Supplemental Retirement
Savings Plan
As Amended and Restated Effective
as of January 1, 2009
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4
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2.12 “Employer
Contribution”
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4
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4
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2.14 “Excess Automatic Company
Contribution”
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5
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2.15 “Excess
Contributions”
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5
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2.16 “Excess Matching
Contribution”
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5
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5
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5
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2.19 “Plan Administrator”
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5
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5
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2.21 “Retirement Savings
Plan”
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5
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5
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2.23 “Separation from
Service”
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5
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Article 3 ELIGIBILITY AND
PARTICIPATION
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6
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3.1 Eligibility for Participation
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6
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6
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3.3 Cessation of Participation
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Article 4 CONTRIBUTIONS AND
DEFERRALS
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4.1 Excess Matching Contributions
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6
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4.2 Excess Automatic Company
Contributions
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4.3 Employer Contributions
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7
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7
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7
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TABLE OF
CONTENTS
(continued)
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Page
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8
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Article 7 DISTRIBUTION OF
ACCOUNTS
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7.1 Timing of Distribution
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10
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7.2 Benefits Upon Separation from
Service
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7.4 Benefits Upon Disability
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7.7 Additional Discretion to Accelerate
Distribution
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Article 8 PLAN ADMINISTRATION
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8.1 Plan Administration and
Interpretation
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8.2 Powers, Duties, Procedures
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8.4 Indemnification of Plan
Administrator
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Article 9 AMENDMENT AND
TERMINATION
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9.1 Authority to Amend and Terminate
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10.2 General Creditor Status
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10.4 Notices and Communications
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10.5 Limitation of Participant’s
Rights
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15
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10.8 Governing Law and Severability
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ii
AbitibiBowater
Inc.
Supplemental Retirement
Savings Plan
As Amended and Restated Effective as of January 1,
2009
1.1 Plan
History . Bowater Incorporated (“Bowater”)
established and maintains the Bowater Incorporated Compensatory
Benefits Plan, originally effective January 1, 1985, and last
amended and restated effective February 26, 1999 (the
“Compensatory Benefits Plan”). In response to the
American Jobs Creation Act of 2004 and the enactment of
Section 409A of the Internal Revenue Code (the
“Code”), Bowater initially amended the Compensatory
Benefits Plan during the transition period pursuant to the Second
Amendment for that plan to comply with Code Section 409A.
Under the Second Amendment, Bowater amended the Compensatory
Benefits Plan, effective as of December 31, 2004, to freeze
all contributions to the Compensatory Benefits Plan, such that all
account balances under the Compensatory Benefits Plan are
‘grandfathered’ within the meaning of Code
Section 409A.
Bowater adopted
the Bowater Incorporated Supplemental Retirement Savings Plan,
effective as of January 1, 2005, as a new nonqualified
deferred compensation plan and as a replacement plan for that
portion of the Compensatory Benefits Plan that maintained account
balances during the Code Section 409A transition period that
are subject to the provisions of Code Section 409A. Effective
as of October 30, 2008, AbitibiBowater Inc. (the
“Company”) assumed sponsorship of the Bowater
Incorporated Supplemental Retirement Savings Plan from Bowater, and
such plan was renamed the AbitibiBowater Inc. Supplemental
Retirement Savings Plan (the “Plan”).
This Plan has
been prepared to comply with the provisions of Code
Section 409A, and any regulations issued thereunder. The Plan
shall be interpreted and administered consistent with this intent
and shall apply to all amounts deferred under the Plan on and after
January 1, 2005. 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.
1.2 Plan
Purpose . The purpose of the Plan is to provide certain
eligible employees of the Company with a means to defer receipt of
a portion of their compensation and to receive Company
contributions for retirement purposes that cannot be received under
the Bowater Incorporated Retirement Savings Plan because of Code
limitations. For reference, while the Plan allowed eligible
employees to defer receipt of a portion of their compensation for
periods beginning January 1, 2005 through December 31,
2008, no otherwise eligible employee elected to make any such
deferral. As a result, no “Salary Deferrals” (as
defined herein) are credited to the Plan. References contained
herein are included for compliance with documentation requirements
of Code Section 409A.
