Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
LOUISIANA-PACIFIC CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 93-0609074
(State of incorporation) (IRS Employer Identification No.)
414 Union Street, Suite 2000
Nashville, Tennessee 37219
(Address of principal executive offices) (Zip Code)
LOUISIANA-PACIFIC CORPORATION
2004 EXECUTIVE DEFERRED COMPENSATION PLAN
(Full title of the plan)
Anton C. Kirchhof
Secretary
Louisiana-Pacific Corporation
805 S.W. Broadway
Portland, Oregon 97205
Telephone (503) 821-5100
(Name, address, and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Offering Price Aggregate Registration
Registered Per Obligation Offering Price Fee
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Deferred Compensation
Obligations (1) $10,000,000 100% $10,000,000 $1,267
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(1) The Deferred Compensation Obligations are unsecured obligations of
Louisiana-Pacific Corporation to pay deferred compensation in the future in
accordance with the terms of the Louisiana-Pacific Corporation 2004
Executive Deferred Compensation Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated by reference in this registration
statement:
(a) The registrant's annual report on Form 10-K for the year ended
December 31, 2003.
(b) The registrant's quarterly report on Form 10-Q for the quarters
ended March 31, 2004 and June 30, 2004.
(c) The registrant's current reports on Form 8-K filed on February 5,
2004 (as to Item 5 only), March 15, 2004 and March 26, 2004.
(d) The description of the registrant's Common Stock included as
Exhibit 99.1 to the registrant's current report on Form 8-K filed May
26, 1998.
(f) The description of preferred stock purchase rights contained in
the registrant's Registration Statement on Form 8-A filed May 26,
1998.
All documents filed by the registrant subsequent to those listed above
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
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Under the Louisiana-Pacific Corporation 2004 Executive Deferred
Compensation Plan (the "Plan"), the registrant will provide eligible employees
with the opportunity to enter into agreements for the deferral of a specific
percentage or dollar amount of their regular base salary and annual bonus
payable under the registrant's Annual Cash Incentive Award Plan, as amended or
modified from time to time. The obligations of the registrant under such
agreements (the "Obligations") will be unsecured general obligations of the
registrant to pay the deferred compensation in the future in accordance with the
terms of the Plan, and will rank pari passu with other unsecured and
unsubordinated indebtedness of the registrant from time to time outstanding. The
Obligations will be denominated and be payable in United States dollars.
The amount of compensation to be deferred by each participating employee
(each, a "Participant") will be determined in accordance with the Plan based on
elections from time to time by each Participant. Each Obligation will be payable
on a date or dates selected by each Participant in accordance with the terms of
the Plan. The Obligations will be indexed to one or more Investment Funds
individually chosen by each Participant from time to time from a list of
designated investment media. Each Participant's Obligation will be adjusted to
reflect the investment experience, whether positive or negative, of the selected
Investment Funds, including any appreciation or depreciation. In addition, the
registrant will match the first 3.5 percent of compensation deferred by each
Participant under the Plan by crediting that amount to the Participant's account
under the Plan. The registrant will also credit each Participant's account
annually with amounts that would have been contributed for the Participant's
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account under the registrant's Retirement Account Plan and the profit sharing
component of the registrant's Salaried 401(k) and Profit Sharing Plan if the
Participant had not deferred compensation under the Plan and if limits imposed
under the Internal Revenue Code of 1986, as amended, did not apply. A
Participant's interest in such employer contributions will be fully vested upon
the earliest of the following to occur: attaining retirement age, death,
disability, termination of employment within 24 months following a change in
control, or completion of a specified number of years of service.
The registrant intends to establish a Rabbi trust in which assets will be
placed representing a portion of the benefits payable to Participants, which
will be available to pay benefits if the registrant fails to pay in accordance
with the Plan for any reason other than insolvency. In the event of the
registrant's insolvency or bankruptcy, the assets of the trust will be available
to satisfy the claims of the registrant's general unsecured creditors, including
but not limited to the Participants. The Participants will have no beneficial
interest or other rights in the assets of the trust other than the rights of
general unsecured creditors of the registrant.
A Participant's right or the right of any other person to the Obligations
cannot be assigned, sold, transferred, pledged, anticipated, hypothecated, or
subjected to claims of creditors except by a written designation of a
beneficiary under the Plan or by the laws of descent and distribution. No part
of the amounts payable shall, prior to actual payment, be subject to seizure or
sequestration for the payment of any debts, judgment, alimony, or separate
maintenance or be transferable by operation of law in the event of the
bankruptcy or insolvency of a Participant or any other person.
The Obligations are not subject to redemption, in whole or in part, prior
to the individual payment dates specified by each Participant or pursuant to
withdrawal or call as provided in the Plan, subject to any penalties or
restrictions imposed in connection with early withdrawals for financial hardship
or otherwise. The registrant reserves the right to amend or terminate the Plan
at any time, except that no such amendment or termination may adversely affect
the right of a Participant to the amounts accrued in his or her deferral account
as of the date of such amendment or termination.
The Obligations are not convertible into another security of the
registrant. No trustee has been appointed having the authority to take action
with respect to the Obligations and each Participant will be responsible for
acting independently with respect to, among other things, the giving of notices,
responding to any requests for consents, waivers, or amendments pertaining to
the Obligations, enforcing covenants and taking action upon default.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Indemnification
The registrant's certificate of incorporation generally provides that its
directors will have no personal liability to the registrant or its stockholders
for monetary damages resulting from breaches of their fiduciary duties. However,
the directors nonetheless remain liable for breaches of their duty of loyalty to
the registrant and its stockholders, as well as for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of law
and transactions from which a director derives improper personal benefit.
Section 174 of the Delaware General Corporation Law ("Law") provides that
any director against whom a claim shall be successfully asserted under said
section for an unlawful payment of a dividend or an unlawful stock purchase or
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redemption shall be entitled to be subrogated to the rights of the corporation
against stockholders who received the dividend on, or assets for the sale or
redemption of, their stock with knowledge that the same was unlawful. Said
section also provides that any such director shall be entitled to contribution
from the other directors who voted for or concurred in the unlawful dividend,
stock purchase, or redemption.
The registrant's certificate of incorporation and bylaws provide that the
registrant shall indemnify its officers and directors to the full extent
permitted by Section 145 of the Law, as amended from time to time. Said Section
145 authorizes a corporation, under certain conditions, to indemnify each person
who is or was a director, officer, employee, or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise (including an employee benefit plan), against certain expenses,
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative,
in which he was or is a party or is threatened to be made a party by reason of
being or having been such director, officer, employee, or agent. In addition to
the indemnification authorized by Section 145 of the Law, the registrant's
bylaws provide that the registrant shall indemnify any natural person (not
including non-employee lawyers, accountants, actuaries, investment advisers, or
arbitrators acting in such capacity) who is or was serving in a fiduciary
capacity with respect to one of the registrant's employee benefit or welfare
plans or who is or was performing any service or duty on behalf of the
registrant with respect to such a plan, against all expenses, judgments, fines,
and amounts paid in settlement incurred by such person in connection with any
action or proceeding arising out of such service or performance, to the extent
such expenses and amounts are insurable but not covered by collectible insurance
or otherwise indemnified. Such indemnification shall not be available to any
person who participated in or knowingly failed to take appropriate action with
respect to any violation of any responsibilities or obligations imposed upon
fiduciaries by law, knowing such to be a violation of such responsibilities or
obligations.
Insurance
The registrant maintains directors' and officers' liability insurance under
which the registrant's directors and officers are insured against loss (as
defined) as a result of claims brought against them based upon their acts or
omissions in such capacities.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The Index to Exhibits listing the exhibits required by Item 601 of
Regulation S-K is located at page II-7.
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 ("Securities Act");
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered that remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue. The
undertaking of the registrant in the preceding sentence does not apply to
insurance against liability arising under the Securities Act.
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SIGNATURES
The Registrant.
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Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Portland, state of Oregon, on the 16th day of August,
2004.
LOUISIANA-PACIFIC CORPORATION
(Registrant)
By /s/ Curtis M. Stevens
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Curtis M. Stevens
Executive Vice President, Administration
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated as of the 16th day of August, 2004.
