appropriate rules in accordance with regulations issued by the
Secretary of the Treasury, the Participant may elect, in lieu of a return of the excess
contributions, to recharacterize the excess Deferred Cash Contributions to the Plan as
After-Tax Contributions for the Plan Year in which the excess contributions were made,
subject to the limitations of Section 3.02 and Section 3.08. The Participant's election
shall be made within 2 1/2months after the close of the Plan Year in which the excess
Deferred Cash Contributions were made, or within such shorter period as the Committee may
prescribe. In the absence of a timely election by the Participant, the excess contributions
shall be paid to the Participant in the manner described in Section 3.07(b).
(v) Current Year Approach, 1997 Deferred Cash Contributions and Statutory Compensation were
used to determine the Actual Deferral Percentage for non-highly compensated employees for
the 1997 Plan Year Actual Deferral Percentage Test and 1998 Deferred Cash Contributions and
Statutory Compensation were used to determine the Actual Deferral Percentage for non-highly
compensated employees for the 1998 Plan Year Actual Deferral Percentage Test.
(b) For Plan Years commencing on or after January 1, 1999, the Plan shall comply with the
nondiscrimination requirements of Section 401(k) of the Code by the use of the alternative
nondiscrimination requirements under Section 401(k)(12) of the Code, as set forth in the Plan.
3.08 Contribution Percentage Test
a. For Plan Years beginning prior to January 1, 1999, the Contribution Percentage for Highly
Compensated Employees who are Participants or eligible to become Participants shall not exceed the
Contribution Percentage for all other Employees who are Participants or eligible to become
Participants multiplied by 1.25. If the Contribution Percentage for the Highly Compensated Employees
does not meet the foregoing test, the Contribution Percentage for Highly Compensated Employees may
not exceed the Contribution Percentage of all other Employees who are Participants or eligible to
become Participants by more than two percentage points, and the Contribution Percentage for Highly
Compensated Employees may not be more than 2.0 times the Contribution Percentage for all other
Employees (or such lesser amount as the Committee shall determine to satisfy the provisions of
Section 3.09).
The Committee may implement rules limiting the After-Tax Contributions which may be made by some or
all Highly Compensated Employees so that this limitation is satisfied. If the Committee determines
that the limitation under this Section has been exceeded in any Plan Year, the following provisions
shall apply:
(i) For Plan Years beginning prior to January 1, 1997, the amount of After-Tax Contributions
and Matching Contributions made by or on behalf of some or all Highly Compensated Employees
in the Plan Year shall be reduced until the provisions of this Section are satisfied by
leveling the highest percentage rates elected by the Highly Compensated Employees. Such
percentage rates shall be rounded to the nearest one-hundredth of one percent of a
Participant's Statutory Compensation. Any excess After-Tax Contributions or Matching
Contributions ("excess aggregate contributions"), together with Earnings thereon, shall be
reduced and allocated in accordance with the provisions of paragraph (iii) below.
(ii) For Plan Years beginning after December 31, 1996 and prior to January 1, 1999, the
Contribution Percentage of the Highly Compensated Employee with the highest Contribution
Percentage shall be reduced to the extent necessary to meet the Contribution Percentage
test or to cause such percentage to equal the Contribution Percentage of the Highly
Compensated Employee with the next highest percentage. This process will be repeated until
the Contribution Percentage test is passed. Each percentage shall be rounded to the
nearest one-hundredth of one percent of the Employee's Statutory Compensation. The amount
of After-Tax Contributions and Matching Contributions made by each Highly Compensated
Employee in excess of the amount permitted under his revised contribution percentage shall
be added together and allocated to some or all Highly Compensated Employees as follows.
The After-Tax Contributions and Matching Contributions of the Highly Compensated Employee
with the highest dollar amount of After-Tax Contributions and Matching Contributions shall
be reduced by the lesser of (A) the amount required to cause the Highly Compensated
Employee's After-Tax Contributions and Matching Contributions to equal the After-Tax
Contributions and Matching Contributions of the Highly Compensated Employee with the next
highest dollar amount of After-Tax Contributions and Matching Contributions, or to equal
the dollar amount of such contributions of the Highly Compensated Employee with the next
highest dollar amount of such contributions, or (B) an amount equal to the total excess
aggregate contributions. This procedure is repeated until all excess aggregate
contributions are allocated. Any excess aggregate contributions, together with Earnings
thereon, shall be reduced and allocated in accordance with paragraph (iii) below.
(iii) Excess aggregate contributions together with earnings thereon, shall be reduced and
allocated in the following order:
(A) After-Tax Contributions, to the extent of the excess aggregate contributions,
together with Earnings, shall be paid to the Participant; and then, if necessary,
(B) so much of the Matching Contributions as shall be necessary to equal the balance
of the excess aggregate contributions, together with Earnings, shall be reduced,
and to the extent such Matching Contributions and Earnings are vested they shall
be paid to the Participant. To the extent such Matching Contributions and Earnings
are not vested they shall be forfeited and used to reduce future Employer
Contributions.
(iv) Any repayment or forfeiture of excess aggregate contributions shall be made before the end
of twelve months following the Plan Year for which the excess aggregate contributions were
made and, to the extent practicable, any repayment or forfeiture shall be made within 12
months after the close of the Plan Year in which the excess aggregate contributions were
made.
(v) Current Year Approach, 1997 After-Tax Contributions, Matching Contributions and Statutory
Compensation were used to determine the Actual Contribution Percentage for Non-Highly
Compensated Employees for the 1997 Plan Year Actual Contribution Percentage Test. 1998
After-Tax Contributions, Matching Contributions and Statutory Compensation were used to
determine the Actual Contribution Percentage for Non-Highly Compensated Employees for the
1998 Plan Year Actual Contribution Percentage Test.
(b) For Plan Years beginning on or after January 1, 1999, the Contribution Percentage for Highly
Compensated Employees who are Participants or eligible to become Participants shall not exceed the
Contribution Percentage for all other Employees who are Participants or eligible to become
Participants multiplied by 1.25. If the Contribution Percentage for the Highly Compensated
Employees does not meet the foregoing test, the Contribution Percentage for Highly Compensated
Employees may not exceed the Contribution Percentage of all other Employees who are Participants or
eligible to become Participants by more than two percentage points, and the Contribution Percentage
for Highly Compensated Employees may not be more than 2.0 times the Contribution Percentage for all
other Employees. The Committee may implement rules limiting the After-Tax Contributions that may be
made by some or all Highly Compensated Employees so that this limitation is satisfied. If the
Committee determines that the limitation under this Section has been exceeded in any Plan Year, the
following provisions shall apply:
(i) The Contribution Percentage of the Highly Compensated Employee with the highest
Contribution Percentage shall be reduced to the extent necessary to meet the Contribution
Percentage test or to cause such percentage to equal the Contribution Percentage of the
Highly Compensated Employee with the next highest percentage. This process will be
repeated until the Contribution Percentage test is passed. Each percentage shall be
rounded to the nearest one-hundredth of one percent of the Employee's Statutory
Compensation. The amount of After-Tax Contributions made by each Highly Compensated
Employee in excess of the amount permitted under his revised contribution percentage shall
be added together and allocated to some or all Highly Compensated Employees as follows.
The After-Tax Contributions of the Highly Compensated Employee with the highest dollar
amount of such contributions shall be reduced by the lesser of (i) the amount required to
cause that Employee's After-Tax Contributions to equal the dollar amount of such
contributions of the Highly Compensated Employee with the next highest dollar amount of
such contributions, or (ii) an amount equal to the total excess contributions. This
procedure is repeated until all excess contributions are allocated.
(ii) Any excess contributions, together with Earnings thereon, shall be paid to the Participant.
(iii) Any repayment of excess contributions shall be made before the end of twelve months
following the Plan Year for which the excess contributions were made and, to the extent
practicable, any repayment shall be made within 2 1/2months after the close of the Plan Year
in which the excess contributions were made.
(c) For Plan Years beginning on or after January 1, 1999, the Plan shall comply with the
nondiscrimination requirements of Code Section 401(m) with respect to Matching Contributions by use
of the alternative nondiscrimination requirements under Code Section 401(m)(11), as set forth in the
Plan.
3.09 Aggregate Contribution Limitation
For Plan Years beginning prior to January 1, 1999, notwithstanding the provisions of Sections 3.07(a) and
3.08(a), in no event shall the sum of the Actual Deferral Percentage of the group of eligible Highly
Compensated Employees and the Contribution Percentage of such group, after applying the provisions of
Sections 3.07(a) and 3.08(a), exceed the "aggregate limit" as provided in Section 401(m)(9) of the Code and
the regulations issued thereunder. In the event the aggregate limit is exceeded for any Plan Year, the
Contribution Percentages of the Highly Compensated Employees shall be reduced to the extent necessary to
satisfy the aggregate limit in accordance with the procedure set forth in Section 3.08(a).
3.10 Additional Discrimination Testing Provisions
(a) For Plan Years beginning prior to January 1, 1997, if any Highly Compensated Employee is either (i)
a five percent owner or (ii) one of the 10 highest paid Highly Compensated Employees, then any
contribution trade by or on behalf of any member of his "family" shall be deemed made by or on
behalf of such Highly Compensated Employee for purposes of Sections 3.07(a), 3.08(a) and 3.09, to
the extent required under regulations prescribed by the Secretary of the Treasury or his delegate
under Sections 401(k) and 401(m) of the Code. The contributions required to be aggregated under the
preceding sentence shall be disregarded in determining the Actual Deferral Percentage and
Contribution Percentage for the group of non-highly compensated employees for purposes of Sections
3.07(a), 3.08(a) and 3.09. Any return of excess contributions or excess aggregate contributions
required under Sections 3.07(a), 3.08(a) and 3.09, with respect to the family group shall be made by
allocating the excess contributions or excess aggregate contributions among the family members in
proportion to the contributions made by or on behalf of each family member that is combined. For
purposes of this paragraph, the term "family" means, with respect to any employee, such employee's
spouse and any lineal ascendants or descendants and any spouses of such lineal ascendants or
descendants.
(b) If any Highly Compensated Employee is a participant in another qualified plan of the Employer or an
Affiliated Employer, other than an employee stock ownership plan described in Section 4975(e)(7) of
the Code or any other qualified plan which must be mandatorily disaggregated under Section 410(b) of
the Code, under which deferred cash contributions or matching contributions are made on behalf of
the Highly Compensated Employee or under which the Highly Compensated Employee makes after-tax
contributions, the Committee shall implement rules, which shall be uniformly applicable to all
employees similarly situated, to take into account all such contributions for the Highly Compensated
Employee under all such plans in applying the limitations of Sections 3.07(a), 3.08(a) and 3.09. If
any other such qualified plan has a plan year other than the Plan Year defined in Section 1.36, the
contributions to be taken into account in applying the limitations of Sections 3.07, 3.08 and 3.09
will be those made in the Plan Years ending with or within the same calendar year.