The Plan is an
unfunded plan maintained by the Company primarily for the purpose
of providing deferred compensation for a select group of management
or highly compensated employees within the meaning of
Sections 201, 301 and 401 of the Employee Retirement Income
Security Act of 1974 (“ERISA”). In addition, for
periods before January 1, 2009, to the extent that
contributions are made under the Plan solely for the purpose of
providing benefits for certain
employees in
excess of the limitations on contributions and benefits imposed by
Code Section 415, such portion of the Plan shall be treated as a
separate plan that is an excess benefit plan (within the meaning of
ERISA Section 3(36)).
Wherever used
herein, the following terms have the meanings set forth below,
unless a different meaning is clearly required by the
context:
2.1
“Account”. means an account established for the
benefit of a Participant under Section 5.1, which may include
one or more sub-accounts.
2.2
“Base Salary”. means the annual base salary rate
payable by the Employer to an Eligible Employee for services
performed during any Plan Year that would be includible in the
Eligible Employee’s gross income for such year, determined
before deductions are made with respect to the Plan, the Retirement
Savings Plan or any other plan maintained by the Employer
permitting pre-tax contributions, such as an Employer-sponsored
plan established under Code Section 125. Base Salary does not
include income from stock option exercises, restricted stock or
restricted stock units, payments under the Bowater Incorporated
Mid-Term Incentive Plan (or similar plan), the Eligible
Employee’s Bonus, or any other type of incentive award or
payments or contributions to group insurance and other employee
benefit plans maintained by the Eligible Employee’s
Employer.
2.3
“Beneficiary”. means the individual or entity
designated as the Participant’s Beneficiary under the
Retirement Savings Plan. If there is no Beneficiary designated
under the Retirement Savings Plan, then the rules under that plan
shall control for determining the Participant’s Beneficiary
for purposes of the Plan.
2.4
“Bonus”. means the annual bonus payable under the
Employer’s annual incentive plan or program and does not
include any other cash bonus, non-recurring or multi-year
bonus.
2.5
“Bowater”. means Bowater Incorporated, a Delaware
corporation which merged with Abitibi-Consolidated Inc., effective
as of October 29, 2007, to form the Company.
2.6
“Change in Control” .of the Company shall be deemed
to have occurred upon:
(a) the date
that any Person is or becomes an Acquiring Person;
(b) the date
that the Company’s stockholders approve a merger,
consolidation or reorganization of the Company with another
corporation or other Person, unless, immediately following such
merger, consolidation or reorganization, (i) at least 50% of
the combined voting power of the outstanding securities of the
resulting entity would be held in the aggregate by the stockholders
of the Company as of the record date for such approval (provided
that securities held by any individual or entity that is an
Acquiring Person, or who would be an Acquiring Person if 5% were
substituted for 20% in the definition of such term, shall not be
counted as securities held by the stockholders of the Company, but
shall be counted as outstanding
2
securities for
purposes of this determination), or (ii) at least 50% of the
board of directors or similar body of the resulting entity are
Continuing Directors;
(c) the date
the Company sells or otherwise transfers all or substantially all
of the Company’s assets to another corporation or other
Person, unless, immediately following such sale or transfer,
(i) at least 50% of the combined voting power of the
outstanding securities of the acquiring entity would be held in the
aggregate by the stockholders of the Company as of the record date
for such approval (provided that securities held by any individual
or entity that is an Acquiring Person, or who would be an Acquiring
Person if 5% were substituted for 20% in the definition of such
term, shall not be counted as securities held by the stockholders
of the Company, but shall be counted as outstanding securities for
purposes of this determination), or (ii) at least 50% of the
board of directors or similar body of the acquiring entity are
Continuing Directors; or
(d) the date
on which less than 50% of the total membership of the Board
consists of Continuing Directors.
