EMPLOYEE'S SHARE SAVINGS AND SHARE OWNERSHIP PLAN OF CC LTD., EFFECTIVE 1/1/90
Published on March 26, 2003
EXHIBIT 10.32
Schedule "A"
Coca-Cola Ltd.
- ------------------------------ ------------------
SAVINGS PLAN EMPLOYEES
SAVINGS AND
SHARE
OWNERSHIP
Effective January 1, 1990 PLAN
ARTICLE
1 Purpose 1
2 Definitions 2
3 Eligibility and Membership 7
4 Contributions 9
5 Investment of Funds 12
6 Allocation and Vesting of Funds 15
7 Valuation of the Trust Fund 18
8 Designation of Beneficiary 20
9 Benefits for Participants 21
ARTICLE
(continued)
10 Method of Distribution of Benefits 24
11 Agreements 26
12 Amendments to the Plan 28
13 Termination of the Plan 29
14 General Provisions 30
15 Administration 33
16 Construction 35
1 PURPOSE
1.01 The Plan is intended to qualify as an employees profit sharing plan
under the Income Tax Act (Canada) as amended from time to time.
1.
2 DEFINITIONS
2.01 "Affiliate" shall mean The Coca-Cola Company, incorporated in the State
of Delaware, U.S.A., and Coca-Cola Beverages or any corporation not less
than 50% of whose voting stock (not including shares having voting power
only upon the happening of an event of default) is owned directly or
indirectly by The Coca-Cola Company or by Coca-Cola Beverages. Any such
corporation shall be an Affiliate only during such time as the foregoing
voting stock ownership requirements are met.
2.02 "Board of Directors" shall mean the Board of Directors of Coca-Cola Ltd.
Or any similar Board of any successor corporation.
2.03 "Company" shall mean Coca-Cola Ltd., its successors or assigns.
2.04 "Continuous Service" shall mean uninterrupted employment with a
Participating Employer and shall include periods of annual vacation,
absence on account of sickness or accident and other approved leave of
absence granted by a Participating Employer.
2.05 "Effective Date" shall mean January 1, 1990.
2.06 "Employee" shall mean a person who is resident in Canada and classified
as a permanent full-time employee by his
2.
Participating Employer, excluding elected officers of The Coca-Cola
Company.
2.07 "Fund" shall mean the separate funds in which Participant contributions
to the Plan are invested in accordance with Article 5.
2.08 "Insurance Company" shall mean a company licensed or otherwise
authorized under the laws of Canada or a province to carry on an
annuities business in Canada.
2.09 "Market Value" shall mean, except where provided otherwise under the
Plan, the cost of a Share on a Valuation Date equivalent to the average
cost of all Shares purchased and paid for by the Trustee in the calendar
month in which such Valuation Date occurs. In the event no Shares are
purchased in the calendar month, the Market value shall be equivalent to
the average of high and low prices reported on the composite
transactions listing of the New York Stock Exchange on such Valuation
Date, or if the said Shares did not trade on such Valuation Date, the
last day prior to such Valuation Date such Shares traded on said
exchange.
2.10 "Participant" shall mean any person participating in the Plan as
provided in Article 3.
2.11 "Participant's Contribution Account" shall mean the account into which
shall be credited the contributions made by a Participant pursuant to
Section 4.01.
2.12 "Participant's Company Account" shall mean the account into which shall
be credited the contributions made by a
3.
Participating Employer on behalf of the Participant pursuant to Section
4.04.
2.13 "Participating Employer" means the Company or a Subsidiary of the
Company, organized under the laws of Canada or a Province thereof, which
adopts the Plan with the approval of the Board.
2.14 "Plan" shall mean the Coca-Cola Ltd. Employees Savings and Share
Ownership Plan as described herein or as hereafter amended.
2.15 "Plan Year" shall mean the period beginning with the Effective Date and
ending December 31, 1990, and each 12-month period ending December 31st
thereafter.
