EXHIBIT 4.25
SECOND AMENDMENT TO
DRYPERS CORPORATION 401(K) PLAN
THIS AGREEMENT by Drypers Corporation (the "Sponsor"),
WITNESSETH:
WHEREAS, on June 28, 1994, the Sponsor executed the Plan and Trust
Agreement known as "Drypers Corporation 401(k) Plan" (the "Plan"); and
WHEREAS, the Sponsor retained the right in Section 11.1 of the Plan to
amend the Plan from time to time; and
WHEREAS, the Board of Directors of the Sponsor approved resolutions on the
22nd day of June 1998, to amend the Plan;
NOW, THEREFORE, the Plan is hereby amended, effective January 1, 1997,
unless a different effective date is expressly stated or required by law, as
follows:
1. Section 3.1 is deleted in its entirety and the following shall be
substituted in its place:
3.1 ELIGIBILITY REQUIREMENTS. Each Employee shall be eligible to
participate in this Plan beginning on the first day of the calendar quarter
which starts with or next follows the later of (a) the effective date of
the adoption of this Plan by the Employer, (b) the date the Employee
attains age 18 or (c) the date during the Computation Period on which the
Employee completes 1,000 Hours of Employment in that Computation Period,
but in no event less than six months from the Employee's first day of
employment. However, all Employees who are included in a unit of Employees
covered by a collective bargaining agreement between the Employees'
representative and the Employer shall be excluded, even if they have met
the requirements for eligibility, if there has been good faith bargaining
between the Employer and the Employees' representative and the collective
bargaining agreement does not require the Employer to include those
Employees in this Plan.
2. Section 4.3(f) is deleted in its entirety and the following shall be
substituted in its place:
(f) an amount, if any, which is designated by the Board of Directors
to be the Employer Discretionary Contribution for the Plan Year, which
amount may be contributed all in Company Stock, all in cash, or in any
combination thereof as determined in the discretion of the Board of
Directors. "Company Stock" means the common stock of Drypers
Corporation, $.001 par value of Drypers Corporation. Company Stock shall be
valued for this purpose as of the date of contribution.
3. Section 5.3(f) is deleted in its entirety and the following shall be
substituted in its place:
(f) allocate the Employer Discretionary Contribution, if any, among
the Members who are eligible to participate, who are credited with at least
1,000 Hours of Employment for the Plan Year, and who are employed by one of
the Employers or Affiliated Employers at the end of the Plan Year or became
disabled, died or retired during the Plan Year, based upon each Member's
Considered Compensation for the Plan Year as compared to the Considered
Compensation of all Members employed by the Employer or Affiliated Employer
and entitled to an allocation pursuant to this Section 5.3(f) for the Plan
Year.
4. Section 5.3 is amended by adding the following subsections following
5.3(g):
(h) allocate the cash and Company Stock dividends paid with respect to
Company Stock when received among the Members and former Members with
Account balances in Company Stock in proportion to the number of shares of
Company Stock (of the class with respect to which the dividend is paid)
allocated to Member's or former Member's Accounts as of the record date for
the dividend.
(i) if the shares of Company Stock are subdivided, allocate the
additional shares acquired by the Trustee upon the subdivision when
received among the Members and former Members with Account balances in
Company Stock in proportion to the number of shares of Company Stock (of
the class with respect to which the subdivision is made) allocated to the
Member's or former Member's Accounts as of the record date for the
subdivision.
5. Effective July 1, 1998, Sections 5.4, 6.10, 6.15, and 11.8 are hereby
amended to increase the maximum account balance of a Member subject to
involuntary cash out from $3,500 to $5,000 by substituting $5,000 for $3,500
each time it appears.
6. Section 6.1 is deleted in its entirety and the following shall be
substituted in its place:
6.1 VALUATION OF ACCOUNTS FOR WITHDRAWALS AND DISTRIBUTIONS.
Normally, for the purpose of making a distribution or withdrawal, a
Member's Accounts shall be his Accounts as valued as of the Valuation Date
which is coincident with or next preceding the withdrawal, adjusted only
for Contributions, distributions and withdrawals, if any, made between the
Valuation Date and the date of distribution; provided, if the valuation is
made on a daily basis as of each business day, the Accounts shall be valued
as of the withdrawal or distribution. However, for
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purposes of making a distribution or withdrawal of the Member's or former
Member's interest in the Company Stock Fund, the value of shares of Company
Stock allocated to the Member's or former Member's Account shall be the net
cash proceeds of the sale of the Company Stock when the Trustee sells it in
order to make the distribution or withdrawal.
7. Section 6.10 is amended by adding subsection (d) immediately after
subsection (c), as follows:
(d) Notwithstanding the provisions of this Section 6.10, the Member's
vested portion of his Accounts which is invested in the Company Stock Fund
shall be distributed in cash, as elected in subsections (a)-(c) above,
valued at the net proceeds received from the sale of the Company Stock.
