Exhibit 10.14
RYERSON NONQUALIFIED SAVINGS PLAN
(As amended through May 11, 2007)
Ryerson Inc. established the Ryerson Nonqualified Savings Plan (the “Plan”), effective as of January 1, 1998, in order to continue to enable employees of the Company and the other Employers to obtain the same level of benefits they would have been able to receive under the Ryerson Savings Plan but for the limits imposed by certain provisions of the Internal Revenue Code of 1986, as amended, on the amounts that can be contributed to the Savings Plan. The following provisions constitute an amendment, restatement and continuation of the Plan as previously amended from time to time and as in effect May 11, 2007, the “Effective Date” of the Plan as set forth herein. Notwithstanding anything herein to the contrary, any Participant Accounts or portions thereof that were vested as of December 31, 2004, shall be administered under the Plan as in effect on such date. The Plan is intended to be an “excess benefit plan” described in Section 3(36) of the Employee Retirement Income Security Act of 1974, as amended; provided, however, that, to the extent, if any, that the Plan provides benefits which cannot be provided by an excess benefit plan, the Plan shall constitute an unfunded plan maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees.
ARTICLE I
DEFINITIONS
1.01 “Account” means the record of a Participant’s interest in the Plan attributable to Company Contributions and Participant Contributions made on behalf of such Participant.
1.02 “Base Compensation” means Base Compensation as defined in the Savings Plan but without regard to the limitations under Code Section 401(a)(17) and prior to any Participant Deferrals under this Plan.
1.03 “Beneficiary” means, with respect to a Participant, the Participant’s Beneficiary under the Savings Plan.
1.04 “Board” means the Board of Directors of the Company.
1.05 “Code” means the Internal Revenue Code of 1986, as from time to time amended.
1.06 “Company” means Ryerson Inc.
1.07 “Distributable Event” means a Distributable Event as defined in the Savings Plan.
1.08 “Effective Date” means May 11, 2007.
1.09 “Eligible Employee” means an employee of an Employer who is eligible to participate in the Savings Plan, who has elected to make the maximum Before Tax Contribution permitted under the Savings Plan, and whose contributions under the Savings Plan are limited by Section 415 or Section 402(g) of the Code or whose Base Compensation exceeds the limits set forth in Section 401(a)(17) of the Code.
1.10 “Employer” means an Employer as defined in the Savings Plan.
1.11 “Employer Credits” means the amount credited to the Plan by the Employers pursuant to Section 3.03.
1.12 “Enrollment Date” means the first day of each month.
1.13 “ERISA” means the Employee Retirement Income Security Act of 1974, as from time to time amended.
1.14 “Fair Market Value” means, with respect to Company common stock as of any date, the closing price of a share of the Company’s common stock as reported on the New York Stock Exchange Composite Transactions on the last trading date prior to such date.
1.15 “Participant” means each Eligible Employee who has met the requirements of Article II for participation in the Plan.
1.16 “Participant Deferrals” means amounts deferred pursuant to Participant elections under Section 3.01.
1.17 “Permanent Incapacity” means Permanent Incapacity as defined in the Savings Plan.
1.18 “Plan” means the Ryerson Inc. Nonqualified Savings Plan, as from time to time amended.
1.19 “Plan Administrator” means the Plan Administrator appointed under the Savings Plan or any other individual as may be appointed by the Chairman of the Board, the President, the Vice President-Human Resources or the Treasurer of the Company to administer the Plan. To the extent consistent with the purposes of the Plan and the authority delegated to the Assistant Plan Administrator pursuant to Section 6.03(h), the term Plan Administrator shall include the Assistant Plan Administrator.
1.20 “Related Company” means a Related Company as defined in the Savings Plan.
1.21 “Retirement” means Retirement as defined in the Savings Plan.
1.23 “Savings Plan” means the Ryerson Savings Plan, as from time to time amended.
1.24 “Separation from Service” means a separation from service within the meaning of Code Section 409A.
1.25 “Valuation Date” means the last day of each month.
1.26 “Years of Vesting Service” means Years of Vesting Service as defined in the Savings Plan.
ARTICLE II
PARTICIPATION
2.01Eligibility. An Eligible Employee shall become a Participant on the Enrollment Date next following the filing with the Plan Administrator of an instrument in a form prescribed by the Plan Administrator evidencing his or her acceptance of the provisions of the Plan.