Signature Title
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(1) Principal Executive Officer
and Director:
MARK A. SUWYN* Chief Executive Officer, Chairman of
the Board, Director
(2) Principal Financial Officer:
/s/ Curtis M. Stevens Executive Vice President,
--------------------- Administration and Chief Financial
Curtis M. Stevens Officer
(3) Principal Accounting Officer:
RUSSELL S. PATTEE* Corporate Controller and Assistant
Treasurer
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(4) A majority of the Board of Directors:
E. GARY COOK* Director
DANIEL K. FRIERSON* Director
PAUL W. HANSEN * Director
BRENDA J. LAUDERBACK* Director
DUSTAN E. MCCOY* Director
LEE C. SIMPSON* Director
COLIN D. WATSON* Director
*By /s/ Anton C. Kirchhof
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Anton C. Kirchhof
Attorney-in-fact
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INDEX TO EXHIBITS
4 Louisiana-Pacific Corporation 2004 Executive Deferred Compensation Plan.
5 Opinion of Miller Nash LLP as to the legality of the securities being
registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Miller Nash LLP (included in Exhibit 5).
24 Power of attorney of certain officers and directors.
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Other exhibits listed in Item 601 to Regulation S-K are not applicable.
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Exhibit 4
LOUISIANA-PACIFIC CORPORATION
2004 EXECUTIVE DEFERRED COMPENSATION PLAN
This 2004 Executive Deferred Compensation Plan (the "Plan") is adopted by
Louisiana-Pacific Corporation, a Delaware corporation ("Corporation"), effective
as of August 16, 2004 (the "Effective Date"). Capitalized terms not otherwise
defined in the Plan have the meanings set forth in Section 16.
1. PURPOSE OF PLAN
The continued growth and success of Corporation are dependent upon its
ability to attract and retain the services of executives and key employees of
the highest competence and to provide incentives for their effective service and
superior performance. The purpose of the Plan is to advance the interests of
Corporation and its shareholders through a deferred compensation program that
will attract and retain executives and key employees.
2. NATURE OF PLAN
This Plan is intended to be and will be administered by Corporation as an
income tax nonqualified, unfunded plan primarily for the purpose of providing
deferred compensation for a "select group of management or highly compensated
employees" within the meaning of Sections 201(2), 301(a)(3), and 401(a)(1) of
the Employee Retirement Income Security Act of 1974, as amended.
3. SPONSORING EMPLOYERS
The sponsoring employers ("Employers") of the Plan are Corporation and any
subsidiary or affiliate of Corporation that is an employer of a Participant for
income tax purposes.
4. ELIGIBILITY AND PARTICIPATION
4.1 General. All employees of Corporation or any subsidiary or affiliate
of Corporation who are (a) within Levels 1 or 2 of the Louisiana-Pacific
Corporation Management Incentive Plan ("MIP 1 or MIP 2 level employees") on the
Effective Date and (b) participants in the Qualified Plans will automatically be
participants in the Plan ("Participants"). For all purposes of this Plan,
Corporation's Chief Executive Officer will be considered an MIP 1 level
employee. An employee who first becomes an MIP 1 or MIP 2 level employee after
the Effective Date will become a Participant as of the date the employee attains
that MIP level.
4.2 Cessation of Participation. If a Participant ceases to be an MIP 1 or
MIP 2 level employee:
4.2.1 Participant Deferral Contributions and Employer Match
Contributions. His or her participation in the Plan will then cease and no
further Participant Deferral Contributions as described in Section 5 or
Employer Match Contributions as described in Section 6.3 will be made or
credited for such former Participant with respect to services performed
after the date of such cessation; and
4.2.2 Qualified Plan Credits. Such former Participant will be
entitled to a Qualified Plan Supplemental Credit and a Qualified Plan
Makeup Credit, if any, to the extent provided for in Sections 6.1 and 6.2.
5. PARTICIPANT CONTRIBUTIONS
Participants may, but are not required to, make voluntary Participant
Deferral Contributions as described in Section 5.1.
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5.1 Participant Deferral Contributions. Subject to the special rules and
limitations set forth in Sections 5.2, 5.3, and 5.4, a Participant may, by
delivery to Corporation of a written Participant Deferral Election (in such form
and at such time as may be prescribed by or at the direction of the Committee)
not later than the day preceding the first day of a Deferral Period, elect to
defer a specified portion of the Participant's Base Compensation earned for
services performed in Pay Periods beginning in such Deferral Period and/or a
specified portion of the Participant's Annual Bonus earned for services
performed during such Deferral Period (even if all or a portion of the Base
Compensation or Annual Bonus will be paid in a subsequent Deferral Period).
EXAMPLE: A Participant Deferral Election to defer a
specified portion of a Participant's Base
Compensation earned for services performed during Pay
Periods beginning in 2005, and/or a specified portion
of the Participant's Annual Bonus for 2005 that will
be payable, if at all, in the first quarter of 2006,
must be delivered to Corporation no later than
December 31, 2004 (or such earlier date as specified
by the Committee).
A Participant's Participant Deferral Election for a Deferral Period may not be
amended or revoked after the commencement of that Deferral Period (except as
expressly provided in Section 10.4.2 with respect to changes to the
Participant's Form of Benefit Election included in the Participant Deferral
Election). The portion of a Participant's Base Compensation or Annual Bonus that
the Participant elects to defer will be credited to his or her Participant
Deferral Contribution Account described in Section 7.1.1 as a Participant
Deferral Contribution on the same day or days as each corresponding non-deferred
portion of the Participant's Base Compensation or Annual Bonus is actually
payable to the Participant. Each Participant Deferral Election for a Deferral
Period will also include a Form of Benefit Election, as described in
Section 10.4, with respect to Participant Deferral Contributions and Employer
Contributions, and Earnings attributable to those contributions, for the
Deferral Period.
5.2 Deferral Contributions for 2004 Deferral Period. Notwithstanding
Section 5.1, a person who becomes a Participant on the Effective Date may, by
written Participant Deferral Election delivered to Corporation not later than
September 15, 2004, elect to defer a specified portion of the Participant's Base
Compensation earned for services performed by the Participant during Pay Periods
beginning in the period from October 1, 2004, through December 31, 2004, and/or
a specified portion of the Participant's Annual Bonus for 2004 (that will be
payable, if at all, in the first calendar quarter of 2005).
5.3 New Participants. A person who first becomes a Participant after the
Effective Date and during a Deferral Period, may make an Participant Deferral
Election with respect to Base Compensation earned by the Participant for
services performed by the Participant during Pay Periods beginning in the
portion of the initial Deferral Period after the date of the Participant
Deferral Election and/or a specified portion of the Participant's Annual Bonus
for such initial Deferral Period only if the new Participant makes the
Participant Deferral Election within 30 days after he or she first becomes a
Participant.
5.4 Limitation on Participant Deferral Elections. A Participant may elect
to defer up to 90% of the Participant's Base Compensation and/or up to 90% of
the Participant's Annual Bonus. The specified portion of Base Salary or Annual
Bonus to be deferred must be stated as a percentage.
5.5 Changes in Election Procedure. The Committee may, from time to time,
adopt or modify rules and restrictions governing Participant Deferral Elections
and minimum or maximum deferral amounts.
6. EMPLOYER CONTRIBUTIONS
Corporation will credit Participants with Employer Contributions as
described in this Section 6.
6.1 Qualified Plan Supplemental Credit. Each Participant who remains a
Participant on the last day of a Qualified Plan Year and whose Total
Compensation for such Qualified Plan Year exceeds the Applicable Compensation
Limit for such Qualified Plan Year will be credited with a Qualified Plan
Supplemental Credit Employer Contribution, determined and credited to the
Participant's QPSC Account as soon as practicable after the last day of such
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Qualified Plan Year, in an amount equal to the additional amount which would
have been contributed or credited for such Qualified Plan Year to the Qualified
Plans for the Participant if the amount by which the Participant's Total
Compensation exceeds the Applicable Compensation Limit had been included as
Qualified Plan Compensation for such Qualified Plan Year.
