Exhibit 10(4)
THE MEAD CORPORATION
EXCESS EARNINGS BENEFIT PLAN
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TABLE OF CONTENTS
SECTION 1 - GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 History and Purpose. . . . . . . . . . . . . . . . . . . 1
1.2 Plan Funding and Administration. . . . . . . . . . . . . 1
1.3 Applicable Law . . . . . . . . . . . . . . . . . . . . . 2
1.4 Gender and Number. . . . . . . . . . . . . . . . . . . . 2
1.5 Assignment . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Plan Year. . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2 - PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . 2
2.1 Eligibility for Participation. . . . . . . . . . . . . . 2
2.2 Participation Not Contract of Employment . . . . . . . . 2
SECTION 3 - DETERMINATION OF EXCESS EARNINGS BENEFIT AMOUNT. . . . . 2
3.1 Excess Earnings Benefit Amount . . . . . . . . . . . . . 2
3.2 Unlimited Accrued Benefit. . . . . . . . . . . . . . . . 3
3.3 Qualified Accrued Benefit. . . . . . . . . . . . . . . . 3
SECTION 4 - DISTRIBUTION OF EXCESS EARNINGS BENEFIT. . . . . . . . . 4
4.1 Distribution to a Participant. . . . . . . . . . . . . . 4
4.2 Distribution to a Surviving Spouse . . . . . . . . . . . 4
4.3 Distribution in Discretionary Form . . . . . . . . . . . 4
4.4 Distribution to a Beneficiary. . . . . . . . . . . . . . 5
4.5 ECAP Credit in Lieu of Distribution. . . . . . . . . . . 6
64.6Distribution to Incapacitated Persons. . . . . . . . . . 6
SECTION 5 - DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . 6
5.1 Notice of Denial . . . . . . . . . . . . . . . . . . . . 6
5.2 Notice of Appeal . . . . . . . . . . . . . . . . . . . . 6
5.3 Decision on Appeal . . . . . . . . . . . . . . . . . . . 7
SECTION 6 - AMENDMENT AND TERMINATION. . . . . . . . . . . . . . . . 7
THE MEAD CORPORATION EXCESS EARNINGS BENEFIT PLAN
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SECTION 1 - GENERAL
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1.1 History and Purpose. Effective January 1, 1976, THE MEAD
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CORPORATION, an Ohio corporation ("Mead") established The Mead Excess
Benefits Plan (the "Prior Plan"). The Prior Plan was subsequently
amended and restated, effective May 1, 1979, amended, effective November
1, 1986, and again amended and restated, effective October 27, 1988.
The following provisions constitute an amendment, restatement, and
continuation of the portion of the Prior Plan that is intended to be a
"top hat plan" (within the meaning of the Employee Retirement Income
Security Act of 1974 ("ERISA")) into a separate plan which shall be
effective January 1, 1996, and shall be known as THE MEAD CORPORATION
EXCESS EARNINGS BENEFIT PLAN (the "Plan"). The sole purpose of the Plan
is to supplement the amount of the "Pension" (as defined in the Mead
Retirement Plan) payable to or on account of any employee or former
employee of Mead or of any "Affiliate" (as defined below) from The Mead
Retirement Plan to the extent, if any, that the amount of his Pension is
limited by application of the provisions of section 401(a)(17) of the
Internal Revenue Code of 1986 (the "Code"). Mead and such Affiliates
are sometimes referred to below individually, as an "Employer" and,
collectively, as the "Employers." The term "Affiliate" means any entity
during the period that it is, along with Mead, a member of a controlled
group of corporations, a controlled group of trades and businesses, an
affiliated service group or any other entity designate by the Secretary
of the Treasury as described in sections 414(b), 414(c), 414(m), and
414(o), respectively, of the Code.
1.2 Plan Funding and Administration. The benefits payable under the Plan
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are unfunded and are payable, when due, from the general assets of the
Employers or, in the sole discretion of the Compensation Committee of
the Board of Directors of Mead (the "Committee"), from the assets of a
benefit trust, the assets of which shall be subject to the claims of the
unsecured general creditors of the Employers. Notwithstanding the
foregoing, in the event of a "Potential Change in Control" (as defined
in Section 3.02 of Benefit Trust Agreement, a trust agreement
established January 9, 1987 by and between Mead and Society Bank,
National Association) the provisions of Benefit Trust Agreement shall
become operative with respect to the Plan. The Plan shall be
administered by the Vice-President-Human Resources of Mead (the
"Administrator") who shall have the rights, powers and duties with
respect to the Plan that are hereinafter set forth.
1.3 Applicable Law. The Plan will be construed and administered in
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accordance with the laws of the State of Ohio to the extent that those
laws are not preempted by the laws of the United States of America.