2.16 "Retirement" shall mean early, normal or postponed retirement under any
retirement plan of a Participating Employer covering Employees, provided
such retirement results in the Participant's separation from the
employment of a Participating Employer. In any event, Retirement for
purposes of the Plan shall not occur later than the end of the calendar
year in which the Participant attains age 71.
2.17 "Retirement Savings Plan" shall mean the Coca-Cola Ltd. Employees'
Retirement Savings Plan.
2.18 "Salary" shall mean the total remuneration earned by a Participant and
received through the payroll of the Participating Employer but excluding
any payment made in lieu of any vacation with pay entitlement not taken
by the Participant prior to the date of his Termination of
4.
Employment or Retirement, any contest prizes and any payment by the
Participating Employer to the Participant in respect of long term
disability insurance premiums paid by the Participant.
2.19 "Shares" shall mean the common shares of The Coca-Cola Company and
includes fractions thereof.
2.20 "Subsidiary" means any corporation not less than 50% of whose voting
stock (not including shares having voting power only upon the happening
of an event of default) is at the time owned, directly or indirectly, by
the Company. Any such corporation shall be a Subsidiary only during such
time as the foregoing voting stock ownership requirements are met.
2.21 "Termination of Employment" shall mean separation from the employment of
a Participating Employer.
2.22 "Trust Agreement" shall mean the agreement entered into between the
Company and the Trustee which governs the management and administration
of the assets of the Plan, as such agreement may be originally adopted,
or as it may be amended from time to time.
2.23 "Trust Fund" shall mean the cash and other properties arising from
contributions made by Participants and the Participating Employers in
accordance with the provisions of the Plan and held and administered by
the Trustee pursuant to the Trust Agreement to carry out the provisions
of the Plan.
5.
2.24 "Trustee" shall mean a corporation licensed or otherwise authorized
under the laws of Canada or a province to carry on in Canada a business
as a trust company and by whom the assets of the Trust Fund are held as
provided for in Article 11.
2.25 "Valuation Date" shall mean the last business day of each month or such
other more frequent date as may be determined by the Trustee.
In the Plan, unless the context otherwise requires, words in the singular shall
be construed as including words in the plural and words in the plural as
including words in the singular and words importing the masculine gender shall
be construed as including the feminine and vice versa. The headings in the Plan
are for convenience of reference only and are not to be construed as part of the
Plan.
6.
3 ELIGIBILITY AND MEMBERSHIP
3.01 Eligibility
(a) An Employee who is employed by a Participating Employer on December
31, 1989 shall be eligible to become a Participant on the Effective
Date.
(b) An Employee who is hired by a Participating Employer on and after
the Effective Date shall be eligible to become a Participant on the
first day of the month coincident with or next following the
completion of one year of Continuous Service.
(c) An Employee who transfers from an Affiliate or a Subsidiary which is
not a Participating Employer shall have his period of continuous
employment immediately prior to the date of transfer included for
the purpose of determining eligibility under this Section 3.01.
3.02 Participation
An eligible Employee shall become a Participant by filing with his
Participating Employer an application and enrollment form authorizing
the Participating Employer to make regular payroll deductions for such
contributions to the Plan and/or the Retirement Savings Plan as the
Employee may designate pursuant to Section 4.01 hereof and/or Section
3.01 of the Retirement Savings Plan and expressing the agreement of the
Employee to the terms and conditions of the Plan and/or the Retirement
Savings Plan. Participation shall become effective on the first day of
the month following the month in which such completed application and
7.
enrollment form is received by the Participating Employer from an
eligible Employee. Notwithstanding the foregoing, any eligible Employee
who files the appropriate enrollment form with his Participating
Employer any time prior to the Effective Date shall become a Participant
on the Effective Date.
3.03 Re-Employment of Former Employees or Former Participants
Any person re-employed by a Participating Employer as an Employee, who
was previously a Participant or who was previously eligible to become a
Participant, shall become a Participant on the first day of the month
following the month in which his application and enrollment form is
received by the Participating Employer upon his subsequent
re-employment.