(c) In the event that this Plan is aggregated with one or more other plans to satisfy the requirements
of Sections 401(a)(4) and 410(b) of the Code (other than for purposes of the average benefit
percentage test and if such requirements apply to this Plan) or if one or more other plans is
aggregated (in accordance with applicable regulations) with this Plan to satisfy the requirements of
such sections of the Code, then the provisions of Sections 3.07(a), 3.08(a) and 3.09 shall be
applied by determining the Actual Deferral Percentage and Contribution Percentage of employees as if
all such plans were a single plan. Plans may be aggregated under this paragraph (c) only if they
have the same plan year.
(d) Notwithstanding any provision of the Plan to the contrary, employees included in a unit of employees
covered by a collective bargaining agreement shall be disregarded in applying the provisions of
Sections 3.08(a) and 3.09 and the provisions of Section 3.07(a) shall be applied, at the election of
the Committee, either separately to employees included in each collective bargaining unit or as a
group to all employees included in any collective bargaining unit.
(e) For Plan Years commencing on or after January 1, 1999, if the Company elects to apply the provision
of Section 410(b)(4)(B) of the Code to satisfy the requirements of Section 401(k)(3)(A)(1) of the
Code, the Company may apply the provisions of Section 3.07(a), 3.08(a) and 3.09 by excluding from
consideration all eligible employees (other than Highly Compensated Employees) who have not met the
minimum age and service requirements of Section 410(a)(1)(A) of the Code.
3.12 Maximum Annual Additions
(a) The annual addition to a Participant's Accounts for any Plan Year, which shall be considered the
"limitation year" for purposes of Section 415 of the Code, when added to the Participant's annual
addition for that Plan Year under any other qualified defined contribution plan of the Employer or
an Affiliated Employer, shall not exceed an amount which is equal to the lesser of (i) 25 % of his
aggregate remuneration for that Plan Year or (ii) $30,000 for Plan years commencing before January
1, 2002 and the lesser of (i) 100% of his aggregate remuneration on or after January 1, 2002 or (ii)
$40,000 for Plan Years commencing on or after January 1, 2002. For any Plan Year, the dollar
limitations specified in the previous sentence shall be increased by the appropriate Adjustment
Factor.
(b) For purposes of this Section, the "annual addition" to a Participant's Accounts under this Plan or
any other qualified defined contribution plan maintained by the Employer or an Affiliated Employer
shall be the sum of:
(i) the total contributions, including Deferred Cash Contributions (but excluding Catch-up
Contributions), made on the Participant's behalf by the Employer and all Affiliated
Employers,
(ii) all Participant contributions, exclusive of any Rollover Contributions or Transferred
Contributions, and
(iii) forfeitures, if applicable,
that have been allocated to the Participant's Accounts under this Plan or his accounts under any
other such qualified defined contribution plan. Annual additions also shall include amounts
allocated to an individual medical account as defined in Section 415(1)(1) of the Code, which is
part of a defined benefit plan maintained by the Employer or an Affiliated Employer. Annual
additions also includes amounts derived from contributions which are attributable to postretirement
medical benefits allocated to a "key employee," as defined in Section 419(A)(d)(3) of the Code,
under a welfare benefit fund as defined in Section 419(e) and maintained by the Employer or an
Affiliated Employer. For purposes of this paragraph (b), any Deferred Cash Contributions distributed
under Section 3.07 and any After-Tax Contributions or Matching Contributions distributed or
forfeited under the provisions of Sections 3.01, 3.07(a), 3.08(a) or 3.09 shall be included in the
annual addition for the year allocated.
(c) For purposes of this Section, the term "remuneration" with respect to any Participant shall mean the
wages, salaries and other amounts paid in respect of that Participant by the Employer or an
Affiliated Employer for personal services actually rendered, determined after any reduction of
Compensation pursuant to Section 3.01 or pursuant to a cafeteria plan as described in Section 125 of
the Code, including (but not limited to) bonuses, overtime payments and commissions, but excluding
deferred compensation, stock options and other distributions which receive special tax benefits
under the Code. Effective January 1, 1998, such remuneration shall be determined before any
reduction of compensation pursuant to Section 3.01 or pursuant to a cafeteria plan as described in
Section 125 of the Code. Effective January 1, 2001, such remuneration shall be determined before
any reduction of compensation pursuant to a qualified transportation fringe under Section 132(f)(4)
of the Code.
(d) If the annual addition to a Participant's Accounts for any Plan Year, prior to the application of
the limitation set forth in paragraph (a) above, exceeds that limitation, the amount of
contributions credited to the Participant's Accounts in that Plan Year shall be adjusted to the
extent necessary to satisfy that limitation in accordance with the following order of priority:
(i) The Participant's After-Tax Contributions under Section 3.02 shall be reduced to the extent
necessary. The amount of the reduction shall be returned to the Participant, together with
any earnings on the contributions to be returned.
(ii) The Employer Additional Cash Contributions allocated to the Participant and forfeitures
allocated to the Participant shall be reduced and the amount of the reduction shall be held
in a suspense account and shall be used to reduce future Employer Contributions.
(iii) The Employer Stock Contributions allocated to the Participant and forfeitures allocated to
the Participant shall be reduced and the amount of the reduction shall be used to reduce
future Employer Contributions.
(iv) The Employer Retirement Contributions allocated to the Participant and forfeitures
allocated to the Participant shall be reduced and the amount of the reduction shall be used
to reduce future Employer Contributions.
(v) The Matching Contributions and forfeitures allocated to the Participant, shall be reduced
and the amount of the reduction shall be used to reduce future Employer Contributions.
(vi) The Participant's Deferred Cash Contributions shall be reduced to the extent necessary. The
amount of the reduction attributable to the Participant's Deferred Cash Contributions shall
be returned to the Participant, together with any earnings on those contributions.
(e) For Plan Years beginning prior to January 1, 2000, if a Participant is a participant in a defined
benefit plan maintained by an Employer or Affiliated Employer, the sum of his defined benefit plan
fraction and his defined contribution plan fraction for any limitation year may not exceed 1.0.
For purposes of this Section, the term "defined contribution plan fraction" means a fraction, the
numerator of which is the sum of all of the annual additions to (a) the Participant's Account under
this Plan and (b) the Participant's accounts under any other defined contribution plans which may be
maintained by the Employers and Affiliated Employer as of the close of the limitation year and the
denominator of which is the sum of the lesser of the following amounts determined for such
limitation year and for each prior limitation year of his employment by an Employer or Affiliated
Employer:
o The product of 1.25 multiplied by the dollar limitation under Section 415(c)(1)(A)
of the Code for the limitation year; or
o The product of 1.4 multiplied by the percentage limitation calculated under
Section 415(c)(1)(B) of the Code with respect to the Participant for the
limitation year.
For purposes of this Section, the term "defined benefit plan fraction" means a fraction, the
numerator of which is the Participant's projected annual benefit (as defined in the defined benefit
plan) determined as of the close of the limitation year and the denominator of which is the lesser
of:
o The product of 1.25 multiplied by the dollar limitation under Section 415(b)(1)(A)
of the Code for the limitation year; or
o The product of 1.4 multiplied by the percentage limitation which may be taken into
account pursuant to Section 415(b)(1)(A) of the Code with respect to the
Participant for the limitation year.
The limitation on aggregate benefits from a defined benefit plan and a defined contribution plan set
forth in this Section shall be complied with by a reduction (if necessary) in the Participant's
benefits under the defined benefit plan in accordance with the provisions of that plan and his
benefits hereunder shall not be affected by the aggregate limitation.
This limitation will no longer apply in determining aggregate benefits from a defined benefit plan
and a defined contribution plan for any Plan Year beginning after December 31, 1999.
3.12 Return of Contributions
(a) The Employer's contributions to the Plan are conditioned upon their deductibility under Section 404
of the Code. If all or part of the Employer's deductions for contributions to the Plan are
disallowed by the Internal Revenue Service, the portion of the contributions to which that
disallowance applies shall be returned to the Employer without interest but reduced by any
investment loss attributable to those contributions. The return shall be made within one year after
the disallowance of deduction.
(b) The Employer's contributions to the Plan are also conditioned upon there being no mistake of fact in
making the contributions. The Employer may recover without interest the amount of its contributions
to the Plan made on account of a mistake of fact, reduced by any investment loss attributable to
those contributions, if recovery is made within one year after the date of those contributions.
(c) In the event that Deferred Cash Contributions made under Section 3.01 are returned to the Employer
in accordance with the provisions of this Section, the elections to reduce Compensation which were
made by Participants on whose behalf those contributions were made shall be void retroactively to
the beginning of the period for which those contributions were made. The Deferred Cash
Contributions so returned shall be distributed in cash to those Participants for whom those
contributions were made.
3.13 Contributions Not Contingent Upon Profits
The Employer may make contributions to the Plan without regard to the existence or the amount of profits.
Notwithstanding the foregoing, however, this Plan is designed to qualify as a "profit-sharing plan" for all
purposes of the Code.
3.14 Contributions During Period of Military Leave
(a) Notwithstanding any provision of this Plan to the contrary, contributions, benefits, and service
credit with respect to qualified uniformed service duty will be provided in accordance with Section
414(u) of the Code. Without regard to any limitations on contributions set forth in this Article 3,
a Member who is reemployed on or after December 12, 1994 and is credited with Vesting Service under
the provisions of Section 1.48(b) because of a period of service in the uniformed services of the
United States may elect to contribute to the Plan the Deferred Cash Contributions, Catch-up
Contributions and/or After-Tax Contributions that could have been contributed to the Plan in
accordance with the provisions of the Plan had he remained continuously employed by the Employer
throughout such period of absence ("make-up contributions"). The amount of make-up contributions
shall be determined on the basis of the Participant's Compensation in effect immediately prior to
the period of absence and the terms of the Plan at such time. Any Deferred Cash Contributions,
Catch-up Contributions and/or After-Tax Contributions so determined shall be limited as provided in
Sections 3.01(b), 3.01(e), 3.02, 3.07, 3.08, 3.09 and 3.10 with respect to the Plan Year or Years to
which such contributions relate rather than the Plan year in which payment is made. Any payment to
the Plan described in this paragraph shall be made during the applicable repayment period. The
repayment period shall equal three times the period of absence, but not longer than five years, and
shall begin on the latest of: (i) the Participant's date of reemployment, (ii) October 13, 1996, or
(iii) the date the Employer notifies the Employee of his rights under this Section. Earnings (or
losses) on make-up contributions shall be credited commencing with the date the make-up contribution
is made in accordance with the provisions of Article 4.
(b) With respect to a Participant who makes the election described in paragraph (a) above, the Employer
shall make Matching Contributions, on the make-up contributions in the amount described in the
provisions of Section 3.03 respectively, as in effect for the Plan Year to which such make-up
contributions relate. Employer Matching Contributions, and if applicable, under this paragraph
shall be made during the period described in paragraph (a) above. Earnings (or losses) on Matching
Contributions and Special Contributions shall be credited commencing with the date the contributions
are made in accordance with the provisions of Article 4. Any limitations on Matching Contributions
described in Sections 3.03, 3.06, 3.07(a), and 3.08(a) shall be applied with respect to the Plan
Year or Years to which such contributions relate rather than the Plan Year or Years in which payment
is made.