For purposes of
this Section, the following terms shall have the following
meanings:
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(i)
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“Acquiring Person” shall
mean the Beneficial Owner, directly or indirectly, of securities
representing 20% or more of the combined voting power of the
Company’s then outstanding securities, not including (except
as provided in clause (A) of the next sentence) securities of
such Beneficial Owner acquired pursuant to an agreement allowing
the acquisition of up to and including 50% of such voting power
approved by two-thirds of the members of the Board who are Board
members before the Person becomes a Beneficial Owner, directly or
indirectly, of securities representing 5% or more of the combined
voting power of the Company’s then outstanding securities.
Notwithstanding the foregoing, (A) securities acquired
pursuant to an agreement described in the preceding sentence will
be included in determining whether a Beneficial Owner is an
Acquiring Person if, subsequent to the approved acquisition, the
Beneficial Owner acquires 5% or more of such voting power other
than pursuant to such an agreement so approved; and (B) a
Person shall not be an Acquiring Person if such Person is eligible
to and files a Schedule 13G under the Securities and Exchange
Act of 1934 with respect to such Person’s status as a
Beneficial Owner of all securities of the Company of which the
Person is a Beneficial Owner.
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(ii)
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“Affiliate” and
“Associate” shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities and Exchange Act of 1934, as in
effect on the date hereof.
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(iii)
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“Beneficial Owner” of
securities shall mean (A) a Person who beneficially owns such
securities, directly or indirectly, or (B) a Person who has
the right to acquire such securities (whether such right is
exercisable immediately or only with the passage of time) pursuant
to any agreement,
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arrangement or understanding
(whether or not in writing) or upon the exercise of conversion
rights, exchange rights, warrants, options or otherwise.
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(iv)
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“Continuing Directors”
shall mean any member of the Board who (A) was a member of the
Board immediately prior to the date of the event that would
constitute a Change in Control, and any successor of a Continuing
Director while such successor is a member of the Board,
(B) who is not an Acquiring Person or an Affiliate or
Associate of an Acquiring Person and (C) is recommended or
elected to succeed the Continuing Director by a majority of the
Continuing Directors.
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(v)
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“Person” shall mean any
individual, corporation, partnership, group, association or other
“person” as such term is used in Sections 13(d) and
14(d) of the Securities and Exchange Act of 1934.
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2.7
“Code”. means 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.
2.8
“Company”. means AbitibiBowater Inc., a Delaware
corporation, or any successor corporation thereto.
2.9
“Disability”. means the Participant is determined
totally disabled by the Social Security Administration.
2.10
“Eligible Employee”. means an employee of the
Employer who is (i) an “eligible employee” within
the meaning of the Retirement Savings Plan and (ii) a member
of a select group of management or highly compensated employees
within the meaning of ERISA. In addition, for periods before
January 1, 2009, an employee who received contributions that
were solely in excess of Code Section 415 was an Eligible Employee
for the portion of the Plan that was the excess benefit plan only
and was not considered an Eligible Employee for any other purpose
under the Plan. Notwithstanding the foregoing, an employee who
participates in the AbitibiBowater U.S. Supplemental Executive
Retirement Plan (formerly the Abitibi Consolidated U.S.
Supplemental Executive Retirement Plan) and is listed on
Exhibit A to the Plan shall not be an Eligible
Employee.
2.11
“Employer”. means the Company and each other entity
affiliated with the Company that is a participating employer under
the Retirement Savings Plan.
2.12
“Employer Contribution”. means an Employer
contribution equal to a specified percentage of a
Participant’s Base Salary and Bonus, as described in
Section 4.3.
2.13
“ERISA”. means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and the
regulations and rulings issued thereunder.
4
2.14
“Excess Automatic Company Contribution”. means an
Employer contribution to a Participant’s Account under
Section 4.2 that, when added to the amount contributed on the
Participant’s behalf under the Retirement Savings Plan as an
automatic company contribution for a Plan Year, is equal to 6.5% of
Compensation for such Plan Year.