3.04 Inactive Participants
A Participant who remains in the employ of a Participating Employer but
who ceases to be an Employee as herein defined shall continue to remain
a Participant of the Plan but shall not be eligible to make
contributions hereto and no Company contributions shall be made on his
behalf while he is an inactive Participant.
3.05 Participation While Transferred to an Affiliate
A Participant who is transferred to an Affiliate for a temporary period
not exceeding three years shall remain a Participant of the Plan and
shall be eligible to continue to make contributions to the Plan during
such period of temporary transfer. The Company shall continue to make
contributions pursuant to Section 4.04 on behalf of the Participant
during such period.
8.
4 CONTRIBUTIONS
4.01 Participant Contributions
(a) Basic Contributions
Each Participant may contribute to the Plan at the Participant's
option either 1%, 2%, 3% or 4% of his Salary less any amounts
contributed under Section 3.01 of the Retirement Savings Plan, as
designated by written notice. Such contributions, including any
amounts contributed under Section 3.01 of the Retirement Savings
Plan, up to a maximum of 4% of the Participant's Salary shall be
referred to as Basic Contributions.
(b) Supplemental Contributions
In addition, each Participant who is making the maximum Basic
Contributions in subsection (a) above may contribute to the Plan
each month supplemental contributions as elected by the Participant
in multiples of 1% of his Salary less any amounts contributed under
Section 3.02 of the Retirement Savings Plan.
4.02 Change in Participant Contributions
Subject to the provisions of Section 4.01, a Participant may change the
percentage of his contribution as of the first day of any month by
filing the applicable form with his Participating Employer's payroll
department no later than one month immediately prior to the effective
date of such change.
9.
4.03 Suspension of Participant Contributions
(a) A Participant may suspend contributions as of the first day of any
month by filing the applicable form with his Participating
Employer's payroll department not later than one month prior to the
effective date of such suspension of contributions.
(b) A Participant who has suspended contributions may apply to his
Participating Employer's payroll department to have them resumed in
accordance with Section 4.01 on the first day of any month by filing
the applicable form with his Participating Employer's payroll
department not later than one month prior to the effective date of
resumption of contributions and that such resumption shall not occur
within 3 months of the date the contributions were suspended.
4.04 Participating Employer Contributions
(a) Each Participating Employer shall for each fiscal year contribute on
behalf of its Employees who are Participants in the Plan out of its
profits, either current or accumulated, or out of its profits and
the profits of a corporation with which it does not deal at arm's
length an amount equal to the aggregate of (i) 50% of each
Participant's Basic Contribution to the Plan pursuant to Section
4.01 and (ii) 50% of each Participant's Basic Contribution to the
Retirement Savings Plan.
(b) Notwithstanding the foregoing, in each fiscal year in which a
Participating Employer or a corporation with which it does not deal
at arm's length has established profits in accordance with generally
accepted accounting principles, each Participating Employer shall
make a contribution out of such profits to the Plan which shall not
be less than $100 per Participant.
10.
4.05 Payment of Contributions
The amount of each Participant's monthly contributions under this Plan
shall be paid by his Participating Employer to the Trustee and shall be
deposited by the Trustee in the Participant's Contribution Account of
each Participant by the last day of the month following the month for
which such contributions are made. Participating Employer contributions
under the Plan in respect of such Participating Employer's fiscal year
shall be deposited with the Trustee within 120 days from the end of the
fiscal year of the Participating Employer.
4.06. Limitation on Contribution Changes and Suspensions
A Participant may not elect to change the percentage of his
contributions in accordance with Section 4.02 of this Plan or Section
3.05 of the Retirement Savings Plan nor suspend his contributions in
accordance with Section 4.03 of this Plan or Section 3.07 of the
Retirement Savings Plan more than twice in any one calendar year.
11.