(c) All contributions under this Section are considered "annual additions," as defined in Section
415(c)(2) of the Code, and shall be limited in accordance with the provisions of Section 3.11 with
respect to the Plan Year or Years to which such contributions relate rather than the Plan Year in
which payment is made.
ARTICLE 4. INVESTMENT OF CONTRIBUTIONS
--------------------------------------
4.01 Investment Funds
(a) The Committee shall determine the number and types of Investment Funds. Unless otherwise specified
by the Committee, the Investment Funds made available shall include the following Funds:
o Short-Term Investment Fund
--------------------------
The Short-Term Investment Fund shall be invested in short-term obligations of the U.S.
Government, certificates of deposit, commercial paper and other short-term investments.
o Guaranteed Investment Fund
--------------------------
The Guaranteed Investment Fund shall be based upon contracts between selected insurance
companies or other financial institutions and the Trustee. The Funds held under each
contract shall be guaranteed by the insurance company as to principal and rate of
investment income. The guarantee of the principal and interest shall be based upon the
financial stability of the insurance company that issues the contract.
o Mutual Equity Fund
------------------
The Mutual Equity Fund shall be a mutual fund chosen by the Committee. The Fund shall be
classified as an index fund chosen to reflect a stipulated equity market index.
o Diversified Investment Fund
---------------------------
The Diversified Investment Fund shall be invested primarily in domestic and foreign
equities (other than equities of the Employer or an Affiliated Employer), bonds and
short-term investments.
o U.S. Can Corporation Common Stock Fund
--------------------------------------
All shares of U.S. Can Corporation common stock contributed to the Plan shall be held in
the U.S. Can Corporation Common Stock Fund. The Trustee shall vote, in its discretion, all
shares of U.S. Can Corporation common stock held in this fund and all shares, if any, paid
to the Trustee as dividends on shares held in the fund.
In addition to, or in lieu of, the Funds described above, the Committee may establish, from
time to time, one or more other Investment Funds as it may deem appropriate. Moreover, such
additional or alternative Funds need not be of the same generic type as the Funds described
above.
(b) The Trustee may keep such amounts of cash as it, in its sole discretion, shall deem necessary or
advisable as part of the Funds, all within the limitations specified in the trust agreement.
(c) Dividends, interest, and other distributions received on the assets held by the Trustee in respect
to each of the above Funds shall be reinvested in the respective Fund.
4.02 Investment of Participants' Accounts
A Participant shall make an investment election for each of his Participant Account, Deferred Account,
Employer Account (other than Employer Stock Contributions in such Account) and Rollover Account, in
accordance with one of the following options:
(a) 100% in one of the available Investment Funds (which shall not include the U.S. Can Corporation
Common Stock Fund);
(b) in more than one available Investment Fund allocated in whole percentages.
In the event a Participant does not make an investment election, any amounts credited to his Accounts shall
be invested in accordance with the last investment instructions properly filed by said Participant (if any),
and in the absence of such investment instructions, the amount shall be invested in an Investment Fund
consisting primarily of short-term investments.
4.03 Responsibility for Investments
Except for investment of Employer Stock Contributions in the U.S. Can Corporation Common Stock Fund, each
Participant is solely responsible for the selection of his investment options. The Trustee, the Committee,
the Employer, and the officers, supervisors and other employees of the Employer are not empowered to advise a
Participant as to the manner in which his Accounts shall be invested. The fact that an Investment Fund is
available to Participants for investment under the Plan shall not be construed as a recommendation for
investment in that Investment Fund.
4.04 Change of Election
A Participant may change his investment election under Section 4.02 among the available Investment Funds in
accordance with rules and procedures established by the Trustee. A Participant may change his election as
frequently as the Trustee permits, which shall be no less frequently than once each calendar quarter.
4.05 Reallocation of Accounts Among the Funds
Except for investment of Employer Stock Contributions, a Participant may elect to reallocate his Accounts
among the available Investment Funds in accordance with rules and procedures established by the Trustee. A
Participant may reallocate his Accounts as frequently as the Trustee permits, which shall be no less
frequently than once each calendar quarter.
4.06 Limitations
Notwithstanding anything in this Article to the contrary, a Participant's elections under Section 4.02, 4.04
or 4.05 shall be subject to any investment restrictions established by the Trustee or the Committee.
4.07 ERISA Section 404(c) Compliance
This Plan is intended to constitute a Plan described in Section 404(c) of ERISA.
4.08 Private Company
If as a result of a tender offer or other corporate transaction, the shares of U.S. Can Corporation, the
corporate parent of the Company, held in the U.S. Can Corporation Common Stock Fund are sold or otherwise
exchanged for cash, then as soon as practicable after such transaction, the U.S. Can Corporation Common Stock
Fund shall be dissolved and a Participant's Cash interest in such fund shall be allocated among and invested
in other Investment Funds maintained under the Plan in accordance with the Participant's investment election
under Section 4.02 and after such amounts are allocated to such Investment Funds, they shall be eligible for
reallocation in accordance with Section 4.05. Any separate subaccount established to record U.S. Can
Corporation Common Stock contributed to the Plan shall be dissolved by merging it into the Employer Account.
ARTICLE 5. VALUATION OF THE ACCOUNTS
------------------------------------
5.01 Valuation of Accounts
(a) All assets of the Trust Fund shall be valued at fair market value as of the Valuation Date.
Effective as of April 1, 1993, as of any Valuation Date, the fair market value of U.S. Can
Corporation common stock shall be the closing price, on such date, of U.S. Can Corporation common
stock as reported on the National Association of Securities Dealers automated quotation system.
(b) On each Valuation Date, the Account of a Participant in each Investment Fund shall equal:
(i) the Participant's account balance in that Account as of the immediately preceding Valuation
Date; plus
(ii) the net earnings thereon, after adjusting for expenses and losses, if any, since the
immediately preceding Valuation Date; plus
(iii) the amount of the contributions, if any, made to that Fund on the Participant's behalf
since the immediately preceding Valuation Date; less
(iv) the amounts of any withdrawals from the Account since the immediately preceding Valuation
Date.
5.02 Discretionary Power of the Committee
The Committee reserves the right to change from time to time the procedures used in valuing the Accounts or
crediting (or debiting) the Accounts if it determines, after due deliberation and upon the advice of counsel
and/or the current recordkeeper, that such an action is justified in that it results in a more accurate
reflection of the fair market value of assets. In the event of a conflict between the provisions of this
Article and such new administrative procedures, those new administrative procedures shall prevail.
5.03 Annual Statements
Each Participant shall be furnished with a statement setting forth the value of his Accounts and the Vested
Portion of his Accounts no less frequently than annually.
ARTICLE 6. VESTED PORTION OF ACCOUNTS
-------------------------------------
6.01 Participant Account, Deferred Account and Rollover Account
A Participant shall at all times be 100% vested in, and have a nonforfeitable right to, his Participant
Account, his Deferred Account, his Rollover Account and that portion of his Employer Account attributable to
Employer Contributions for Plan Years prior to January 1, 1988.
6.02 Employer Account
(a) A Participant shall be vested in, and have a nonforfeitable right to, his Employer Account in
accordance with the following schedule:
Years of Vesting Service Percent Vested
------------------------ --------------
less than 1 year 0%
1 year 20
2 years 40
3 years 60
4 years 80
5 or more years 100
(b) Notwithstanding the foregoing, a Participant shall be 100% vested in, and have a nonforfeitable
right to, his Accounts upon death, Disability or the attainment of his 65th birthday while actively
employed by the Employer or an Affiliated Employer.
(c) As of January 1, 1999, a Participant who is an Employee of the Employer or an Affiliated Employer on
or after January 1, 1999 shall be 100% vested in and have a nonforfeitable right to his Employer
Account.
Notwithstanding the foregoing, a Participant who terminated employment with an Employer prior to
January 1, 1999 and was not 100% vested in his Employee account and who is reemployed by an Employer
on or after January 1, 1999 and after incurring five consecutive Breaks in Service shall not be
vested in that portion of his Employee account attributable to the prior period of Vesting Service
with the Employer.
6.03 Disposition of Forfeitures
(a) Upon termination of employment of a Participant who was not 100% vested in his Employer Account, the
nonvested portion of the Employer Account shall be segregated in a separate account until the
Participant incurs five consecutive one-year Breaks in Service. The value of the segregated amount
shall equal the sum of (i) the value of the nonvested portion of the Account invested in the U.S.
Can Corporation Common Stock Fund determined using the value of U.S. Can Corporation Common Stock
Fund determined as of the Valuation Date coincident with or immediately preceding the Participant's
termination of employment and (ii) the value of the nonvested portion of the Account invested in any
other investment fund determined as of the end of the calendar quarter in which the termination of
employment occurred in the case of a termination of employment prior to April 1, 1993; and
determined as of the last day of the month in which the termination of employment occurred in the
case of a termination of employment on and after April 1, 1993. The Participant's vested interest in
such separate account shall be determined in accordance with the following formula:
X = P x [AB + (R x D)] - (R x D)
where X is the value of the Participant's vested portion of the account, P is the vested percentage
at the relevant time, AB is the account balance at the relevant time, D is the amount of the prior
distribution, R is the ratio of the account balance at the relevant time to the account balance
after the prior distribution. The "relevant time" is the date as of which such vested portion is
being determined.
If the former Participant is not reemployed by the Employer or an Affiliated Employer before
incurring five consecutive one-year Breaks in Service, the nonvested portion of his Employer Account
so segregated shall be forfeited. If the Participant is reemployed by the Employer or an Affiliated
Employer before incurring five consecutive one-year Breaks in Service, the nonvested portion of his
Employer Account shall be reinstated in full.
(b) As of the last day of each Plan Year, any amounts which became forfeitures during the Plan Year and
which are invested in the U.S. Can Corporation Common Stock Fund shall be allocated in the form of
U.S. Can Corporation common stock to the Employer Accounts of all Participants who are eligible
Employees described in Section 3.03(b), in the same proportion as each such Participant's
Compensation during that Plan Year bears to the total Compensation of all such Participants during
that Plan Year. Any forfeited amounts invested in any investment fund other than the U.S. Can
Corporation Common Stock Fund shall be used to reduce future Employer Contributions, or, at the
discretion of the Committee effective January 1, 2002, used to pay Plan administrative expenses.
ARTICLE 7. WITHDRAWALS WHILE STILL EMPLOYED
-------------------------------------------
7.01 Rules and Procedures
A withdrawal under the following provisions of this Article 7 shall be subject to the following procedures
and restrictions:
(a) To make a withdrawal, a Participant must submit his written request and other required documentation
no less than 10 days prior to the Valuation Date as of which the withdrawal is to be made. A
withdrawal shall be made as of the Valuation Date next following the expiration of the notice period.
(b) Not more than one withdrawal may be made in any calendar half year. For purposes of this limitation,
"one withdrawal" means a single withdrawal consisting of amounts withdrawn pursuant to one or more
of the following paragraphs of this Article 7.
(c) The minimum withdrawal shall be $100 or the total value of the Vested Portion of his Accounts
available for withdrawal, if less.