1.4 Gender and Number. Where the context admits, words in any gender
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will include any other gender, words in the singular will include the plural
and words in the plural will include the singular.
1.5 Assignment. No Plan right or interest of any person under the Plan
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shall be assignable or transferable, in whole or in part, either
directly or otherwise, including without limitation thereto, by
execution, levy, attachment,
garnishment, pledge or in any other manner, but excluding transfers by
reason of death or mental incompetency; no attempted assignment or
transfer thereof shall be effective; and no such right or interest shall
be liable for, or subject to, any obligation or liability of any person.
1.6 Plan Year. The term "Plan Year" means the calendar year.
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SECTION 2 - PARTICIPATION
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2.1 Eligibility for Participation. An employee shall become a
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Participant in the Plan on the date on which he first has an "Excess
Earnings Benefit" (as defined in subsection 3.1).
2.2 Participation Not Contract of Employment. The Plan does not
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constitute a contract of employment and participation in the Plan will
not give any employee the right to be retained in the employ of the
Employers or Affiliates nor give any person any right or claim to any
benefit under the terms of the Plan unless such right or claim has
specifically accrued under the terms of the Plan.
SECTION 3 - DETERMINATION OF EXCESS EARNINGS BENEFIT AMOUNT
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3.1 Excess Earnings Benefit Amount. A Participant's "Excess Earnings
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Benefit" as at any date is an amount, if any, payable under this Plan
commencing on the Participant's "Normal Retirement Date" (as defined in
The Mead Retirement Plan), which, when expressed as an annual amount
payable as a single life annuity, is equal to the amount determined by
reducing the amount of his "Unlimited Accrued Benefit" (as defined in
subsection 3.2) as of that date by an amount equal to the sum of:
(a) the amount of his "Qualified Accrued Benefit" (as defined in
subsection 3.3) as of that date; and
(b) the amount of his "Section 415 Excess Benefit" (determined
in accordance with the provisions of The Mead Corporation
Section 415 Excess Benefit Plan).
Notwithstanding the foregoing provisions of this subsection, if a
Participant continues in the employ of the Employers and Affiliates
after his Required Beginning Date (as defined in The Mead Retirement
Plan), the amount of his Excess Earnings Benefit shall be recomputed as
of the last day of each Plan Year, beginning with the Plan Year during
which the Participant's Required Beginning Date occurs, taking into
account amounts previously distributed to him under the Plan. If any
such recomputation results in an additional Excess Earnings Benefit
amount, that amount shall be distributed to him in accordance with
paragraph 4.1(b).
3.2 Unlimited Accrued Benefit. A Participant's "Unlimited Accrued
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Benefit" as at any date is an amount equal to the amount of his "Accrued
Benefit" (as determined in accordance with the provisions of The Mead
Retirement Plan as of that date), computed without regard to:
(a) the limitations of section 415 of the Code;
(b) the amount of any otherwise applicable reduction in the
amount of his Accrued Benefit on account of any amount paid
or payable:
(i) to or on account of the Participant under any other
"qualified" defined benefit pension plan maintained by
any Employer; or
(ii) to an "alternate payee" (as defined in section 414(p)
of the Code); or
(c) the limitation of section 401(a)(17) of the Code; but
(d) by taking into account the amount, if any, that:
(i) the Participant elects to defer under the terms of The
Mead Corporation Executive Capital Accumulation Plan
("EXCAP") for any applicable Plan Year, exclusive of
any portion of a deferral that is attributable to
long-term incentive compensation paid to him;
(ii) the fair market value of each share of common stock of
Mead issued, or deemed issued, to the Participant
(whether or not subject to a risk of forfeiture) in
lieu of cash payment of the Participant's base salary
or short term incentive compensation for any
applicable Plan Year, which value shall be determined
as the closing price of a share of such stock on the
New York Stock Exchange on the date payment is
otherwise due or, if no Mead common stock is traded on
that Exchange on that date for any reason, the next
preceding day on which Mead common stock was traded on
the New York Stock Exchange; and
(iii) any amount paid to the Participant paid to the
Participant in lieu of an annual incentive plan
payment and not deferred by him under EXCAP.
3.3 Qualified Accrued Benefit. A Participant's "Qualified Accrued
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Benefit" as at any date is an amount equal to the amount of his Accrued
Benefit (as determined in accordance with the provisions of The Mead
Retirement Plan as of that date), but computed without regard to the
amounts described in paragraphs 3.2(b)(i), 3.2(b)(ii) and 3.2(d) above,
and limited in amount as required by the requirements of sections
401(a)(17) and 415 of the Code, as set forth in The Mead Retirement Plan.