5 INVESTMENT OF FUNDS
5.01 Investment in Shares
Contributions made by Participating Employers to the Plan and
contributions made by Participants, which are directed by Participants
to be invested in Shares, shall be invested and reinvested by the
Trustee in Shares once every calendar month. The Trustee shall purchase
Shares on the open market in respect of Participants. For purposes of
the Plan, the cost of the Shares shall be the Market Value.
5.02 Participant Contributions
A Participant may direct the Trustee to invest all or part of his
Participant's Contribution Account either in accordance with Section
5.01 or in the following funds selected by the Company:
(a) a Pooled Equity Fund which shall be invested primarily in Canadian
stocks;
(b) a Guaranteed Fund which shall be a fund invested by the Trustee in
consultation with the Company which shall guarantee payment in full
of such amounts deposited therein plus interest at a fixed minimum
rate for a period.
5.03 Investment Directions
A Participant shall direct the proportion of his contributions under
Section 4.01 which shall be invested in accordance
12.
with the foregoing Section 5.02 in increments of 1% as elected by the
Participant.
5.04 Notice of Direction
The Participant's investment direction shall be made in writing and
filed with his Participating Employer. Such direction shall be a
continuing direction, but may be changed effective as of the first day
of the month by submitting a revised investment direction in respect of
the Participant's future contributions at least one month prior to the
effective date thereof. Changes in the investment direction under
Section 5.04 of this Plan or Section 4.03 of the Retirement Savings Plan
may not be made more than twice in any one calendar year.
5.05 Investment Option Transfers
A Participant may elect twice every calendar year, by filing an Employee
Savings Plan Change Form with his Participating Employer at least 30
days prior to the effective Valuation Date, to transfer all or part of
his Participant's Contribution Account from Shares to one or both of the
Funds, from one or both of the Funds to Shares or from one Fund to the
other Fund. The transfer from the Funds to Shares or between Funds will
be determined on the basis of the value of the interest of the
Participant's Contribution Account in the exporting Fund or Funds, as
applicable, as determined by the Trustee at the Valuation Date on which
the transfer occurs. The transfer from Shares to one or both of the
Funds will be determined on the basis of the Market Value of the
interest of the Participant's Contribution Account in Shares on the
Valuation Date on which the transfer occurs. The amount of a
Participant's Contribution Account that may be transferred shall be
specified by a Participant in increments of 1% and shall be subject to a
13.
minimum amount equal to 1% of his Participant's Contribution Account
balance determined as of the effective Valuation Date or such other
minimum amount as may, from time to time, be prescribed by the Company
for purposes of the Plan. Transfers between Shares and the Funds and
between Funds under Section 5.05 of this Plan or under Section 4.04 of
the Retirement Savings Plan may not be made more than twice in any one
calendar year.
14.
6 ALLOCATION AND VESTING OF FUNDS
6.01 Establishment of Participant Accounts
The Trustee shall establish and maintain for each Participant:
(a) a Participant's Company Account showing the aggregate of all amounts
each of which is an amount contributed in respect of a Participant
by a Participating Employer to the Plan and any amounts allocated to
such Participant under this Article 6 plus income and capital gains
and losses thereon; and
(b) a Participant's Contribution Account showing the aggregate of all
amounts each of which is an amount contributed to the Plan by the
Participant and allocated gains to him, plus income and capital and
losses thereon.
6.02 Allocation and Vesting of Contributions
(a) The contributions of each Participant will be allocated by the end
of the month in which such contributions are received by the Trustee
to the Participant's Contribution Account. The Participant shall be
100% vested in such contributions immediately upon allocation of
such contributions to the Participant's Contribution Account.
(b) Participating Employer contributions on behalf of each Participant
will be allocated to the Participant's Company Account by the end of
the Plan Year in which such contributions are received by the
Trustee. Participating Employer contributions on behalf of each
Participant for a Plan Year shall be 100% vested in such
15.
Participant immediately upon allocation of such contribution to the
Participant's Company Account.