(d) If a loan and a hardship withdrawal are processed as of the Valuation Date, the amount available for
the hardship withdrawal will equal the Vested Portion of the Participant's Accounts on such
Valuation Date reduced by the amount of the loan.
(e) The amount of the withdrawal shall be allocated among the Investment Funds in proportion to the
value of the Participant's Accounts (from which the withdrawal is made) in each Investment Fund as
of the date of the withdrawal.
(f) All payments to Participants under this Article shall be made in cash as soon as practicable.
(g) Any withdrawal by a married Participant shall be in the form of a Qualified Joint and Survivor
Annuity unless the Participant's election and Spousal Consent to another form of withdrawal has been
received by the Pension and Annuity Committee. Such written consent shall be witnessed by a Plan
representative or notary public and shall acknowledge the effect a withdrawal by the Participant
will have on the spouse. The requirement for spousal consent may be waived by the Committee in
accordance with applicable law.
7.02 Withdrawal of After-Tax Contributions
A Participant may elect to withdraw all or part of the After-Tax Contributions made to his Participant
Account and all or part of his Transferred Contributions attributable to After-Tax Contributions. No
withdrawals may be made from a Participant's Employer Account or Deferred Account, except as otherwise
provided in this Article.
7.03 Withdrawal of Rollover Contributions
A Participant may elect to withdraw all or part of his Rollover Account attributable to Rollover
Contributions and all or part of his Transferred Contributions attributable to his former employer's
contribution (other than Transferred Contributions originally made pursuant to Section 401(k) of the Code)
which have been credited to his Account for at least 24 months.
7.04 Withdrawal After Age 59 1/2
A Participant who has withdrawn the total amount available for withdrawal under Section 7.02 and who shall
have attained age 59-1/2 as of the effective date of any withdrawal pursuant to this Section may elect to
withdraw all or part of his Deferred Account, attributable to Deferred Cash Contributions, and all or part of
his Transferred Contributions consisting of contributions made pursuant to Section 401 (k) of the Code as if
such contributions were Deferred Cash Contributions, which have been credited to his Account for at least 24
months.
7.05 Hardship Withdrawal
(a) A Participant who has withdrawn the total amount available for withdrawal under the preceding
provisions of this Article may elect to withdraw all or part of the Deferred Cash Contributions made
on his behalf to his Deferred Account (but no earnings credited to those contributions), and all or
part of his Transferred Contributions consisting of contributions made pursuant to Section 401(k) of
the Code as if such contributions were Deferred Cash Contributions, upon furnishing proof of
Hardship satisfactory to the Committee.
(b) A Participant shall be considered to have incurred a "Hardship" if, and only if, he meets the
requirements of paragraphs (c) and (d) below.
(c) As a condition for Hardship there must exist with respect to the Participant an immediate and heavy
need to draw upon his Deferred Account. The Committee shall presume the existence of such immediate
and heavy need if the requested withdrawal is on account of any of the following:
(i) expenses for medical care described in Section 213(d) of the Code previously incurred by
the Participant, his spouse or any of his dependents (as defined in Section 152 of the
Code) or necessary for those persons to obtain such medical care;
(ii) costs directly related to the purchase of a principal residence of the Participant
(excluding mortgage payments);
(iii) payment of tuition and related educational fees for the next 12 months of post-secondary
education of the Participant, his spouse or dependents;
(iv) payment of amounts necessary to prevent eviction of the Participant from his principal
residence or to avoid foreclosure on the mortgage of his principal residence; or
(v) the inability of the Participant to meet such other expenses, debts or other obligations
that the Internal Revenue Service has specifically recognized as giving rise to immediate
and heavy financial need for purposes of Section 401(k) of the Code.
The Participant shall furnish to the Committee such supporting documents as the Committee may
request in accordance with uniform and nondiscriminatory rules prescribed by the Committee.
(d) As a condition for Hardship, the Participant must demonstrate to the Committee that the requested
withdrawal is necessary to satisfy the financial need described in paragraph (c). The Participant
must request, on such form as the Committee shall prescribe, that the Committee make its
determination of the necessity for the withdrawal solely on the basis of his application. The
Committee shall make such determination, provided all of the following requirements are met:
(i) the distribution is not in excess of the amount of the immediate and heavy financial need
of the Participant including amounts necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated to result from the distribution,
(ii) the Participant has obtained all distributions, other than distributions available only on
account of hardship, and all nontaxable loans currently available under all plans of the
Employer and Affiliated Employers,
(iii) the Participant is prohibited from making Deferred Cash Contributions and After-Tax
Contributions to the Plan and all other plans of the Employer and Affiliated Employers
under the terms of such plans or by means of an otherwise legally enforceable agreement for
at least 12 months for withdrawals made before January 1, 2002 and six months for
withdrawals made after December 31, 2001 after receipt of the distribution, and
(iv) for withdrawals made before January 1, 2002, the limitation described in Section 3.01(b)
under all plans of the Employer and Affiliated Employers for the calendar year following
the year in which the withdrawal is made must be reduced by the Participant's elective
deferral made in the calendar year of the distribution for Hardship.
For purposes of clause (iii), "all other plans of the Employer and Affiliated Employers" shall
include stock option plans, stock purchase plans, qualified and non-qualified deferred compensation
plans and such other plans as may be designated under regulations issued under Section 401(k) of the
Code, but shall not include health and welfare benefit plans or the mandatory employee contribution
portion of a defined benefit plan.
7.06 Separate Contracts
Pursuant to procedures adopted by the Committee, After-Tax Contributions made by a Participant on and after
January 1, 1987, and earnings thereon, shall constitute a separate contract (Contract I) and all remaining
amounts in the Plan with respect to a Participant shall constitute another contract (Contract II) for
purposes of Section 72(e) of the Code. The Committee shall maintain records of withdrawals, contributions,
earnings and other additions and subtractions attributable to each separate contract and shall credit or
charge the appropriate contract, and adjust the non-taxable basis of each contract, for transactions properly
allocable to such contract.
ARTICLE 8. LOANS TO PARTICIPANTS
--------------------------------
8.01 Amount Available
(a) On and after October 15, 1989, a Participant who is a party in interest described in Section 3(14)
of ERISA may borrow, on written application of the Committee and on approval by the Committee under
such uniform rules as it shall adopt, an amount which, when added to the outstanding balance of any
other loans to the Participant from the Plan, does not exceed the lesser of
(i) 50% of the Vested Portion of his Account, and
(ii) $50,000 reduced by the excess, if any, of (A) the highest outstanding balance of loans to
the Participant from the Plan during the one year period ending on the day before the day
the loan is made, over (B) the outstanding balance of loans to the Participant from the
Plan on the date on which the loan is made.
(b) The interest rate to be charged on loans shall be determined at the time of the loan application and
shall be based on the interest rates charged by persons in the business of lending money, as
determined in accordance with rules and procedures established by the Committee. The interest rate
so determined shall be fixed for the duration of each loan.
(c) The amount of the loan is to be transferred from the Investment Funds in which the Participant's
Accounts are invested to a special "Loan Fund" for the Participant under the Plan. The Loan Fund
consists solely of the amount transferred to the Loan Fund and is invested solely in the loan made
to the Participant. The amount transferred to the Loan Fund shall be pledged as security for the
loan. Payments of principal on the loan will reduce the amount held in the Participant's Loan Fund.
Those payments, together with the attendant interest payment, will be reinvested in the Investment
Funds in accordance with the Participant's then effective investment election.
8.02 Terms
(a) In addition to such rules and regulations as the Committee may adopt, all loans shall comply with
the following terms and conditions:
(i) An application for a loan by a Participant shall be made in writing to the Committee, whose
action in. approving or disapproving the application shall be final;
(ii) Each loan shall be evidenced by a promissory note payable to the Plan; such note shall
convey to the Trustee a security interest in 50% of the Vested Portion of the Participant's
Accounts;
(iii) The period of repayment for any loan shall be arrived at by mutual agreement between the
Committee and the Participant, but that period shall not exceed five years unless the loan
is to be used in conjunction with the purchase of the principal residence of the
Participant, in which case the loan may be up to 30 years;
(iv) Payments of principal and interest will be made by payroll deductions or in a manner agreed
to by the Participant and the Committee in substantially level amounts, but no less
frequently than quarterly, in an amount sufficient to amortize the loan over the repayment
period;
(v) A loan may be prepaid in full as of any date without penalty;
(vi) Only two loans may be outstanding at any given time except that a third loan may be made in
conjunction with the purchase of the principal residence of the Participant; and
(vii) A loan under this Article shall not be made to a married Participant without Spousal
Consent to the pledge of the Participant's Account to the Loan Fund as security for the
loan. Such Spousal Consent shall be obtained no earlier than the 90-day period that ends on
the date on which such loan is to be so secured and shall be witnessed by a Plan
representative or notary public and shall acknowledge the effect such a pledge of the
Participant's Account may have on the spouse. The requirement for Spousal Consent may be
waived by the Committee in accordance with applicable law.
(b) If a loan is not repaid in accordance with the terms contained in the promissory note and a default
occurs, the Plan may execute upon its security interest in the Participant's Accounts under the Plan
to satisfy the debt; however, the Plan shall not levy against any portion of the Loan Fund
attributable to amounts held in the Participant's Account until such time as a distribution of the
Account could otherwise be made under the Plan.
(c) Any additional rules or restrictions as may be necessary to implement and administer the loan
program shall be in writing and communicated to employees. Such further documentation is hereby
incorporated into the Plan by reference, and the Committee is hereby authorized to make such
revisions to these rules, as it deems necessary or appropriate, on the advice of counsel.
(d) Loan repayments will be suspended under the Plan as permitted under Section 414(u)(4) of the Code.
ARTICLE 9. DISTRIBUTION AFTER SEVERANCE FROM EMPLOYMENT
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9.01 Eligibility
Upon a Participant's severance from employment, the Vested Portion of the Participant's Accounts shall be
distributed as provided in this Article.
9.02 Forms of Distribution
A Participant may elect, in such manner as the Committee shall prescribe, to receive an optional form of
benefit described below:
(a) A single lump sum cash payment; or
(b) Payments in approximately equal installments at least annually but not more frequent than monthly
over a period of five years, ten years or fifteen years, provided, however, that the period
designated by the Participant does not exceed the life expectancy of the last survivor of the
Participant and his Beneficiary. At any time during the installment period, upon the filing of a
90-day advance written notice, the Participant may elect that the then-present value of his Account
be paid in a single sum, in lieu of continuing installment payments. In the event that the
Participant dies before all installments have been paid, the remaining installment payments shall be
paid to his Beneficiary at the same time as such payments would have been made to the Participant
had he survived; or
(c) The purchase of a nonforfeitable fixed annuity providing a monthly pension payable for the life of
the Participant, provided that if the Participant is married on his Annuity Starting Date and if he
has not elected otherwise, the benefit shall be in the form of a Qualified Joint and Survivor
Annuity providing for a monthly pension payable to the Participant during his life and after his
death a pension at the rate of 50%, and on or after the date assets are transferred from the Profit
Sharing Plan for Employees of Steeltin Can Corporation to this Plan, 75% or 100% (as elected by the
Participant) paid to the Participant, payable during the life of, and to the spouse to whom he was
married on the Annuity Starting Date. A married Participant may elect, during the 90-day period
preceding his Annuity Starting Date, not to take the Qualified Joint and Survivor Annuity.