2.02Restricted Participation. Notwithstanding any other provision of the Plan to the contrary, if the Plan Administrator determines that participation by one or more Participants or Beneficiaries shall cause the Plan as applied to any Employer to be subject to Part 2, 3 or 4 of Title I of ERISA, the entire interest of such Participant or Beneficiary under the Plan shall, in the discretion of the Plan Administrator, be immediately paid to such Participant or Beneficiary, as applicable, by the applicable Employer or Employers, or shall otherwise be segregated from the Plan, and such Participant(s) or Beneficiary(ies) shall cease to have any interest under the Plan.
ARTICLE III
DEFERRAL OF COMPENSATION AND
EXCESS SAVINGS PLAN CREDITS
3.01Participant Deferrals. For any payroll period, each Participant who is an Eligible Employee for such payroll period may elect, at such time and in such manner as the Plan Administrator may determine (but not later than the end of the calendar year preceding the beginning of the payroll period or, in respect of any payroll period beginning in a calendar year in which a person first becomes an Eligible Employee, within 30 days of first becoming an Eligible Employee and then only with respect to payroll periods commencing on or after the date of the election), to make a supplemental deferral of Base Compensation under the Plan (“Participant Deferrals”) of not less than one percent (1%) and not more than ten percent (10%) of the Participant’s Base Compensation with such deferral beginning, at the Participant’s election, on either (i) the date the Participant’s Base Compensation reaches the limit imposed by Code Section 401(a)(17) or (ii) a fixed date chosen by the Participant, which date should roughly correspond to the date such Participant’s contributions to Savings Plan would reach the limit imposed by Code Section 415. Contributions made to the Plan on a Participant’s behalf for any payroll period shall be treated as a salary reduction and shall reduce the amount of current cash compensation otherwise payable to such Participant for such payroll period.
3.02Designation of Participant Deferrals. Each Participant shall designate the percentage of his or her Base Compensation to be deferred under the Plan in the same instrument by which he or she evidences his or her acceptance of the provisions of the Plan pursuant to Article II. Thereafter (but not retroactively), a Participant may, on a form prescribed by the Plan Administrator, change the percentage of his or her Base Compensation to be deferred under the Plan, subject to the limitations of this Article III;provided,however, that a deferral election with respect to any year shall be irrevocable once such year begins.
3.03Employer Credits. For each payroll period, each Participant who is employed by an Employer as of the last day of the payroll period shall receive a credit under the Plan (an “Employer Credit”) in an amount determined in
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accordance with procedures established from time to time by the Plan Administrator which is equal to the amount by which the Matching Contributions under the Savings Plan on behalf of the Participant for such payroll period are limited by reason of limitations on Participant Before Tax Contributions and Company Contributions imposed by Code Sections 401(a)(17), 402(g) and 415.
3.04Nature of Participant Deferrals and Employer Credits. Any amounts deferred by Participants or credited to Participants pursuant to this Article III shall be retained by the Employers as general assets of the Employers, and shall be reflected on the books of the Employers solely for the purpose of computing Participants’ benefits from the Plan.
ARTICLE IV
ACCOUNTS
4.01Maintenance of Accounts. The Plan Administrator shall establish and maintain in the records of the Plan an Account for each Participant reflecting each Participant’s interest in the Plan attributable to Participant Deferrals and Employer Credits made on his or her behalf, increased by earnings attributable thereto. Each Participant shall at all times be fully vested in the portion of the Participant’s Account which is attributable to Participant Deferrals.
4.02Valuation of Accounts. As of each Valuation Date, and as of such other date as the Plan Administrator may determine, the Account of each Participant shall be (a) adjusted for earnings or losses for the period since the next preceding Valuation Date as set forth in Section 4.03, (b) increased by Participant Deferrals and Employer Credits under the Plan with respect to such Participant relating to payroll periods since the next preceding Valuation Date, and (c) charged with any distribution calculated as of that date under Article V.