6.2 Qualified Plan Makeup Credit. Each Participant who remains employed by
an Employer (whether or not such employee remains a Participant) on the last day
of a Qualified Plan Year will be credited with a Qualified Plan Makeup Credit
Employer Contribution, determined and credited to the Participant's QPMC Account
as soon as practicable after the last day of such Qualified Plan Year, in an
amount equal to the positive difference, if any, between (a) the amount which
would have been contributed or credited for such Qualified Plan Year to the
Qualified Plans for the Participant if no Annual Deferral Contribution had been
made for the Participant under this Plan for such Qualified Plan Year and (b)
the amounts actually contributed or credited to the Qualified Plans for the
Participant for such Qualified Plan Year.
6.3 Employer Matching Contribution. Each Participant Deferral Contribution
by a Participant will be matched by an Employer Matching Contribution in an
amount equal to 3.5% of such Participant Deferral Contribution. Such Employer
Matching Contributions will be credited to a Participant's Employer Match
Account as of the same day or days that each corresponding Participant Deferral
Contribution is credited to his or her Participant Deferral Contribution Account
pursuant to Section 5.1.
6.4 Limitation on Payment of Employer Contributions. Notwithstanding any
other provision of this Section 6, no Employer Contributions credited to any
Participant for any Deferral Period, including Earnings credited with respect to
such Employer Contributions, will be payable to the Participant if such
Participant accrues a benefit under any supplemental executive retirement plan
or agreement maintained by any Employer (a "SERP Arrangement") for such Deferral
Period, except to the extent that under the terms of such SERP Arrangement there
is an offset for Employer Contributions and Earnings credited to the Participant
under this Plan.
7. DEFERRAL ACCOUNTS
7.1 Deferral Accounts and Subaccounts.
7.1.1 Participant Deferral Account. All Participant Deferral
Contributions made by a Participant and all Earnings attributable to such
Participant Deferral Contributions under the Plan will be credited to a
separate bookkeeping account maintained by Corporation in the name of the
Participant (a "Participant Deferral Contribution Account").
7.1.2 Employer Contribution Accounts. Employer Contributions will be
credited as follows:
(a) All Qualified Plan Supplemental Credit Employer
Contributions, Qualified Plan Makeup Credit Employer Contributions,
and Employer Matching Contributions for a Participant and all
Earnings attributable to such Employer Contributions will be
credited (as of the dates specified in Section 6) to separate
bookkeeping accounts maintained by Corporation in the name of the
Participant (a "QPSC Account," a "QPMC Account," and an "Employer
Match Account"). (b) The QPSC, QPMC, and Employer Match Accounts
maintained for each Participant will be referred to collectively as
the Participant's Employer Contribution Accounts.
7.1.3 Deferral Account. Except where the context specifically refers
to either a Participant's Participant Deferral Contribution Account or
Employer Contribution Accounts, references in this Plan to a Participant's
"Deferral Account" mean both the Participant Deferral Contribution Account
and the Employer Contribution Accounts.
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7.1.4 Subaccounts. Each Participant's Deferral Account will have
separate subaccounts ("Subaccounts") as described in this Section.
(a) Annual Subaccount. Each Participant will have an Annual
Subaccount for each Deferral Period designated for the calendar year
corresponding to the Deferral Period (e.g., a 2004 Subaccount, a
2005 Subaccount, etc.) maintained to reflect (i) the Participant
Deferral Contributions and Employer Matching Contributions made or
credited to the Participant's Deferral Account for such Deferral
Period and the Qualified Plan Supplemental Credit and Qualified Plan
Makeup Credit Employer Contributions, if any, credited to the
Participant's Deferral Account that relate to the Qualified Plan
Year that corresponds to the Deferral Period, and (ii) Earnings
attributable to such contributions.
(b) Investment Subaccounts. Each Annual Subaccount will be
further divided into Subaccounts to reflect the Investment Funds
designated by the Participant as provided in Section 7.2.3.
7.1.5 Nature of Accounts and Subaccounts. Deferral Accounts and
Subaccounts are record-keeping devices utilized for the sole purpose of
determining the benefits payable under the Plan and will not constitute a
separate fund of assets.
7.2 Additional Amounts Credited as Growth Factor.
7.2.1 General. Each Deferral Account will accrue an additional
amount as described in Section 7.2.2 referred to as "Growth Factor" from
the date Participant Deferral Contributions and/or Employer Contributions
are credited to a Deferral Account until the date of final payment of the
entire balance of a Deferral Account.
7.2.2 Growth Factor. For any Measurement Period, the Growth Factor
will be the amount of investment income or loss (including unrealized
appreciation or depreciation) that would have been realized had an amount
equal to the total balance in the Deferral Account as of the first date of
the Measurement Period been invested in the Investment Fund or Funds
described in Section 7.2.3 specified for that Measurement Period by the
Participant.
7.2.3 Investment Funds. For purposes of determining Growth Factor, a
Participant may specify one or a combination of Investment Funds
designated from time to time by, or at the direction of, the Committee.
The Investment Funds will be selected and may be changed from time to time
by the Committee; provided however that the Committee will limit the
selected Investment Funds to the extent it determines to be necessary to
meet requirements of applicable law and Treasury Regulations that
investment options under the Plan be "comparable" to the investment
options which a Participant may elect under the Qualified Plans. Pursuant
to forms and procedures to be designated by or at the direction of the
Committee (including such limitations with respect to the timing and
frequency of modifications as the Committee may determine to be
appropriate), a Participant may modify his or her designation of
Investment Funds from time to time. A Participant may:
(a) Specify what percentage of future Participant Deferral
Contributions and Employer Contributions are to be deemed to be
invested in particular Investment Funds; and/or
(b) Provide for reallocation of amounts from one Investment
Fund to one or more other Investment Funds.
7.2.4 Subaccounts. All amounts in a Deferral Account deemed invested
in a particular Investment Fund will be treated as held in a separate
Investment Subaccount as described in Section 7.1.4(b) corresponding to
that Investment Fund.
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7.2.5 No Beneficial Interest. Investment Funds are solely for the
purpose of computing the amount of Growth Factor to be credited to or
charged against a Deferral Account for any Measurement Period. The
Employers may, but will have no obligation to, actually maintain
investments corresponding to the Investment Funds. In the event the
Employers (directly or indirectly through a trust as described in Section
8.2) make actual investments corresponding to Investment Funds, no
Participant or Beneficiary will have any rights or beneficial interest in
such actual investments other than their rights as unsecured creditors of
the Employers with respect to benefits under the Plan.
7.3 Withholding. Any withholding of taxes or other amounts with respect to
Employer Contributions or the accrual of Growth Factor under the Plan that is
required by federal, state, or local law will be withheld from the Participant's
Base Compensation or otherwise paid by the Participant.
7.4 Determination of Deferral Accounts and Subaccounts. Each Participant's
Deferral Account and Subaccounts as of the last day of each Measurement Period
will consist of the balance of the Deferral Account and Subaccounts as of the
first day of the Measurement Period, adjusted as follows:
7.4.1 Participant Deferral Contributions. Participant Deferral
Contributions will be credited as provided in Section 5.1 on the same
dates as the corresponding non-deferred compensation is actually payable
under the Employer's normal payroll practices.
7.4.2 Employer Contributions. Employer Contributions will be
credited as of the dates specified in Section 6 for each type of Employer
Contribution;
7.4.3 Growth Factor. Growth Factor will be credited (or charged) to
reflect an amount equivalent to the investment returns (or loss) that
would have been realized during the Measurement Period had the balance in
each Subaccount as of the first day of the Measurement Period been
invested in the actual investments corresponding to the Investment Fund
for the Subaccount during such Measurement Period;
7.4.4 Distributions. Distributions of Plan benefits to a Participant
or Beneficiary during the Measurement Period will be charged on a pro rata
basis to reduce each Subaccount as of the date of such distribution; and
7.4.5 Other Adjustments. The Committee may direct such other
adjustments (increases or decreases) as the Committee may determine are
necessary and appropriate, including but not limited to a reduction caused
by the Employer's payment of the Participant's share of any payroll taxes
attributable to Earnings.