6.03 Allocation of Income, Capital Gains and Losses
As of each Valuation Date the investment earnings attributable to each
investment option maintained pursuant to Section 5.02 including
interest, dividends, realized and unrealized capital gains (or losses),
shall be credited by the Trustee to the Participant's Contribution
Account and Participant's Company Account of each Participant whose said
accounts are invested in such investment option in the proportion that
the value of the Participant's Contribution and Company Accounts of each
Participant attributable to that investment option bears to the total
value of all Participant's Contribution and Company Accounts
attributable to that investment option as of the previous Valuation
Date.
6.04 Shares Held in Participant's Contribution and Company Accounts
In the event that all or a portion of a Participant's Contribution
Account and a Participant's Company Account established in respect of a
Participant is invested in Shares, the record of the respective
Participant's Contribution and Participant's Company Accounts shall
indicate the total number of Shares purchased and held on the
Participant's behalf. Any income received in respect of Shares held in
the Participant's Contribution Account and Participant's Company Account
shall be allocated by the Trustee to the respective accounts at the time
such income is received by the Trustee. All Shares purchased by the
Trustee pursuant to Section 5.01 shall be held by the Trustee in trust
on behalf of the applicable Participant, and the certificates in respect
thereof shall be registered in the name of the Trustee or its
16.
nominee. All rights with respect to Shares held by the Trustee on behalf
of a Participant in his Participant's Contribution Account and in his
Participant's Company Account, including rights of conversion and
voting, shall be exercisable by the Participant. Any Shares held by the
Trustee as to which it receives no instructions from a Participant to
whose individual Participant's Contribution Account or Participant's
Company Account such Shares are credited shall be voted by the Trustee
in the same proportions as the voting of the Shares for which the
Trustee receives instructions from Participants.
17.
7 VALUATION OF THE TRUST FUND
7.01 Valuation
The Trustee shall determine the value of the Trust Fund as of each
Valuation Date including the Valuation Date that coincides with the last
day of each Plan Year and shall advise the Company in writing of the
value so determined. The value of the Trust Fund at each such date shall
be an amount equal to the market value of all assets and income of the
Trust Fund, less any proper charges against the Trust Fund, all as of
such Valuation Date. The Trustee's determination of the value of the
Trust Fund shall be binding upon the Participating Employers,
Participants, their beneficiaries and all other persons involved.
Notwithstanding the above, the Company or its agent shall have the right
to review and audit the records of the Trustee pertaining to the
administration and operation of the Plan and Trust Fund, from time to
time, and the Trustee shall correct or recalculate any value which is
shown to have been calculated in error.
7.02 Expenses
Unless paid by the Company, in its sole discretion, all expenses of the
Plan shall be allocated to each Participant's Contribution Account and
Participant's Company Account pro rata in accordance with the respective
account balances, or in such other manner as determined by the Company
in consultation with the Trustee. Unless paid by the Company, any
expenses associated with the purchase or sale of Shares shall be
allocated to the applicable Participant's Company Accounts and
Participant's Contribution Accounts pro rata
18.
in accordance with the number of Shares purchased or sold on behalf of
each Participant.
19.
8 DESIGNATION OF BENEFICIARY
8.01 Subject to the laws of any province of Canada, a Participant may file
with his Participating Employer, on a form approved by it, a designation
of a beneficiary or beneficiaries to receive any payments to be paid
from the Plan on the death of the Participant, and the Participant may
from time to time change or revoke any such designation. The most recent
designation under the Plan so received shall be controlling, if valid
and effective under applicable laws unless subsequently revoked or
changed in accordance with applicable laws provided, however, that no
designation or change or revocation thereof shall be effective unless
received by the Participating Employer or any authorized agent thereof,
prior to the Participant's death, and in no event shall any designation
be effective as of a date prior to its receipt.
20.
9 BENEFITS FOR PARTICIPANTS
9.01 Valuation Date
All benefits for Participants shall be computed as of the Valuation Date
immediately following or coincident with the termination of his
membership in the Plan.