4.03Earnings and Losses. Except as provided in the following sentence, each Participant’s Account shall be credited with interest in accordance with paragraph (a) below. On and after the Effective Date, each Participant may elect to have all or any portion of his Account converted to Stock Units in accordance with paragraph (b) below. Each such election by a Participant shall be made at such times and in such form and otherwise in accordance with such rules and procedures as the Plan Administrator shall establish from time to time, including such rules and procedures as may be established by the Plan Administrator for compliance with Section 16 of the Securities Exchange Act of 1934 (the “Exchange Act”). A Participant may elect to change any election made under this Section 4.03 to the extent permitted by and in accordance with such rules and procedures as the Plan Administrator may establish from time to time.
(a) To the extent that a Participant’s Account is to be credited with interest, it shall be at a rate of interest earned by assets in the Managed Income Portfolio Fund II, or any successor fund, established under the Savings Plan.
(b) To the extent that any portion of a Participant’s Account is to be credited as Stock Units as of any date in accordance with the provisions of this Section 4.03, the number of Stock Units credited to the Participant’s Account shall be determined by dividing such amount by the Fair Market Value of a share of the Company’s common stock on that date. As of each cash dividend payment date for the Company’s common stock, each Participant shall be credited with an additional number of Stock Units which is equal to (i) the dividend which would have been paid on such date on that number of shares of Company common stock which is equal to the number of Stock Units credited to the Participant under the Plan on the record date for such dividend, divided by (ii) the Fair Market Value of a share of the Company’s common stock on the dividend payment date. In the event of any changes in outstanding shares of the Company’s common stock by reason of any stock dividend or split, other non-cash dividend recapitalization, merger, consolidation, spin-off, combination or exchange of shares or other similar corporate change, the Board shall make such adjustments, if any, that it deems appropriate in the number of Stock Units then credited to Participant Accounts. Any and all such adjustments shall be conclusive and binding upon all parties concerned.
(c) In the event of a Change in Control, the Board may convert any Stock Units in a Participant’s Account to a cash amount equal to (i) in the event the Change in Control is a merger in which all of the consideration paid for shares of Company common stock is cash, the product of the per share merger consideration and the number of Stock Units in such Participant’s account, or (ii) in all other cases, the product of the Fair Market Value of a share of Company common stock on the date of the Change in Control and the number of Stock Units in such Participant’s account.
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ARTICLE V
DISTRIBUTION OF BENEFITS
5.01Distribution Upon Termination of Employment.
(a) All distributions under the Plan will be made in cash. Distributions with respect to any portion of a Participant’s Account which is denominated in Stock Units shall be based upon the Fair Market Value of a share of the Company’s common stock on the day as of which the distribution is made.
(b) Upon a Participant’s Separation from Service with the Employers and Related Companies other than by reason of a Distributable Event and prior to (i) the completion of three Years of Vesting Service and (ii) the date on which he or she has a fully vested and nonforfeitable interest in his or her account balance under the Savings Plan, the Participant shall be entitled to a distribution of the portion of his or her Account balance attributable to Participant Deferrals in a single lump sum payment as of a Valuation Date, as elected by the Participant in accordance with rules established from time to time by the Plan Administrator, that is no later than 60 days after the first anniversary of the Participant’s Separation from Service.
(c) Upon a Participant’s Separation from Service with the Employers and Related Companies by reason of a Distributable Event on or after (i) the completion of three Years of Vesting Service, or (ii) the date on which he or she has a fully vested and nonforfeitable interest in his or her account balance under the Savings Plan, the Participant shall be entitled to a distribution of his or her entire Account balance in a single lump sum payment as of a Valuation Date, as elected by the Participant in accordance with rules established from time to time by the Plan Administrator, that is no later than 60 days after the first anniversary of the Participant’s Separation from Service.
(d) Upon a Participant’s Separation from Service with the Employers and Related Companies by reason of Permanent Incapacity or Retirement, and where the amount payable to the Participant is at least $10,000, the Participant shall be entitled to a distribution of his or her entire Account balance, payable to the Participant in either of the following ways, as elected by the Participant in accordance with rules established from time to time, by the Plan Administrator:
(1) in a single lump sum payment representing the full amount distributable to the Participant, payable on a date elected by the Participant which is not later than the end of the calendar year in which the Participant attains age 75, and not earlier than the first Valuation Date following the year in which such Separation from Service occurs; or
(2) in substantially equal installments, payable annually, over a period not extending beyond the end of the calendar year in which the Participant attains age 75, with each installment payment being equal to that amount determined by multiplying the then remaining balance in the Participant’s Account as of the Valuation Date used for purposes of calculating the payment by a fraction having a numerator of one and a denominator equal to the number of installments remaining to be paid.
