Exhibit 10.xxxxi
THE MEAD CORPORATION
EXECUTIVE CAPITAL ACCUMULATION PLAN
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(As Amended and Restated Effective January 1, 2000)
TABLE OF CONTENTS
SECTION 1 - GENERAL.......................................................... 1
1.1 Purpose and Effective Date.................................... 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
1.7 Supplements................................................... 2
1.8 Plan Elections................................................ 2
SECTION 2 - PARTICIPATION.................................................... 3
2.1 Participation Requirement..................................... 3
2.2 Continued Participation....................................... 3
2.3 Participation Not Contract of Employment...................... 3
SECTION 3 - DEFERRAL OF INCOME............................................... 4
3.1 Deferred Income Amount........................................ 4
3.2 Certain Conditions Relating to Income Deferral................ 4
3.3 Annual Election to Participate................................ 6
3.4 Additional Elections to Defer................................. 6
SECTION 4 - PARTICIPANT ACCOUNTS............................................. 7
SECTION 5 - ROLLOVERS........................................................ 7
5.1 ICEP Rollovers................................................ 7
5.2 SERP Rollovers................................................ 7
5.3 Excess Plan Rollovers......................................... 7
5.4 415 Plan Rollovers............................................ 8
SECTION 6 - CREDITING OPTIONS................................................ 8
6.1 Establishment of Crediting Options............................ 8
6.2 Participant Change of Crediting Options....................... 9
SECTION 7 - ADJUSTMENT OF PARTICIPANT ACCOUNTS............................... 9
7.1 Adjustment of Participants' Participant Accounts.............. 9
7.2 Matching Amount............................................... 10
7.3 Quarterly Statement of Participant Accounts Balances.......... 10
SECTION 8 - DISTRIBUTION OF PARTICIPANT ACCOUNTS TO PARTICIPANTS............. 11
8.1 Annual Distributions.......................................... 11
8.2 Interim Distributions......................................... 11
8.3 Emergency Distributions....................................... 12
8.4 Elective Distributions........................................ 13
8.5 Change in Control Distributions............................... 13
8.6 Withholding................................................... 13
SECTION 9 - DISTRIBUTION OF PARTICIPANT ACCOUNTS TO BENEFICIARIES............ 13
9.1 Distribution to Beneficiary................................... 13
9.2 Beneficiary................................................... 14
SECTION 10 - DISTRIBUTIONS TO INCAPACITATED PERSONS.......................... 14
SECTION 11 - SECTION 162(m) LIMITATION ON DISTRIBUTIONS...................... 14
11.1 Tentative Section 162(m) Determination........................ 14
11.2 Tentative Determination Amount Not in Excess of 162(m) Limit.. 15
11.3 Tentative Determination Amount in Excess of 162(m) Limit...... 15
11.4 Change in Control............................................. 16
11.5 Certain Definitions........................................... 18
SECTION 12 - DISPUTE RESOLUTION.............................................. 19
12.1 Notice of Denial.............................................. 19
12.2 Notice of Appeal.............................................. 19
12.3 Decision on Appeal............................................ 19
SECTION 13 - AMENDMENT AND TERMINATION....................................... 20
EXHIBIT I - CREDITING OPTIONS
SUPPLEMENT A
THE MEAD CORPORATION
EXECUTIVE CAPITAL ACCUMULATION PLAN
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SECTION 1 - GENERAL
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1.1 Purpose and Effective Date. Effective January 1, 1995, The Mead
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Corporation ("Mead"), an Ohio corporation, established The Mead Corporation
Executive Capital Accumulation Plan (the "Plan"). The Plan was subsequently
amended from time to time and the following provisions constitute a further
amendment, restatement and continuation of the Plan, effective January 1, 2000.
The purpose of the Plan continues to be to provide recurring annual
opportunities for the deferment of payment of certain amounts otherwise
currently payable to its "Eligible Employees" (as defined below) and those of
any "Affiliate" (as defined below) who meet the requirements to become a
"Participant" set forth in subsection 2.1. Mead and such Affiliates are
sometimes referred to below, individually, as an "Employer" and, collectively,
as the "Employers". The term "Eligible Employee" means any employee of an
Employer:
(a) who is employed in the United States of America or to whom
the Plan has been extended by the Compensation Committee of
the Board of Directors of Mead (the "Committee") or its
delegate; and
(b) who either:
(i) is compensated by his Employer at a salary grade at
least equivalent to Mead's salary grade 19; or
(ii) has compensation that exceeds an amount equal to the
amount taken into account for purposes of section 415
of the Internal Revenue Service Code of 1986 (the
"Code") and who is designated by the Committee or its
delegate as an Eligible Employee, but only for such
period as the Committee or its delegate shall decide.
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
designated 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
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Plan are unfunded and are payable, when due, from the general assets of Mead;
provided, however, that Mead, in its
discretion, may establish or maintain a trust to pay such amounts, which trust
shall be subject to the claims of Mead's unsecured general creditors in the
event of Mead's bankruptcy or insolvency; and provided, further, that Mead shall
remain responsible for the payment of any such amounts which are not so paid by
any such trust. The Plan shall be administered by a "Plan Administrator" who is
appointed by, and serves at the pleasure of, the Committee and who has the
rights, powers and duties with respect to the Plan that are hereinafter set
forth and such other rights, powers and duties as are reasonably necessary for
the administration of the Plan. As of the effective date, the Plan Administrator
is the Vice President-Human Resources of Mead except as to distributions and
dispute resolution matters relating to him.
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
the plural will include the singular.