9.02 Retirement or Termination of Employment
Subject to Section 10.02, any Participant who terminates service with a
Participating Employer due to Retirement or earlier Termination of
Employment will receive the value of his Participant's Company Account
and Participant's Contribution Account, including any univested cash
balance, determined as of the Valuation Date on which such Participant's
interest in the Plan is liquidated in accordance with applicable
valuation procedures then in effect for each investment option in which
the Participant's respective Participant's Company Account and
Participant's Contribution Account are invested less any expenses
associated with such distribution unless paid by the Company.
9.03 Death
Upon the death of a Participant at any time while in the employment of a
Participating Employer, there shall be paid to his designated
beneficiary or, if no designation of beneficiary is then in effect, to
the estate of the deceased Participant, the value of his Participant's
Company Account and Participant's Contribution Account, including any
uninvested cash balance, determined as of the Valuation
21.
Date on which such Participant's interest in the Plan is liquidated in
accordance with applicable valuation procedures then in effect for each
investment option in which the Participant's respective Participant's
Company Account and Participant's Contribution Account are invested less
any expenses associated with such distribution unless paid by the
Company.
9.04 Disability
Any Participant whose service with a Participating Employer is
terminated due to disability or sickness as determined consistent with a
Participating Employer's policy will receive the value of his
Participant's Company Account and Participant's Contribution Account,
including any uninvested cash balance, determined as of the Valuation
Date on which such Participant's interest in the Plan is liquidated in
accordance with applicable valuation procedures then in effect for each
investment option in which the Participant's respective Participant's
Company Account and Participant's Contribution Account are invested less
any expenses associated with such distribution unless paid by the
Company.
9.05 Withdrawal from the Participant's Contribution Account
A Participant may, as of any Valuation Date, by giving notice to a
Participating Employer's payroll department not later than one month
prior to the effective date of the withdrawal, apply in writing to
liquidate all or a portion of his Participant's Contribution Account and
receive the value of all or a portion of his Participant's Contribution
Account, including any uninvested cash balance, in accordance with
applicable valuation procedures then in effect for each investment
option in which his Participant's Contribution Account is invested less
any expenses associated with such
22.
distribution unless paid by the Company. Any such withdrawal shall be
subject to a minimum of $500 or the value of the Participant's
Contribution Account, if lesser, provided such Participant has not made
more than one withdrawal under this Section 9.05 or under Section 8.01
of the Retirement Savings Plan during the current calendar year.
9.06 Suspension Following Withdrawal
Following a withdrawal made under Section 9.05 of this Plan and/or under
Section 8.01 of the Retirement Savings Plan in respect of the
Participant's Basic Contributions, the Participant shall be deemed to
have made an effective election under Section 4.03 to suspend
contributions for a period of 3 months and shall be permitted to resume
such contributions upon proper notice as set out in subsection 4.03(b)
on the first day of any month following the appropriate period of
suspension.
23.
10 METHOD OF DISTRIBUTION OF BENEFITS
10.01 Date of Payment
The benefits provided in Sections 9.02, 9.03, 9.04 and 9.05 shall be
paid to the Participant or, in the event of his death, to a beneficiary
designated by him or to his estate not later than 90 days after the
earliest of:
(a) the death of the Participant;
(b) the day on which the Participant ceases to be employed by a
Participating Employer;
(c) the end of the calendar year in which the Participant becomes 71
years of age;
(d) the termination or winding-up of the Plan; and
(e) the date on which the Participant elects to make a withdrawal under
Section 9.05.
10.02 Form of Distribution
Distribution of benefits under Article 9 shall be payable in cash in one
lump sum. All cash payments shall be made by cheque. If all or a portion
of his Participant's Company Account and Participant's Contribution
Account are invested in Shares, the Participant may elect to have the
Trustee distribute in specie to him the whole Shares held in those
accounts.
In such event,
24.