5.02Distribution Upon Death. Upon the death of a Participant, the total value of the Participant’s Account as of the Valuation Date immediately following the date of death shall be distributed thereafter to the Participant’s Beneficiary in a single lump sum payment as soon as practicable after satisfactory proof of death shall have been submitted to the Plan Administrator.
5.03Unforeseeable Emergency. Upon a showing by a Participant of an unforeseeable emergency within the meaning of Code Section 409A, such Participant shall be entitled to a distribution of such portion (or all) of his or her Account balance as shall be reasonably necessary to meet such unforeseeable emergency. The Plan Administrator’s determination of a Participant’s unforeseeable emergency hereunder shall be final.
5.04Liability for Benefit Payments. The amount of any benefit payable under the Plan shall be paid from the general revenues of the Employer that last employs the Participant. An Employer’s obligation under the Plan shall be reduced to the extent that any amounts due under the Plan are paid from one or more trusts, the assets of which are subject to the claims of general creditors of the Employer or any affiliate thereof; provided, however, that nothing in the Plan shall require the Company or any Employer to establish any trust to provide benefits under the Plan.
5.05Special Distribution Election Rules.
(a) Any payment election made by a Participant pursuant to Section 5.01(b), (c) or (d) shall be made in the same instrument by which he or she evidences his or her acceptance of the provisions of the Plan pursuant to Article II. Where no election is made by a Participant under Section 5.01 in accordance with the preceding sentence, the
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Participant shall be deemed to have elected a lump sum distribution as of the first anniversary of his or her Separation from Service.
(b) Notwithstanding a Participant’s election made in accordance with Section 5.05(a), in the case of a Participant who is a “specified employee” within the meaning of Code Section 409A, no payment shall commence under Section 5.01(b), (c) or (d) before the date that is six months after the Participant’s Separation from Service. To the extent that such an amount otherwise would have been payable during such six-month period, such amount shall be maintained under the Plan in accordance with its terms (including without limitation Article IV) and distributed in a lump sum at or as soon as practicable following the end of such six-month period (or, if earlier, as of the date of the Participant’s death).
(c) A Participant may change the date on which a lump-sum distribution will be made or change the form of distribution from lump-sum to installments (to the extent installments are otherwise available under Section 5.01(c)) by filing an election, in accordance with rules established from time to time by the Plan Administrator, at least one year prior to the date that distribution otherwise would have been made (or, in the case of installments, commenced); provided that no such election shall be permitted which would (i) accelerate the time or schedule of any payment, except as permitted by regulations promulgated under Code Section 409A, or (ii) delay a payment unless the first payment with respect to which such election is made is deferred for a period of not less than five years from the date the payment would otherwise have been made.
(d) Notwithstanding any provision of the Plan to the contrary (including the foregoing provisions of this Section 5.05), in accordance with rules established by the Plan Administrator or its delegate and in accordance with Treasury Department and Internal Revenue Service guidance issued under Code Section 409A, no later than December 31, 2007, each Participant shall be permitted to change his or her distribution election under the Plan for any distributions not payable before 2008.
ARTICLE VI
PLAN ADMINISTRATION
6.01Administration of Plan. The Employers shall have the sole responsibility for effecting Participant Deferrals in accordance with Article III and paying Plan benefits in accordance with Article V, and the Company shall have the sole authority to amend or terminate, in whole or in part, this Plan at any time. The Plan Administrator shall have the sole responsibility for the administration of the Plan. The Employers do not guarantee to any Participant in any manner the effect under any tax law or Federal or state statute of the Participant’s participation in this Plan.
6.02Claims Procedure. All claims for benefits under the Plan shall be made in accordance with Article IX.