1.5 Assignment. No Plan right or interest of any Participant or
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Beneficiary 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 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 Participant or Beneficiary;
except that a Participant may direct that payments be made during his lifetime,
when due, to a trust established by him and evidenced to his Employer to be a
trust treated as a grantor trust within the meaning of section 671 of the Code.
1.6 Plan Year. The term "Plan Year" means the calendar year.
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1.7 Supplements. The provisions of the Plan, as applied to all or
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any group of Participants, may be modified or supplemented by "Supplements" to
the Plan. Any such Supplement shall form a part of the Plan as of its effective
date and be attached thereto. Effective as of January 1, 2000 a Supplement A
forms a part of the Plan. Supplement A modifies certain investment, accounting
and distribution provisions of the Plan as it applies to "Supplement A
Individuals" (as defined in Supplement A).
1.8 Plan Elections. Except as otherwise specifically provided, any
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election required or permitted to be made under the
Plan will be deemed to have been properly made and filed with the Plan
Administrator if made by such method as the Plan Administrator may require.
SECTION 2 - PARTICIPATION
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2.1 Participation Requirement. An employee of the Employers who is
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a Participant in the Plan on December 31, 1999 will continue as such, subject to
the terms and conditions of the Plan. Each other employee of the Employers will
become a Participant in the Plan as of January 1, 2000, or on any subsequent
January 1, if on such January 1 he:
(a) is an Eligible Employee;
(b) has executed an Annual Participation Election form (as
described in subsection 3.3); and
(c) has executed such forms as the Plan Administrator may
determine necessary to permit Mead (at its discretion
and expense) to maintain a policy of insurance on his
life under the terms of which Mead shall be the
policyholder, owner and beneficiary.
Each employee of the Employers who becomes an Eligible Employee on or after
January 1, 2000 will become a Participant in the Plan (on a prospective basis)
on the earlier of the date on which the Plan Administrator has received his
executed Annual Participation Election form if that date is within 30 days of
the date he becomes an Eligible Employee or on any subsequent January 1 if he
then meets the requirements set forth in paragraphs (a) through (c) above.
2.2 Continued Participation. Until distribution of the entire
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balances of a Participant's "Participant Accounts" (as described in Section 4)
has been made, a Participant or, in the event of his death, any "Beneficiary"
(as defined in subsection 9.2) of any of the Participant's undistributed
Participant Accounts, as the case may be, will be considered and treated as a
Participant for all purposes of the Plan, except that any additional
compensation (other than severance benefits) deferral or "401(k) Top-Up
Contribution" (each as described in subsection 3.1) shall cease:
(a) as of the first day of the month next following the
date on which he is no longer an Eligible Employee; and
(b) for any period during which his right to make
"Before-tax Contributions" under The Mead 401(k) Plan
(the "401(k) Plan") is suspended by reason of
a Financial Hardship distribution made to him under the
terms of that plan.
2.3 Participation Not Contract of Employment. The Plan does not
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constitute a contract of employment and participation in the Plan does not give
any employee the right to be retained in the employ of the Employers 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 - DEFERRAL OF INCOME
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3.1. Deferred Income Amount. Subject to the provisions of
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subsection 3.2, by entering into a written Annual Election to Participate as
provided by subsection 2.1, a Participant may elect:
(a) to defer a portion of the amount of the base salary,
the annual incentive pay (which, for purposes of the
Plan, shall include any spot bonus) and the cash
portion of the long-term incentive pay that would
otherwise be payable to him for services performed
during the period that the Annual Election to
Participate is effective;
(b) whether or not he has made an election pursuant to
paragraph (a) above, a Participant who has elected to
make the maximum Before-tax Contribution that he is
permitted under the 401(k) Plan for the period for
which the Annual Election to Participate is effective
may elect to make a 401(k) Top-Up Contribution for
that period; and
(c) to defer a retention bonus or a severance benefit.
The term "401(k) Top-Up Contribution" means an
additional deferral amount which begins in the month
that the maximum Before-tax contribution allowed
under the 401(k) Plan is reached. The monthly amount
of the additional deferral is calculated by
multiplying the deferral percentage elected under the
401(k) Plan by the salary and incentive compensation
that would be eligible for Before-tax Contributions
to the 401(k) Plan (but for section 402(g) of the
Code and any 401(k) Plan limitations) for the month
and subtracting from such product the amount, if any,
of Before-tax Contributions to the 401(k) Plan for
such month. The deferral percentage used for purposes
of the 401(k) Top-Up Contribution is the percentage
currently elected under the 401(k) Plan for
Before-tax Contributions. Subject to the
provisions of paragraph 7.1(d), a Participant's
401(k) Top-Up Contribution and a portion of his other
additional deferral during any month shall be
credited with a "Matching Amount" (as described in
subsection 7.2).
3.2 Certain Conditions Relating to Income Deferral. Deferrals of income
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permitted by subsection 3.1 are subject to the following:
(a) The amount of a Participant's annual base salary
deferral:
(i) shall not exceed 80 percent of the amount of
that salary, determined as of the last day
of the month during which the election is
made;
(ii) shall, at a Participant's election made on
his written Annual Election to Participate,
be automatically increased by an amount
equal to all or any part of the amount of
the income realized by the Participant on
the exercise of non-qualified stock options
and the exercise of incentive stock options
immediately followed by the sale of the
underlying shares, subject to the
limitations of paragraph (i) next above and
to the following:
(A) the amount of increased deferral
shall:
(1) not exceed an amount equal
to the Participant's
remaining unpaid annual
base salary for the year of
exercise;
(2) be made in equal monthly
increments, beginning with
the calendar month next
following the month of
exercise of the stock
option and continuing for
the remainder of the
calendar year;
(B) a Participant may not elect an
increased deferral with respect to
income realized on account of his
exercise of a stock option during
the month of December of any
calendar year; and
(C) if a Participant is subject to
stock ownership guidelines
established by Mead, the increased
deferral
contemplated by this paragraph
3.2(a) is conditioned on the
Participant's conformance with
those guidelines.