Elections under this paragraph (c) shall be in writing and shall be subject to receipt by the
Committee of a Spousal Consent to that election. The Committee shall furnish each Participant no
less than 30 days nor more than 90 days before his Annuity Starting Date a written explanation of
the Qualified Joint and Survivor Annuity in accordance with applicable law. A Participant may
revoke his election and make a new election from time to time and at any time during the aforesaid
election period. If the annuity form is not a Qualified Joint and Survivor Annuity with the
Participant's spouse as the Beneficiary, the annuity payable to the Participant and thereafter to
his Beneficiary shall be subject to the incidental death benefit rule as described in Section
401(a)(9)(G) of the Code and its applicable regulations.
In the event that one of the foregoing methods is not selected by a Participant at termination of employment,
or if required Spousal Consent is not obtained, the Participant shall receive his distribution in the form of
a single life annuity, or if married on the date his benefits commence, in the form of a Qualified Joint and
Survivor Annuity paying a pension to the Participant's spouse after the Participant's death at the rate of
50% of the pension payable during the Participant's life.
9.03 Commencement of Payments
(a) Except as otherwise provided in this Article, distribution of the Vested Portion of a Participant's
Accounts shall commence as soon as administratively practicable following the later of (i) the
Participant's termination of employment or (ii) the 65th anniversary of the Participant's date of
birth (but not more than 60 days after the close of the Plan Year in which the later of (i) or (ii)
occurs).
(b) In lieu of a distribution as described in paragraph (a) above, a Participant may, in accordance with
such procedures as the Committee shall prescribe, elect to have the distribution of the Vested
Portion of his Accounts commence as soon as administratively practicable following his termination
of employment with the Employer and all Affiliated Employers.
(c) In the case of the death of a Participant before his benefits commence, the Vested Portion of his
Accounts shall be distributed to his Beneficiary as soon as administratively practicable following
the Participant's date of death in accordance with Section 9.06(a).
9.04 [RESERVED]
9.05 Age 70 1/2Required Distribution
(a) Prior to January 1, 1997, in no event shall the provisions of this Article operate so as to allow
the distribution of a Participant's Accounts to begin later than the April 1 following the calendar
year in which he attains age 70 1/2, provided that such commencement in active status shall not be
required with respect to a Participant (i) who does not own more than five percent of the
outstanding stock of the Employer (or stock possessing more than five percent of the total combined
voting power of all stock of the Employer), and (ii) who attained age 70 1/2prior to January 1, 1988.
(b) In the event a Participant is required to begin receiving payments while in service under the
provisions of paragraph (a) above or paragraph (c) below, the Participant may elect to receive
payment of the entire balance of the Accounts in the manner described in Section 9.02.
(c) Effective January 1, 1997, distribution of a Participant's Accounts shall be made or commenced no
later than the April 1 of the calendar year following the later of the calendar year in which the
Participant attains age 70 1/2or the calendar year in which occurs the Participant's termination of
employment as an Employee; provided, however, that such distribution for a Participant who owns more
than five percent of the outstanding stock of the Employer (or stock possessing more than five
percent of the total combined voting power of all stock of the Employer), shall be required to be
made or commenced no later than April 1 following the calendar year in which the Participant attains
age 70 1/2.
(d) If a Participant who does not own more than five percent of the outstanding stock of the Employer
(or stock possessing more than five percent of the total combined voting power of all stock of the
Employer) attains age 70 1/2prior to January 1, 1999 and remains in service after April 1 following
the calendar year in which he attains 70 1/2, he may elect to have the provision of paragraph (b) apply
as if the participant was a five-percent owner. Such election shall be made in accordance with such
administrative procedures, as the Committee shall prescribe.
(e) A Participant shall elect a form of payment under this Section by giving written notice to the
Committee within the 90-day period prior to his required beginning date. The commencement of
payment under this Section shall constitute an Annuity Starting Date for purposes of Sections 72,
401(a)(11) and 417 of the Code. If applicable, upon the Participant's subsequent termination of
employment, payment of the Participant's Accounts shall continue in the manner elected under this
Section. In the event a Member fails to make an election under this Section; payment shall be made
in accordance with Section 9.02(c).
9.06 Death Benefits
(a) Upon the death of a Participant prior to the Annuity Starting Date of a distribution for reasons
other than death, the full value of the Participant's Accounts, determined as of the Valuation Date
next succeeding his death, shall be applied to purchase a fixed annuity from an insurance company
providing a monthly pension to the Participant's surviving spouse for the spouse's life unless the
spouse elects to receive the value of the Participant's Accounts in the form of a lump sum or
installment payments (as described in Section 9.02(b)) prior to the Annuity Starting Date of the
life annuity.
If the Participant has no surviving spouse or the Participant designates a Beneficiary other than
his spouse with proper Spousal Consent, the value of the Participant's Accounts shall be paid to the
deceased Participant's Beneficiary.
Subject to Section 9.10, the Beneficiary may elect to receive payment of the Participant's Account
in the form of a lump sum, installment payments (as described in Section 9.02(b)) or a monthly
annuity payable over the Beneficiary's lifetime. In the event a method of distribution is not
selected by a Beneficiary, such Beneficiary shall receive his distribution in the form of an annuity
for the life of the Beneficiary with no benefit payable after his death.
Each Participant shall be provided an explanation of the death benefit payable to his spouse under
this Section unless another Beneficiary is designated, of the Participant's right to designate a
Beneficiary other than his spouse and of the effect of such election, of the rights of the spouse
regarding the designation and of the rights of the Participant to revoke Beneficiary designations.
The explanation shall be provided no later than the latest of (i) 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, (ii) a reasonable
time after the individual becomes a Participant, or (iii) a reasonable time after the Participant
terminates employment before reaching age 35.
In the event that a married Participant who has not attained age 35 names a non-spouse beneficiary,
such beneficiary designation shall be invalid on the January 1 of the year the participant attains
age 35 and the Participant's beneficiary shall become the Participant's spouse until such time as
the Participant executes a new beneficiary designation with spousal consent.
Notwithstanding any provision of this Section to the contrary, if the value of a Participant's
Accounts upon his death prior to his Annuity Starting Date ever exceeded $3,500, for determinations
made before January 1, 1998, no death benefit payable to a surviving spouse under this Section shall
commence prior to what would have been the date of the Participant's attainment of age 65 without
the spouse's written consent obtained not earlier than 90 days prior to the Annuity Starting Date of
the death benefits. For purposes of this section, the value of the vested portion of the
participant's account is increased from $3,500 to $5,000 for determinations made after December 31,
1997, such determination shall be made at the time of the distribution.
(b) In the event of the death of a Participant to whom installment or annuity payments are being made by
the Trustee, the Committee shall notify the Trustee of the death of such Participant and shall
direct the Trustee to pay any undistributed portion of the interest in such Participant's account
held in trust to the Beneficiary as and if provided by the method selected by the Participant
pursuant to Section 9.02.
(c) If the vested portion of a Participant's Account payable to a surviving spouse does not exceed five
thousand dollars ($5,000), but is more than one thousand dollars ($1,000) and is distributed after
the effective date of the final regulations under Section 401(a)(31)(B) of the Code, the
Participant's Account will be transferred to an individual retirement account at an institution
designated by the Committee unless the Participant elects otherwise according to the procedures
established by the Committee.
9.07 Small Benefits
Notwithstanding any provision of the Plan to the contrary, if the value of the Vested Portion of the
Participant's Accounts does not exceed $3,500 and has never exceeded $3,500 at the time of any prior
distribution, for determination made before January 1, 1998, the Vested Portion of the Participant's Accounts
shall automatically be paid in a lump sum as soon as administratively practicable following the Participant's
death or termination of employment. For purposes of this Section, the value of the Vested Portion of the
Participant's Account is increased from $3,500 to $5,000 for determination made after December 31, 1997.
Such determination shall be made at the time of the distribution.
If the vested portion of a Participant's Account does not exceed five thousand dollars ($5,000), but is more
than one thousand dollars ($1,000) and distributed after the effective date of the final regulations under
Section 401(a)(31)(B) of the Code, the Participant's Account shall be transferred to an individual retirement
account of an institution designated by the Committee unless the Participant elects otherwise under
procedures provided by the Committee.
9.08 Status of Accounts Pending Distribution
Until completely distributed under Sections 9.03, 9.04, or 9.06, the Accounts of a Participant shall continue
to be invested as part of the Funds of the Plan (subject, however, to Section 9.04).
9.09 Proof of Death and Right of Beneficiary or Other Person
The Committee may require and rely upon such proof of death and such evidence of the right of any Beneficiary
or other person to receive the value of the Accounts of a deceased Participant as the Committee may deem
proper and its determination of the right of that Beneficiary or other person to receive payment shall be
conclusive.
9.10 Distribution Limitation
Further with respect to distributions under the Plan made for calendar years beginning on or after January 1,
2001, the Plan will apply the minimum distribution requirements of Section 401(a)(9) of the Code in
accordance with the regulations under Section 401(a)(9) that were proposed on January 17, 2001. This
provision shall continue in effect until the end of the last calendar year beginning before the effective
date of the 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 Code.
9.11 Direct Rollover of Certain Distributions
(a) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee's
election under this Section, on and after January 1, 1993, a distributee may elect, at the time and
in the manner prescribed by the Committee, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the distributee in a direct rollover.
(b) The following definitions shall apply for purposes of paragraph (a):
(i) eligible rollover distribution: An eligible rollover distribution is any distribution of
all or any portion of the balance to the credit of the distributee, except that an eligible
rollover distribution does not include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually) made for the life
(or life expectancy) of the distributee or the joint lives (or joint life expectancies) of
the distributee and the distributee's designated beneficiary, or for a specified period of
ten years or more; any distribution to the extent such distribution is required under
Section 401(a)(9) of the Code; 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), unless it is directly rolled over as provided in
Section 402(c)(2) of the Code after December 31, 2001; any distribution from a
Participant's account constituting a hardship withdrawal.
(ii) eligible retirement plan: For distributions made before January 1, 2002, an eligible
retirement plan is 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 the distributee's eligible rollover distribution. For
distributions made on or after January 1, 2002, an eligible retirement plan shall also
include eligible deferred compensation plan described in Section 457(b) of the Code
maintained by an eligible employer as described in Section 457(e)(1)(A) of the Code and an
annuity contract described in Section 403(b) of the Code. However, in the case of an
eligible rollover distribution to the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement annuity for distributions made prior
to January 1, 2002. For distributions made on or after January 1, 2002, an eligible
retirement plan shall include all of the plans described in this subparagraph (ii).
(iii) distributee: A distributee includes an employee or former employee. In addition, the
employee's or former employee's surviving spouse and the employee's or former employee'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, are distributees with regard to the
interest of the spouse or former spouse.
(iv) direct rollover: A direct rollover is a payment by the Plan to the eligible retirement plan
specified by the distributee.
