<PAGE 1>
EXHIBIT 10.8
EXECUTIVE RETIREMENT PLAN
As adopted on July 10, 1987
(effective February 19, 1987); and as
amended on the following dates:
Amended and Restated March 1, 1988;
Amended and Restated April 25, 1988;
Amended and Restated May 2, 1988;
Amended September 13, 1993;
Amended November 18, 1993;
Amended February 17, 1994
This Plan Document is current as of
February 1, 1994.
<PAGE 2>
NATIONAL FUEL GAS COMPANY
AND PARTICIPATING SUBSIDIARIES
EXECUTIVE RETIREMENT PLAN
TABLE OF CONTENTS
ARTICLE PAGE NO.
ARTICLE I Purpose................................................. 1
ARTICLE II Definitions............................................. 3
ARTICLE III Determination of Retirement Benefits.................... 8
ARTICLE IV Vesting; Forfeiture......................................14
ARTICLE V Form of Payment of Benefits..............................16
ARTICLE VI Source of Payment .......................................18
ARTICLE VII Administration of the Plan ..............................19
ARTICLE VIII Amendment and Termination................................21
ARTICLE IX General Provisions.......................................22
<PAGE 3>
ARTICLE 1
Purpose
1.1 National Fuel Gas Company established this National Fuel Gas
Company and Participating Subsidiaries Executive Retirement Plan effective as
of February 19, 1987 for the purpose of attracting and retaining executives,
and for these additional purposes: (1) to provide retirement benefits to
eligible employees in addition to basic retirement benefits provided them under
the National Fuel Gas Company Retirement Plan as it may be amended and
restated; (2) to provide retirement benefits to such employees to make up for
benefit reductions, if any, under the National Fuel Gas Company Retirement Plan
caused by participation in the National Fuel Gas Company Deferred Compensation
Plan, as it may be amended and restated; (3) to provide retirement benefits to
such employees without regard to the $200,000 limit on qualified plans' covered
compensation that became effective respecting the National Fuel Gas Company
Retirement Plan effective July 1, 1989 (and as that limit may change from time
to time); and (4) to provide to such employees benefits which would have been
payable from the tax-exempt trust under the National Fuel Gas Company
Retirement Plan but for the limitations placed by Section 415 of the Internal
Revenue Code of 1986, as it may be amended, on benefits payable and
contributions made with respect to such employees under such plans.
<PAGE 4>
1.2 The National Fuel Gas Company and Participating Subsidiaries
Executive Retirement Plan is intended to constitute an unfunded deferred
compensation plan under Section 201(2) of the Act and the Company's obligation
to pay benefits hereunder, if any, is unfunded and unsecured.
<PAGE 5>
ARTICLE 2
Definitions
When used herein, the following terms shall have the following
meanings:
2.1 Act means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
2.2 Basic Pension Plan means the National Fuel Gas Company
Retirement Plan, as amended and restated from time to time.
2.3 Beneficiary means the person or persons entitled to receive the
amount, if any, payable under the Basic Pension Plan upon the death of a member
or retired member thereof who also is a Member in the Plan.
2.4 Benefit Limitations means (i) the maximum "annual benefit"
payable under the Basic Pension Plan in accordance with Section 415 of the Code
and the implementing provisions of the Basic Pension Plan (as they operate in
conjunction with the relevant provisions of other Company employee benefit
plans), and (ii) the maximum amount of annual compensation of an employee that
may be taken into account under the Basic Pension Plan in accordance with
Section 401(a)(17) of the Code, as amended and supplemented, and the
implementing provisions of the Basic Pension Plan.
2.5 Board of Directors means the Board of Directors of National Fuel
Gas Company.
<PAGE 6>
2.6 Change in Control shall mean the happening of any of the
following:
(a) the acquisition by any party or parties of
the beneficial ownership of 30% or more of
the voting shares of National Fuel Gas
Company; or
(b) the occurrence of a transaction requiring
shareholders' approval for the acquisition
of National Fuel Gas Company through
purchase of stock or assets, or by merger,
or otherwise; or
(c) the election during any period of 24 months,
or less, of 40% or more of the members of
the Board of Directors, without the approval
of three-fourths of the members of the Board
of Directors as constituted at the beginning
of the period.
2.7 Code means the Internal Revenue Code of 1986, as amended from
time to time.
2.8 Committee means the committee appointed from time to time by the
Board of Directors to administer the Plan.
2.9 Company means National Fuel Gas Company and each of the
following subsidiaries, which participate in the Plan: National Fuel Gas
Distribution Corporation, National Fuel Gas Supply Corporation, Penn-York
Energy Corporation and Empire Exploration, Inc., each of which has adopted or
has indicated that it will adopt the Plan.
<PAGE 7>
2.10 Early Retirement Date shall be the Retirement Date selected by
the Member that is no earlier than the first day of the calendar month
immediately following or coinciding with the Member's 55th birthday, or any
first of a month thereafter, but prior to the Member's Normal Retirement Date,
provided the Member is Vested.