(b) a Participant may defer up to 80 percent of the
amount of his annual incentive pay and of any spot
bonus paid in lieu of incentive pay;
(c) a Participant may defer up to 100 percent of the
amount of the cash portion of his long-term incentive
pay, spot bonuses (other than spot bonuses paid in
lieu of incentive pay), retention bonuses and
severance benefits;
(d) all deferrals shall be expressed in multiples of 1
percent; and
(e) in no event shall any portion of the amount of any
excess Before-tax Contribution returned to a
Participant in accordance with the terms of the
401(k) Plan be subject to deferral under this Plan.
3.3 Annual Election to Participate. The term "Annual Election to
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Participate" means a written agreement, in a form furnished by the Plan
Administrator, entered into by and between a Participant and his Employer with
respect to a calendar year and setting forth:
(a) the deferral percentages elected by the Participant
in accordance with paragraphs 3.1(a) and (b) for that
calendar year;
(b) the percentage of his total deferral that is
allocated to each of the "Crediting Options" (as
described in subsection 6.1) selected by him;
(c) the "Distribution Period" (as defined below) that he
elects to be applicable with respect to the amounts
deferred pursuant to that Annual Election to
Participate and, if applicable, the "Interim
Distribution" amount or percentage that he elects to
have applicable to such amounts as permitted by
subsection 8.2; and
(d) subject to the provisions of paragraph 8.1(b), the
calendar year in which the Distribution Period is to
commence.
Each Annual Election to Participate shall be irrevocable by the Participant
after the last day of the calendar month preceding its effective date. The term
"Distribution Period" means, with
respect to any Participant Account, a period of 5, 10, 15 or 20 calendar years
as elected by the Participant for whom the Account is maintained.
3.4 Additional Elections to Defer. A written agreement, in a form
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furnished by the Plan Administrator, can be entered into by and between a
Participant and his Employer to defer amounts listed in paragraph 3.1(c). The
election to defer any such amount must be made by one of the following dates
that is applicable:
(a) with respect to retention bonuses, within 30 days
after the employee is notified that he is eligible
for such bonus, but before such amount becomes
payable; and
(b) with respect to a severance benefit, before such
benefit has been agreed.
SECTION 4 - PARTICIPANT ACCOUNTS
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For each calendar year, the Plan Administrator shall cause a
Participant Account to be established and maintained by Mead in the name of each
Participant to reflect the amount of any deferrals that are the subject of the
Participant's Annual Election to Participate for that calendar year and of any
Matching Amounts attributable thereto. A Participant's Participant Accounts
shall be periodically adjusted as provided in subsection 7.1 and shall be
distributed to a Participant in accordance with the provisions of Section 8 or,
in the event of the Participant's death, to his Beneficiary in accordance with
the provisions of Section 9.
SECTION 5 - ROLLOVERS
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5.1 ICEP Rollovers. Notwithstanding any provision of the Plan to the
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contrary, a Participant for whose benefit a balance is maintained under the
Incentive Compensation Election Plan (the "ICEP") may elect, during December,
1994, to have that balance transferred to the Plan and credited to a separate
Participant Account (to be identified as his "ICEP Participant Account")
established hereunder as of January 1, 1995, subject to the following:
(a) In no event may a Participant elect to transfer to
this Plan any amount credited under the Supplement to
the ICEP.
(b) No ICEP rollover to the Plan shall be permitted after
January 1, 1995.
(c) A Participant's Distribution Period with respect to
his ICEP Participant Account shall commence on the
date on which payment of his balance under the ICEP
would have commenced.
5.2 SERP Rollovers. Notwithstanding any provision of the Plan to the
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contrary, if a Participant who is also a participant under The Mead Corporation
Supplemental Executive Retirement Plan (the "SERP") has elected, at the time and
in the manner permitted by the SERP, to have any amount otherwise payable to him
under the terms of the SERP transferred to this Plan and credited to a separate
Participant Account then such an Account (to be identified as his "SERP
Participant Account"), will be established hereunder as of the date payment
would have been made to him under the provisions of the SERP, subject to the
Participant's entering into an agreement setting forth the matters described in
paragraphs 3.3(b) through (d) of this Plan.
5.3 Excess Plan Rollovers. Notwithstanding any provision of the Plan
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to the contrary, if a Participant who is also a participant under The Mead
Corporation Excess Earnings Benefit Plan (the "Excess Plan") has elected, at the
time and in the manner permitted by the Excess Plan, to have any amount
otherwise payable to him under the terms of the Excess Plan transferred to this
Plan and credited to a separate Participant Account then such an Account (to be
identified as his "Excess Plan Participant Account") will be established
hereunder as of the date payment would have been made to him under the
provisions of the Excess Plan, subject to the Participant's entering into an
agreement setting forth the matters described in paragraphs 3.3(b) through (d)
of this Plan.
5.4 415 Plan Rollovers. Notwithstanding any provision of the Plan to
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the contrary, if a Participant who is also a participant under The Mead
Corporation Section 415 Excess Benefit Plan (the "415 Plan") has elected, at the
time and in the manner permitted by the 415 Plan, to have any amount otherwise
payable to him under the terms of the 415 Plan transferred to this Plan and
credited to a separate Participant Account then such an Account (to be
identified as his "415 Plan Participant Account") will be established hereunder
as of the date payment would have been made to him under the provisions of the
415 Plan, subject to the Participant's entering into an agreement setting forth
the matters described in paragraphs 3.3(b) through (d) of this Plan.
SECTION 6 - CREDITING OPTIONS
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6.1 Establishment of Crediting Options. The Committee shall designate
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"Crediting Options" (in such number and of such asset character as it shall
decide), the investment experience of which shall be applied in adjusting
Participants' Participant Accounts, as provided in subsection 7.1. The Crediting
Options
available as of January 1, 2000 are set forth on Exhibit I of the Plan. On
advance written notice to the Participants, the Committee may cause any
Crediting Option to be prospectively deleted and may designate other Crediting
Options. In no event shall the assets of a Crediting Option be constituted of
securities of any Employer or Affiliate. Should any Employer determine to invest
any of its funds in the asset or assets constituting a Crediting Option, amounts
representing such investment shall be the sole property of that Employer and
shall be subject to the claims of its general creditors. No Participant or
Beneficiary shall have any claim or right with respect to any such amounts.
Notwithstanding the foregoing provisions of this subsection 6.1, upon and after
the occurrence of a "Change in Control" (as described in subsection 11.4), the
Committee shall have no power to eliminate any Crediting Option which was
available immediately prior to the Change in Control and, if any Crediting
Option shall be eliminated through circumstances beyond the control of the
Committee, the Committee shall immediately add a Crediting Option which will
provide an investment return equal to one-hundred-twenty percent (120%) of the
long-term Federal interest rate determined monthly under section 1274(d) of the
Code, compounded semi-annually.
6.2 Participant Change of Crediting Options. A Participant may elect:
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(a) with respect to amounts to be credited to any
Participant Account on and after that day pursuant to
subsection 3.1, the portion (expressed as a multiple
of 1 percent) thereof that is to be adjusted pursuant
to subsection 7.1 to reflect the investment
experience of any Crediting Option (referred to below
as an "Adjustment Portion"); and
(b) that all or a portion (expressed as a multiple of 1
percent) of the amount of the aggregate balances of
the Participant Accounts then maintained for his
benefit that constitutes an Adjustment Portion be
changed to another Adjustment Portion.
SECTION 7 - ADJUSTMENT OF PARTICIPANT ACCOUNTS
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7.1 Adjustment of Participants' Participant Accounts. As of each
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"Accounting Date" (as defined below), the Plan Administrator shall cause each
Participant Accounts to be adjusted as follows:
(a) first, by charging to the proper Participant Accounts
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of each Participant the amount of any distribution
made to, or on account of, the Participant from the
Account since the last
preceding Accounting Date and with the amount of any
forfeiture resulting from an Elective Distribution
made to him pursuant to the provisions of subsection
8.4, which charges shall be made, pro rata, according
to the Adjustment Portions of that Participant
Account;
(b) next, by adjusting each Participant Account
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maintained on behalf of a Participant, upward or
downward, as the case may be, so that the balance of
the Participant Accounts equals the aggregate
investment experience for the accounting period ended
on that Accounting Date of the Adjustment Portions
elected by him and applicable to that Participant
Account as of that date;
(c) next, if the Accounting Date is the last day of a
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calendar month, by crediting the last Participant
Account established on behalf of each Participant
with the amount of any deferrals made by him during
the month ending on that date, and with any Matching
Amount to be credited for that month, which amounts
shall be credited, pro rata, according to Adjustment
Portions elected by the Participant;
(d) next, if the Accounting Date is December 31 and if
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the Participant has not made Before-Tax Contributions
under the 401(k) Plan for the calendar year ended on
that date equal to the lesser of the amount permitted
under section 402(g) of the Code for that year or the
amount permitted by the terms of the 401(k) Plan for
that year, by debiting the Participant Account
established on behalf of the Participant for the
calendar year ending on that December 31 with an
amount equal to the Matching Amount previously
credited to that Account, plus any increment
attributable thereto; and
(e) finally, by executing the Adjustment Portion change
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elections made pursuant to the provisions of
subsection 6.2 that are to be effective as of the
opening of business as of the next business day.
The term "Accounting Date" means each business day.
7.2 Matching Amount. A portion of the amount deferred, including the
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401(k) Top-Up Contributions, is eligible for a "Matching Amount." Subject to the
provisions of paragraph 7.1(d), the Matching Amount is made monthly with respect
to a
deferred amount which is equal to the product obtained by multiplying the
deferral percentage elected under the 401(k) Plan by the gross salary and other
cash compensation (except for long term incentive compensation and severance
benefits) payable during a month and subtracting from such product the portion
of the Before-tax Contribution transferred to the 401(k) Plan for such month and
that is eligible for a Matching Contribution thereunder. The deferral percentage
used for purposes of calculating the Matching Amount is the monthly percentage
in effect under the 401(k) Plan for Before-tax Contributions and for months
after the maximum contribution to the 401(k) Plan is reached, the deferral
percentage currently elected under the 401(k) Plan for the month that the
maximum contribution is reached, provided that the deferral percentage cannot
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exceed the maximum percentage eligible for Matching Contributions pursuant to
the 401(k) Plan. The term "Matching Amount" means a credit with respect to the
deferral amount, as determined pursuant to this subsection 7.2. The Matching
Amount is equal to the Matching Contribution that would have been made on the
eligible deferred amount as described in this subsection 7.2 had such deferral
been made under the 401(k) Plan.
7.3 Quarterly Statement of Participant Accounts Balances. As soon
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as practicable, but not more than 30 days after the last day of each calendar
quarter, the Plan Administrator shall provide each Participant with a statement
of the balances of his Participant Accounts as of that day.
SECTION 8 - DISTRIBUTION OF PARTICIPANT ACCOUNTS TO PARTICIPANTS
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8.1 Annual Distributions. Except as otherwise provided in this
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Section 8, if a Participant's employment with the Employers and Affiliates is
terminated for any reason other than his death, and on the June 30 preceding his
initial "Distribution Payment Date" (as defined below) the aggregate balances of
his Participant Accounts equal at least $50,000, each of the Participant's
Participant Accounts will be distributed to him in annual "Installment
Distributions" (in the annual amount determined as provided below), made on or
about each Distribution Payment Date, beginning:
(a) in the case of a Participant whose employment
terminates at any age on account of "disability" (as
determined by the Plan Administrator) or for any
reason at or after reaching age 55 years, on or about
the Distribution Payment Date of the calendar year
elected by him; and
(b) in all other cases, and notwithstanding any previous
election, on or about the Distribution Payment Date
of the calendar year next following
the calendar year during which his termination of
employment occurs;
and continuing for the number of calendar years constituting the Distribution
Period he has irrevocably elected with respect to that Participant Account. If
on the June 30 preceding his initial Distribution Payment Date the aggregate
balances of a Participant's Participant Accounts is an amount that is less than
$50,000, those balances shall be distributed to him on or about his initial
Distribution Payment Date in a single lump sum. The amount of the annual
"Installment Distribution" from a Participant Account for a calendar year shall
be equal to the balance of that Participant Account as of June 30 of that year,
divided by the number of calendar years remaining in the Distribution Period
elected by the Participant with respect to that Account. Notwithstanding any of
the foregoing to the contrary, if a Participant with respect to whom a
Participant Account has been established for calendar year 1995 or 1996 has
elected a Distribution Period that is less than 10 calendar years, then, at any
time, but at least one year prior to his initial Distribution Payment Date, he
may elect to have his Distribution Period with respect to any such Participant
Account occur over a period of 10 or more years commencing on the previously
elected initial Distribution Payment Date. The term "Distribution Payment Date"
means July 20 of each year.
8.2 Interim Distributions. Subject to the following provisions of
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this subsection 8.2, at the time that a Participant enters into an Annual
Participation Election form, he may elect to receive, as of any Distribution
Payment Date occurring at least 7 years after the effective date of that
Agreement, an Interim Distribution of any portion of the balance of the
Participant Account established by that Agreement, determined as of the June 30
immediately preceding that Distribution Payment Date. If a Participant becomes
entitled to receive an Interim Distribution from a Participant Account on or
after the initial Distribution Payment Date applicable to that Account, no
Interim Distribution shall be made to him and his Installment Distributions
being made pursuant to subsection 8.1 shall continue. A Participant shall
express his election of an Interim Distribution as a flat dollar amount or as a
percentage of the balance of his Participant Account, determined as of the June
30 immediately preceding the date as of which the Interim Distribution is to be
made. Any Interim Distribution election made by a Participant shall be
automatically cancelled on the date of his death. Notwithstanding any of the
foregoing to the contrary, if a Participant has elected to receive an Interim
Distribution with respect to a Participant Account established for calendar
years 1995 and 1996, then, at any time, but at least one year prior to such
Interim Distribution, he may elect to reduce such Interim Distribution payment.
8.3 Emergency Distributions. If, on written application of a
-----------------------
Participant, it is determined (as provided below) that the Participant has
experienced an "Unforeseeable Emergency" (as defined below), then, as of the
first day of any calendar month, the Participant may elect to receive an
Emergency Distribution from one or more of his Participant Accounts, provided
that the aggregate amount of any such distribution shall not exceed the amount
reasonably needed to satisfy the Participant's emergency need. The term
"Unforeseeable Emergency" means severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the Participant or
of a "dependent" (as defined in section 152(a) of the Code) of the Participant,
loss of the Participant'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. In determining whether an Emergency
Distribution should be made to a Participant consideration may be given to the
extent to which his Unforeseeable Emergency can be relieved:
(a) through reimbursement or compensation by insurance or
otherwise;
(b) by liquidation of the Participant's assets, to the
extent the liquidation of such assets would not
itself cause severe financial hardship;
(c) by cessation of deferrals under the Plan; or
(d) other distributions to be made to the Participant
from the Plan.
A determination with respect to whether a Participant 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 his Beneficiary, the Plan
Administrator; 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 their
Beneficiaries, the Committee.
The provisions of Section 12 of the Plan shall not be applicable with respect to
any determination made pursuant to this subsection 8.3.
8.4 Elective Distributions. As of the first day of any calendar month a
----------------------
Participant may elect, by writing filed with the
Plan Administrator, to receive an Elective Distribution from one or more of his
Participant Accounts, provided, however, that if a Participant receives an
Elective Distribution he shall forfeit an amount equal to 20 percent of the
amount of that Elective Distribution, which amount shall be charged to his
Participant Accounts as provided in paragraph 7.1(a).
8.5 Change in Control Distributions. In connection with, but prior
-------------------------------
to, a Change in Control, the Committee, in its sole discretion, may authorize a
Participant's Participant Accounts to be distributed to him in a single lump
sum.
8.6 Withholding. A Participant's Employer shall withhold from the
-----------
non-deferred portion of his compensation for any period all Social Security
Taxes as required by sections 3101, 3102 and 3121(v) of the Code to be paid with
respect to the amount of his deferrals under the Plan for that period. The Plan
Administrator shall cause to be withheld from any distribution made pursuant to
the terms of the Plan any other amount required to be withheld by federal, state
or local law.