8. Section 9.1 is amended by adding the following sentence at the end of
such Section as follows:
The Plan may be funded under a group annuity contract, or may be
funded under a group annuity contract and one or more trusts, each of which
is referred to herein as a "Trust."
9. The Plan is amended by inserting a new Article XIII and XIV effective
as follows:
ARTICLE XIII
INVESTMENT ELECTIONS
13.1 INVESTMENT FUNDS ESTABLISHED. It is contemplated that the
assets of this Plan shall be invested in such categories of assets as may
be determined from time to time by the Committee and announced and made
available on an equal basis to all Members and former Members. All amounts
contributed to a Member's Employer Discretionary Contribution Account in
the form of Company Stock shall be deposited in the Company Stock Fund and
shall remain invested in the Company Stock fund until the Member or former
Member instructs the Trustee to transfer all or a portion of such amount to
other investment funds in accordance with procedures established by the
Committee. In accordance with procedures established by the Committee,
each Member and former Member may designate the percentage [or amount] of
his Account balances (except as specified above), to be invested in each
investment fund available under the Plan. Up to one hundred percent (100%)
of the Trust assets may be invested in Company Stock.
13.2 ELECTION PROCEDURES ESTABLISHED. The Committee shall, from
time to time, establish rules to be applied in a nondiscriminatory manner
as to all matters relating to the administration of the investment of funds
including, but not limited to, the following:
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(a) The percentage or amount of a Member's or former Member's
Account as it exists, from time to time, that may be transferred from
one fund to another and the limitations based on amounts, percentages,
time, or frequency, if any, on such transfers;
(b) The percentage of a Member's future contributions, when
allocated to his Account, that may be invested in any one or more
funds and the limitations based upon amounts, percentages, time, or
frequency, if any, on such investments in various funds;
(c) The procedures for making investment elections and changing
existing investment elections;
(d) The period of notice required for making investment
elections and changing existing investment elections;
(e) The handling of income and change of value in funds when
funds are in the process of being transferred between investment funds
and to investment funds; and
(f) All other matters necessary to permit the orderly operation
of investment funds within the Plan.
When the Committee changes any previous applicable rule, it shall state the
effective time of the change and the procedures for complying with any such
change. Any change shall remain effective until such date as stated in the
change, or if none is stated, until revoked or changed in a like manner.
ARTICLE XIV
VOTING OF COMPANY STOCK AND TENDER OFFERS
14.1 VOTING OF COMPANY STOCK. When the Company files preliminary or
final proxy solicitation materials with the Securities and Exchange
Commission, the Company shall cause a copy of all materials to be
simultaneously sent to the Trustee. Based on these materials, the Trustee
shall prepare a voting instruction form. At the time of mailing of notice
of each annual or special stockholders' meeting of the Company, the Company
shall cause a copy of the notice and all proxy solicitation materials to be
sent to each Member with an interest in Company Stock held in the Trust,
together with the foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the number of full and
fractional shares of the Company Stock credited to each Member's or former
Member's Account. The Company shall provide the Trustee with a copy of any
materials provided to the Members and shall certify to the Trustee that the
materials have been mailed or otherwise sent to the Members and former
Members.
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Each Member and former Member with an interest in Company Stock held in the
Trust shall have the right to direct the Trustee as to the manner in which the
Trustee is to vote the number of shares of the Company Stock reflecting such
Member's or former Member's proportional interest in the Company Stock held in
the Trust (both vested and unvested). Directions from a Member or former Member
to the Trustee concerning the voting of the Company Stock shall be communicated
in writing, or by mailgram or similar means. These directions shall be held in
confidence by the Trustee and shall not be divulged to the Company, or any
officer or employee thereof, or any other person except to the extent that the
Company must have the safeguarded information in order to comply with Federal
laws or State laws not preempted by ERISA. Upon its receipt of the directions,
the Trustee shall vote the shares of the Company Stock reflecting the Member's
or former Member's proportional interest in the Company Stock held in the Trust
as directed by the Member or former Member. The Trustee shall vote shares of the
Company Stock reflecting such Member's or former Member's proportional interest
in the Company Stock held in the Trust (both vested and unvested) for which it
has received no directions from the Member or former Member in the same
proportion on each issue as it votes those shares for which it received voting
directions from Members and former Members. The Trustee shall vote shares of the
Company Stock not credited to Members' or former Members' Accounts in the same
proportion on each issue as it votes those shares credited to Members' and
former Members' Accounts for which it received voting directions from Members
and former Members.