(a) the Participant shall receive certificates in respect of those
Shares registered in his name or the name of his nominee; and
(b) the Participant shall receive, in lieu of any fractions of Shares
held in the Participant's respective accounts, the Market Value of
such fractional Shares determined in accordance with Article 9; and
(c) the cash value of his Participant's Contribution Account and
Participant's Company Account determined and otherwise payable under
Article 9, shall be reduced by the Market Value of the Shares as
determined under Article 9 and distributed in specie under this
Section 10.02.
25.
11 AGREEMENTS
11.01 Agreement Between the Trustee and the Company
The Company shall enter into a Trust Agreement with the Trustee under
which the Trustee shall receive the contributions of the Participants
and the Participating Employers to be applied under the Trust Agreement
and held, invested, reinvested and distributed by the Trustee in
accordance with the terms of such Trust Agreement, this Plan, the Income
Tax Act (Canada), applicable provincial legislation and the requirements
of Revenue Canada, Taxation. The company may instruct the Trustee
pursuant to provisions in the Trust Agreement to enter into a contract
with an Insurance Company to invest part of the Trust Fund on such terms
as the Company deems appropriate, and the Company retains the right to
act on behalf of all persons having an interest in the Trust Fund to
require the Trustee to amend such contracts or to enter into further
such contracts.
11.02 Custody of Assets
The assets of the Trust Fund under the Trust Agreement shall be held in
the possession of the Trustee. Securities in the Trust Fund may be
registered in the name of the Trustee or its nominees or held in such
form that they may pass by delivery.
26.
11.03 Trustee to Invest Assets
Subject to and without limiting the generality of Article 5 and Section
11.01, the investment of the assets under the Trust Agreement shall be
made by the Trustee.
27.
12 AMENDMENTS TO THE PLAN
12.01 Right to Amend
Subject to the provisions hereinafter set forth, the Company reserves
the right, at any time or from time to time, by action of its Board of
Directors to modify or amend in whole or in part any or all of the
provisions of the Plan, provided that no such modification or amendment
may be made which will:
(a) deprive any Participant of any benefit theretofore vested in him
under the Plan; or
(b) make it possible for any part of the Trust Fund to be used for, or
diverted to, purposes other than for the exclusive benefit of the
Participants or their respective beneficiaries prior to the
satisfaction of all liabilities with respect to the Participants in
the Plan and their beneficiaries.
12.02 Retroactive Amendment
Notwithstanding the provisions of Section 12.01 or any other provisions
of the Plan, any modification or amendment of the Plan may be made,
retroactively if necessary, which the Company deems necessary or
appropriate to conform the Plan to or to satisfy the conditions of any
law, governmental regulation or ruling, and to permit the Plan and Trust
Agreement to meet the requirements of the income Tax Act (Canada),
applicable provincial legislation and the requirements of Revenue
Canada, Taxation.
28.
13 TERMINATION OF THE PLAN
13.01 Right to Terminate the Plan
The Company reserves the right at any time by action of its Board of
Directors to terminate the Plan in whole or in part.
13.02 Procedure on Termination
In the event of discontinuance of the Plan whether in whole or in part,
all of the assets of the Trust Fund must and shall be applied for the
benefit of Participants and/or their beneficiaries, as specified under
the Plan, effected in accordance with the value of their respective
Participant's Company Accounts and Participant's Contribution Accounts
as determined through a special valuation of the Trust Fund as of that
date in such manner as the Trustee may determine.
29.
14 GENERAL PROVISIONS
14.01 Rights of Participants
Neither the establishment of the Plan, nor any modification thereof, nor
the creation of any fund, trust or account, nor the payment of any
benefits shall be construed as giving any Participant or former
Participant or Employee of a Participating Employer or any person
whomsoever, any legal or equitable right against a Participating
Employer, the Company or the Trustee, unless such right shall be
specifically provided for in the Trust Agreement or the Plan or
conferred by affirmative action of the Company in accordance with the
terms and provisions of the Plan. The rights of the Participants and
their beneficiaries under the Plan are rights only to share in the
assets of the Trust Fund in accordance with the provisions of the Plan
as from time to time in effect, and a Participating Employer or the
Company shall not have any liability under or arising out of the Plan,
to any Employee, Participant, beneficiary or other person.