6.03Powers and Duties of Plan Administrator. The Plan Administrator shall have such duties and powers as may be necessary to discharge his or her duties hereunder, including, but not by way of limitation, the following:
(a) to conclusively construe and interpret the Plan, decide all questions of eligibility and determine the amount, manner and time of payment of any benefits hereunder;
| (b) | to prescribe procedures to be followed by Participants in filing elections or revocations thereof; |
(c) to prepare and distribute, in such manner as the Plan Administrator determines to be appropriate, information explaining the Plan;
(d) to receive from the Employers and from Participants such information as shall be necessary for the proper administration of the Plan;
(e) to furnish the Employers, upon request, such reports with respect to the administration of the Plan as are reasonable and appropriate;
(f) to receive, review and keep on file (as it deems convenient and proper) reports of benefit payments by the Employers and reports of disbursements for expenses directed by the Plan Administrator;
(g) to appoint individuals to assist in the administration of the Plan and any other agents it deems advisable, including legal counsel; and
(h) to name as an Assistant Plan Administrator any individual or individuals and to delegate such authority and duties to such individual as the Plan Administrator in his or her discretion deems advisable. Each Assistant Plan
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Administrator, if any, named pursuant to this paragraph shall have such authority to act with respect to the administration of the Plan as the Plan Administrator may prescribe. The incumbency of any Assistant Plan Administrator may be terminated by action of the Plan Administrator at any time, with or without cause. Notwithstanding the foregoing, in the absence of a formal designation of any Assistant Plan Administrator by the Plan Administrator, no provision of this paragraph shall prevent the Plan Administrator from delegating authority to employees or other agents of the Employers in executing the duties of administering the Plan.
The Plan Administrator shall have no power to add to, subtract from or modify any of the terms of the Plan, or to change or add to any benefits provided by the Plan, or to waive or fail to apply any requirements of eligibility for a benefit under the Plan.
6.04Rules and Decisions. The Plan Administrator may adopt such rules as he or she deems necessary, desirable or appropriate. All rules and decisions of the Plan Administrator shall be uniformly and consistently applied to all Participants in similar circumstances. When making a determination or calculation, the Plan Administrator shall be entitled to rely upon information furnished by a Participant, the Employers or the legal counsel of the Employers.
6.05Authorization of Benefit Payments. The Plan Administrator shall issue directions to the Employers concerning all benefits which are to be paid from the Company’s general assets pursuant to the provisions of the Plan.
6.06Indemnification of Plan Administrator. The Plan Administrator and any Assistant Plan Administrator and any officer or director of any Employer shall be indemnified by the Employers against any and all liabilities arising by reason of any act or failure to act made in good faith pursuant to the provisions of the Plan, including expenses reasonably incurred in the defense of any claim relating thereto.
ARTICLE VII
MISCELLANEOUS
7.01No Right to Employment, etc. Neither the creation of this Plan nor anything contained herein shall be construed as giving any Participant hereunder or other employees of the Employers or any Related Company any right to remain in the employ of the Employers or any Related Company.
7.02Successors and Assigns. All rights and obligations of this Plan shall inure to, and be binding upon, the successors and assigns of the Employers.
7.03Inalienability. Except so far as may be contrary to the laws of any state having jurisdiction in the premises, a Participant or Beneficiary shall have no right to assign, transfer, hypothecate, encumber, commute or anticipate his or her interest in any payments under this Plan and such payments shall not in any way be subject to any legal process to levy upon or attach the same for payment of any claim against any Participant or Beneficiary.
7.04Incompetency. If any Participant or Beneficiary is, in the opinion of the Plan Administrator, legally incapable of giving a valid receipt and discharge for any payment, the Plan Administrator may, at its option, direct that such payment or any part thereof be made to such person or persons who in the opinion of the Plan Administrator are caring for and supporting such Participant or Beneficiary, unless it has received due notice of claim from a duly appointed guardian or conservator of the estate of the Participant or Beneficiary. A payment so made will be a complete discharge of the obligations under this Plan to the extent of and as to that payment, and neither the Plan Administrator nor the Employers will have any obligation regarding the application of payment.
7.05Controlling Law. To the extent not preempted by the laws of the United States of America, the laws of the State of Illinois shall be the controlling state law in all matters relating to this Plan.
7.06Severability. If any provisions of this Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of this Plan, but this Plan shall be construed and enforced as if the illegal and invalid provisions never had been included herein.