7.5 Valuation Dates for Distributions. For purposes of this Section 7, and
for purposes of determining the Measurement Period for any period in which a
distribution is made to a Participant or a Beneficiary, the date of such
distribution will be a special Valuation Date (and will thus constitute the end
of that Measurement Period).
8. SOURCE OF BENEFITS
8.1 Unfunded Plan. This Plan and the benefits payable pursuant to the Plan
are unfunded and will be payable only from the general assets of the Employers.
The Employers do not represent that a specific portion of their assets will be
used to provide the benefits under the Plan. Participants or Beneficiaries will
not have any ownership or beneficial interest in any assets of any Employer.
Nothing in this Plan will be deemed to create a trust of any kind or create any
fiduciary relationship. To the extent that any person acquires a right to
receive payments from any Employer under this Plan, such rights will be no
greater than the rights of any unsecured general creditor of such Employer.
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8.2 Trust. Notwithstanding the foregoing, the Employers may (but are not
required to) deposit moneys under any trust established by Corporation (a
"Trust") for the sole purpose of paying benefits under the Plan from those funds
and the income on those funds, unless such Trust assets are required to satisfy
the obligations of the Employers to their general creditors. Such Trust must
meet the requirements of a so-called "Rabbi Trust" under Revenue Procedure
92-64, 1992-2 CB 422.
9. VESTING AND FORFEITURE
9.1 Participant Deferral Accounts. Each Participant is always fully Vested
in his or her Participant Deferral Account.
9.2 Employer Contribution Accounts. A Participant will become fully Vested
in his or her Employer Contribution Accounts (the QPSC Account, the QPMC
Account, and the Employer Match Account) upon attaining Retirement Age or upon
the Participant's death, Disability, or termination of employment with an
Employer for any reason within 24 months following a Change in Control. A
Participant who terminates employment with an Employer prior to attaining
Retirement Age for any other reason will become Vested in such Employer
Contributions Accounts as follows:
9.2.1 QPSC Account and QPMC Account. A Participant's QPSC Account
and QPMC Account will become Vested at the same rate and manner as they
would have otherwise vested under the underlying Qualified Plans had the
Employer Contributions to such Accounts had been made to the Qualified
Plans.
9.2.2 Employer Match Account. A Participant's Employer Match Account
will become fully Vested upon completion of two Years of Service.
9.3 Forfeitures. A Participant who terminates employment with an Employer
will forfeit that percentage of his or her Employer Contribution Accounts (and
each Subaccount) that has not become Vested as of the date of such termination.
Amounts forfeited will revert to the Employers to be used as the Employers
determine in their sole discretion. No Participant or Beneficiary will have any
interest in or claim against any forfeited amounts.
10. PLAN BENEFITS
10.1 During Employment. Except as expressly provided in Section 10.1.1
with respect to an unforeseeable emergency and in Section 10.1.2 with respect to
In-Service Distributions, no portion of a Participant's Deferral Account may be
distributed to or for the benefit of the Participant before the Participant's
separation of service from an Employer.
10.1.1 Unforeseeable Emergencies. The Vested portion of a
Participant's Deferral Account may be distributed to the Participant
before termination of employment in connection with an unforeseeable
emergency (as defined below). Upon a finding that a Participant has
suffered an unforeseeable emergency, the Committee may, in its sole
discretion, make distributions from the Vested portion of the
Participant's Deferral Account to the extent provided in this Section. An
unforeseeable emergency is a severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the
Participant, the Participant's Spouse, or of a Dependent of the
Participant, loss of the Participant's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant. The circumstances that
will constitute an unforeseeable emergency will depend upon the facts of
each case. Examples of what are not considered to be unforeseeable
emergencies include the need to send a Participant's child to college or
the desire to purchase a home. Any such distribution approved by the
Committee will be limited to the amount necessary to meet the emergency
plus amounts necessary to pay taxes reasonably anticipated as a result of
the distribution, after taking into account the extent to which such
hardship is or may be relieved through reimbursement or compensation by
insurance or otherwise or by liquidation of the Participant's assets (to
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the extent the liquidation of such assets would not itself cause severe
financial hardship.) Such distributions will be paid in a lump sum and
will be charged to the Participant's Deferral Account. A pro rata portion
of such distribution will be treated as a distribution out of each
Subaccount. The Committee may impose such restrictions or additional
requirements with respect to distributions in connection with an
unforeseeable emergency as the Committee determines to be necessary or
appropriate to comply with Treasury Regulations.
10.1.2 In-Service Distributions. A Participant will be permitted to
receive an In-Service Distribution from his or her Deferral Account
subject to the following restrictions: An election to receive an
In-Service Distribution must be made at the same time a Participant makes
a Participant Deferral Election for a particular Deferral Period and will
relate only to the Annual Subaccount (as described in Section 7.1.4(a))
corresponding to that Deferral Period. Such election must specify a
distribution date, which may not be earlier than five years after the
first day of the Deferral Period covered by the election. Such an
In-Service Distribution election may be modified (subject to the
restrictions set forth in Section 10.4.5); provided however that any such
modification may not be made less than 12 months prior to the date the
In-Service Distribution was originally scheduled. In-Service Distributions
will be made in a lump sum and will include the Participant's entire
Annual Subaccount covered by such election. If the Participant terminates
employment for any reason prior to the specified In-Service Distribution
date, distribution of the Participant's Annual Subaccount will be made as
provided in Section 10.2 in accordance with the Participant's Form of
Benefit Election for the Deferral Period.
10.2 After Termination of Employment. If a Participant terminates
employment with an Employer for any reason, including death, Corporation will
pay to the Participant (or the Participant's Beneficiary, in case of death)
benefits equal to the Vested balance in the Participant's Deferral Account.
Except as provided below, Plan benefits as a result of death or other
termination of employment will be paid in the form elected by the Participant as
provided in Section 10.4. Notwithstanding a Participant's installment election,
if the aggregate balance of the Participant's Deferral Account is $25,000 or
less on the Valuation Date immediately preceding the date of the Participant's
termination of employment, the entire benefit will be paid in a lump sum within
65 days of the termination date.
10.3 Distributions to Specified Employees and Reporting Persons.
Notwithstanding any other provision of the Plan, unless the Committee expressly
determines that delays as described in paragraphs (a) and/or (b) of this Section
are not required under applicable law or Treasury Regulations to avoid
constructive receipt of Plan benefits or to avoid having Plan benefits treated
as excess parachute payments under IRC Sections 280G and 4999, (a) distributions
to a Participant who is a Specified Employee may not be made or commenced
earlier than six months after the date of the Participant's separation of
service from an Employer, and (b) following a Change in Control, distributions
to a Participant who is a Reporting Person may not be made or commenced earlier
than one year following the Change in Control.
10.4 Election of Form of Benefit Payment.
10.4.1 Election. Pursuant to forms and procedures prescribed by, or
at the direction of, the Committee, each Participant may, as part of each
Participant Deferral Election for each Deferral Period, elect the form of
payment of the Participant's benefits under the Plan (a "Form of Benefit
Election") with respect to the Participant's Annual Subaccount (as
described in Section 7.1.4(a)) corresponding to that Deferral Period. For
each Deferral Period, a Participant must make a Form of Benefit Election
governing the form of payment for the Participant's entire Annual
Subaccount corresponding to that Deferral Period.
10.4.2 Available Forms of Payment. The available forms of payment of
Plan benefits are:
(a) A lump sum amount equal to the applicable Vested portion
of the Annual Subaccount; or
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(b) Annual installments of the Vested portion of the Annual
Subaccount amortized over a period designated by the Participant of
not more than 15 years. Growth Factor on the unpaid balance will
continue to be credited to Subaccounts as provided in Section 7.4.
10.4.3 Default Form of Payment. Plan benefits with respect to an
Annual Subaccount will be payable in a lump sum if no effective Form of
Benefit Election is in effect for that Annual Subaccount at the time the
Participant first becomes entitled to receive payment of all or any
portion of the Annual Subaccount.