2.15
“Excess Contributions”. means Employer
contributions that are Excess Matching Contributions and/or Excess
Automatic Company Contributions.
2.16
“Excess Matching Contribution”. means an Employer
contribution to a Participant’s Account under
Section 4.1 that would have been contributed to the
Participant’s account as a matching contribution under the
Retirement Savings Plan pursuant to its terms, but which could not
be contributed due to the application of Code
limitations.
2.17
“Participant”. means a current or former Eligible
Employee who participates in the Plan in accordance with
Article 3 of the Plan and maintains an Account balance
hereunder.
2.18
“Plan”. means the AbitibiBowater Inc. Supplemental
Retirement Savings Plan (formerly, Bowater Incorporated
Supplemental Retirement Savings Plan), as provided herein and as
may be amended from time to time.
2.19
“Plan Administrator”. means the Human Resources and
Compensation Committee of the Board of Directors of the Company
(the “HRCC”) or its delegate.
2.20
“Plan Year”. means the calendar year.
2.21
“Retirement Savings Plan”. means the AbitibiBowater
Inc. Retirement Savings Plan (formerly, Bowater Incorporated
Retirement Savings Plan), effective as of January 1, 2007, as
amended from time to time.
2.22
“Salary Deferral”. means the portion of Base Salary
deferred by a Participant under Section 4.4 for Plan Years
beginning January 1, 2007 and /or January 1,
2008.
2.23
“Separation from Service”. means the
Participant’s death, retirement or other termination of
employment with the Company and all related entities of the
Company, or as otherwise provided by the Department of Treasury in
regulations promulgated under Code Section 409A.
Notwithstanding the foregoing, the Participant’s 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 Participant’s 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.
2.24
“Year of Service”. means a Participant’s year
of service with the Employer within the meaning of the Retirement
Savings Plan.
5
ARTICLE 3
ELIGIBILITY AND PARTICIPATION
3.1
Eligibility for Participation.
(a) An
Eligible Employee shall be entitled to participate in the Plan and
receive Excess Contributions under Sections 4.1 and 4.2 if the
Eligible Employee is employed by the Employer in Salary Grade 29 or
higher.
(b) An
Eligible Employee shall be entitled to participate in the Plan and
receive Employer Contributions under Section 4.3 if the
Eligible Employee:
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(i)
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is
employed by the Employer in Salary Grade 43 or higher;
and
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(ii)
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directly reports to the Chief
Executive Officer of the Company.
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(a) An
Eligible Employee described in Section 3.1(a) shall
participate in the Plan and receive Excess Contributions under
Sections 4.1 and 4.2 of the Plan for any Plan Year (or portion
thereof) during which the Eligible Employee is employed in such
capacity.
(b) An
Eligible Employee described in Section 3.1(b) shall
participate in the Plan and receive Employer Contributions under
Section 4.3 of the Plan for any Plan Year (or portion thereof)
during which the Eligible Employee is employed in such
capacity.
3.3
Cessation of Participation .
(a) A
Participant shall cease to be eligible for Excess Contributions
and/or Employer Contributions, as applicable, for any Plan Year for
which the Participant fails to meet the 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 of the Plan.
(b) A
Participant shall cease to be an active participant in the Plan
upon his Separation from Service. No Excess Contributions or
Employer Contributions shall be made to the Plan with respect to
Base Salary or Bonus paid to the Participant after such Separation
from Service. Upon Separation from Service or Disability, a
Participant shall remain an inactive participant in the Plan until
his Account has been paid in full in accordance with Article 7
of the Plan.
ARTICLE 4
CONTRIBUTIONS AND DEFERRALS
4.1 Excess
Matching Contributions . Each Plan Year, the Employer shall
make Excess Matching Contributions to the Account of each Eligible
Employee described in Section 3.1(a) in an amount that would
have been contributed to the Participant’s account under the
Retirement Savings Plan pursuant to its terms, but which could not
be contributed to the Participant’s account in the Retirement
Savings Plan due to the application of Code limitations.
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