7.07Limitations on Provisions. The provisions of this Plan and any benefits hereunder shall be limited as described herein. Any benefit payable under the Savings Plan shall be paid solely in accordance with the terms and provisions of the Savings Plan, as appropriate, and nothing in this Plan shall operate or be construed in any way to modify, amend, or affect the terms and provisions of the Savings Plan.
7.08Gender and Number. Whenever the context requires or permits, the gender and number of words shall be interchangeable.
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ARTICLE VIII
AMENDMENT AND TERMINATION
8.01Amendment to Conform with Law. The Plan may be amended to take effect retroactively or otherwise, as deemed necessary or advisable for the purpose of conforming the Plan to any present or future law relating to plans of this or a similar nature, and to the administrative regulations and rulings promulgated thereunder.
8.02Other Amendments and Termination. The Plan may be amended at any time, without the consent of any Participant or Beneficiary. Notwithstanding the foregoing, the Plan shall not be amended or terminated so as to reduce or cancel the benefits which have accrued to a Participant or Beneficiary prior to the later of the date of adoption of the amendment or termination or the effective date thereof, and in the event of such amendment or termination, any such accrued benefit hereunder shall not be reduced or canceled. Upon termination of the Plan, benefits will be payable under the terms of the Plan as in effect immediately before its termination.
8.03Effect of Change in Control.
(a) In the event of a Change in Control (as defined below), all benefits accrued as of the date of such Change in Control hereunder shall become fully (i.e., 100%) and irrevocably vested, and shall become distributable to Participants (and Beneficiaries) at such time and in such manner provided herein pursuant to the provisions of the Plan as in effect on the day immediately preceding the date of such Change in Control. The Plan Administrator shall, in his or her sole discretion, determine whether assets equal in value to the aggregate of all accrued benefits under the Plan as of the date of such Change in Control shall be deposited by the Employers with a bank trustee pursuant to one or more “rabbi trusts.”
| (b) | For purposes of this Section 8.03, a “Change in Control” means the happening of any of the following: |
(1) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than (w) the Company, (x) a trustee or other fiduciary holding voting securities under an employee benefit plan of the Company or any of its subsidiaries, (y) an underwriter temporarily holding voting securities pursuant to an offering of such securities, or (z) a corporation owned, directly or indirectly, by the security holders of the Company in substantially the same proportions as their ownership of voting securities of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of voting securities of the Company (not including in the voting securities beneficially owned by such person any voting securities acquired directly from the Company or its affiliates) representing 20% or more of the combined voting power of the Company’s then outstanding voting securities;
(2) during any period of two consecutive years (not including any period prior to May 11, 2007), individuals who at the beginning of such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s security holders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved (collectively, “Continuing Directors”), cease for any reason to constitute a majority thereof; provided, however, that any director who assumes office in connection with an agreement with the Company to effect a transaction described in clauses (1), (3) or (4) of this subsection (b) or any new director who assumes office in connection with or as a result of an actual or threatened proxy or other election contest of the Board, shall never be (at any time) a Continuing Director for purposes of this subsection (b), and the nomination or election of such person shall never constitute, or be deemed to constitute, an approval by the Continuing Directors for purposes of this subsection (b) (provided that for the purposes of funding any rabbi trust or similar escrow agreement, any Change in Control under this definition of Change in Control shall be deemed to occur at the beginning of the day of the stockholders’ meeting at which the stockholders are asked to vote on a slate of directors that could result in Continuing Directors ceasing to constitute a majority of the Board);
(3) there occurs a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or the direct or indirect parent thereof), in combination with the ownership of any trustee or other fiduciary holding voting securities under an employee benefit plan of the Company, at least 60% of the combined voting power of the voting securities of the Company or such surviving entity or the direct or indirect parent thereof outstanding immediately after such merger or consolidation, or a merger or consolidation effected to implement a
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recapitalization of the Company (or similar transaction) in which no person acquires more than 40% of the combined voting power of the Company’s then outstanding voting securities;
(4) the holders of voting securities of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; or
(5) there occurs any other event that the Board deems to be a Change in Control.
(c) The provisions of this Section 8.03 may not be amended after the date of a Change in Control without the written consent of a majority in both number and interest of the Participants in this Plan, other than those Participants who are both (i) not employed by the Company or a subsidiary as of the date of the Change in Control, and (ii) not receiving nor could have commenced receiving benefits under the Plan as of the date of the Change in Control, both immediately prior to the Change in Control and at the date of such amendment.
