X.
Add Section 12.03 to read as follows:
“Each Participant as of May 1, 2008 shall have a one-time option during the period beginning on May 1, 2008 and ending June 13, 2008 (“Election Window”) to elect to receive a lump sum payment to be made in early January, 2009. If a Participant dies during the Election Window and has not appropriately filed an election not to take a lump sum payment prior to the deceased Participant’s death, the persons who become Participants on account of the Participant’s death shall also have the one-time option during the remainder of the Election Window to elect a receive a lump sum payment, with respect to the benefit payable to such persons only.
The lump sum payment is the actuarial equivalent (as actuarial equivalence is defined below in this Section) of the Participant's anticipated annuity payments and an additional cash payment to assist with the tax immediately payable by the Participant. The Participant can make the lump sum payment election during the Election Window by initialing the lump sum option on an election form, dating and signing the form and delivering it to the Company during the Election Window. If the Participant is receiving benefits on May 1, 2008 and has a survivor annuity form of payment, the survivor annuitant must also consent to the lump sum payment election on the form. If the election form is not returned by the Participant during the Election Window or if the Participant does return the form but does not properly elect on the form to receive a lump sum payment, the Participant will only be eligible to receive in the future or to continue receiving, as the case may be, annuity based payments under the frozen Plan. The election made (or the failure to make an election) by the Participant on the first election form dated and signed by the Participant and returned to the Company is final and binding on and irrevocable and unamendable by the Participant, his estate, successors, beneficiaries and survivor annuitants.
If a Participant who is receiving annuity payments as of May 1, 2008 timely elects to receive a lump sum payment during the Election Window, the annuity payments will continue to the Participant, the Participant’s survivor annuitant, if any, beneficiary, if any, estate or successors through the December 19, 2008 payment whether or not the Participant survives through that date. The annuity payments will thereafter cease. The annuity payments that might otherwise become payable to anyone not receiving annuity payments as of May 1, 2008 shall be delayed until the earlier of the date the Participant (or those who become Participants on account of the Participant’s death during the Election Window), appropriately files an election form on which no election to take a lump sum payment is made or until the expiration of the Election Window. If a Participant who was not receiving benefits on May 1, 2008 (or the persons who become Participants during the Election Window because of a Participant’s death) timely files an election during the Election Window to take a lump sum payment, no annuity payments will be made and the Participant or such persons will receive only the lump sum payment in early January, 2009.
If an election to take a lump sum payment is timely filed during the Election Window, the lump sum payment will be made in early January, 2009 to Active Participants, Inactive Participants who are not receiving benefits as of May 1 2008 and Participants receiving retirement benefits whether or not the Participant survives through that date. If a Participant dies before the lump sum payment is made in early January, 2009, the lump sum payment will be made to the Participant’s survivor annuitant, if any, the Participant’s beneficiaries, if any, or to the Participant’s estate or successors.
If the Participant appropriately elects a lump sum payment during the Election Window, (except as provided above in this Section regarding continuation of payments to Participants receiving annuity payments on May 1, 2008 and possibly in connection with a Change of Control as described below) no other payments will be made under any circumstances and neither the Participant nor the Participant’s survivor annuitant, beneficiaries, estate or successors will receive any other annuity or other benefits otherwise provided for in the Plan in the event the Participant terminates employment, retires, dies or becomes disabled, whether before or after the lump sum payment is made.
Notwithstanding the other provisions of this First Amendment or any other provisions of the Plan, if the Participant appropriately elects a lump sum payment during the Election Window, there will not be a lump sum payment under Article XI of the Plan if a Change of Control occurs under Article XI unless (i) on or before December 31, 2008, an Effective Date, as defined in Section 11.01 of the Plan, occurs and (ii) the Participant becomes entitled to be paid a lump sum payment because of a Change of Control under the provisions of Article XI of the Plan and (iii) such lump sum is actually due, payable and not contingent on the occurrence of a later Change of Control under the terms of Article XI of the Plan on or before December 31, 2008. If the Participant is entitled to be paid a lump sum because of a Change of Control under the provisions of this paragraph, the Participant will not be entitled to any other lump sum payment in early January, 2009 so that under no circumstances shall there be a duplication of lump sum payments.
For Participants currently receiving payments, the lump sum payment was determined based on the current payment form. For Participants not receiving payments, the lump sum payment was determined based on a single life annuity. Active Participants are assumed to commence benefits at age 62 and Inactive Participants not receiving benefits are assumed to commence benefits at age 55 if the Participant had 10 years of Benefit Service at termination, otherwise at age 65. For purposes of determining the amount of the lump sum payment only, in the case of Active and Inactive Participants not receiving benefits, the Participant’s age shall be deemed to equal his actual age plus 3 years; provided, however, that fewer than 3 years shall be added if the addition of fewer than 3 years would maximize a Participant’s lump sum payment. For purposes of computing the lump sum amount, the Participant is deemed to be alive on the early January, 2009 lump sum payment date, except that if a person other than the Participant can make the lump sum election under the first paragraph of this Section, that person is deemed to be alive on the early January, 2009 lump sum payment date.
For this purpose only, actuarial equivalence is based upon an interest assumption of 6.0% and the RP-2000 Mortality Table (50% male, 50% female).
In determining the additional cash payment, the timing of taxation (current v. future), tax rate differentials (ordinary income v. tax-preferred capital gains and dividends), and expectations of future investment return rates were considered.
For Participants as of February 29, 2008, the following table contains the lump sum payment option amounts:
