Attached files
EXHIBIT 10.5
AbitibiBowater
2010 DC Supplemental Executive Retirement Plan
Effective December 9, 2010
TABLE OF CONTENTS
Page | ||||
Article 1 INTRODUCTION |
1 | |||
1.1 Plan Introduction |
1 | |||
1.2 Plan Purpose |
1 | |||
1.3 409A Compliance and ERISA |
1 | |||
Article 2 DEFINITIONS |
2 | |||
2.1 Account |
2 | |||
2.2 Base Salary |
2 | |||
2.3 Beneficiary |
2 | |||
2.4 Canadian Participant |
2 | |||
2.5 Code |
2 | |||
2.6 Company |
2 | |||
2.7 Compensation |
2 | |||
2.8 Disability or Disabled |
3 | |||
2.9 Effective Date |
3 | |||
2.10 Eligible Canadian Employee |
3 | |||
2.11 Eligible Employee |
3 | |||
2.12 Eligible U.S. Employee |
3 | |||
2.13 Employer |
3 | |||
2.14 Employer Contribution |
3 | |||
2.15 ERISA |
3 | |||
2.16 Excess Canadian Contributions |
3 | |||
2.17 Excess U.S. Automatic Company Contribution |
3 | |||
2.18 Excess U.S. Contributions |
3 | |||
2.19 Excess U.S. Matching Contribution |
3 | |||
2.20 Incentive Award |
4 | |||
2.21 Interest |
4 | |||
2.22 Participant |
4 | |||
2.23 Plan |
4 | |||
2.24 Plan Administrator |
4 | |||
2.25 Plan Year |
4 | |||
2.26 Prior Plans |
4 | |||
2.27 Reinstated Amounts |
4 | |||
2.28 Separation from Service |
5 | |||
2.29 Tax Qualified Plan |
5 | |||
2.30 U.S. Participant |
5 | |||
2.31 Year of Service |
5 | |||
Article 3 ELIGIBILITY AND PARTICIPATION |
6 | |||
3.1 Eligibility for Participation |
6 | |||
3.2 Participation |
6 | |||
3.3 Cessation of Participation |
7 | |||
Article 4 CONTRIBUTIONS AND DEFERRALS |
7 | |||
4.1 Reinstated Amounts |
7 | |||
4.2 Excess Canadian Contributions |
8 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
4.3 Excess U.S. Matching Contributions |
8 | |||
4.4 Excess U.S. Automatic Company Contributions |
8 | |||
4.5 Employer Contributions |
8 | |||
4.6 Contributions During Period of Disability |
8 | |||
Article 5 ACCOUNTS |
9 | |||
5.1 Accounts |
9 | |||
5.2 Interest |
9 | |||
5.3 Investment |
10 | |||
5.4 Statements |
10 | |||
Article 6 VESTING |
10 | |||
6.1 Vesting Schedules |
10 | |||
6.2 Accelerated Vesting |
11 | |||
6.3 Forfeitures |
12 | |||
Article 7 DISTRIBUTION OF ACCOUNTS |
12 | |||
7.1 Timing of Distribution |
12 | |||
7.2 Benefits Upon Separation from Service |
12 | |||
7.3 Benefits Upon Death |
13 | |||
7.4 Benefits Upon Disability |
13 | |||
7.5 Right of Offset |
13 | |||
7.6 Taxes |
14 | |||
7.7 Additional Discretion to Accelerate Distribution |
14 | |||
Article 8 NON-COMPETE AND CONFIDENTIALITY PROVISIONS |
15 | |||
8.1 Non-Competition |
15 | |||
8.2 Confidentiality |
15 | |||
8.3 Non-Solicitation |
16 | |||
8.4 Non-Disparagement |
16 | |||
Article 9 PLAN ADMINISTRATION |
16 | |||
9.1 Plan Administration and Interpretation |
16 | |||
9.2 Powers, Duties, Procedures |
17 | |||
9.3 Information |
17 | |||
9.4 Indemnification of Plan Administrator |
17 | |||
9.5 Claims Procedure |
17 | |||
Article 10 AMENDMENT AND TERMINATION |
19 | |||
10.1 Authority to Amend and Terminate |
19 | |||
10.2 Existing Rights |
19 | |||
Article 11 MISCELLANEOUS |
20 | |||
11.1 No Funding |
20 | |||
11.2 General Creditor Status |
20 | |||
11.3 No Assignment |
20 | |||
11.4 Notices and Communications |
20 | |||
11.5 Limitation of Participants Rights |
20 | |||
11.6 Participants Bound |
20 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
11.7 Receipt and Release |
21 | |||
11.8 Governing Law and Severability |
21 | |||
11.9 Currency |
21 | |||
11.10 Headings |
21 |
iii
AbitibiBowater
2010 DC Supplemental Executive Retirement Plan
Effective December 9, 2010
2010 DC Supplemental Executive Retirement Plan
Effective December 9, 2010
ARTICLE 1
INTRODUCTION
INTRODUCTION
1.1 Plan Introduction.
(a) In April 2009, AbitibiBowater Inc. (the Company) and its U.S. and Canadian subsidiaries
(the AbitibiBowater Entities) filed voluntary petitions seeking relief pursuant to Chapter 11 of
the United States Bankruptcy Code and/or applied for protection from their creditors under Canadas
Companies Creditors Arrangement Act, R.S.C. 1985, c. C36, as amended (collectively, the Creditor
Protection Proceedings). The Company and/or certain of its subsidiaries later filed proposed plans
of reorganization in the Creditor Protection Proceedings (collectively, the Reorganization Plan).
The Reorganization Plan was approved by the creditors of the AbitibiBowater Entities and the
Canadian and U.S. courts. As a result, the AbitibiBowater Entities have emerged from the Creditor
Protection Proceedings on December 9, 2010 (the Emergence).
(b) Pursuant to the Reorganization Plan, each of the Prior Plans was terminated coincident
with Emergence. On December 9, 2010, the Company adopted and established the AbitibiBowater 2010
DC Supplemental Executive Retirement Plan (the Plan), as may be amended from time to time.
Further and pursuant to the Reorganization Plan, the Plan reinstates certain benefits on behalf of
certain eligible Canadian and U.S. employees and former employees of the Employer, and their
Beneficiaries, if any, if the requirements of Section 3.1(a) are met. The reinstated benefits are
substantially similar to the retirement benefits eliminated with the termination of the Prior
Plans, subject to reductions and limitations as set forth in the Reorganization Plan and
incorporated herein.
1.2 Plan Purpose. The purpose of the Plan is to provide certain eligible employees of
the Employer with an enhanced retirement benefit that supplements the retirement benefits provided
to such eligible employees under the Canadian registered defined contribution plans and U.S.
qualified defined contribution plans of the Employer as well as to reinstate a portion of the
benefits of the Prior Plan to certain Participants and Beneficiaries, as provided in the
Reorganization Plan and described herein. For the avoidance of doubt, no retirement benefits
accrued under any plan other than the Prior Plans are reinstated under, or shall be paid pursuant
to, this Plan.
1.3 409A Compliance and ERISA. The portions of the Plan governing Participants who
are subject to Section 409A of the Internal Revenue Code of 1986 and any regulations issued
thereunder (the Code) are intended to comply with the provisions of Code Section 409A with
respect to all amounts credited to and deferred under the Plan on behalf of such Participants on
and after the Effective Date. The Plan shall be interpreted, administered and operated as
necessary to comply with the requirements of Code Section 409A and applicable Treasury Regulations.
The Company reserves the right to amend or modify the Plan in order to comply with regulations
promulgated by the Department of Treasury under Code Section 409A. In
addition, for purposes of coverage by the Employee Retirement Income Security Act of 1974, as
amended (ERISA), the Plan is an unfunded plan maintained by the Company primarily for the purpose
of providing deferred compensation for highly compensated employees and a select group of
management or highly compensated employees within the meaning of Sections 201, 301 and 401 of
ERISA.
ARTICLE 2
DEFINITIONS
DEFINITIONS
Wherever used herein, the following terms have the meanings set forth below, unless a
different meaning is clearly required by the context:
2.1 Accountmeans a notional account established for the benefit of a Participant under
Section 5.1, which may include one or more sub-accounts.
2.2 Base Salarymeans the annual base salary paid by the Employer to an Eligible Employee for
services performed during any Plan Year (for an Eligible U.S. Employee, this includes any amounts
deducted from his annual base salary and contributed to the Tax Qualified Plan or any other plan
maintained by the Employer permitting pre-tax contributions). Base Salary does not include income
from stock option exercises, restricted stock or restricted stock units, other equity awards, the
Eligible Employees Incentive Award or any other type of incentive award or payments, contributions
to group insurance and other employee benefit plans maintained by the Employer, or any severance
received as salary continuation.
2.3 Beneficiarymeans the individual or entity designated as the Participants Beneficiary
under the Tax Qualified Plan. If there is no Beneficiary designated under the Tax Qualified Plan,
then the rules under such plan shall control for determining the Participants Beneficiary for
purposes of the Plan.
2.4 Canadian Participantmeans a current or former Eligible Canadian Employee who
participates in the Plan in accordance with Article 3 and for whom an Account balance is maintained
hereunder.
2.5 Codemeans the Internal Revenue Code of 1986, as amended from time to time, and the
regulations and rulings issued thereunder. Reference to any section or subsection of the Code
includes reference to any comparable or succeeding provisions of any legislation that amends,
supplements or replaces that section or subsection.
2.6 Companymeans AbitibiBowater Inc., a Delaware corporation, or any successor corporation
thereto.
2.7 Compensationmeans the Base Salary plus Incentive Award of a Participant for a Plan Year,
provided that, when determining any Excess U.S. Automatic Company Contributions and Excess U.S.
Matching Contributions to be credited on behalf of a U.S. Participant, Compensation means
compensation as defined under the Tax Qualified Plan, without regard to the application of the
limitation under Code Section 401(a)(17).
2
2.8 Disability or Disabled
(a) with respect to a U.S. Participant, that the U.S. Participant is determined totally
disabled by the Social Security Administration.
(b) with respect to a Canadian Participant, that the Canadian Participant is entitled to
benefits under a short-term or long-term disability plan of the Employer.
2.9 Effective Datemeans December 9, 2010, the date of Emergence.
2.10 Eligible Canadian Employeemeans an employee of the Employer on the Canadian payroll who
is an eligible employee within the meaning of the Tax Qualified Plan.
2.11 Eligible Employeemeans an Eligible Canadian Employee and an Eligible U.S. Employee.
2.12 Eligible U.S. Employeemeans an employee of the Employer on the U.S. payroll who is (i)
an eligible employee within the meaning of the Tax Qualified Plan and (ii) a member of a select
group of management or highly compensated employees within the meaning of ERISA. In addition, any
employee of the Employer who is on the Canadian payroll, but is otherwise subject to Code Section
409A, shall be treated as an Eligible U.S. Employee for purposes of applying the Plan provisions
required by Code Section 409A, which primarily include the provisions relating to the time and form
of payment.
2.13 Employermeans the Company and each other entity affiliated with the Company that is a
participating employer under the Tax Qualified Plan.
2.14 Employer Contributionmeans an Employer contribution equal to a specified percentage of
a Participants Compensation, as described in Section 4.5.
2.15 ERISAmeans the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the regulations and rulings issued thereunder.
2.16 Excess Canadian Contributionsmeans an Employer contribution credited to a Canadian
Participants Account under Section 4.2 that, when added to the amount contributed on the Canadian
Participants behalf under the Tax Qualified Plan as a company contribution for a Plan Year, is
equal to 10.5% of Compensation for such Plan Year.
2.17 Excess U.S. Automatic Company Contributionmeans an Employer contribution credited to a
U.S. Participants Account under Section 4.4 that, when added to the amount contributed on the U.S.
Participants behalf under the Tax Qualified Plan as an automatic company contribution for a Plan
Year, is equal to 6.5% of Compensation for such Plan Year.
2.18 Excess U.S. Contributionsmeans Employer contributions that are Excess U.S. Matching
Contributions and/or Excess U.S. Automatic Company Contributions.
2.19 Excess U.S. Matching Contributionmeans an Employer contribution credited to a U.S.
Participants Account under Section 4.3 that would have been contributed to the U.S.
3
Participants account as a matching contribution under the Tax Qualified Plan pursuant to its
terms, but which could not be contributed due to the application of Code limitations.
2.20 Incentive Awardmeans the incentive award paid to a Participant under the Employers
regular incentive plans or programs adopted by the Company from time to time or the incentive award
paid under the 2010 Short Term Incentive Plan while employed with an Employer, regardless of
whether a Participant is eligible for and exercises any right to defer an Incentive Award under any
plan or program of the Company. Incentive Award does not include any other cash incentive,
non-recurring (including any restructuring awards under the Emergence Recognition Plan) or
multi-year incentive award, unless authorized by the Plan Administrator.
2.21 Interestmeans the rate at which interest is credited to the Account of a Canadian
Participant under Section 5.2.
2.22 Participantmeans a Canadian Participant or U.S. Participant.
2.23 Planmeans the AbitibiBowater 2010 DC Supplemental Executive Retirement Plan, as
provided herein and as may be amended from time to time.
2.24 Plan Administratormeans the Human Resources and Compensation/ Nominating and Governance
Committee of the Board (the HRC/NG Committee) or its delegate.
2.25 Plan Yearmeans the calendar year.
2.26 Prior Plansmeans each of the following nonqualified supplemental defined contribution
plans or programs:
(a) Canadian Defined Contribution Retirement Program for Executive Employees of
AbitibiBowater, sponsored by AbitibiBowater Inc;
(b) Supplemental Defined Contribution Benefit Plan (2003) for Employees of Bowater Canadian
Forest Products Inc. and Bowater Mersey Paper Company Limited, sponsored by Bowater Canadian Forest
Products Inc. with respect to its employees. For the avoidance of doubt, the portion of this plan
as sponsored by Bowater Mersey Paper Company Limited with respect to its employees is not a Prior
Plan; and
(c) AbitibiBowater Inc. Supplemental Retirement Savings Plan, sponsored by AbitibiBowater Inc.
2.27 Reinstated Amountsmeans, for an individual described in Section 3.1(a) who becomes a
Participant, the amount of the Participants account balance under the Prior Plan as of the date on
which the Prior Plan terminated, reduced as provided by the Reorganization Plan for individuals who
are former employees of the Employers or Beneficiaries as of the Effective Date.
4
2.28 Separation from Servicemeans:
(a) For a U.S. Participant, the termination of the Participants employment relationship
(within the meaning of Code Section 409A and Department of Treasury in regulations promulgated
thereunder) with the Company and all related entities of the Company and any other service
relationship defined in such regulations, other than by reason of death. For purposes of the
foregoing, whether an entity is related with the Company shall be determined pursuant to the
controlled group rules of Code Section 414, as modified by Code Section 409A. Notwithstanding the
foregoing, the Participants employment relationship with the Company and all related entities of
the Company is treated as continuing intact while the individual is on a military leave, sick leave
or other bona fide leave of absence if the period of such leave does not exceed six months (or
longer, if required by statute or contract). If the period of the leave exceeds six months and the
Participants right to reemployment is not provided either by statute or contract, the employment
relationship is deemed to terminate on the first date immediately following such six-month period
for purposes of Code Section 409A only.
(b) For a Canadian Participant, the termination of the Participants employment relationship
with the Company and all related entities of the Company and any other service relationship, other
than by reason of death. For purposes of the Plan, the Participants employment relationship with
the Company and all related entities of the Company is treated as continuing intact while the
individual is on a military leave, sick leave or other bona fide leave of absence, including any
period of Disability.
2.29 Tax Qualified Planmeans as follows and as the context requires:
(a) with respect to a Canadian Participant, the Defined Contribution Pension Plan for
Non-Unionized Employees of Abitibi-Consolidated Inc., effective as of January 1, 2002, as amended
from time to time or the DC Retirement Plan (2003) for Non-Unionized Employees of Bowater,
effective as of January 1, 2003, as amended from time to time, or any successor plan or plans;
(b) with respect to a U.S. Participant, the AbitibiBowater Inc. Retirement Savings Plan, as
amended and restated effective as of January 1, 2007, and as further amended from time to time,
which plan was renamed the AbiBow US Savings Plan, effective December 9, 2010 and further amended
and restated January 1, 2011.
2.30 U.S. Participantmeans a current or former Eligible U.S. Employee who participates in
the Plan in accordance with Article 3 and for whom an Account balance is maintained hereunder.
2.31 Year of Servicemeans a Participants year of service with the Employer within the
meaning of the Tax Qualified Plan.
5
ARTICLE 3
ELIGIBILITY AND PARTICIPATION
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility for Participation.
(a) An employee or former employee of the Employer or Beneficiary of a deceased former
employee shall be eligible to participate in the Plan and have his Reinstated Amount recognized
under the Plan if such individual:
(i) had an account balance under one or more of the Prior Plans as of the date on which
the Prior Plans terminated, which balance was not paid under the Prior Plan before its
termination; and
(ii) waived and forfeited any and all claims he had or may have had in the Creditor
Protection Proceedings in respect of the Prior Plan or any other Terminated Retirement Plan
as defined in the Reorganization Plan.
(b) An Eligible Canadian Employee shall be eligible to participate in the Plan and have Excess
Canadian Contributions credited on his behalf under Section 4.2 if the Eligible Canadian Employee
is employed by the Employer in Salary Grade 29 or higher.
(c) An Eligible U.S. Employee shall be eligible to participate in the Plan and have Excess
U.S. Contributions credited on his behalf under Sections 4.3 and 4.4 if the Eligible U.S. Employee
is employed by the Employer in Salary Grade 29 or higher.
(d) An Eligible Employee shall be eligible to participate in the Plan and have Employer
Contributions credited on his behalf under Section 4.5 if the Eligible Employee:
(i) is the Chief Executive Officer of the Company, or
(ii) is employed by the Employer in Salary Grade 43 or higher and directly reports to
the Chief Executive Officer of the Company.
3.2 Participation.
(a) An individual described in Section 3.1(a) shall become a Participant in the Plan on the
Effective Date and have his Reinstated Amount recognized pursuant to the Plan. Exhibit A
identifies the Participants who are active employees of an Employer on the Effective Date, and
Exhibit B identifies the former employees of an Employer and Beneficiaries who met the requirements
of Section 3.1(a) as of the Effective Date.
(b) An Eligible Canadian Employee described in Section 3.1(b) shall participate in the Plan
and have Excess Canadian Contributions credited on his behalf under Section 4.2 for any Plan Year
(or portion thereof) during which he meets the requirements of Section 3.1(b).
(c) An Eligible U.S. Employee described in Section 3.1(c) shall participate in the Plan and
have Excess U.S. Contributions credited on his behalf under Sections 4.3 and 4.4 for any Plan Year
(or portion thereof) during which he meets the requirements of Section 3.1(c).
6
(d) An Eligible Employee described in Section 3.1(d) shall participate in the Plan and have
Employer Contributions credited on his behalf under Section 4.5 for any Plan Year (or portion
thereof) during which he meets the requirements of Section 3.1(d).
3.3 Cessation of Participation.
(a) Each Participant shall cease to be eligible for Excess Canadian Contributions, Excess U.S.
Contributions and/or Employer Contributions, as applicable, for any Plan Year (or portion thereof)
for which the Participant fails to meet the applicable requirements of Section 3.1. Such
Participant shall remain an inactive participant in the Plan until his Account has been paid in
full in accordance with Article 7.
(b) Each Participant shall cease to be an active participant in the Plan upon his Separation
from Service. No Excess U.S. Contributions, Excess Canadian Contributions or Employer
Contributions, as applicable, shall be made to the Plan with respect to Base Salary or Incentive
Award paid to the Participant after such Separation from Service. Upon Separation from Service,
each Participant shall remain an inactive participant in the Plan until his Account has been paid
in full in accordance with Article 7. In addition, a U.S. Participant who incurs a Disability
shall become an inactive participant in the Plan and remain an inactive participant until his
Account has been paid in full in accordance with Article 7.
ARTICLE 4
CONTRIBUTIONS AND DEFERRALS
CONTRIBUTIONS AND DEFERRALS
4.1 Reinstated Amounts.
(a) A former employee of an Employer as of the Effective Date who becomes a Participant
pursuant to Section 3.2(a) shall receive payment of his Reinstated Amount as provided in Article 7.
The reduction applied pursuant to the Reorganization Plan to determine the Reinstated Amount for
such former employee is as follows:
(i) For U.S. Participants, the Reinstated Amount is 65% of the U.S. Participants
account balance under the Prior Plan as of the date the Prior Plan terminated.
(ii) For Canadian Participants, the Reinstated Amount is 90% of the Canadian
Participants account balance under the Prior Plan as of the date the Prior Plan terminated.
For clarification, before applying the reduction, the Reinstated Amount shall include interest
on the Participants account balance under the Prior Plan for the period between the former
employees Separation from Service and the date or dates, as the case may be, on which the account
balance (or portion thereof) should have been made, but for the Creditor Protection Proceedings.
However, no interest shall be paid, with respect to any benefit payments that were suspended,
missed or delayed as a result of the Creditor Protection Proceedings.
(b) An individual who is employed with an Employer on the Effective Date and who becomes a
Participant pursuant to Section 3.2(a) shall have the Reinstated Amount credited to
7
his Account as an opening balance. The Reinstated Amount for such employed Participant shall
receive Interest or adjustments as provided in Article 5.
4.2 Excess Canadian Contributions. Each Plan Year, the Employer shall credit Excess
Canadian Contributions to the Account of each Eligible Canadian Employee described in Section
3.1(b) in an amount equal to the difference between (i) 10.5% of the Canadian Participants
Compensation, and (ii) the amount contributed to the Canadian Participants account under the Tax
Qualified Plan for such Plan Year as a company contribution. The intent of the foregoing is to
provide such Eligible Canadian Employee with a total such contribution equal to 10.5% of the
Canadian Participants Compensation between the Tax Qualified Plan and this Plan.
4.3 Excess U.S. Matching Contributions. Each Plan Year, the Employer shall credit
Excess U.S. Matching Contributions to the Account of each Eligible U.S. Employee described in
Section 3.1(c) in an amount that would have been contributed to the U.S. Participants account
under the Tax Qualified Plan pursuant to its terms, but which could not be contributed to the U.S.
Participants account in the Tax Qualified Plan due to the application of Code limitations. Excess
U.S. Matching Contributions shall be credited for a Plan Year only if the U.S. Participant elected
to make salary deferrals under the Tax Qualified Plan for such Plan Year and is receiving a
matching contribution thereunder. For such Plan Year, Excess U.S. Matching Contributions shall be
credited to the U.S. Participants Account after he receives the maximum match to which he could
receive under the Tax Qualified Plan based on his salary deferral elections thereunder and subject
to such other limitations set forth in the Tax Qualified Plan. In the event that matching
contributions are not made available under the Tax Qualified Plan, then no Excess U.S. Matching
Contributions shall be credited under the Plan.
4.4 Excess U.S. Automatic Company Contributions. Each Plan Year, the Employer shall
credit Excess U.S. Automatic Company Contributions to the Account of each Eligible U.S. Employee
described in Section 3.1(c) in an amount equal to the difference between (i) 6.5% of the U.S.
Participants Compensation and (ii) the amount contributed to the U.S. Participants account under
the Tax Qualified Plan for such Plan Year as an automatic company contribution. The intent of the
foregoing is to provide such Eligible U.S. Employee with a total such contribution equal to 6.5% of
the U.S. Participants Compensation between the Tax Qualified Plan and this Plan.
4.5 Employer Contributions. Each Plan Year, the Employer shall credit Employer
Contributions to the Account of each Eligible Employee described in Section 3.1(d) as follows: (i)
for the Chief Executive Officer of the Company, in an amount equal to 12% of his Compensation; and
(ii) for all other eligible Participants, in an amount equal to 10% of their Compensation.
4.6 Contributions During Period of Disability.
(a) With respect to a Canadian Participant who becomes eligible for short-term and/or
long-term disability benefits under his Employers plan, the Employer shall continue to credit
Excess Canadian Contributions and/or Employer Contributions, as applicable, under the Plan on
behalf of the Canadian Participant for his period of disability. All such contributions
8
shall be based on the Canadian Participants Compensation immediately before the Canadian
Participants entitlement to benefits under the short-term or long-term disability plan.
(b) With respect to a U.S. Participant who becomes eligible for short-term disability benefits
under his Employers plan, the Employer shall continue to credit Excess U.S. Contributions and/or
Employer Contributions, as applicable, under the Plan on behalf of the U.S. Participant for his
period of short-term disability. If such U.S. Participant (i) becomes eligible for long-term
disability benefits under his Employers plan, (ii) is not Disabled within the meaning of the Plan,
(iii) has not incurred a Separation from Service and (iv) continues to be eligible for and receives
automatic company contributions under the Tax-Qualified Plan, the Employer shall continue to credit
Excess U.S. Automatic Company Contributions under the Plan. All such contributions shall be based
on the U.S. Participants Compensation immediately before the U.S. Participants entitlement to
benefits under the short-term or long-term disability plan. If such U.S. Participant becomes (i)
eligible for long-term disability benefits, (ii) is not Disabled within the meaning of the Plan,
(iii) has not incurred a Separation from Service and (iv) is not eligible for automatic company
contributions under the Tax-Qualified Plan, then no further Excess U.S. Automatic Company
Contributions shall be credited under the Plan on such Participants behalf. In the event the U.S.
Participant becomes Disabled or incurs a Separation from Service, then distribution shall be made
as described in Article 7, regardless of whether the U.S. Participant continues to be eligible for
automatic company contributions under the Tax Qualified Plan.
ARTICLE 5
ACCOUNTS
ACCOUNTS
5.1 Accounts. An Account shall be established for each Participant to reflect any
Reinstated Amounts, Excess U.S. Contributions, Excess Canadian Contributions and Employer
Contributions, as applicable, together with any Interest in accordance with Section 5.2 or any
adjustments for gains or losses due to investment experience in accordance with Section 5.3, as
applicable. Separate sub-accounts may be established for each type of contribution under the Plan.
Excess U.S. Contributions, Excess Canadian Contributions and Employer Contributions shall be
credited to a Participants Account as of the end of each payroll period. Following the close of
each Plan Year, the Plan Administrator shall perform an annual reconciliation of each Participants
Account and make any necessary adjustments to a Participants Account. The Accounts are
established solely for bookkeeping purposes to track contributions and any income adjustments
thereto that are credited on the Participants behalf. The Accounts shall not be used to segregate
assets for payment of any amounts contributed or allocated under the Plan and no Employer shall be
obligated to make any actual contributions to the Accounts or actual investment on behalf of a
Participant.
5.2 Interest. Each Canadian Participants Account shall be credited with Interest (i)
on the value of the Account as of the end of the prior Plan Year at a rate equal to the average
rate of return on the balanced funds offered in the Tax Qualified Plan during the Plan Year and (2)
on the Excess Canadian Contributions made during the Plan Year at such rate divided by two, unless
the Plan Administrator, in its discretion, determines an alternative rate. For the Plan Year in
which the Canadian Participant incurs a Separation from Service, his Account shall be credited with
Interest on the value of the Account as of his Separation from Service date at a rate
9
equal to the average rate of return on the balanced funds offered in the Tax Qualified Plan
for the period beginning on the first day of such Plan Year through his Separation from Service
date. U.S. Participants shall not be eligible for Interest under the Plan.
5.3 Investment. The Plan Administrator shall make available one or more investment
funds in which amounts credited to each U.S. Participants Account shall be deemed invested, in
accordance with the U.S. Participants directions. The investment funds shall be the same as those
offered under the Tax Qualified Plan, except for any self-directed brokerage option that is or may
be made available under the Tax Qualified Plan. The Plan Administrator may offer any other
investment options in its discretion. Any such directions shall be effective only in accordance
with such rules as the Plan Administrator may establish and applicable federal and state law. If a
U.S. Participant does not make investment elections with respect to amounts credited to his
Account, such amounts shall be deemed invested in such investment fund as the Plan Administrator
may direct. Canadian Participants shall not have investment options under the Plan.
(a) A U.S. Participant shall make his investment fund selections at such time and in such
manner as permitted by the Plan Administrator, which may include telephone or electronic delivery.
Investments must be made in whole percentages. A U.S. Participant may change his investment
elections at any time, or may reallocate amounts invested among the investment funds available
under the Plan.
(b) Any account maintenance fees and expense charges for transactions performed for each U.S.
Participants Account shall be charged to the U.S. Participants Account. Other Plan charges and
administrative expenses shall be paid by the Employer.
5.4 Statements. At least annually, the Plan Administrator (or its designee) shall
provide the Participant with a statement of such Participants Account reflecting the Interest or
income, gains and losses (realized and unrealized), as applicable, and distributions with respect
to such Account, since the prior statement.
ARTICLE 6
VESTING
VESTING
6.1 Vesting Schedules
(a) Canadian Participants. Subject to Section 6.2 and the Participants continued
employment with the Employer, a Canadian Participant shall become fully vested and have a
nonforfeitable right to any amounts credited to the Canadian Participants Account, adjusted for
Interest, as provided below:
Vested Percentage | Age | |||
50% |
Younger than 55 | |||
70% |
55 | |||
80% |
56 | |||
90% |
57 | |||
100% |
58 | |||
10
If a Canadian Participant incurs a Separation from Service with the Employer after
attaining age 55 but before attaining age 58, the specific vesting percentage will be interpolated
and rounded to the closest month of age. Subject to Section 6.2, if the Participant incurs a
Separation from Service before attaining age 58, all unvested amounts credited to the Participants
Account, and any Interest credited thereon, shall be forfeited.
(b) U.S. Participants. Subject to Section 6.2 and the Participants continued
employment with the Employer, a U.S. Participant shall become fully vested and have a
nonforfeitable right to any amounts credited to the U.S. Participants Account, adjusted for
income, gains and losses attributable thereto, upon the completion of three Years of Service.
Notwithstanding any other provisions of the Plan to the contrary, if a U.S. Participant has any
Reinstated Amounts that were contributed as excess matching contributions under the Prior Plans
before January 1, 2009, the U.S. Participant has a fully vested and nonforfeitable right to such
Reinstated Amounts.
Subject to Section 6.2, if the U.S. Participant incurs a Separation from Service before
completing three Years of Service with the Employer, all amounts credited to the U.S. Participants
Account as an Excess U.S. Contribution and/or Employer Contribution, and any income or gain
attributable thereto, shall be forfeited.
6.2 Accelerated Vesting. Under certain circumstances, a Participant shall become
vested and have a nonforfeitable right to all or a portion of any Reinstated Amounts, Excess
Canadian Contributions, Excess U.S. Contributions and Employer Contributions credited to the
Participants Account, adjusted for Interest Credits or income, gains and losses attributable
thereto, as applicable, pursuant to an accelerated vesting schedule, as provided below. Except as
otherwise provided in a Participants employment or other individual agreement, if any, cause for
purposes of this Section 6.2 shall be determined by the Company in its sole discretion.
(a) Canadian Participants. A Canadian Participant shall become fully vested in any
Reinstated Amounts, Excess Canadian Contributions and Employer Contributions credited to the
Canadian Participants Account, including any Interest Credits added thereto, to the extent not
already fully vested, if the Canadian Participant incurs a Separation from Service due to death or
to an involuntary termination by the Employer without cause.
(b) U.S. Participants. For any Reinstated Amounts, Excess U.S. Contributions and
Employer Contributions credited to a U.S. Participants Account, if a U.S. Participant incurs a
Separation from Service due to an involuntary termination by the Employer without cause, death or
Disability before the U.S. Participant becomes vested in any such contributions, then the U.S.
Participant shall become vested in a prorata portion of such contributions, if any, adjusted for
income, gains and losses attributable thereto. Such prorata portion shall be determined by
multiplying any such contributions by a fraction, the numerator of which is the U.S. Participants
number of completed months of service with the Employer, and the denominator of which is 36.
11
6.3 Forfeitures. Notwithstanding any provision in the Plan to the contrary, the
following shall apply:
(a) If a Canadian Participant is terminated for cause, then any Excess Canadian
Contributions and Employer Contributions credited to his Account (and any Interest credited
thereon) shall be forfeited, regardless of the extent to which such contributions are vested before
the date of his Separation from Service.
(b) If a U.S. Participant voluntarily Separates from Service with the Employer before
attaining age 55, 50% of the aggregate amount of any Reinstated Amounts, Excess U.S. Contributions
and Employer Contributions credited to his Account (and any income or gain attributable thereto)
shall be forfeited, regardless of whether he completed three Years of Service with the Employer
before the date of his Separation from Service. The foregoing shall not apply to any Reinstated
Amounts that were credited as excess matching contributions under the Prior Plans before January 1,
2009.
ARTICLE 7
DISTRIBUTION OF ACCOUNTS
DISTRIBUTION OF ACCOUNTS
7.1 Timing of Distribution.
(a) If a Participant is a former employee described in Section 3.2(a) whose Account is only
credited with Reinstated Amounts, such Reinstated Amounts shall be paid as soon as administratively
possible following Emergence.
(b) Subject to Article 8, distribution of the vested portion of an Account shall be made on
the earliest to occur of:
(i) the date set forth in Section 7.2 with respect to the Participants Separation from
Service;
(ii) the date set forth in Section 7.3 with respect to the Participants death; or
(iii) the date set forth in Section 7.4 with respect to the U.S. Participants
Disability.
Notwithstanding any other provision of the Plan to the contrary, in no event shall the
distribution of a U.S. Participants Account be accelerated to a time earlier than it would
otherwise have been paid, whether by amendment of the Plan, exercise of the Plan Administrators
discretion or otherwise, except as permitted by the Treasury Regulations issued pursuant to Code
Section 409A.
7.2 Benefits Upon Separation from Service. Upon a Participants Separation from
Service for any reason other than death or Disability, the balance of the Participants Account
shall be paid in two installments as follows, subject to any reasonable administrative delays in
the processing of payment:
12
(a) One-half of the Participants Account (determined as of his Separation from Service) shall
be paid as of the first day of the seventh month following the Participants Separation from
Service; and
(b) The remaining portion of the Participants Account shall be paid the first day of the
month coincident with or following the one-year anniversary date of the Participants Separation
from Service.
If the Participant is a Canadian Participant, following the crediting of Interest for the Plan Year
in which his Separation from Service occurs (as described in Section 5.2), Interest as described in
5.2 shall cease to be credited upon his Separation from Service. In lieu thereof, interest at the
one-year Canadian Deposit Offered Rate (or other rate in Canada that is equivalent to the LIBOR
rate as described below for U.S. Participants) as in effect on the last day of the month preceding
the Canadian Participants Separation from Service date shall be credited to the Canadian
Participants Account from the Separation from Service date to the date of payment.
If the Participant is a U.S. Participant, the right to invest the balance of his Account shall
cease upon his Separation from Service. In lieu thereof, interest at the one-year LIBOR rate
published in the Wall Street Journal and in effect as in effect on the last day of the month
preceding the U.S. Participants Separation from Service date shall be credited to the U.S.
Participants Account from the Separation from Service date to the date of payment.
7.3 Benefits Upon Death. Upon the Participants death, the Participants Beneficiary
shall be paid a benefit equal to the remaining balance in the Participants Account as of his date
of death in a lump sum payment. Payment shall be made following the date of the Participants
death; provided, however, that payment shall not be made later than the end of the calendar year in
which the Participants death occurs or, if later, the 15th day of the third month
following the date of the Participants death.
7.4 Benefits Upon Disability. A U.S. Participant shall receive the balance of his
Account in a lump sum payment upon incurrence of a Disability. The U.S. Participants Account
shall be valued as of the date of Disability as determined by the Social Security Administration,
and payment shall be made following such date, but no later than the end of the calendar year
following the date of Disability or, if later, the 15th day of the third month following
the date of Disability.
7.5 Right of Offset.
(a) Canadian Participants. The Company and any Employer shall have the right to
offset any amounts payable to a Canadian Participant under the Plan to reimburse the Company, or
any of its subsidiaries or affiliates, for liabilities or obligations of the Canadian Participant
to the Company or such subsidiary or affiliate, including any amounts misappropriated by the
Canadian Participant.
(b) U.S. Participants. The Company and any Employer shall have the right to offset
any amounts payable to a U.S. Participant under the Plan to reimburse the Company, or any of its
subsidiaries or affiliates, for liabilities or obligations of the U.S. Participant to the Company
or such subsidiary or affiliate if the following conditions are met:
13
(i) the liabilities or obligations of the Participant to the Employer were incurred in
the ordinary course of the service relationship between the Participant and the Employer;
(ii) the entire amount to be offset does not exceed $5,000 in any taxable year of the
Participant; and
(iii) the offset is made at the same time and in the same amount as the liabilities or
obligations otherwise would have been due and collected from the Participant.
7.6 Taxes. Income taxes and other taxes payable with respect to an Account shall be
deducted from amounts paid under the Plan. All taxes that the Plan Administrator determines are
required to be withheld from any payments made pursuant to this Article 7 shall be withheld. With
respect to U.S. Participants, the Plan Administrator shall have the discretion to make a
distribution, or accelerate the time or schedule of payment, from a U.S. Participants Account if
payment is required for:
(a) FICA, FUTA and/or the corresponding withholding provisions of applicable state and local
taxes with respect to compensation deferred under the Plan. Any such distribution shall not exceed
the aggregate of such tax withholding and shall reduce the U.S. Participants Account balance to
the extent of such distributions; or
(b) payment of state, local or foreign tax obligations arising from participation in the Plan
that apply to an amount deferred under the Plan and FUTA resulting from such payment. Any such
payment shall not exceed the amount of such taxes due as a result of Plan participation.
7.7 Additional Discretion to Accelerate Distribution.
(a) With respect to Canadian Participants, the Plan Administrator shall have the discretion to
accelerate the time or schedule of payment under the Plan, subject to any restrictions or
requirements under applicable Canadian law.
(b) With respect to U.S. Participants only, the Plan Administrator shall have the discretion
to accelerate the time or schedule of payment under the Plan if the Plan fails to meet the
requirements of Code Section 409A and regulations promulgated thereunder, provided that any such
payment does not exceed the amount required to be included in income as a result of such failure.
(c) With respect to U.S. Participants only, the Plan Administrator shall have the discretion
to require a mandatory lump sum payment of a U.S. Participants Account balance up to the Code
Section 402(g)(1)(B) limit in effect at the time of payment provided that the payment results in
the termination and liquidation of the entirety of the U.S. Participants interest under the Plan
(as determined in accordance with plan aggregation rules set forth in Code Section 409A and
Treasury Regulations promulgated thereunder).
14
ARTICLE 8
NON-COMPETE AND CONFIDENTIALITY PROVISIONS
NON-COMPETE AND CONFIDENTIALITY PROVISIONS
8.1 Non-Competition. Notwithstanding anything herein contained to the contrary, for
Participants who are Grade 40 or above upon their date of Separation from Service, no amount of
benefit shall be payable or continued to be paid pursuant to this Plan in the event that during his
employment with the Employer or during a period of 12 months following his termination of
employment or retirement, the Participant, directly or indirectly, without the consent of
AbitibiBowater Inc.:
(a) engages in or becomes interested, whether on his own account or in conjunction with or on
behalf of any other person, and whether as an employee, director, officer, partner, principal,
agent, advisor, financial backer, shareholder (except as a passive investor in a public company),
or in any other capacity whatsoever, in a North American business which may fairly be regarded as
being in competition with the Business of AbitibiBowater (as defined below); or
(b) assists financially or in any manner whatsoever any person, firm, association or company,
whether as principal, agent, officer, employee, manager, advisor, financial backer, shareholder
(except as a passive investor in a public company), or in any capacity whatsoever to enter into,
develop, carry on or maintain a North American business, which may fairly be regarded as being in
competition with the Business of AbitibiBowater.
For the purposes of this Plan, Business of AbitibiBowater means the manufacture, sale and/or
dealing in newsprint, commercial printing papers, market pulp and wood products, as well as
research into, development, production, manufacture, sale, supply, import, export or marketing of
any product which is the same or similar to or competitive with any product researched, developed,
produced, manufactured, sold, supplied, imported, exported or marketed by AbitibiBowater or by any
of its subsidiaries and affiliates in the context of the above described activities as of the date
of the Participants Separation from Service.
8.2 Confidentiality. Notwithstanding anything herein contained to the contrary, no
amount of benefit shall be payable or continued to be paid pursuant to this Plan in the event that
during his employment with the Employer or at any time thereafter, the Participant discloses any
trade secrets or other Confidential Information (as defined below) with regard to the Business of
AbitibiBowater at any time, directly or indirectly, to any third party or otherwise use such
Confidential Information for his or their own benefit or the benefit of others for a period of 5
years following the date of the Participants Separation from Service. Confidential Information
means all valuable and/or proprietary information in any form belonging to or pertaining to
AbitibiBowater and its subsidiaries, affiliates, customers and vendors, that would be useful to
AbitibiBowaters competitors or otherwise damaging to AbitibiBowater (or its subsidiaries or
affiliates) if disclosed. Confidential Information may include, but is not necessarily limited to:
(i) the identity of AbitibiBowaters (or subsidiaries or affiliates) customers or potential
customers, their purchasing histories, and the terms or proposed terms upon which it or they offer
or may offer its products and services to such customers, (ii) the identity of any of
AbitibiBowaters or its subsidiaries or affiliates vendors or potential vendors, and the terms or
proposed terms upon which it or they may purchase products and services from such vendors, (iii)
technology and methods used their products and services or planned products and services,
15
(iv) the terms and conditions upon which AbitibiBowater (or its subsidiaries and affiliates)
employs its employees and contracts with independent contractors, (v) marketing and/or business
plans and strategies, and (vi) financial reports and analyses regarding AbitibiBowaters revenues,
expenses, profitability and operations. However, Confidential Information does not include
information which is or becomes generally available to the public other than as a result of
disclosure by the Participant.
8.3 Non-Solicitation. Notwithstanding anything herein contained to the contrary, no amount of
benefit shall be payable or continued to be paid pursuant to this Plan in the event that during his
employment with the Employer or for a period of 12 months following the date of the Participants
Separation from Service, except with the Companys prior written consent, the Participant, on his
own or in conjunction with or on behalf of any other person, directly or indirectly, solicits,
assists in soliciting, accepts, or facilitates the acceptance of business (which may fairly be
regarded as being in competition with the Business of AbitibiBowater) of any person (i) to whom
AbitibiBowater or its subsidiaries or affiliates has supplied goods or services at any time before
the date of Separation from Service or (ii) with whom AbitibiBowater or its subsidiaries or
affiliates has had any negotiations or discussions regarding the possible supply of goods or
services before the date of Separation from Service.
8.4 Non-Disparagement. Further, notwithstanding anything herein contained to the contrary, no
amount of benefit shall be payable or continued to be paid pursuant to this Plan in the event that
during his employment with the Employer or at any time thereafter the Participant, directly or
indirectly, disparages, defames or speaks negatively about AbitibiBowater or any of its
subsidiaries, affiliates, customers or related entities, or its products and services, or if the
Participant disparages, subverts, discloses or discusses any detail or aspect of the professional
careers or personal lives of any director, officer or employee of AbitibiBowater or its
subsidiaries or affiliates for any reason whatsoever, except as may be required by law.
ARTICLE 9
PLAN ADMINISTRATION
PLAN ADMINISTRATION
9.1 Plan Administration and Interpretation. The Plan Administrator shall oversee the
administration of the Plan. The Plan Administrator shall have complete control and authority to
determine the rights and benefits and all claims, demands and actions arising out of the provisions
of the Plan of any Participant, Beneficiary, deceased Participant or other person having or
claiming to have any interest under the Plan. Benefits under the Plan shall be paid only if the
Plan Administrator decides in its discretion that the Eligible Employee, Participant or Beneficiary
is entitled to them. Notwithstanding any other provision of the Plan to the contrary, the Plan
Administrator shall have complete discretion to interpret the Plan and to decide all matters under
the Plan. Such interpretation and decision shall be final, conclusive and binding on all
Participants and any person claiming under or through any Participant, in the absence of clear and
convincing evidence that the Plan Administrator acted arbitrarily and capriciously. Any individual
serving as Plan Administrator who is a Participant shall not vote or act on any matter relating
solely to himself or herself. When making a determination or calculation, the Plan Administrator
shall be entitled to rely on information furnished by a Participant, a Beneficiary, the Company,
the Employer or a trustee (if any).
16
9.2 Powers, Duties, Procedures. The Plan Administrator shall have such powers and
duties, may adopt such rules, may act in accordance with such procedures, may appoint such officers
or agents, may delegate such powers and duties and shall follow such claims and appeal procedures
with respect to the Plan (subject to the requirements of Section 9.5) as the Plan Administrator may
establish. The Plan Administrator or individuals acting on its behalf shall receive reimbursement
for any reasonable business expense incurred in the performance of the foregoing duties.
9.3 Information. To enable the Plan Administrator to perform its functions, the
Company and the Employer shall supply full and timely information to the Plan Administrator on all
matters relating to the compensation of Participants, their employment, retirement, death,
Separation from Service, Disability and such other pertinent facts as the Plan Administrator may
require.
9.4 Indemnification of Plan Administrator. The Company agrees to indemnify and to
defend to the fullest extent permitted by law any officer or employee who serves as Plan
Administrator (including any such individual who will have served as Plan Administrator of the
Plan) against all liabilities, damages, costs and expenses (including reasonable attorneys fees
and amounts paid in settlement of any claims approved by the Company in writing in advance)
occasioned by any act or omission to act in connection with the Plan, if such act or omission is in
good faith.
9.5 Claims Procedure. A Participant or Beneficiary shall have the right to file a
claim, inquire if he has any right to benefits and the amounts thereof or appeal the denial of a
claim.
(a) Initial Claim. A claim shall be considered as having been filed when a written
communication is made by the Participant, Beneficiary or his authorized representative to the
attention of the Plan Administrator (the claimant). The Plan Administrator shall notify the
claimant in writing within 90 days after receipt of the claim if the claim is wholly or partially
denied. If an extension of time beyond the initial 90-day period for processing the claim is
required, written notice of the extension shall be provided to the claimant before the expiration
of the initial 90-day period. In no event shall the period, as extended, exceed 180 days. The
extension notice shall indicate the special circumstances requiring an extension of time and the
date by which the Plan Administrator expects to render a final decision. Written claims for
benefit payments must be made within twelve months of the later of the Participants retirement or
termination of employment for any reason or the Effective Date of the Plan. A claim shall be
considered untimely filed and denied if received more than twelve months from such later date.
(b) Content of Denial. Notice of a wholly or partially denied claim for benefits shall be in
writing in a manner calculated to be understood by the claimant and shall include:
(i) the reason or reasons for denial;
(ii) specific reference to the Plan provisions on which the denial is based;
17
(iii) a description of any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or information is
necessary; and
(iv) an explanation of the Plans claim appeal procedure, including a statement of the
claimants right, if applicable, to bring a civil action under Section 502(a) of ERISA
following a denial of the claim upon review.
(c) Right to Review. If a claim is wholly or partially denied, the claimant may file an
appeal requesting the Plan Administrator to conduct a full and fair review of his claim. An appeal
must be made in writing no more than 60 days after the claimant receives written notice of the
denial. The claimant may review or receive copies, upon request and free of charge, any documents,
records or other information that the Plan Administrator determines relevant; provided that, for a
claimant who is a U.S. Participant, relevant has the meaning set forth in U.S. Department of
Labor Regulation Section 2560.503-1(m)(8). The claimant may also submit written comments,
documents, records and other information relating to his claim. The Plan Administrator shall take
into account all comments, documents, records and other information submitted by the claimant
relating to the claim, without regard to whether such information was submitted or considered in
the initial review of the claim. The decision of the Plan Administrator regarding the appeal shall
be given to the claimant in writing no later than 60 days following receipt of the appeal.
However, if the Plan Administrator, in its sole discretion, grants a hearing, or there are special
circumstances involved, the decision shall be given no later than 120 days after receiving the
appeal. If such an extension of time for review is required, written notice of the extension shall
be furnished to the claimant before the commencement of the extension. The decision shall be
written in a manner calculated to be understood by the claimant and include:
(i) specific reasons for the decision;
(ii) specific references to the pertinent Plan provisions on which the decision is
based;
(iii) a statement that the claimant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of, all documents, records or other information
relevant to the claimants claim; and
(iv) if applicable, a statement of the claimants right, if applicable, to bring a
civil action under Section 502(a) of ERISA following a wholly or partially denied claim for
benefits.
(d) Form of Notice and Decision. Any notice or decision by the Plan Administrator under this
Section 9.5 may be furnished electronically, and for U.S. Participants, in accordance with U.S.
Department of Labor Regulation Section 2520.104b-1(c)(i), (iii) and (iv).
(e) Exhaustion of Administrative Remedy. Notwithstanding any provision in the Plan to the
contrary, no employee, Participant or Beneficiary may bring any legal or administrative claim or
cause of action against the Plan, the Plan Administrator or the Employer
18
in court or any other venue until the employee, Participant or Beneficiary has exhausted its
administrative remedies under this Section 9.5.
(f) Statute of Limitations. Notwithstanding any provision in the Plan to the contrary, a
Participant, Spouse or other beneficiary must file any written claim for benefits with the Plan
Administrator within one year from the date on which the Participant, Spouse or other beneficiary
knows, or with the exercise of reasonable diligence would know, of the basis for the claim, but, in
the case of a claim based upon an alleged error in the amount of benefits, in no event later than
one year from the date on which the first allegedly mistaken payment is made. Any written claim
submitted to the Plan Administrator after such date shall be void and denied as untimely. Further,
in order for a claimant to initiate any action for any benefit under the Plan before any court or
before any administrative agency or quasi-judicial tribunal, such claimant must have first filed a
claim for such benefit and requested review of any adverse decision on such claim in accordance
with this Section and any procedures established by the Plan Administrator pursuant to this
Section. Any such action must be initiated not more than 180 days after receipt of an adverse
claim decision on review, except as otherwise required by applicable law.
(g) Suspension of Payment. If the Plan Administrator is in doubt concerning the entitlement
of any person to any payment claimed under the Plan, the Employer may suspend payment until
satisfied as to the persons entitlement to the payment. Notwithstanding the foregoing, no
Participant or Beneficiary may bring a claim for Plan benefits to arbitration, court or through any
other legal action or process until the administrative claims process of this Section 9.5 has been
exhausted.
ARTICLE 10
AMENDMENT AND TERMINATION
AMENDMENT AND TERMINATION
10.1 Authority to Amend and Terminate.
(a) The Plan reserves to the Plan Administrator the right to amend or terminate the Plan at
any time, without notice, subject to Section 10.2. Any amendment or termination of the Plan shall
be effected by resolution of the Plan Administrator. Except as provided in paragraph (b), Account
balances shall be maintained under the Plan until such amounts would otherwise have been
distributed in accordance with the terms of the Plan.
(b) Upon termination of the Plan, the Plan Administrator reserves the discretion to accelerate
distribution of the Accounts of Participants, provided that any acceleration of distribution for
U.S. Participants must be in accordance with regulations promulgated by the Department of Treasury
under Code Section 409A.
10.2 Existing Rights. No amendment or termination of the Plan shall materially
adversely affect the rights of any Participant with respect to amounts that have been credited to
his Account and are vested before the effective date of such amendment or termination.
Notwithstanding the foregoing, the Plan Administrator may amend the Plan as necessary to address
changes in applicable law in order to assure that amounts contributed to the Plan are not subject
to federal income tax before distribution or withdrawal.
19
ARTICLE 11
MISCELLANEOUS
MISCELLANEOUS
11.1 No Funding. The Company intends that the Plan constitute an unfunded plan for
tax purposes. The Company may, but shall have no obligation to, authorize the creation of trusts
and deposit therein cash or other property, or make other arrangements to meet the payment
obligations under the Plan. Such trusts or other arrangements, if established, shall be consistent
with the unfunded status of the Plan.
11.2 General Creditor Status. The Plan constitutes a mere promise by the Company and
an Active Participants respective Employer to make payments in accordance with the terms of the
Plan and Participants and Beneficiaries shall have the status of general unsecured creditors solely
of the Employer employing the Participant. An Active Participants Employer shall be principally
liable for payment of the Active Participants Retirement Benefits under the Plan, and
AbitibiBowater Inc. shall be secondarily liable for payment. AbiBow US Inc. or AbiBow Canada Inc.
shall be respectively principally liable for payment of the Reinstated Amounts payable to former
U.S. and Canadian employees, and AbitibiBowater Inc. shall be secondarily liable for payment.
Nothing in the Plan shall be construed to give any employee or any other person rights to any
specific assets of the Employer, the Company or of any other person.
11.3 No Assignment. Plan benefits, payments or proceeds shall not be subject to any
claim of any creditor of any Participant or Beneficiary and shall not be subject to attachment or
garnishment or other legal process. Participant Accounts or benefits payable may not be assigned,
pledged or encumbered in any manner, and any attempt to do so shall be void.
11.4 Notices and Communications. All notices, statements, reports and other
communications from the Plan Administrator to any employee, Participant, Beneficiary or other
person required or permitted under the Plan shall be deemed to have been duly given when personally
delivered to, when transmitted via facsimile or other electronic media or when mailed overnight or
by first-class mail, postage prepaid and addressed to, such employee, Participant, Beneficiary or
other person at his last known address on the Employers or Companys records. All elections,
designations, requests, notices, instructions and other communications from a Participant,
Beneficiary or other person to the Plan Administrator required or permitted under the Plan shall be
in such form as is prescribed from time to time by the Plan Administrator, and shall be mailed by
first-class mail, transmitted via facsimile or other electronic media or delivered to such location
as shall be specified by the Plan Administrator. Such communication shall be deemed to have been
given and delivered only upon actual receipt by the Plan Administrator at such location.
11.5 Limitation of Participants Rights. Nothing contained in the Plan shall confer
upon any person a right to be employed or to continue in the employ of the Employer, or to
interfere, in any way, either with the Employers right to terminate the employment of an Eligible
Employee at any time, with or without cause, or to modify the Base Salary or Incentive Award of any
Eligible Employee.
11.6 Participants Bound. Any action with respect to the Plan taken by the Plan
Administrator or a trustee (if any) or any action authorized by or taken at the direction of the
20
Plan Administrator, the Employer or a trustee (if any) shall be conclusive upon all
Participants and Beneficiaries entitled to benefits under the Plan.
11.7 Receipt and Release. Any payment to any Participant or Beneficiary in accordance
with the provisions of the Plan shall, to the extent thereof, be in full satisfaction of all claims
against the Employer, the Plan Administrator and a trustee (if any) under the Plan, and the Plan
Administrator may require such Participant or Beneficiary, as a condition precedent to such
payment, to execute a receipt and release to such effect. If any Participant or Beneficiary is
determined by the Plan Administrator to be incompetent by reason of physical or mental disability
(including minority) to give a valid receipt and release, the Plan Administrator may cause the
payment or payments becoming due to such person to be made to another person for his benefit
without responsibility on the part of the Plan Administrator, the Employer or a trustee (if any) to
follow the application of such funds.
11.8 Governing Law and Severability. With respect to U.S. Participants, the Plan
shall be construed, administered and governed in all respects under and by the laws of the State of
Delaware to the extent not preempted by ERISA. With respect to Canadian Participants, the Plan
shall be construed, administered and governed in all respects under and by the laws of Quebec. If
any provision is held by a court of competent jurisdiction to be invalid or unenforceable, the
remaining provisions hereof shall continue to be fully effective.
11.9 Currency. Contributions credited to and payments made under the Plan shall be
determined in the same currency in which a Participants receives his Base Salary.
11.10 Headings. Headings and subheading in the Plan are inserted for convenience only
and are not to be considered in the construction of the provisions hereof.
* * *
IN WITNESS WHEREOF, the undersigned officer of AbitibiBowater Inc. has executed this document
pursuant to Resolutions adopted by AbitibiBowater Inc. on December 9, 2010.
ABITIBIBOWATER INC. |
||||
By: | /s/ Richard Garneau | |||
Richard Garneau | ||||
Its: | President and Chief Executive Officer |
21
EXHIBIT A
The following individuals are active employees of the Employer on the Effective Date who
satisfy the requirements of Section 3.1(a) and are entitled to payment of Reinstated Amounts, as
identified below.
22
EXHIBIT B
The following individuals are former employees of the Employer and beneficiaries of
deceased employees on the Effective Date who satisfy the requirements of Section 3.1(a) and are
entitled to payment of Reinstated Amounts, as identified below.
23