14.2 TENDER OFFERS. Upon commencement of a tender offer for any
securities held in the Trust that constitute Company Stock, the Company
shall notify each Member and former Member of the tender offer and utilize
its best efforts to timely distribute or cause to be distributed to each
Member and former Member the same information that is distributed to other
stockholders of the Company in connection with the tender offer, and, after
consulting with the Trustee, shall provide and pay for a means by which the
Member or former Member may direct the Trustee whether or not to tender the
Company Stock credited to the Member's or former Member's vested and
unvested Accounts. The Company shall provide the Trustee with a copy of
any material provided to the Members and former Members and shall certify
to the Trustee that the materials have been mailed or otherwise sent to
Members and former Members.
Each Member and former Member shall have the right to direct the
Trustee to tender or not to tender some or all of the shares of the Company
Stock reflecting his proportional interest in the Company Stock held in the
Trust (both vested and unvested). Directions from a Member or former
Member to the Trustee concerning the tender of the Company Stock shall be
communicated in writing, or by mailgram or such similar means as is agreed
upon by the Trustee and the Company under the
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preceding paragraph. These directions shall be held in confidence by the
Trustee and shall not be divulged to the Company, or any officer or
employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly
communicated to any such persons in the ordinary course of the performance
of the Trustee's services hereunder. The Trustee shall tender or not tender
shares of Company Stock as directed by the Member or former Member. To the
extent that Members or former Members fail to affirmatively direct the
Trustee or fail to issue valid directions to the Trustee to tender shares
of the Company Stock credited to their Accounts, those Members or former
Members will be deemed to have instructed the Trustee not to tender those
shares. Accordingly, the Trustee shall not tender shares of Company Stock
credited to a Member's or former Member's Accounts for which it has
received no directions or invalid directions from the Member or former
Member.
The Trustee shall tender that number of shares of the Company Stock
not credited to Members' or former Members' Accounts which is determined by
multiplying the total number of shares of the Company Stock not credited to
Members' or former Members' Accounts by a fraction of which the numerator
is the number of shares of the Company Stock credited to Members' or former
Members' accounts for which the Trustee has received valid directions from
Members or former Members to tender (which directions have not been
withdrawn as of the date of this determination) and of which the
denominator is the total number of shares of the Company Stock credited to
Members' or former Members' Accounts.
A Member or former Member who has directed the Trustee to tender some
or all of the shares of the Company Stock credited to the Member's or
former Member's Accounts may, at any time prior to the tender offer
withdrawal date, direct the Trustee to withdraw some or all of the tendered
shares, and the Trustee shall withdraw the directed number of shares from
the tender offer prior to the tender offer withdrawal deadline. Prior to
the withdrawal deadline, if any shares of the Company Stock not credited to
Members' or former Members' Accounts have been tendered, the Trustee shall
redetermine the number of shares of the Company Stock that would be
tendered under this Section if the date of the foregoing withdrawal were
the date of determination, and withdraw from the tender offer the number of
shares of the Company Stock not credited to Members' or former Members'
Accounts necessary to reduce the amount of tendered Company Stock not
credited to Members' or former Members' Accounts to the amount so
redetermined. A Member or former Member shall not be limited as to the
number of directions to tender or withdraw that the Member or former Member
may give to the Trustee.
A direction by a Member or former Member to the Trustee to tender
shares of the Company Stock reflecting the Member's or former
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Member's proportional interest in the Company Stock held in the Trust shall
not be considered a written election under the Plan by the Member or former
Member to withdraw, or have distributed, any or all of his withdrawable
shares. The Trustee shall credit to each proportional interest of the
Member or former Member from which the tendered shares were taken the
proceeds received by the Trustee in exchange for the shares of the Company
Stock tendered from that interest.
14.3 SHARES CREDITED. For all purposes of this Article, the number
of shares of the Company Stock deemed "credited" to a Member's or former
Member's Accounts as of the relevant date (the record date or the date
specified in the tender offer) shall be calculated by reference to the
number of shares reflected on the books of the transfer agent to the credit
of the Plan as of the relevant date. In the case of a tender offer, the
number of shares credited shall be determined as of a date as close as
administratively feasible to the relevant date.
14.4 CONVERSION. All provisions in this Article shall also apply to
any securities received as a result of a conversion of the Company Stock.
14.5 NAMED FIDUCIARY. For purposes of ERISA, each Member or former
Member shall be the named fiduciary for purposes of Section 403(a)(1) of
ERISA in connection with the exercise of voting and tender offer rights
relating to shares of the Company Stock credited to the his Accounts and
any shares of the Company Stock not credited to his Accounts that may be
affected by his voting or tender decision.
IN WITNESS WHEREOF, the Sponsor has executed this Agreement this
22nd day of June, 1998.
DRYPERS CORPORATION
By /s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
Executive Vice President and
Chief Financial Officer
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