SECTION 9 - DISTRIBUTION OF PARTICIPANT ACCOUNTS TO BENEFICIARIES
- -----------------------------------------------------------------
9.1 Distribution to Beneficiary. If a Participant dies (either prior
---------------------------
to or following his termination of employment with the Employers and Affiliates)
the undistributed balance of each of his Participant Accounts will:
(a) if distribution has commenced prior to his death,
continue to be distributed in annual Installment
Distributions, to the deceased Participant's
Beneficiary with respect to the Participant Account
during the remainder of the Distribution Period
applicable to that Account as if the deceased
Participant had lived; and
(b) if distribution has not commenced prior to his death,
be distributed in annual Installment Distributions
commencing on the Distribution Payment Date and over
the Distribution Period elected by the deceased
Participant with respect to that Participant Account.
9.2 Beneficiary. The term "Beneficiary" means, with respect to any
-----------
Participant (or a Participant's Beneficiary), such natural or legal person or
persons as may be designated by him (who may be designated contingently or
successively) to receive the remaining aggregate balance of his Participant
Accounts if he dies before a total distribution of the balance is made to him. A
Beneficiary designation will be effective only when a signed and dated
Beneficiary designation form is filed with the Plan Administrator while the
Participant is alive, which form will
cancel any Beneficiary designation form signed and filed earlier. The same also
applies to a Beneficiary designation filed by a Beneficiary. If a Beneficiary
survives a Participant and such Beneficiary dies before a total distribution of
the aggregate balances of the Participant's Accounts (without a contingent or
successive Beneficiary designated by a Participant), the balance will be paid to
any person designated by such Beneficiary. If a Participant (or his Beneficiary)
is not survived by any Beneficiary, the Plan Administrator shall distribute the
aggregate amount of the balances of that Participant's Accounts to the legal
representative or representatives of the estate of the Participant (or his
Beneficiary). Notwithstanding any provision of the Plan to the contrary, if a
Participant or Beneficiary under the Plan as of December 31, 1999 elects to
change a Beneficiary designation to be effective on or after January 1, 2000, he
must designate a common Beneficiary or Beneficiaries to receive the remaining
aggregate balance of his Participant's Accounts if he dies before a total
distribution of the balance is made to him. Until such time as a change in
Beneficiary is made with respect to any of the Participant Accounts maintained
for a Participant or Beneficiary under the Plan on December 31, 1999, such
multiple designations shall continue.
SECTION 10 - DISTRIBUTIONS TO INCAPACITATED PERSONS
- ---------------------------------------------------
Notwithstanding any other provision of the Plan, if a Participant or
other 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 Plan
Administrator shall make distributions to such conservator or other person. Any
distribution made in accordance with this Section shall fully acquit and
discharge all persons from all further liability on account thereof.
SECTION 11 - SECTION 162(m) LIMITATION ON DISTRIBUTIONS.
- -------------------------------------------------------
11.1 Tentative Section 162(M) Determination.
--------------------------------------
Notwithstanding any other provision of the Plan to the contrary, prior to a
Participant's Distribution Payment Date for any calendar year, the Chairperson
of the Committee may, in the Chairperson's discretion, make a tentative
determination as to whether the sum of:
(a) amounts otherwise distributable to the Participant
under the Plan as of that Distribution Payment Date;
and
(b) all other compensation expected to be payable to the
Participant and deductible by the Employers for that
calendar year;
will exceed the maximum deductible amount permitted with respect to the
Participant for that calendar year by section 162(m) of the Code. Based on the
Chairperson's tentative decision, the provisions of subsection 11.2 or 11.3, as
the case may be, shall become applicable with respect to the Participant.
Notwithstanding the foregoing, the provisions of this Section shall not be
applicable with respect to any distribution payable from the Plan during any
calendar year following the calendar year in which a "Change in Control" (as
defined in subsection 11.4) occurs.
11.2 Tentative Determination Amount Not in Excess of 162(m) Limit. If
------------------------------------------------------------
the Chairperson of the Committee tentatively determines that the sum of the
amounts described in paragraphs 11.1(a) and (b) payable to a Participant for a
calendar year will be fully deductible by the Employers for that year,
distribution from his Participant Accounts shall be made to the Participant in
accordance with the provisions of Section 8 of the Plan as of his Distribution
Payment Date. However, during the month of December of that calendar year, the
Chairperson of the Committee shall make a final determination with respect to
whether the amounts described in paragraphs 11.1(a) and (b) are fully deductible
by the Employers, within the limitation of section 162(m) of the Code. If he
determines that they are not, any amount distributed from a Participant's
Participant Accounts during the calendar year that is not deductible by the
Employers shall constitute a loan to the Participant and shall be repaid to the
Employers, with interest (at the rate provided by section 1274(d) of the Code),
on or before the last day of that calendar year. Any such repaid amount shall be
credited to the Participant's Participant Account from which it was distributed
as of the Accounting Date coincident with or next following the date on which it
is repaid.
11.3 Tentative Determination Amount in Excess of 162(m) Limit. If the
--------------------------------------------------------
Chairperson of the Committee tentatively determines that the sum of the amounts
described in paragraphs 11.1(a) and (b) payable to a Participant for a calendar
year will not be fully deductible by the Employers for that year, the
Chairperson of the Committee may direct that all or any portion of the balances
of the Participant's Participant Accounts otherwise distributable as of his
Distribution Payment Date for that calendar year be retained under the terms of
the Plan. However, during the month of December of that calendar year, the
Chairperson of the Committee shall make a final determination with respect to
whether any portion of such retained amount will be fully deductible to the
Employer for that calendar year if distributed to the Participant and such
portion that is fully deductible, if any, shall be distributed to the
Participant on or
before that last day of that calendar year. Any such distribution shall be
charged to the Participant's Participant Account from which it was distributed
as of the Accounting Date coincident with or next following the date of
distribution.