10.4.4 Form of Payment to Beneficiary. A Participant who elects
payment in installments for an Annual Subaccount may also elect whether,
in the event of the Participant's death prior to complete distribution of
the Vested portion of the Participant's Annual Subaccount:
(a) The remaining amount of the Participant's Annual
Subaccount is to be paid in a lump sum to the Beneficiary (in which
case payment will be made within 30 days after the date of death),
or
(b) Installment payments are to be made to the Beneficiary
over the elected installment period (or over the remainder of the
period).
Installment payments will be made to the Beneficiary over the elected
installment period (or the remainder of that period) if no effective election
with respect to the form of payment to the Beneficiary is in effect for that
Annual Subaccount at the time of the Participant's death.
10.4.5 Changes to Form of Benefit Election. A Participant may amend,
revoke, or replace a Form of Benefit Election for a particular Annual
Subaccount, subject to the following restrictions (unless the Committee
expressly waives or modifies one or more of such restrictions based on the
Committee's determination that such waiver or modification would not
result in constructive receipt or cause the Plan not to meet the
requirements of applicable law or Treasury Regulations):
(a) In no event may a Participant change his or her Form of
Benefit Election for an Annual Subaccount to accelerate the time or
schedule of any distribution under the Plan.
(b) No changes to an existing Form of Benefit Election for an
Annual Subaccount may be made after the Participant (or a
Beneficiary) has received or become entitled to receive any payment
of Plan benefits for the Annual Subaccount covered by that election.
(c) No change to an existing Form of Benefit Election for an
Annual Subaccount may take effect until at least 12 months after the
date of such amended Form of Benefit Election.
(d) With respect to distributions other than distributions
upon the death or Disability of a Participant or distributions under
Section 10.1.1, the first date on which a distribution or
installment may be made under the amended Form of Benefit Election
for an Annual Subaccount may not be earlier than five years after
the date the distribution or payment would otherwise have been made.
(e) In no event may a Participant make more than one amendment
to a Form of Benefit Election for any particular Annual Subaccount
to delay any distribution or payment.
(f) The Committee may modify the foregoing restrictions and/or
adopt other restrictions from time to time to provide for efficient
administration of the Plan and to cause the Plan to comply with
applicable law and Treasury Regulations.
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10.5 Lump Sum Payments. Subject to the limitations provided in Section
10.3, for lump sum payments, the balance of a Participant's Annual Subaccount
(and Subaccounts) will be determined pursuant to Section 7.4 as of the last
Valuation Date that is at least five business days prior to the payment date
specified in this Section 10.5. Lump sum payments will be made, as elected by
the Participant in his or her Form of Benefit Election for an Annual Subaccount,
either within 65 days of the termination of employment or, if later and if
elected by the Participant in the Form of Benefit Election, on the first
business day of the first calendar year beginning after the date of termination.
10.6 Installment Payments.
10.6.1 Installments. Subject to the limitations provided in
Section 10.3, the first installment will be made on the first day of the
second calendar month beginning after termination of employment (the
"Initial Installment Date") and on subsequent anniversaries of such date
("Installment Dates"). The amount of each installment will be equal to the
balance of the Annual Subaccount as of the last Valuation Date that is at
least five business days prior to the Installment Date divided by the
number of remaining installments (including the installment payment being
determined).
Example: If a Participant terminated employment on September 20,
2005, and had elected annual installments over five years, and if
the Committee has adopted daily Valuation Dates, the first
installment would be due November 1, 2005, and would be equal to
one-fifth of the balance of the Annual Subaccount on the October
24, 2005, Valuation Date. The second installment would be due
November 1, 2006, and would be equal to one-fourth of the balance
of the Annual Subaccount on the October 24, 2006, Valuation Date.
10.6.2 Growth Factor. The Annual Subaccount (and Subaccounts) will
continue to accrue Growth Factor as provided in Section 7.4 until the
final installment payment is made.
10.7 Payment to Guardian. If a distribution is payable to a minor or a
person declared incompetent or to a person incapable of handling the disposition
of property, the Committee may direct payment to the guardian, legal
representative, or person having the care and custody of such minor,
incompetent, or person. The Committee may require proof of incompetency,
minority, incapacity, or guardianship as it may deem appropriate prior to
distribution. Such distribution will completely discharge the Committee from all
liability with respect to such benefit.
11. BENEFICIARY DESIGNATION
11.1 Beneficiary Designation. Each Participant will have the right, at any
time, to designate one or more persons or an entity as Beneficiary (both primary
as well as secondary) to whom benefits under this Plan will be paid in the event
of a Participant's death prior to complete distribution of the Participant's
Deferral Account. Each Beneficiary designation must be in a written form
approved by the Committee and will be effective only when filed with the
Committee during the Participant's lifetime. Designation by a married
Participant of a Beneficiary other than the Participant's spouse will not be
effective unless the spouse executes a written consent that acknowledges the
effect of the designation and is witnessed by a notary public, or the consent
cannot be obtained because the spouse cannot be located.
11.2 Amendments. Except as provided below, any nonspousal designation of
Beneficiary may be changed by a Participant without the consent of such
Beneficiary by the filing of a new designation with the Committee. The filing of
an effective new designation will cancel all designations previously filed.
11.3 Change in Marital Status. If the Participant's marital status changes
after the Participant has designated a Beneficiary, the following provisions
will apply:
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11.3.1 Unmarried at Designation. If the Participant is married at
death but was unmarried when the designation was made, the designation
will be void unless the spouse has consented to it in the manner
prescribed above.
11.3.2 Married at Designation but Unmarried at Death. If the
Participant is unmarried at death but was married when the designation was
made:
(a) The designation will be void if the spouse was named as
Beneficiary.
(b) The designation will remain valid if a nonspouse
Beneficiary was named.
11.3.3 Different Spouse. If the Participant was married when the
designation was made and is married to a different spouse at death, the
designation will be void unless the new spouse has consented to it in the
manner prescribed above.
11.4 No Beneficiary Designation. If any Participant fails to designate a
Beneficiary in the manner provided in this Section 11, or if the Beneficiary
designated by a Participant dies before the Participant or before complete
distribution of the Participant's benefits, the Participant's Beneficiary will
be the person in the first of the following classes in which there is a
survivor:
11.4.1 Spouse. The Participant's surviving spouse;
11.4.2 Children. The Participant's children in equal shares, except
that if any of the children predeceases the Participant but leaves issue
surviving, then such issue will take by right of representation the share
the parent would have taken if living; or
11.4.3 Estate. The Participant's estate.
12. ADMINISTRATION
The Plan will be administered by the Committee. The Committee will have
the exclusive authority and responsibility for all matters in connection with
the operation and administration of the Plan, including without limitation the
authority to make, modify, interpret and enforce appropriate rules and
regulations for the administration of the Plan and to decide or resolve any and
all questions regarding the interpretation of Plan provisions. A majority vote
of the Committee members will control any Committee decision. The Committee's
powers and duties include, but are not limited to, the following:
(a) Responsibility for the compilation and maintenance of all
records necessary in connection with the Plan;
(b) Authorizing the payment of all benefits and expenses of
the Plan as they become payable under the Plan; and
(c) Authority to engage such legal, accounting, and other
professional services as it may deem proper.
Decisions by the Committee will be final and binding upon all parties
affected by the Plan, including Participants and Beneficiaries of Participants.
The Committee may rely on information and recommendations provided by
supervisory management. The Committee may delegate to a subcommittee
composed of less than all Committee members or to supervisory management who
are not Committee members the responsibility for decisions that it may make
or actions that it may take under the terms of the Plan, subject to the
Committee's reserved right to review such decisions or actions and modify
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them when necessary or appropriate under the circumstances. The Committee
will not allow any Participant to obtain control over decisions or actions
that affect that Participant's Plan benefits.
13. MISCELLANEOUS
13.1 Nonassignability of Benefits. Except as otherwise provided by
applicable law, a Participant's benefits under the Plan, including the right to
receive payment of the Deferral Account or any Subaccount, may not be sold,
transferred, anticipated, assigned, pledged, hypothecated, seized by legal
process, subjected to claims of creditors in any way, or otherwise disposed of.
13.2 Governing Law. This Plan and any amendments will be construed,
administered, and governed in all respects in accordance with applicable federal
law and the laws of the State of Delaware.
13.3 No Right of Continued Employment. Nothing in the Plan will confer
upon any person the right to continue in the employ of any Employer or interfere
in any way with the right of any Employer to terminate the person's employment
at any time.
13.4 Withholding Taxes. The Employers will withhold any taxes required by
law to be withheld in connection with payment of benefits under this Plan. In
the event any Employer will be required to withhold taxes with respect to
Employer Contributions or the accrual of Growth Factor pursuant to the Plan, the
Employer will have the right to require a Participant to reimburse them for any
such taxes.
14. CLAIMS PROCEDURE
14.1 Following Claims Procedure. Any Participant or Death Beneficiary (a
"Claimant") may file a claim for benefits under the Plan by following the
procedure set forth in this Section.
14.2 Authorized Representative. A Claimant may appoint an authorized
representative to represent the Claimant at any stage of the claims
procedure. The appointment is made by a statement in writing naming the
person who is to be the Claimant's authorized representative and signed by
the Claimant.
14.3 Filing Initial Claim. A claim must be filed by personally delivering
or mailing a written communication making the claim for benefits, prepared by
either the Claimant or the Claimant's authorized representative, to the
Committee, which is Plan Administrator for the Plan, for action upon the claim.
14.4 Denial of Initial Claim.
14.4.1 Time Period for Denial Notice.
(a) General. The Committee will make a decision on the claim
as soon as practicable. If the claim is wholly or partially denied,
the Committee will, within a reasonable period of time after receipt
of the claim, furnish the Claimant written or electronic notice
setting forth, in a manner calculated to be understood by the
Claimant, the information set forth below. Any electronic notice
must comply with 29 CFR Section 2520.104b-1(c)(1)(i), (iii), and
(iv). Except as provided in Section 14.4.1(b), in no event may the
response to the initial claim be given more than 90 days after the
filing of the claim, unless special circumstances require an
extension of time for processing the claim. If an extension is
required, written notice of the extension must be furnished to the
Claimant prior to the termination of the initial 90-day period. In
no event may the extension exceed a period of 90 days from the end
of the initial response period. The extension notice must indicate
the special circumstances requiring an extension of time and the
date by which the Committee expects to render the final decision.
The time period for providing notice of the decision on the claim
will begin when the claim is filed in accordance with the Plan's
procedures, without regard to whether all the information necessary
to make a decision on the claim accompanies the filing.
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(b) Disability Claims. In the case of a claim for disability
benefits, the Committee must notify the Claimant of a claim denial
within a reasonable period of time, but not later than 45 days after
receipt of the claim. This period may be extended for up to 30 days,
provided that the Committee determines that the extension is
necessary due to matters beyond the control of the Committee and
notifies the Claimant, before the end of the initial 45-day period,
of the circumstances requiring an extension of time and the date by
which the Committee expects to make a decision. If, before the end
of the first 30-day extension period, the Committee determines that,
due to matters beyond the control of the Committee, a decision
cannot be made within that extension period, the period for making
the determination may be extended for up to an additional 30 days,
provided that the Committee notifies the Claimant, before the end of
the first 30-day extension period, of the circumstances requiring
the extension and the date by which the Committee expects to make a
decision. In the case of any extension, the extension notice must
specifically explain the standards on which entitlement to a benefit
is based, the unresolved issues that prevent a decision on the
claim, and the additional information, if any, needed to resolve
those issues. If the extension is necessary because the Claimant
failed to submit the information necessary to resolve the claim, the
Claimant will be afforded at least 45 days to provide the specified
information, and the period for deciding the claim will be tolled
from the date the extension notice is sent to the Claimant until the
date the Claimant responds to the request for additional
information.
14.4.2 Contents of Notice.
(a) General. If the claim is wholly or partially denied, the
denial notice must state:
(i) The specific reason or reasons for the denial;
(ii) Reference to specific provisions of the Plan on
which the denial is based;
(iii) A description of any additional material or
information necessary for the Claimant to complete the claim
and an explanation of why such material or information is
necessary; and
(iv) An explanation of the claim review procedure and
the time limits applicable to such procedure set forth in this
Section 14, including a statement of the Claimant's right to
bring a civil action under ERISA Section 502(a) following a
denial of the claim on review.
(b) Disability Claims. If a claim for disability benefits is
denied, the denial notice must contain the following additional
information:
(i) If an internal rule, guideline, protocol, or other
similar criterion was relied on in deciding the claim, the
notice must either provide the specific rule, guideline,
protocol, or other similar criterion, or state that the rule,
guideline, protocol, or other similar criterion was relied on
in making the decision and that a copy will be provided free
of charge to the Claimant on request.
(ii) If the claim denial was based on a medical
necessity, experimental treatment, or similar exclusion or
limit, the notice must contain either an explanation of the
scientific or clinical judgment for the decision, applying the
terms of the Plan to the Claimant's medical circumstances, or
a statement that such an explanation will be provided free of
charge on request.
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14.5 Appeal of Denied Claim.
14.5.1 General. If the claim is denied in whole or in part pursuant
to Section 14.4, the Claimant may, within a reasonable period of time,
taking into consideration the nature of the benefit that is the subject of
the claim and other attendant circumstances, file a request with the
Committee for a full and fair review. Except as provided in
Section 14.5.2, in no event may the period for requesting review expire
less than 60 days after receipt of written or electronic notification of
denial. If the request for review is not made on a timely basis, the
Claimant will be deemed to have waived the right to review.
The appeal is made by personally delivering or mailing a written
request for review, prepared by either the Claimant or the Claimant's
authorized representative, to the Committee. The Claimant or the
Claimant's duly authorized representative may, at or after the time of
making the appeal, review pertinent documents and submit issues and
comments in writing. The Committee's review will take into account all
information submitted by the Claimant relating to the claim, whether or
not such information was submitted or considered in the initial claim
determination. The Claimant will be provided, upon request and free of
charge, reasonable access to, and copies of, information relevant to the
Claimant's claim.
14.5.2 Disability Claims. With respect to a request for review of a
denied claim for disability benefits, the following additional
requirements will apply:
(a) The Claimant will have at least 180 days after receipt of
the notice of denial to request a review of the claim.
(b) The review of the claim will not afford deference to the
initial decision on the claim, and will be conducted by an
appropriate named fiduciary of the Plan who is neither the
individual who made the decision that is the subject of the appeal,
nor a subordinate of such an individual.
(c) If the initial claim denial was based in whole or in part
on a medical judgment, including determinations with regard to
whether a particular treatment, drug, or other item is experimental,
investigational, or not medically necessary or appropriate, the
appropriate named fiduciary will consult with a health care
professional who has appropriate training and experience in the
field of medicine involved in the medical judgment. This health care
professional may not be an individual who was consulted in
connection with the decision that is the subject of the appeal, or a
subordinate of such an individual.
(d) The Committee must identify to the Claimant any medical or
vocational experts whose advice was obtained on behalf of the Plan
in connection with the initial decision on the claim, without regard
to whether the advice was relied on in making the initial decision.
14.6 Review of Appeal.
14.6.1 Time Period for Decision on Review.
(a) General. The Committee will review the appeal and act on the
appeal. Except as provided in Section 14.6.1(b), the decision will be made
promptly, and will not ordinarily be made later than 60 days after the
receipt by the Committee of the written request for review, unless special
circumstances require an extension of time for processing, in which case
written notice of the extension will be furnished the Claimant prior to
the commencement of the extension, and in which case a decision will be
rendered as soon as possible but not later than 120 days after the receipt
of the request for review. The extension notice must indicate the special
circumstances requiring an extension of time and the date by which the
Committee expects to render the final decision. The time period within
which the Committee must provide notice of the decision on review will
begin when the request for review is filed in accordance with the Plan's
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procedures, without regard to whether all the information necessary to
make the decision on review accompanies the filing. If an extension is
necessary due to the Claimant's failure to submit information necessary to
resolve the claim, the period for making a decision on review will be
tolled from the date the extension notice is sent to the Claimant until
the date the Claimant responds to the request for additional information.
(b) Disability Claims. In the case of a claim for disability
benefits, the Committee must notify the Claimant of the decision on
review within a reasonable period of time, but not later than 45
days after receipt of the request for review, unless special
circumstances (such as the need to hold a hearing) require an
extension of time for processing. If an extension is required, the
decision will be made and furnished to the Claimant not later than
90 days after receipt of the request for review. The Claimant must
be notified in writing of any extension within 45 days after the
request for review was filed. The extension notice must indicate the
special circumstances requiring an extension of time and the date by
which the Committee expects to render the decision on review. If an
extension is necessary due to the Claimant's failure to submit
information necessary to resolve the claim, the period for making a
decision on review will be tolled from the date the extension notice
is sent to the Claimant until the date the Claimant responds to the
request for additional information.
14.6.2 Content and Form of Notice.
(a) General. The decision on review must be in writing or by
electronic notification and must include specific reasons for the
decision, written in a manner calculated to be understood by the
Claimant, and references to the specific provisions of this Plan on
which the decision is based. The decision on review must inform the
Claimant that he or she is entitled to receive, upon request and
free of charge, reasonable access to, and copies of, information
relevant to the claim, and that he or she may bring an action under
ERISA Section 502(a). A copy of the decision on review must be
furnished to the Claimant.
(b) Disability Claims. With respect to claims for disability
benefits, the notice of the decision on review must contain the
information described in Section 14.4.2(b)(i) and 14.4.2(b)(ii) and
must include the following statement: "You and your plan may have
other voluntary alternative dispute resolution options, such as
mediation. One way to find out what may be available is to contact
your local U. S. Department of Labor Office and your state insurance
regulatory agency."
14.7 Further Review. Any further review, judicial or otherwise, of the
decision on the appeal will be limited to whether, in the particular instance
the Committee acted arbitrarily or capriciously in the exercise of its
discretion. In no event will any such further review, judicial or otherwise, be
on a de novo basis as the Committee has discretionary authority to determine
eligibility for benefits and to construe the terms of this Plan.
14.8 Consistent Application. The Committee will establish administrative
processes and safeguards to ensure and verify that claim determinations are made
in accordance with the Plan and that Plan provisions have been applied
consistently with respect to similarly situated Claimants, as required by
applicable law.
15. AMENDMENTS AND TERMINATION
Corporation's Board of Directors has the power to terminate this Plan at
any time or to amend this Plan at any time and in any manner that it may deem
advisable; provided however that any such amendment that would materially change
the benefits provided under the Plan will be subject to the prior approval of
Corporation's Compensation Committee. In the event of termination of the Plan,
Participant Deferral Contributions and Employer Contributions credited and
Earnings accrued pursuant to the Plan prior to the effective date of the
termination will continue to be subject to the provisions of the Plan as if the
Plan had not been terminated.
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16. DEFINITIONS
For purposes of this Plan, capitalized terms not otherwise defined in the
Plan have the following meanings.
"Annual Bonus" means, for each Participant, the amount (if any) payable to
the Participant for a calendar year under Corporation's Annual Cash Incentive
Award Plan, as such plan or program is amended or modified from time to time.
"Applicable Compensation Limitation" means the annual compensation limit
amount specified in IRC Section 401(a)(17), after adjustment as provided in IRC
Section 401(a)(17)(B).
"Base Compensation" means regular base salary, excluding: Annual Bonuses;
Employer Contributions under the Plan; other bonuses; noncash fringe benefits;
income or gain from the grant, vesting, or exercise of stock, restricted stock,
or stock options; and employer contributions to any employee pension plan,
welfare benefit plan, or other employee benefit plan, program, or arrangement.
For purposes of the Plan, Base Compensation is determined before deducting from
base salary a Participant's elective pre-tax contributions to any 401(k) plan or
salary reduction contributions to any cafeteria plan.
"Beneficiary" means the person or persons designated by a Participant as
provided in Section 11 to whom benefits under this Plan will be paid in the
event of a Participant's death prior to complete distribution of the
Participant's Deferral Account.
"Change in Control" means:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (i) the then outstanding
shares of common stock of Corporation (the "Outstanding Corporation Common
Stock") or (ii) the combined voting power of the then outstanding voting
securities of Corporation entitled to vote generally in the election of
directors (the "Outstanding Corporation Voting Securities"); provided,
however, that for purposes of this subsection (a), the following
acquisitions will not constitute a Change in Control: (i) any acquisition
directly from Corporation, (ii) any acquisition by Corporation, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by Corporation or any corporation controlled by Corporation or
(iv) any acquisition pursuant to a transaction which complies with clauses
(i), (ii) and (iii) of subsection (c) of this definition; or
(b) Individuals who, as of the Effective Date, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the Effective Date whose election, or nomination
for election by Corporation's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board will
be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(c) Consummation by Corporation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of
the assets of Corporation or the acquisition of assets of another entity
(a "Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities
immediately prior to such Business Combination beneficially own, directly
or indirectly, more than 60% of, respectively, the then outstanding shares
of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors,
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as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation which as a
result of such transaction owns Corporation or all or substantially all of
Corporation's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately
prior to such Business Combination, of the Outstanding Corporation Common
Stock and Outstanding Corporation Voting Securities, as the case may be,
(ii) no Person (excluding any employee benefit plan (or related trust) of
Corporation or such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of, respectively,
the then outstanding shares of common stock of the corporation resulting
from such Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to the extent
that such ownership existed prior to the Business Combination and (iii) at
least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or
of the action of the Board, providing for such Business Combination; or
(d) Approval by the shareholders of Corporation of a complete
liquidation or dissolution of Corporation.
"Committee" means a committee of not less than three individuals
designated by Corporation's Chief Executive Officer to administer the Plan.
Members of the Committee may be Participants in the Plan. The initial members of
the Committee on the Effective Date are Curtis M. Stevens, Russell S. Pattee and
Andrea L. Vicino.
"Deferral Account" means the record-keeping account maintained as provided
in Section 7.1 to reflect a Participant's benefits under the Plan. Unless the
context otherwise requires, references to a Participant's Deferral Account
include both the Participant's Participant Deferral Contribution Account and
Employer Contribution Accounts and all Subaccounts of both such Accounts.
"Deferral Period" means a calendar year or, for 2004, the period beginning
October 1, 2004 and ending December 31, 2004. For a Participant who becomes a
Participant after the beginning of a calendar year, the initial Deferral Period
for such Participant will be the portion of such calendar year beginning on the
first day of the first Pay Period beginning at least 30 days after the
individual became a Participant.
"Dependent" means the dependents of a Participant within the meaning of
IRC Section 152(a).
"Disability" A Participant will be deemed to be Disabled for purposes of
this Plan under the following conditions:
(a) The Participant's total and permanent disability has existed for
a period of five consecutive months; and
(b) The Participant's total and permanent disability, together with
the period of its existence, has been substantiated by the Committee on
the basis of medical reports and a Social Security disability award. The
Committee will have the right to require a medical report or reports from
a doctor or doctors of its own selection, but at Corporation's expense.
"Earnings" with respect to a Participant's Deferral Account means the net
amount of Growth Factor credited to the Participant's Deferral Account and
Subaccounts as described in Section 7.2.
"Employers" mean Corporation and any subsidiary or affiliate of
Corporation that is an employer, for income tax purposes, of one or more
Participants.
"Employer Contribution" means a contribution by an Employer for a
Participant as described in Section 6.
"Employer Contribution Accounts" means the portions of a Participant's
Deferral Account attributable to Employer Contributions credited on behalf of
the Participant. References to a Participant's Employer Contribution Accounts
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include the Participant's QPSC Account, QPMC Account, and Employer Match Account
as described in Section 7.1.2.