(c) If a distribution is one to which Sections 401(a)(11) and 417 of the Code do not apply, such
distribution may commence less than 30 days after the notice required under Section 1.411(a)-11(c)
of the Income Tax Regulations is given, provided that: (1) the Participant is clearly informed of
his right to a period of at least 30 days after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if applicable, a particular form of payment), and (2)
the Participant, after receiving the notice, affirmatively elects a distribution.
9.12 Waiver of Notice Period
Except as provided in the following sentence, if the value of the vested portion of a Participant's Accounts
exceeds (i) $3,500 if the date of determination is prior to January 1, 1998 or (ii) $5,000 if the date of
determination is on or after December 31, 1997 an election by the Participant to receive a distribution prior
to age 65 shall not be valid unless the written election is made (a) after the Participant has received the
notice required under Section 1.411(a)-11(c) of the Income Tax Regulations and (b) within a reasonable time
before the effective date of the commencement of the distribution as prescribed by said regulations. If such
distribution is one to which Section 401(a)(11) and 417 of the Code do not apply, such distribution may
commence less than 30 days after the notice required under Section 1.411(a)-11(c) of the Income Tax
Regulations is given, provided that:
(i) the Committee clearly informs the Participant that he has a right to a period of at least 30 days
after receiving the notice to consider the decision of whether or not to elect a distribution (and,
if applicable, a particular distribution option), and
(ii) the Participant, after receiving the notice, affirmatively elects a distribution.
9.13 Disposition of Employer Stock
Notwithstanding any provision of the Plan to the contrary, the provisions of this Section shall apply to a
distribution of Plan Accounts invested in the U.S. Can Corporation Common Stock Fund.
(a) In the event a distribution is payable pursuant this Article to or on behalf of a Participant (a)
whose Date of Severance occurred on or after December 31, 1991 and before January 1, 1993, at which
time he was at least partially vested in shares of stock held in the U.S. Can Corporation Common
Stock Fund on his behalf, and such shares had not been sold by December 31, 1992, or (b) whose Date
of Severance has occurred during January, February or March 1993, on March 31, 1993 the Trustee
shall sell, to the Company or to U.S. Can Corporation, the Vested Portion of all shares of U.S. Can
Corporation common stock held in the U.S. Can Corporation Common Stock Fund which are credited to
such Participant's Account. All such sales described in the preceding sentence shall be at a price
equal to the value of such stock as of the December 31, 1992 Valuation Date. The net proceeds of any
sale pursuant to this Section 9.12(a) shall be credited to the Account of such Participant for
distribution, if he or his legal representative has validly elected a lump sum distribution pursuant
to this Article. If such Participant or his legal representative has validly elected to receive a
distribution in annuity form or in installments, or has validly elected to defer the distribution of
such Account until such Participant's attainment of age 65 (where permitted under the Plan), or if
no valid distribution election pursuant to this Article has been made, such proceeds of sale shall
be transferred to the Short-Term Investment Fund.
(b) In the event a distribution is payable to or on behalf of a Participant pursuant to this Article,
other than a Participant described in Section 9.12(a), the Trustee shall sell, to the Company, to
U.S. Can Corporation or on the open market (if permissible), the Vested Portion of all shares of
U.S. Can Corporation common stock held in the U.S. Can Corporation Common Stock Fund which are
credited to such Participant's Account. The net proceeds of any sale pursuant to this Section shall
be credited to the Account of such Participant for distribution, if he or his legal representative
has validly elected a lump-sum distribution pursuant to this Article. If such Participant or his
legal representative has validly elected to receive a distribution in annuity form or in
installments, or has validly elected to defer the distribution of such Account until such
Participant's attainment of age 65 (where permitted under the Plan), or if no valid distribution
election pursuant to this Article has been made, such proceeds of sale shall be transferred to the
Short-Term Investment Fund. Any such sale to the Company or to U.S. Can Corporation shall be for a
price equal to the closing price for U.S. Can Corporation common stock, as reported on the National
Association of Securities Dealers automated quotation system, on the date of sale. Such sale shall
occur as follows:
(1) If such Participant's Date of Severance occurs on the last day of the Plan Year (beginning
with the 1993 Plan Year) and he or his legal representative has delivered the Required
Documentation (as hereinafter defined) to the Pension and Annuity Committee on or before
the following March 15, such sale shall occur on the last business day of the month of
March of the Plan Year following his Date of Severance. If such a Participant or his legal
representative has not delivered the Required Documentation to the Pension and Annuity
Committee by such March 15, such sale shall occur on the last business day of the month of
April of the Plan Year following his Date of Severance.
(2) If such Participant's Date of Severance occurs during January, February or March (beginning
with the 1994 Plan Year), and he or his legal representative has delivered the Required
Documentation to the Pension and Annuity Committee on or before March 15 of the Plan Year
in which his Date of Severance occurs, such sale shall occur on the last business day of
the month of March in the Plan Year in which his Date of Severance occurs. If such a
Participant or his legal representative has not delivered the Required Documentation to the
Pension and Annuity Committee on or before such March 15, such sale shall occur on the last
business day of the month of April in the Plan Year in which his Date of Severance occurs.
(3) Beginning with the 1993 Plan Year, if such Participant's Date of Severance occurs after the
last day of March in any Plan Year, other than on the last day of the Plan Year, and he or
his legal representative has delivered the Required Documentation to the Pension and
Annuity Committee on or before the 15th day of the month in which his Date of Severance
occurs, such sale shall occur on the last business day of the month in which his Date of
Severance occurs. If such Participant or his legal representative has not delivered the
Required Documentation to the Pension and Annuity Committee on or before such 15th day,
such sale shall occur as of the last business day of the month next following the month in
which his Date of Severance occurs.
(c) For purposes of this Section, the term "Required Documentation" means all documentation required by
the Pension and Annuity Committee from a Participant or his legal representative in connection with
processing a distribution to such Participant or on his behalf (in lump sum or annuity form, or in
installments, pursuant to a valid election in accordance with this Article) or in connection with a
valid election by such Participant or his legal representative to defer the distribution of his
Account until his attainment of age 65 (where permitted under the Plan).
ARTICLE 10. ADMINISTRATION OF PLAN
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10.01 Appointment of Pension and Annuity Committee
The Pension and Annuity Committee shall be responsible for the general administration of the Plan and be
responsible for carrying out the provisions of the Plan. The Committee shall consist of not less than three
persons who may be directors or employees of an Employer. The members shall be appointed by the Chief
Executive Officer of the Company ("Chief Executive Officer"). Any person who is appointed a member of the
Committee shall signify his acceptance by filing a written acceptance with the Chief Executive Officer. Any
member of the Committee may resign by delivering his written resignation to the Chief Executive Officer.
Members of the Committee may be removed at any time by the Chief Executive Officer.
10.02 Duties of Committee
The members of the Committee shall elect a chairman from their number and a secretary who may be but need not
be one of the members of the Committee; may appoint from their number such subcommittees with such powers as
they shall determine; may authorize one or more of their number or any agent to execute or deliver any
instrument or make any payment on their behalf; may retain counsel, employ agents and provide for such
clerical, accounting and consulting services as they may require in carrying out the provisions of the Plan;
and may allocate among themselves or delegate to other persons all or such portion of their duties under the
Plan, other than those granted to the Trustee under the trust agreement adopted for use in implementing the
Plan, as they, in their sole discretion, shall decide.
10.03 Individual Accounts
The Committee shall maintain, or cause to be maintained, records showing the individual balances in each
Participant's Account. However, maintenance of those records and Accounts shall not require any segregation
of the funds of the Plan.
10.04 Meetings
The Committee shall hold meetings upon such notice, at such place or places, and at such time or times as it
may from time to time determine.
10.05 Action of Majority
Any act which the Plan authorizes or requires the Committee to do may be done by a majority of its members.
The action of that majority expressed from time to time by a vote at a meeting or in writing without a
meeting shall constitute the action of the Committee and shall have the same effect for all purposes as if
assented to by all members of the Committee at the time in office.
10.06 Compensation and Bonding
No member of the Committee shall receive any compensation from the Plan for his services as such. Except as
may otherwise be required by law, no bond or other security need be required of any member in that capacity
in any jurisdiction.
10.07 Establishment of Rules
Subject to the limitations of the Plan, the Committee from time to time shall establish rules for the
administration of the Plan and the transaction of its business. The Committee shall have discretionary
authority to construe and interpret the Plan (including, but not limited to, determination of an individual's
eligibility for Plan participation, the right and amount of any benefit payable under the Plan and the date
on which any individual ceases to be a Participant). The determination of the Committee as to the
interpretation of the Plan or any disputed question shall be conclusive and final to the extent permitted by
applicable law.
10.08 Prudent Conduct
The members of the Committee shall use that degree of care, skill, prudence and diligence that a prudent man
acting in a like capacity and familiar with such matters would use in his conduct of a similar situation.
10.09 Service in More Than One Fiduciary Capacity
Any individual, entity or group of persons may serve in more than one fiduciary capacity with respect to the
Plan and/or the funds of the Plan.
10.10 Limitation of Liability
The Employer, the Board of Directors, the members of the Committee, and any officer, employee or agent of the
Employer shall not incur any liability individually or on behalf of any other individuals or on behalf of the
Employer for any act or failure to act, made in good faith in relation to the Plan or the funds of the Plan.
However, this limitation shall not act to relieve any such individual or the Employer from a responsibility
or liability for any fiduciary responsibility, obligation or duty under Part 4, Title I of ERISA.
10.11 Indemnification
The members of the Committee, the Board of Directors, and the officers, employees and agents of the Employer
shall be indemnified against any and all liabilities arising by reason of any act, or failure to act, in
relation to the Plan or the funds of the Plan, including, without limitation, expenses reasonably incurred in
the defense of any claim relating to the Plan or the funds of the Plan, and amounts paid in any compromise or
settlement relating to the Plan or the funds of the Plan, except for actions or failures to act made in bad
faith. The foregoing indemnification shall be from the funds of the Plan to the extent of those funds and to
the extent permitted under applicable law; otherwise from the assets of the Employer.
10.12 Appointment of Investment Manager
The Company may, in its discretion, appoint one or more investment managers (within the meaning of Section
3(38) of ERISA) to manage (including the power to acquire and dispose of) all or part of the assets of the
Plan, as the Company shall designate. In that event authority over and responsibility for the management of
the assets so designated shall be the sole responsibility of that investment manager.
10.13 Named Fiduciary
For purposes of ERISA, the members of the Committee shall be the named fiduciaries of the Plan.
10.14 Claims Procedures
The Committee shall receive all applications for benefits. Upon receipt by the Committee of such an
application, it shall determine all facts, which are necessary to establish the right of an applicant to
benefits under the provisions of the Plan and the amount thereof as herein provided. The applicant shall be
notified in writing of any adverse decision with respect to his claim within 90 days after its submission.
The notice shall be written in a manner calculated to be understood by the applicant and shall include:
(a) The specific reason or reasons for the denial;
(b) Specific references to the pertinent Plan provisions on which the denial is based;
(c) A description of any additional material or information necessary for the applicant to perfect the
claim and an explanation why such material or information is necessary; and
(d) An explanation of the Plan's claim review procedure.