11.4 Change in Control. A "Change in Control" shall be deemed to have
-----------------
occurred if an event set forth in any one of the following paragraphs shall have
occurred:
(a) date of expiration of a Tender Offer (other than an
offer by Mead), if the offeror acquires Shares
pursuant to such Tender Offer;
(b) the date of approval by the shareholders of Mead of a
definitive agreement:
(i) for the merger or consolidation of Mead or
any direct or indirect subsidiary of Mead
into or with another corporation, other
than:
(A) a merger or consolidation which
would result in the voting
securities of Mead outstanding
immediately prior thereto
continuing to represent,
(I) in the case of a merger
or consolidation of
Mead, either by
remaining outstanding
or by being converted
into voting securities
of the surviving entity
or any parent thereof,
or
(II) in the case of a merger
or consolidation of any
direct or indirect
subsidiary of Mead,
either by remaining
outstanding if Mead
continues as a parent
of the merged or
consolidated subsidiary
or by being converted
into voting securities
of the surviving entity
or any parent thereof;
at least 51 percent of the combined voting power
of the voting securities of Mead or such surviving
or parent entity outstanding immediately after
such merger or consolidation, or
(B) a merger or consolidation effected
to implement a recapitalization of
Mead (or similar transaction) in
which no
Person (as defined below) is or
becomes the Beneficial Owner (as
defined below) directly or
indirectly, of securities of Mead
(not including in the securities
Beneficially Owned by such Person
any securities acquired directly
from Mead or its Affiliates)
representing 25 percent or more of
the combined voting power or Mead's
then outstanding securities, or
(ii) for the sale or disposition of all or
substantially all of the assets of Mead,
other than a sale or disposition by Mead
of all or substantially all of Mead's
assets to an entity, at least 51 percent
of the combined voting power of the
voting securities of which are owned
(directly or indirectly) by shareholders
of Mead in substantially the same
proportions as their ownership of Mead
immediately prior to such sale or
disposition;
(c) any Person is or becomes the Beneficial Owner of 25
percent or more of the voting power of the then
outstanding securities of Mead (not including in the
securities beneficially owned by such Person any
securities acquired directly from Mead or its
affiliates), excluding any Person who becomes such a
Beneficial Owner in connection with a transaction
described in subparagraph (b)(i)(A) or the date of
authorization, by both a majority of the voting power
of Mead and a majority of the portion of such voting
power excluding the voting power of interested
Shares, of a control share acquisition (as such term
is defined in Chapter 1701 of the Ohio Revised Code);
and
(d) a change in the composition of the Board of Directors
such that individuals who were members of the Board
of Directors on the date two years prior to such
change (and any new directors (other than a director
whose initial assumption of office is in connection
with an actual or threatened election contest,
including but not limited to a consent solicitation,
relating to the election of directors of Mead) who
were elected, or were nominated for election, by
Mead's shareholders with the affirmative vote of at
least two-thirds of the directors then still in
office who either were directors at the beginning of
such two year
period or whose election or nomination for election
was previously so approved) no longer constitute a
majority of the Board of Directors.
Notwithstanding the foregoing, a Change in Control shall not be deemed to have
occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of Mead immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity which owns all or substantially all of the assets of Mead immediately
following such transaction or series of transactions.
11.5 Certain Definitions. The following definitions shall be applicable
-------------------
with respect to subsection 11.4:
(a) Affiliate shall have the meaning set forth in Rule
---------
12b-2 promulgated under Section 12 of the Exchange
Act.
(b) Beneficial Owner shall have the meaning defined in
----------------
Rule 13d-3 under the Exchange Act.
(c) Exchange Act shall mean the Securities Exchange Act
------------
of 1934, as amended from time to time.
(d) Person shall have the meaning given in Section
------
3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such
term shall not include:
(i) Mead or any of its subsidiaries,
(ii) a trustee or other fiduciary holding
securities under an employee benefit plan of
Mead or any of its Affiliates,
(iii) an underwriter temporarily holding
securities pursuant to an offering of such
securities, or
(iv) a corporation owned, directly or indirectly,
by the shareholders of Mead in substantially
the same proportions as their ownership of
stock of Mead.
(e) Shares shall mean shares of common stock, without par
------
value, of The Mead Corporation.
(f) Tender Offer shall mean a tender offer or a request
------------
or invitation for tenders or an exchange
offer subject to regulation under Section 14(d) of
the Exchange Act and the rules and regulations
thereunder, as the same may be amended, modified or
superseded from time to time.
SECTION 12 - DISPUTE RESOLUTION
- -------------------------------
12.1 Notice of Denial. If any dispute arises with respect to a
----------------
Participant or Beneficiary (a "Claimant") under the Plan, Mead 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 Mead 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 Mead 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 11.2 will be in effect as of the end of such period.
12.2 Notice of Appeal. Within 60 days after the receipt of Mead'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 Beneficiary, a panel of 3
persons appointed by the Plan Administrator; 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 their
Beneficiaries, the Chairperson of the Committee.
12.3 Decision on Appeal. The panel referred to in paragraph 12.2(a)
------------------
or the Chairperson, 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 13 - AMENDMENT AND TERMINATION
- --------------------------------------
The Committee reserves the right to amend the Plan at any time,
except that no amendment shall reduce a Participant's Participant Account
balances to less than the amounts that he would have been entitled to receive on
the later of the effective date of the amendment or the date on which the
amendment is adopted. The Plan will terminate on the date on which it is
terminated by the Committee, provided, however, that:
(a) at least two Crediting Options shall be maintained
until the aggregate balances of all Participant
Accounts have been distributed; and
(b) distributions from the Plan shall continue to be made
under Section 8 or Section 9, as the case may be,
pursuant to elections previously made by Participants
or as otherwise provided under Section 8 or 9.