"Employer Match Account" means an Employer Contribution Account as
described in Section 7.1.2 to which Employer Matching Contributions are
credited.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Investment Fund" means an investment as described in Section 7.2.3 for
the sole purpose of calculating the Growth Factor to be credited to or charged
against a Participant's Deferral Account. The Committee will designate the
Investment Funds available under the Plan and may add to, subtract from, or
otherwise change the designated available Investment Funds from time to time.
"IRC" means the Internal Revenue Code of 1986, as amended. References to a
particular Section will include any successor section.
"Measurement Period" means the period between any two successive regular
or special Valuation Dates.
"Participant" has the meaning given in Section 4.
"Participant Deferral Contribution" means the portion of a Participant's
Base Compensation and/or Annual Bonus that the Participant elects to defer
pursuant to an Participant Deferral Election as described in Section 5.1 of the
Plan.
"Participant Deferral Contribution Account" means the portion of a
Participant's Deferral Account attributable to Participant Deferral
Contributions made by the Participant.
"Participant Deferral Election" means a written election by a Participant
for a Deferral Period in a form prescribed by or at the direction of the
Committee, by which the Participant (a) elects to defer either all or a portion
of the Participant's Base Compensation and/or Annual Bonus for the Deferral
Period pursuant to Section 5.1 of the Plan and (b) specifies a Form of Benefit
Election for the portion of the Participant's Deferral Account attributable to
Participant Deferral Contributions and Employer Contributions, and Earnings
attributable to such contributions for such Deferral Period.
"Pay Period" means the period of service for an Employer for which Base
Compensation is earned and paid under the payroll practices of the Employer.
"QPMC Account" means an Employer Contribution Account as described in
Section 7.1.2 to which Qualified Plan Makeup Credit Employer Contributions are
credited.
"QPSC Account" means an Employer Contribution Account as described in
Section 7.1.2 to which Qualified Plan Supplemental Credit Employer Contributions
are credited.
"Qualified Plan Compensation" for a Participant for a Qualified Plan Year
means the Participant's "Compensation" for such Qualified Plan Year as defined
in the Qualified Plans.
"Qualified Plan Year" means the calendar year.
"Qualified Plans" mean Corporation's Retirement Account Plan and the
profit sharing component of Corporation's Salaried 401(k) and Profit Sharing
Plan.
"Reporting Person" means a Participant who is subject to the requirements
of Section 16(a) of the Exchange Act.
"Retirement Age" means age 65, or such other age as is designated by
the Committee.
"Specified Employee" means a key employee of an Employer within the
meaning of IRC Section 416(i).
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"Subaccount" means a portion of a Participant's Deferral Account as
described in Section 7.1.4.
"Total Compensation" for a Participant for any Qualified Plan Year means
the Participant's Qualified Plan Compensation for such year, increased by the
amount of the Participant's Annual Deferral Contributions that, but for the
Participant's Participant Deferral Election, would have been paid to the
Participant and included in the Participant's Qualified Plan Compensation for
such Qualified Plan Year.
"Valuation Date" means a date as of which Deferral Accounts and
Subaccounts are determined pursuant to Section 7.4. The last date of each
calendar month will be a regular Valuation Date. For purposes of Section 7.4,
the date of any distribution to a Participant or Beneficiary will be a special
Valuation Date (and will mark the end of a Measurement Period as of such special
Valuation Date). In addition, the Committee may utilize additional special
Valuation Dates (up to a daily valuation basis) to the extent the Committee
determines such special Valuation Dates are necessary or useful.
"Vested" means to become no longer subject to forfeiture pursuant to
Section 9.2.
"Years of Service" has the meaning provided for such term for vesting
purposes under the Qualified Plans.
This Plan was adopted as of the Effective Date.
LOUISIANA-PACIFIC CORPORATION
By /s/ Curtis M. Stevens
--------------------------------
Its Executive Vice President, Administration
and Chief Financial Officer
By /s/ Anton C. Kirchhof
--------------------------------
Its Secretary
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Exhibit 5
---------
MILLER NASH LLP
Attorneys at Law
111 S.W. Fifth Avenue, Suite 3400
Portland, Oregon 97204-3699
(503) 224-5858
(503) 224-0155 (fax)
August 16, 2004
Louisiana-Pacific Corporation
414 Union Street, Suite 2000
Nashville, Tennessee 37219
Subject: Registration Statement on Form S-8 Relating to
Louisiana-Pacific Corporation 2004 Executive Deferred
Compensation Plan
Gentlemen:
We have acted as counsel for Louisiana-Pacific Corporation, a Delaware
corporation (the "Company"), in connection with the proposed filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), of a Registration Statement on Form S-8 (the
"Registration Statement") for the purpose of registering $10,000,000 of Deferred
Compensation Obligations which represent unsecured obligations of the Company to
pay deferred compensation in the future in accordance with the terms of the
Louisiana-Pacific Corporation 2004 Executive Deferred Compensation Plan (the
"Plan"). In such capacity, we have examined the Restated Certificate of
Incorporation and Bylaws of the Company, the Plan, and such other documents of
the Company as we have deemed necessary or appropriate for the purposes of the
opinion expressed herein.
Based upon the foregoing, we advise you that, in our opinion, when issued
in accordance with the provisions of the Plan, the Deferred Compensation
Obligations will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other laws of general applicability relating to or
affecting enforcement of creditors' rights or by general equity principles.
We consent to the use of this opinion in the Registration Statement and in
any amendments thereof. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
/s/ Miller Nash LLP
MILLER NASH LLP
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Louisiana-Pacific Corporation on Form S-8 of our report dated
March 8, 2004, (which expresses an unqualified opinion and includes and
explanatory paragraph related to the adoption of Statements of Financial
Accounting Standards No. 142, "Goodwill and other Intangible Assets" and
No. 144, "Accounting for the Impairment or Disposal of Long-Lived Assets"
on January 1, 2002, and No. 143, "Accounting for Asset Retirement
Obligations" on January 1, 2003), appearing in the Annual Report on Form
10-K of Louisiana-Pacific Corporation for the year ended December 31,
2003.
/s/ DELOITTE & TOUCHE LLP
Nashville, Tennessee
August 13, 2004
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Exhibit 24
----------
POWER OF ATTORNEY
Each person whose signature appears below designates and appoints CURTIS
M. STEVENS and ANTON C. KIRCHHOF, and each of them, the person's true and lawful
attorneys-in-fact and agents to sign a registration statement on Form S-8 to be
filed by Louisiana-Pacific Corporation, a Delaware corporation, with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to up to $10,000,000 of the Corporation's unsecured obligations to pay
deferred compensation under the Louisiana-Pacific Corporation 2004 Executive
Deferred Compensation Plan, and any and all amendments thereto (including
post-effective amendments). Each person whose signature appears below also
grants full power and authority to these attorneys-in-fact and agents to take
any action and execute any instruments that they deem necessary or desirable in
connection with the preparation and filing of the registration statement, as
fully as he could do in person, hereby ratifying and confirming all that the
attorneys-in-fact and agents or their substitutes may lawfully do or cause to be
done.
IN WITNESS WHEREOF, this power of attorney has been executed by each of
the undersigned as of the 31st day of July, 2004.
Signature Title
/s/ Mark A. Suwyn
- ---------------------------------
Mark A. Suwyn Chief Executive Officer, Chairman of the
Board, Director
/s/ Curtis M. Stevens
- ---------------------------------
Curtis M. Stevens Executive Vice President, Administration and
Chief Financial Officer
/s/ Russell S. Pattee
- ---------------------------------
Russell S. Pattee Corporate Controller and Assistant Treasurer
/s/ E. Gary Cook
- ---------------------------------
E. Gary Cook Director
- ---------------------------------
Archie W. Dunham Director
/s/ Daniel K. Frierson
- ---------------------------------
Daniel K. Frierson Director
/s/ Paul W. Hansen
- ---------------------------------
Paul W. Hansen Director
/s/ Brenda J. Lauderback
- ---------------------------------
Brenda J. Lauderback Director
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/s/ Dustan E. McCoy
- ---------------------------------
Dustan E. McCoy Director
/s/ Lee C. Simpson
- ---------------------------------
Lee C. Simpson Director
/s/ Colin D. Watson
- ---------------------------------
Colin D. Watson Director
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