SECTION 4 - DISTRIBUTION OF EXCESS EARNINGS BENEFIT
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4.1 Distribution to a Participant. Subject to the following provisions
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of the Plan, the "Present Value" (as defined and determined under the
provisions of The Mead Retirement Plan) of the amount of a Participant's
Excess Earnings Benefit shall be distributed to him, in a single lump
sum, as soon as administratively feasible (but not more than 6 months)
after:
(a) the date as of which payment of his Pension is made or
commenced under The Mead Retirement Plan in the case of an
Excess Earnings
Benefit attributable to his period of participation ending
prior to his Required Beginning Date; or
(b) the end of the Plan Year in which a right to an additional
benefit arises in the case of an Excess Earnings Benefit
attributable to any period of participation beginning on his
Required Beginning Date.
Notwithstanding any other provision of the Plan, for purposes of this
Section if a Participant's Excess Earnings Benefit described in
paragraph (a) above is subject to distribution at any date prior to the
Participant's Normal Retirement Date, then the amount of that benefit,
as otherwise determined in accordance with the provisions of subsection
3.1, shall be reduced to reflect early commencement by application of
any reduction factors that are applicable in determining the amount of
the Pension payable to him under The Mead Retirement Plan as of that
date.
4.2 Distribution to a Surviving Spouse. The surviving "Spouse" (as
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defined in The Mead Retirement Plan) of a deceased Participant who is
entitled to receive a Pre-Retirement Survivor Pension (as defined in The
Mead Retirement Plan) shall be entitled to receive a Surviving Spouse
Benefit from this Plan in an amount, if any, equal to the Present Value
of the monthly Pre-Retirement Survivor Pension that she would have
received under the provisions of The Mead Retirement Plan had the
Participant's Accrued Benefit under that Plan been an amount equal to
the amount of his Excess Earnings Benefit. Subject to the following
provisions of the Plan, a Spouse's Surviving Spouse Benefit shall be
distributed to her, in a single lump sum, as soon as administratively
feasible (but not more than 6 months) after the date as of which payment
of her Pre-Retirement Survivor Pension is commenced under The Mead
Retirement Plan.
4.3 Distribution in Discretionary Form. Notwithstanding the provisions
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of subsection 4.1 and 4.2, but subject to the following provisions of
this subsection, the Committee, in its sole discretion, may direct that
the benefits payable in a single lump sum under subsection 4.1 or 4.2 be
paid, beginning when otherwise distributable under either of those
subsections, to the Participant or Surviving Spouse, as the case may be,
in such periodic form as the Committee shall decide. If the Committee
exercises the discretion vested in it by the provisions of the foregoing
sentence, it may, in its sole discretion, thereafter accelerate payments
to the recipient if it is determined (as provided below) that the
Participant or Spouse, as the case may be, has experienced an
"Unforeseeable Emergency" (as defined below), provided that the amount
of any such accelerated payment shall not exceed the amount reasonably
needed to satisfy the recipient's emergency need. The term
"Unforeseeable Emergency" means severe financial hardship to the
Participant or Spouse resulting from a sudden and unexpected illness or
accident of the Participant or Spouse or of his or her "dependent" (as
defined in section 152(a) of the Code), loss of the Participant's or
Spouse's property due to a casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant or Spouse, as the case may be. In
determining whether an Emergency Distribution should be made
consideration may be given to the extent to which his or her
Unforeseeable Emergency can be relieved through reimbursement or
compensation by insurance or otherwise or by liquidation of the
Participant's or Spouse's assets, to the extent the liquidation of such
assets would not itself cause severe financial hardship. A
determination with respect to whether a Participant or Spouse has
experienced an Unforeseeable Emergency shall be made:
(a) in the case of a Participant employed, or last employed, by
an Employer at a salary grade below salary grade 24
(exclusive of an elected officer of an Employer) and of his
Spouse, by the Chairperson of the Committee acting for the
Committee; and
(b) in the case of a Participant employed, or last employed, by
an Employer at salary grade 24 or above or as an elected
officer of an Employer and of his Spouse, by the Committee.
4.4 Distribution to a Beneficiary. If the Committee exercises the
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discretion vested in it by the first sentence of subsection 4.3 with
respect to any distribution payable under subsection 4.1 or 4.2 and the
Participant or Spouse dies prior to receiving periodic payments in an
aggregate amount equal to the Present Value of his Excess Earnings or
Surviving Spouse Benefit, as the case may be, determined as of the date
as of which periodic payments commenced, the undistributed portion of
the Present Value shall be distributed, in a single lump sum, to a
"Beneficiary" (as defined below). The term "Beneficiary" means, with
respect to any married Participant, his Spouse and,with respect to any
unmarried Participant or Spouse, such natural or legal person or persons
as may be designated by him (who may be designated contingently or
successively). A Beneficiary designation will be effective only when a
signed and dated beneficiary designation form is filed with the
Committee while the Participant or Spouse is alive, which form will
cancel any beneficiary designation form signed and filed earlier. If a
Participant or Spouse is not survived by any Beneficiary, the Committee
shall make distribution to the legal representative or representatives
of the estate of the Participant or Spouse, as the case may be.