EXHIBIT I
TO
THE MEAD CORPORATION
EXECUTIVE CAPITAL ACCUMULATION PLAN
-----------------------------------
The Crediting Options available under the Plan as of January 1,
2000 are:
Type Fund Managed By
--------- ----------
(1) Money Market PacMutual
(2) Managed Bond PIMCO
(3) Multi Strategy J.P. Morgan
(4) Equity Income J.P. Morgan
(5) Equity Index Bankers Trust
(6) Small Cap Stock Cap Guardian Trust
Equity Fund
(7) Growth L.T. Janus Capital
(8) International Morgan Stanley
SUPPLEMENT A
TO
THE MEAD CORPORATION EXECUTIVE CAPITAL ACCUMULATION PLAN
--------------------------------------------------------
A-1 Purpose. The purpose of this Supplement A is to modify certain
-------
provisions of the Plan as they apply to:
(1) Participants in the Plan as of December 31, 1999; and
(2) Beneficiaries of deceased Participants who are eligible to
receive distributions from the Plan as of January 1, 2000.
("Supplement A Individuals").
A-2 Effective Date. This Supplement A shall be effective as of January 1,
--------------
2000.
A-3 Plan Modifications. Notwithstanding any other provision of the Plan,
------------------
the Plan, as applied to a Supplement A Individual, is modified as
follows:
(1) his Crediting Options shall continue to be changed by writing
filed with the Plan Administrator on or before the last
business day of February, May, August or November and will be
effective as of the first day of the following calendar
quarter;
(2) his Crediting Option election shall apply separately to each
of his Accounts;
(3) his Accounts shall be adjusted monthly; and
(4) the term "Accounting Date" means the last business day of each
calendar quarter.
In all other respects the foregoing provisions of the Plan shall be
applicable to Supplement A Individuals.
A-4 Change Of Status. A Supplement A Individual's status as such shall be
----------------
irrevocably revoked:
(1) automatically, effective as of the effective date of any
election to change an Adjustment Portion in accordance with
paragraph 6.2(b) of the Plan; or
(2) effective as of the date the Supplement A Individual elects to
revoke his status as such in accordance with rules, if any,
established by the Plan Administrator.
AMENDMENT TO
THE MEAD CORPORATION
EXECUTIVE CAPITAL ACCUMULATION PLAN
WHEREAS, The Mead Corporation ("Mead") heretofore established The Mead
Corporation Executive Capital Accumulation Plan (the "Plan") and subsequently
amended the Plan, and
WHEREAS, Mead desires to further amend the Plan pursuant to the power
reserved to Mead's Compensation Committee by subsection 13 of the Plan;
NOW THEREFORE, the Plan is hereby amended, effective as of October 26, 2001
as follows:
1. Section 3.3 is revised to delete the last two sentences following (d) and
add the following in substitution thereof:
Except as provided in the Plan, each Annual Election to Participate
shall be irrevocable by the Participant after the last day of the
calendar month preceding its effective date. The term "Distribution
Period" means, with respect to any Participant Account, a period of 5,
10, 15 or 20 calendar years (and includes a one-day period on which a
lump sum amount is distributed on or after a Change in Control) as
elected by the Participant for whom the Account is maintained.
Subject to Section 8.1 (except as specifically otherwise provided in
this Section 3.3), a Participant may revise an Annual Election to
Participate with respect to the Distribution Period, the calendar year
during which the Distribution Period commences and reduce or delay an
Interim Distribution as follows:
(i) prior to a Change in Control, a Participant may
revise a previously elected Distribution Period and the calendar
year during which distributions are made for a Participant
Account (such revision being permitted to include receiving all
or a portion of a Participant Account in a lump sum following a
Change in Control and prior to employment termination), provided
that any such revision is effective only for distributions on or
following a Change in Control and with respect to the balance of
a Participant Account on a Change in Control or
(ii) at least three months prior to employment termination
(whether before or after a Change in Control), a Participant may
(A) revise (1) the Distribution Period or (2) the calendar year
during which distributions commence following employment
termination with respect to the balance of a Participant Account
on employment termination and (B) reduce or delay an Interim
Distribution payable following employment termination.
A Participant can revise an Annual Election to Participate in
accordance with this subsection on a form furnished by and filed with
the Plan Administrator at any time prior to the date stated in (i) or
(ii), as applicable, in this subsection 3.3.
2. Section 3.4(b) is revised to read as follows:
(b) with respect to a severance benefit payable prior to a
Change in Control, the election must be made before such benefit has
been agreed and with respect to a severance benefit payable after a
Change in Control, the election must be made at least three months
prior to employment termination.
3. Section 8.1 is revised to delete the word "irrevocably" in the first
sentence and to restate the last sentence to read as follows:
The term "Distribution Payment Date" means July 20 of each year,
except that if an election is filed in accordance with subsection 3.3
with respect to distributions following a Change in Control, the term
includes July 20 of the year selected by a Participant to receive a
lump sum distribution.
4. Section 13 is revised to (i) delete the word "and" at the end of (a), (ii)
add a semi colon at the end of (b) and (iii) add the following:
(c) a Participant's right to revise Distribution Payment Date(s) in
accordance with Subsection 3.3 shall continue;
(d) a Participant's right to defer severance pay in accordance with
Subsection 3.4 (b) shall continue; and
(e) a Participant's right to rollover other benefits into the Plan in
accordance with Section 5 shall continue.
2