If special circumstances require an extension of time for processing the initial claim, a written notice of
the extension and the reason therefor shall be furnished to the claimant before the end of the initial 90-day
period. In no event shall such extension exceed 90 days.
In the event a claim for benefits is denied or if the applicant has had no response to such claim within 90
days of its submission (in which case the claim for benefits shall be deemed to have been denied), the
applicant or his duly authorized representative, at the applicant's sole expense, may appeal the denial to
the Committee within 60 days of the receipt of written notice of denial or 60 days from the date such claim
is deemed to be denied. In pursuing such appeal the applicant or his duly authorized representative:
(a) May request in writing that the Committee review the denial;
(b) May review pertinent documents; and
(c) May submit issues and comments in writing.
The decision on review shall be made within 60 days of receipt of the request for review, unless special
circumstances require an extension of time for processing, in which case a decision shall be rendered as soon
as possible, but not later than 120 days after receipt of a request for review. If such an extension of time
is required, written notice of the extension shall be furnished to the claimant before the end of the
original 60-day period. The decision on review shall be made in writing, shall be written in a manner
calculated to be understood by the claimant, and shall include specific references to the provisions of the
Plan on which such denial is based. If the decision on review is not furnished within the time specified
above, the claim shall be deemed denied on review.
ARTICLE 11. MANAGEMENT OF FUNDS
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11.01 Trust Agreement
All the funds of the Plan shall be held by Trustee appointed from time to time by the Company under one or
more trust agreements adopted, or as amended, by the Company for use in providing the benefits of the Plan
and paying its expenses not paid directly by the Company. Said trust agreements shall be deemed to include
the provisions of any group or common trust fund in which the assets of the trust are invested, but only so
long as such group or common trust fund remains exempt from taxation under Section 501(a) of the Code, in
accordance with Revenue Ruling 81-100. No Employer shall have liability for the payment of benefits under
the Plan or for the administration of the funds paid over to a Trustee.
11.02 Exclusive Benefit Rule
Except as otherwise provided in the Plan, no part of the corpus or income of the funds of the Plan shall be
used for, or diverted to, purposes other than for the exclusive benefit of Participants and other persons
entitled to benefits under the Plan and paying the expenses of the Plan not paid directly by the Employer. No
person shall have any interest in or right to any part of the earnings of the funds of the Plan, or any right
in, or to, any part of the assets held under the Plan, except as and to the extent expressly provided in the
Plan.
11.03 Payment of Expenses
All reasonable costs, charges and expenses incurred in connection with the administration of the Plan
including, but not limited to, the fees of accountants, counsel and other specialists and any other costs of
administration may be paid by the Employer at its discretion and if not paid by the Employer, shall be paid
from the assets of the Trusts to the extent authorized by the Pension and Annuity Committee.
ARTICLE 12. AMENDMENT. MERGER AND TERMINATION
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12.01 Amendment of Plan
The Board of Directors reserves the right at any time and from time to time, and retroactively if deemed
necessary or appropriate, to amend in whole or in part any or all of the provisions of the Plan. However, no
amendment shall make it possible for any part of the funds of the Plan to be used for, or diverted to,
purposes other than for the exclusive benefit of persons entitled to benefits under the Plan. No amendment
shall be made which has the effect of decreasing the balance of the Accounts of any Participant or of
reducing the nonforfeitable percentage of the balance of the Accounts of a Participant below the
nonforfeitable percentage computed under the Plan as in effect on the date on which the amendment is adopted
or, if later, the date on which the amendment becomes effective. Further, no amendment shall eliminate or
reduce an early retirement benefit or a retirement-type subsidy or eliminate an optional form of benefit
within the meaning of Section 411(d)(6) of the Code.
The procedure for amending the Plan is approval of the amendment by the Board of Directors of the Company;
provided however, one or more officers of the Company may amend the Plan without obtaining approval of the
Board of Directors to:
(i) modify the administration or operation of the Plan in a manner recommended by the Company's Pension
and Annuity Committee, provided such modification would not materially increase the cost of the Plan;
(ii) make those modifications to the Plan that, on the advice of the Company's legal counsel, the officer
or officers deem necessary to comply with federal and state laws, regulations or pronouncements
issued by federal or state agencies; or
(iii) modify the Plan in the manner the officers deem necessary to carry out or effect the benefits to be
provided hereunder pursuant to applicable collective bargaining agreements.
Such an amendment shall be made by execution of a document reflecting the amendment by an officer of the
Company and shall be subject, where applicable, to any approval of a union required by the terms of a
collective bargaining agreement.
Any amendment which modifies the vesting provisions of the Plan shall either (i) provide for a rate of
vesting which is more rapid than the vesting schedule previously in effect, or (ii) provide that a
Participant who has been credited with at least three years of Vesting Service may elect, in writing, to
remain under the vesting schedule in effect prior to the amendment. Such election must be made in writing
within 60 days after the latest of (a) adoption of the amendment, (b) the effective date of the amendment, or
(c) issuance by the Employer or Committee of written notice of the amendment.
12.02 Merger, Consolidation or Transfer
The Plan may not be merged or consolidated with, and its assets or liabilities may not be transferred to, any
other plan unless each person entitled to benefits under the Plan would, if the resulting plan were then
terminated, receive a benefit immediately after the merger, consolidation or transfer which is equal to or
greater than the benefit he would have been entitled to receive immediately before the merger, consolidation
or transfer if the Plan had then terminated.
12.03 Additional Participating Employers
(a) If any company is or becomes a subsidiary of or associated with an Employer, the Board of Directors
may include the employees of that subsidiary or associated company in the participation of the Plan
upon appropriate action by that company necessary to adopt the Plan. In that event, or if any
persons become Employees of an Employer as the result of merger or consolidation or as the result of
acquisition of all or part of the assets or business of another company, the Board of Directors
shall determine to what extent, if any, previous service with the subsidiary, associated or other
company shall be recognized under the Plan, but subject to the continued qualification of the trust
for the Plan as tax-exempt under the Code.
(b) Any subsidiary or associated company may terminate its participation in the Plan upon appropriate
action by it. In that event the funds of the Plan held on account of Participants in the employ of
that company, and any unpaid balances of the Accounts of all Participants who have separated from
the employ of that company, shall be determined by the Committee. Those funds shall be distributed
as provided in Section 12.04 if the Plan should be terminated, or shall be segregated by the Trustee
as a separate trust, pursuant to certification to the Trustee by the Committee, continuing the Plan
as a separate plan for the employees of that company under which the board of directors of that
company shall succeed to all the powers and duties of the Board of Directors, including the
appointment of the participants of the Committee.
12.04 Termination of Plan
(a) The Board of Directors may terminate the Plan or completely discontinue contributions under the Plan
for any reason at any time, subject to any restrictions imposed by collective bargaining agreements
covering Employees. In case of termination or partial termination of the Plan or complete
discontinuance of Employer contributions to the Plan, the rights of affected Participants to their
Accounts under the Plan as of the date of the termination or discontinuance shall be
nonforfeitable. The total amount in each Participant's Accounts shall be distributed, as the
Committee shall direct, to him or for his benefit or continued in trust for his benefit.
Distribution of a Participant's Accounts pursuant to this Section shall not limit a Participant's
right to obtain distribution of his Accounts in the forms of payment described in Section 9.02.
Further, the distribution of Plan Accounts shall be made in accordance with the Participant and
spousal consent requirements of Section 411(a)(11) and Section 417 of the Code to the extent such
provisions are applicable to Accounts having a value of more than $3,500, for distributions made in
any Plan Year beginning before January 1, 1998 and $5,000 for distributions made in any Plan Year
beginning after December 31, 1997.
(b) Upon termination of the Plan, Deferred Cash Contributions, with earnings thereon, shall only be
distributed to Participants if (i) neither the Employer nor an Affiliated Employer establishes or
maintains a successor defined contribution plan and (ii) payment is made to the Participants in the
form of a lump sum distribution (as defined in Section 402(e)(4) of the Code, without regard to
clauses (i) through (iv) of subparagraph (A), subparagraph (B) or subparagraph (H) thereof). For
purposes of this paragraph, a "successor defined contribution plan" is a defined contribution plan
(other than an employee stock ownership plan as defined in Section 4975(e)(7) of the Code ("ESOP")
or a simplified employee pension as defined in Section 408(k) of the Code ("SEP")) which exists at
the time the Plan is terminated or within the 12 month period beginning on the date all assets are
distributed. However, in no event shall a defined contribution plan be deemed a successor plan if
fewer than two percent of the employees who are eligible to participate in the Plan at the time of
its termination are or were eligible to participate under another defined contribution plan of the
Employer or an Affiliated Employer (other than an ESOP or a SEP) at any time during the period
beginning 12 months before and ending 12 months after the date of the Plan's termination.
12.05 Distribution of Accounts Upon a Sale of Assets or a Sale of a Subsidiary
Upon the disposition by the Employer of at least 85 percent of the assets (within the meaning of Section
409(d)(2) of the Code) used by the Employer in a trade or business or upon the disposition by the Employer of
its interest in a subsidiary (within the meaning of Section 409(d)(3) of the Code) before January 1, 2002,
Deferred Cash Contributions, with earnings thereon, may be distributed to those Participants who continue in
employment with the employer acquiring such assets or with the sold subsidiary, provided that (a) the
Employer maintains the Plan after the disposition, (b) the buyer does not adopt the Plan or otherwise become
a participating employer in the Plan and does not accept any transfer of assets or liabilities from the Plan
to a plan it maintains in a transaction subject to Section 414(l)(1) of the Code and (c) payment is made to
the Participant in the form of a lump sum distribution (as defined in Section 402(d)(4) of the Code, without
regard to clauses (i) through (iv) of subparagraph (A), subparagraph (B) or subparagraph (H) thereof).
ARTICLE 13. GENERAL PROVISIONS
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13.01 Nonalienation
Except as required by any applicable law, no benefit under the Plan shall in any manner be anticipated,
assigned or alienated, and any attempt to do so shall be void. However, payment shall be made in accordance
with the provisions of any judgment, decree or order which:
(a) creates for, or assigns to, a spouse, former spouse, child or other dependent of a Participant the
right to receive all or a portion of the Participant's benefits under the Plan for the purpose of
providing child support, alimony payments or marital property rights to that spouse, child or
dependent.
(b) is made pursuant to a State domestic relations law,
(c) does not require the Plan to provide any type of benefit, or any option, not otherwise provided
under the Plan, and
(d) otherwise meets the requirements of Section 206(d) of ERISA, as amended, as a "qualified domestic
relations order," as determined by the Committee.
Any distribution due an alternate payee under a qualified domestic relations order may be made as soon as
practicable following the earliest date specified in such order, or as otherwise permitted under such order
pursuant to an agreement between the Plan and the alternate payee, provided, however, that if the amount of
the distribution exceeds $3,500, for distributions made before January 1, 1998 and $5,000 for distributions
made or on after January 1, 1998, the alternate payee must consent to the distribution.
A Participant's benefits under the Plan shall be offset by the amount the Participant is required to pay the
Plan under the circumstances set forth in Section 401(a)(13)(C) of the Code.