4.5 EXCAP Credit in Lieu of Distribution. With the approval of the
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Committee, which approval shall automatically be revoked by the
Committee's exercise of its discretion under subsection 4.3, a
Participant who is also a Participant in the EXCAP may elect to waive
his right to receive any amount otherwise distributable to him pursuant
to the provisions of subsection 4.1 and to have the same amount credited
for his benefit (as of the date distribution would have been made) and
subsequently distributed to him under the terms of the EXCAP. An
election made by a Participant in accordance with the provisions of this
subsection must be in such written form as the Committee shall decide
and filed with the Plan Administrator at least one year in advance of
the date of the Participant's termination of employment with the
Employers and Affiliates. An election made by a Participant pursuant to
the foregoing provisions of this subsection shall be revocable by him at
any time that is at least one year prior to the date of his termination
of employment with the Employers and Affiliates. In no event shall this
subsection be applicable to any amount distributable to a Participant's
surviving Spouse pursuant to the provisions of subsection 4.2.
4.6 Distribution to Incapacitated Persons. Notwithstanding any other
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provision of the Plan, if a person entitled to a distribution under the
Plan is determined by a court of competent jurisdiction to be
physically, mentally or legally incapacitated and unable to manage his
financial affairs and claim is made by a conservator or other person
legally charged by such court with the care of his person, the Committee
shall make distribution to such conservator or other person. Any
distribution made in accordance with this subsection shall fully acquit
and discharge all persons from all further liability on account thereof.
SECTION 5 - DISPUTE RESOLUTION
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5.1 Notice of Denial. If any dispute arises with respect to a
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Participant, Spouse or Beneficiary (a "Claimant") under the Plan, the
Administrator will provide the Claimant with a written notice of its
resolution of the dispute setting forth:
(a) the provisions of the Plan upon which the resolution
was based; and
(b) an explanation of this claims procedure.
If the Administrator rejects a Claimant's application for failure to
furnish certain necessary materials or information, the written notice
to the Claimant will explain what additional material is needed and why,
and advise the Claimant that he may refile a proper application. In the
event that the Administrator fails to take any action on the Claimant's
initial application within 90 days after receipt, the application will
be deemed denied, and the Claimant's appeal rights under subsection 5.2
will be in effect as of the end of such period.
5.2 Notice of Appeal. Within 60 days after the receipt of the
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Administrator's notice of resolution, the Claimant may file a written
notice of appeal of the resolution with the "Claims Reviewer" (as
defined below). In addition, within such appeal period, the Claimant
may review pertinent documents at such reasonable times and places as
the Claims Reviewer may specify and may submit any additional written
material pertinent to the appeal not set forth in the notice of appeal.
The appeal shall be determined by the Claims Reviewer, and the Claimant
shall be entitled to appear before the Claims Reviewer to present his
claim. The term "Claims Reviewer" means:
(a) in the case of a Participant employed, or last
employed, by an Employer at a salary grade below
salary grade 24 (exclusive of an elected officer of an
Employer) and of his Spouse or Beneficiary, the
Benefit Appeals Committee, a committee appointed by
the Corporate Benefits Committee of Mead; and
(b) in the case of a Participant employed, or last
employed, by an Employer at salary grade 24 or above
or as an elected officer of an Employer and of his
Spouse or Beneficiary, the Chairperson of the
Committee.
5.3 Decision on Appeal. The Benefit Appeals Committee or the
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Chairperson of the Committee, as the case may be, will make a written
decision on the appeal not later than 60 days after its receipt of the
notice of appeal unless special circumstances require an extension of
time, in which case a decision will be given as soon as possible, but
not later that 120 days after receipt of the notice of appeal. The
decision on the appeal will be in writing and shall include specific
reasons for the decision, making specific reference to the provision of
the Plan upon which the decision was based.
SECTION 6 - AMENDMENT AND TERMINATION
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Mead, by action of the Committee, reserves the right to amend the
Plan at any time. The Plan will terminate on the date on which it is
terminated by Mead's Board of Directors.
Neither an amendment or termination of the Plan shall, of itself, reduce
the amount of a Participant's Excess Earnings Benefit, which amount
shall continue to be adjusted from time to time pursuant to the
provisions of Section 3 until distributed in accordance with the
provisions of Section 4.