14.02 Employment
Nothing herein contained shall be deemed to give any Employee the right
to be retained in the service of a Participating Employer or to
interfere with the rights of a Participating Employer to discharge such
Employee at any time, all of which rights shall remain as if the Plan
had not been established.
30.
14.03 Qualification Plan
The establishment and continuation of this Plan is subject to such
qualification with the relevant tax authorities as is necessary to
establish that the Plan constitutes an employees profit sharing plan
within the meaning of the Income Tax Act (Canada) and in particular as
is necessary to establish that the Participating Employers are entitled
to deduct the amounts of their payments to the Plan as expenses before
taxes under the provisions of the Income Tax Act (Canada) or any other
applicable legislation, as is now in effect or as may be amended or
adopted.
14.04 Assignment
Except as otherwise required by law or as provided under the Plan, any
benefits payable under the terms of this Plan are for the Participant's
own use and benefit and are not capable of assignment or alienation and
do not confer upon any Participant, beneficiary, personal representative
or dependent, or any other person, any rights or interest in the
benefits, if any, capable of being assigned or otherwise alienated, nor
shall any such benefit be capable of surrender.
14.05 No Loans
No payment out of the Plan shall be made to a Participant or other
beneficiary by way of loan.
31.
14.06 Payment of Benefits in the Case of Incapacity
If it shall be determined that any person entitled to benefits under the
Plan is legally, physically or mentally incapable of receiving and
receipting for such benefits, such payments or any part thereof may be
made by the Trustee to such other person, persons or institutions as a
Participating Employer believes are then maintaining or have custody of
such recipient. Such payment shall constitute a full and complete
discharge of the payment of the benefit under the Plan.
14.07 Written Explanation
There shall be prepared and made available to each Participant a written
explanation of the terms and conditions of the Plan and amendments
thereto applicable to him, together with an explanation of the rights
and duties of the Participant with reference to the benefits available
to him under the terms of the Plan. In the event of any conflict between
any statement made in such explanation and the provisions of the Plan or
Trust Agreement, the provisions of the Plan or Trust Agreement shall
govern.
32.
15 ADMINISTRATION
15.01 Company to Administer
The Company will operate and administer the Plan and will determine all
questions arising under and in connection therewith, and may from time
to time prescribe, amend and rescind regulations for such operation and
administration but may employ an agent or agents for this purpose.
15.02 Annual Statement
The Company shall deliver or cause to be delivered to each Participant
at least annually a statement setting forth the value of the
Participant's Contribution Account and the Participant's Company Account
under the Plan. At the time of any payment to a Participant, beneficiary
or estate the Company shall deliver or cause to be delivered to the
person receiving such payment a statement setting forth in reasonable
detail the computation of the amount of the payment. Each such statement
shall be deemed correct unless the Participant, the beneficiary or
estate gives notice to the contrary to the Company within 6 months after
its delivery.
15.03 Delivery to Participants
Each notice, report, remittance, statement and other communication
directed to a Participant shall be in writing and may be delivered in
person or by first class mail, in which latter event it shall be deemed
to have been delivered and received by the Participant when so deposited
in the mail with postage prepaid addressed to the Participant at
33.
The Participant's last address of record with his Participating
Employer.
15.04 Delivery to Participating Employers
All applications, notices, designations and other communications from
Participants shall be in writing and where applicable on prescribed
forms, and shall be mailed by first class mail or delivered to his
Participating Employer by the Participant and shall be deemed to have
been given when received by his Participating Employer.
34.
16 CONSTRUCTION
16.01 The Plan shall be construed and interpreted in accordance with the laws
of the Province of Ontario and the laws of Canada applicable therein.
35.