8.04Manner and Form of Amendment or Termination. Any amendment or termination of this Plan shall be made by action of the Board; provided, however, that the Vice President-Human Resources of the Company and the Treasurer of the Company (or such other person as designated by the Chairman of the Board) are jointly authorized, by written action signed by both such individuals:
(a) to adopt and place in effect such amendments to the Plan and any related documents as they jointly deem necessary or advisable;
(b) to maintain the Plan and any related documents in compliance with applicable law;
(c) to relieve administrative burdens with respect to those documents; or
(d) to provide for other changes in the best interests of Plan Participants and Beneficiaries without the necessity for further action by the Board or subsequent ratification;provided,however, that any action or amendment that would have the effect of:
(1) terminating the Plan;
(2) materially changing the benefits under the Plan; or
(3) increasing anticipated costs associated with the Plan by more than $5 million, except for changes to comply with applicable law;
may not be made without approval or ratification by the Board.
8.05Notice of Amendment or Termination. The Plan Administrator shall notify Participants or Beneficiaries who are affected by any amendment or termination of this Plan within a reasonable time thereof.
ARTICLE IX
CLAIMS PROCEDURES
9.01Filing a Claim. Any Participant or Beneficiary of a deceased Participant (such Participant or Beneficiary being referred to below as a “Claimant”) may deliver to the Plan Administrator a written claim for a determination with respect to the amounts distributable to such Claimant from the Plan. If such a claim relates to the contents of a notice received by the Claimant, the claim must be made within 60 days after such notice was received by the Claimant. All other claims must be made within 180 days of the date on which the event that caused the claim to arise occurred. The claim must state with particularity the determination desired by the Claimant.
9.02Plan Administrator’s Decision. Within 90 days after the receipt of the claim, the Plan Administrator will provide the Claimant with written notice of his or her decision on the claim. If, because of special circumstances, the Plan Administrator cannot render a decision on the claim within the 90-day period, the Plan Administrator may extend the period in which to render the decision up to 180 days after receipt of the written claim. The Plan Administrator will provide the Claimant with a written notice of the extension, before the end of the initial 90-day period, which indicates the special circumstances requiring the extension and the expected decision date. If the claim is denied in whole or in part, the written notice of the decision will inform the Claimant of:
| (a) | the specific reasons for the denial; |
| (b) | the specific provisions of the Plan upon which the denial is based; |
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(c) any additional material or information necessary to perfect the claim and reasons why such material or information is necessary;
| (d) | the right to request review of the denial and how to request such review; and |
(e) a statement of Claimant’s right to bring a civil action under section 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA) following an adverse benefit determination on review.
9.03Request for Review of Denied Claim. Within 60 days after the receipt of written notice of a denial of all or a portion of a claim, the Claimant may request a review of the denial in a writing filed with the Plan Administrator. Written comments, documents, records and other information may be submitted to the Plan Administrator along with the review request. During the 60-day period following notice of the denial, the Claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim for benefits.
9.04Review of Denied Claim. Upon receipt of a request for review of a claim denial, the Plan Administrator will undertake a full and fair review of the claim denial and provide the Claimant with written notice of his or her decision within 60 days after receipt of the review request. If, because of special circumstances, the Plan Administrator cannot make a decision within the 60-day period, the Plan Administrator may extend the period in which to make the decision up to 120 days after receipt of the review request. The Plan Administrator will provide the Claimant with a written notice of the extension, before the end of the 60-day period, which indicates the special circumstances requiring the extension and the expected decision date. The written notice of the Plan Administrator’s decision will inform the Claimant of:
| (a) | the specific reasons for the decision; |
| (b) | the specific provisions of the Plan upon which the decision is based; |
(c) a statement that Claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim for benefits;
| (d) | a statement of the Claimant’s right to bring a civil action under section 502(a) of ERISA. |
9.05Legal Action. Except as may be otherwise required by law, the decision of the Plan Administrator on review of the claim denial will be binding on all parties. A Claimant’s compliance with the foregoing provisions of this Article IX is a mandatory prerequisite to a Claimant’s right to commence any legal action with respect to any claim for benefits under this Plan.
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