13.02 Conditions of Employment Not Affected by Plan
The establishment of the Plan shall not confer any legal rights upon any Employee or other person for a
continuation of employment, nor shall it interfere with the rights of the Employer to discharge any Employee
and to treat him without regard to the effect which that treatment might have upon him as a Participant or
potential Participant of the Plan.
13.03 Facility of Payment
If the Committee shall find that a Participant or other person entitled to a benefit is unable to care for
his affairs because of illness or accident or is a minor, the Committee may direct that any benefit due him,
unless claim shall have been made for the benefit by a duly appointed legal representative, be paid to his
spouse, a child, a parent or other blood relative or to a person with whom he resides. Any payment so made
shall be a complete discharge of the liabilities of the Plan for that benefit.
13.04 Information
Each Participant, Beneficiary or other person entitled to a benefit, before any benefit shall be payable to
him or on his account under the Plan, shall file with the Committee the information that it shall require to
establish his rights and benefits under the Plan.
13.05 Top-Heavy Provisions
(a) The following definitions apply to the terms used in this Section:
(i) "applicable determination date" means the last day of the later of the first Plan Year or
the preceding Plan Year;
(ii) "top-heavy ratio" means the ratio of (A) the value of the aggregate of the Accounts under
the Plan for key employees to (B) the value of the aggregate of the Accounts under the Plan
for all key employees and non-key employees;
(iii) "key employee" means an employee who is in a category of employees determined in accordance
with the provisions of Section 416(i)(1) and (5) of the Code and any regulations
thereunder, and where applicable, on the basis of the Employee's Statutory Compensation
(defined as set forth in Section 1.42) from the Employer or an Affiliated Employer;
(iv) "non-key employee" means any Employee who is not a key employee;
(v) "applicable Valuation Date" means the Valuation Date coincident with or immediately
preceding the last day of the first Plan Year or the preceding Plan Year, whichever is
applicable;
(vi) "required aggregation group" means any other qualified plan(s) of the Employer or an
Affiliated Employer in which there are participants who are key employees or which
enable(s) the Plan to meet the requirements of Section 401(a)(4) and 410 of the Code; and
(vii) "permissive aggregation group" means each plan in the required aggregation group and any
other qualified plan(s) of the Employer or an Affiliated Employer in which all participants
are non-key employees, if the resulting aggregation group continues to meet the
requirements of Sections 401(a)(4) and 410 of the Code.
(b) For purposes of this Section, the Plan shall be "top-heavy" with respect to any Plan Year if as of
the applicable determination date the top-heavy ratio exceeds 60 percent. The top-heavy ratio shall
be determined as of the applicable Valuation Date in accordance with Section 416(g)(3) and (4) of
the Code and Article 5 of this Plan, and shall take into account any contributions made after the
applicable Valuation Date but before the last day of the Plan Year in which the applicable Valuation
Date occurs. For purposes of determining whether the Plan is top-heavy, the account balances under
the Plan will be combined with the account balances or the present value of accrued benefits under
each other plan in the required aggregation group, and, in the Employer's discretion, may be
combined with the account balances or the present value of accrued benefits under any other
qualified plan in the permissive aggregation group. Distributions made with respect to a Participant
under the Plan during the five-year period ending on the applicable determination date shall be
taken into account for purposes of determining the top-heavy ratio; distributions under plans that
terminated within such five-year period shall also be taken into account, if any such plan contained
key employees and therefore would have been part of the required aggregation group.
For determinations made for Plan Years commencing after December 31, 2001, the "one-year period"
shall be substituted for the "five-year period" except in the case of in-service withdrawals.
(c) The following provisions shall be applicable to Participants for any Plan Year with respect to which
the Plan is top-heavy:
(i) An additional Employer contribution shall be allocated on behalf of each Participant (and
each Employee eligible to become a Participant) who is a non-key employee, and who has not
separated from service as of the last day of the Plan Year, to the extent that the
contributions made on his behalf under Section 3.03 for the Plan Year would otherwise be
less than 3% of his remuneration. However, if the greatest percentage of remuneration
contributed on behalf of a key employee under Sections 3.01 and 3.03 for the Plan Year
would be less than 3%, that lesser percentage shall be substituted for "3%" in the
preceding sentence. Notwithstanding the foregoing provisions of this subparagraph (ii), no
minimum contribution shall be made under this Plan with respect to a Participant (or an
Employee eligible to become a Participant) if the required minimum benefit under Section
416(c)(1) of the Code is provided to him by any other qualified pension plan of the
Employer or an Affiliated Employer. For the purposes of this subparagraph (ii),
remuneration has the same meaning as set forth in Section 3.12(c).
(ii) For Plan Years commencing before January 1, 2000, the denominators of the defined benefit
plan fraction and defined contribution plan fraction described in Section 3.11(e) shall be
determined by substituting the product of 1.0 rather than 1.25 of the applicable dollar
limits.
13.06 Prevention of Escheat
If the Committee cannot ascertain the whereabouts of any person to whom a payment is due under the Plan, the
Committee may, no earlier than five years from the date such payment is due, mail a notice of such due and
owing payment to the last known address of such person, as shown on the records of the Committee or the
Employer. If such person has not made written claim therefor within three months of the date of the mailing,
the Committee may, if it so elects and upon receiving advice from counsel to the Plan, direct that such
payment and all remaining payments otherwise due such person be canceled on the records of the Plan and the
amount thereof applied to reduce the contributions of the Employer. Upon such cancellation, the Plan and the
Trust shall have no further liability therefor except that, in the event such person or his beneficiary later
notifies the Committee of his whereabouts and requests the payment or payments due to him under the Plan, the
amount so applied shall be paid to him in accordance with the provisions of the Plan.
13.07 Written Elections
Any elections, notifications or designations made by a Participant pursuant to the provisions of the Plan
shall be made in writing and filed with the Committee in a time and manner determined by the Committee under
rules uniformly applicable to all employees similarly situated.
13.08 Construction
(a) The Plan shall be construed, regulated and administered under ERISA and the laws of Illinois, except
where ERISA controls.
(b) The masculine pronoun shall mean the feminine wherever appropriate.
(c) The titles and headings of the Articles and Sections in this Plan are for convenience only. In the
case of ambiguity or inconsistency, the text rather than the titles or headings shall control.
13.09 Electronic Communications
Whenever an Employee, Participant, spouse or Beneficiary is required to provide information or perform a
written process, the Committee may, in its discretion, permit or require that electronic means be used. In
addition, meetings of The Committee may be held in person or through electronic or telephonic means or a
combination thereof and written actions of the Committee may be taken using electronic or conventional
means. In the use of electronic communication, the Committee shall follow all guidelines published by the
Department of Labor and the Internal Revenue Service.
IN WITNESS WHEREOF, the Company has caused this document to be signed this ___25__ day of _____February____________,
-- -------------
2002.
UNITED STATES CAN COMPANY
By:_______/s/_Roger B. Farley_____ _
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Its: Senior Vice President, Human Resources
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UNITED STATES CAN COMPANY
SALARIED EMPLOYEES SAVINGS AND RETIREMENT ACCUMULATION PLAN
APPENDIX
All headquarters and plant salaried employees of U.S. Can Company who have attained age 63 on or before December 31,
1994 are eligible to participate in the United States Can Company Early Buyout Program (the "Program"). An eligible
employee who makes a written election to participate in the Program by December 15, 1994 shall become a participant in
the Program, effective January 1, 1995. A Participant shall receive monthly payments ("Salary Continuation Payments")
for 24 months with the amount dependent on guidelines established by United States Can Company and shall be subject to
the following provisions:
1. A participant in the Program shall continue to be eligible to be a Participant under Section 2.01 of
the Plan, shall be eligible to make an election to make Deferred Cash Contributions and/or After-Tax
Contributions under Sections 3.01 and 3.02 of the Plan and shall be subject to the provisions of the
Plan except as otherwise stated.
2. A participant in the Program shall be credited with Hours of Service for the period of time during
which he receives Salary Continuation Payments on the basis of his regularly scheduled working hours
per week (or per day if he is paid on a daily basis) for the final month in 1994.
3. Compensation with respect to a participant in the Program, shall include Salary Continuation
Payments subject to the provisions of Section 1.13.
SUPPLEMENT A
Transfer of Assets From
Profit Sharing Plan for Employees of Steeltin Can Corporation
1. Introduction; Purpose. Steeltin Can Corporation was merged into the Company on February 28, 1994 and as a
result of such merger the Company became the sponsor and an Employer under the Profit Sharing Plan for
Employees of Steeltin Can Corporation ("Steeltin Profit Sharing Plan"). The Steeltin Profit Sharing Plan will
be terminated effective March 31, 1994 ("Termination Date"). The purpose of this Supplement A is to provide
for the transfer of the Elective Contribution Accounts of the Steeltin Profit Sharing Plan to the Plan.
Participants of the Steeltin Profit Sharing Plan on the Termination Date shall be referred to herein as
"Steeltin Participants."
2. Participation. Until their entire benefits are distributed, Steeltin Participants (or, in the event of their
deaths, their beneficiaries) whose Elective Contribution Accounts are transferred to the Plan pursuant to
paragraph 3 of this Supplement A shall be treated as Participants or beneficiaries, as the case may be, under
the Plan.
3. Transfer of Assets. Assets of the Steeltin Profit Sharing Plan will be transferred to the Plan in accordance
with the following provisions of this Supplement A:
(a) Transfer of Fund. The assets of the funding vehicle for the Steeltin Profit Sharing Plan that are
attributable to the Elective Contribution Accounts shall be transferred to the Trust Fund of this
Plan as soon as practicable after the Termination Date and the date the Internal Revenue Service
determines that the Steeltin Profit Sharing Plan meets the requirements of Section 401 (a) of the
Code. In no event, however, shall such transfer occur earlier than thirty (30) days after the
providing of any notice of such transfer that may be required by Section 6058(b) of the Code.
(b) Determination and Transfer of Account Balances. As soon as practicable after the date on which the
transfer can be made, and after all required adjustments have been made for investment gains and
losses, the Elective Contribution Accounts under the Steeltin Profit Sharing Plan shall be
transferred to the Plan and credited to the new Steeltin Elective Contribution Accounts maintained
for the Steeltin Participants under the Plan. The Steeltin Participants shall be fully vested in
such accounts. Such accounts shall be invested pursuant to Section 4.02. The transferred amounts
shall include accounts maintained under the Steeltin Profit Sharing Plan for Steeltin Participants
on the Termination Date whose employment with an Employer and all controlled group members
previously had terminated but who had not received distribution of their entire benefits under the
Steeltin Profit Sharing Plan at the time of such termination.
4. Distribution. The account of each Steeltin Participant which is transferred to the Plan under paragraph 3
above shall thereafter be held and distributed in accordance with the provisions of the Plan.
5. Use of Terms. Terms used in this Supplement A with respect to the Plan or the Steeltin Profit Sharing Plan
shall, unless defined in this Supplement A, have the meanings of those terms as defined in the Plan or the
Steeltin Profit Sharing Plan, as the case may be.
US Can Inactive
Filed: 26 Mar 03, 12:00am