2.11 Employment Year is the consecutive 12-month period commencing on
the date in which the Member was hired by a Company, and each subsequent
12-month period commencing on each anniversary thereof.
2.12 Final Average Pay means the average of the Annual Cash
Compensation payable by a Company or Companies to a Member, determined as of
July 1 of each year, which, on each of the five consecutive July 1sts among the
10 consecutive July 1sts immediately preceding the date the Member retires (or
in the event of a Change in Control, terminates employment), produces the
highest average. The Member's Annual Cash Compensation for a particular July 1
equals 12 times the Member's monthly base salary in effect at that time, plus
the Member's compensation actually paid to (or credited to or deferred by) the
Member under National Fuel Gas Company's short-term annual incentive program,
known as the Annual At Risk Compensation Incentive Program (or any successor
program thereto), for the 12 months ending on that July 1. The Member's Annual
Cash Compensation shall exclude all commissions, stock and option awards,
special allowances, supplemental compensation, and any other extra compensation
or incentives or bonuses not provided under the above incentive program.
<PAGE 8>
2.13 Member means any person employed by a Company who is designated
as a Member by the Chief Executive Officer of National Fuel Gas Company.
2.14 Normal Retirement Date is the first day of the month coinciding
with or immediately following the Member's 65th birthday. A Member may retire
and begin to receive a Retirement Benefit, payable commencing on his Normal
Retirement Date, equal to his Additional Benefit Base.
2.15 Plan means the National Fuel Gas Company and Participating
Subsidiaries Executive Retirement Plan as set forth herein and as amended and
restated from time to time.
2.16 Retirement Date is the date with respect to which Retirement
Benefits under the Plan commence.
2.17 Retirement Benefits means the benefits payable under this Plan.
2.18 Vesting with respect to a Member occurs on the latter of (i) the
first of the month coinciding with or immediately following his 55th birthday
or (ii) the date on which the Member has completed five Years of Service with a
Company. A "Vested" Member is a Member with respect to whom "Vesting" has
occurred.
2.19 Years of Service equals the number of Employment Years completed
by a Member. An Employment Year in which a Member completed 1,000 or more but
less than the normal number of Hours of Service (as such term is defined in the
Basic Pension Plan) for a full-time employee of the Company shall be credited
as a partial Year of Service equal to the number of Hours of Service credited
in such Employment Year divided by the normal number of Hours of Service for a
full-time employee of the Company. Years of Service shall not exceed 40. No
more than one Year of Service shall be credited in any Employment Year.
<PAGE 9>
2.20 In construing the Plan, masculine pronouns shall refer to both
males and females, as appropriate.
<PAGE 10>
ARTICLE 3
Determination of Retirement Benefits
3.1 Total Benefit Base. The Total Benefit Base of a Vested Member
shall be a monthly annuity for his life, commencing at his Normal Retirement
Date, under which the annual payments shall equal an amount calculated by
adding the products of .0197 times the Member's Years of Service not in excess
of 30 and .0132 times his Years of Service, if any, in excess of 30 (but not to
exceed 10), and multiplying the sum thereof by his Final Average Pay.
3.2 Social Security Benefit means the annual Primary Insurance
Amount estimated by the Committee to be payable to the Member under the Social
Security Act of 1935, as amended, at his Retirement Date, calculated on the
assumption that the Member will not receive any future wages that would be
treated as such for purposes of that act. If a Member's Retirement Date
precedes his attainment of age 62, the Primary Insurance Amount estimated to be
payable to the Member at age 62 (without assuming any cost of living increases)
shall be reduced by .75% per month for the first 24 months, and by .5% per
month for the remaining months, if any, by which the Member's Retirement Date
precedes his attainment of age 62. The Social Security Benefit, once
calculated, will be frozen as of the Member's Retirement Date.
<PAGE 11>
3.3 Additional Benefit Base for Member Retiring at Normal Retirement
Date. The Additional Benefit Base of a Vested Member who retires on a Normal
Retirement Date shall be a monthly annuity for his life, commencing at his
Normal Retirement Date, under which the annual payments shall equal the
Member's Total Benefit Base less the sum of (i) .0125 times his Years of
Service times his Social Security Benefit and (ii) the Member's Benefit Base
(as reduced, if at all, on account of Benefit Limitations) under the Basic
Pension Plan. If the remainder is negative, the Additional Benefit Base shall
be zero.
3.4 Additional Benefit Base for Members Retiring on an Early
Retirement Date. The Additional Benefit Base of a Vested Member who retires on
an Early Retirement Date shall be a monthly annuity for the Member's life,
commencing on such Early Retirement Date, under which the annual payments shall
equal (i) the Member's Adjusted Basic Pension Plan Benefit Base as determined
in (a) below, plus (ii) the Early Retirement Percentage as determined in (b)
below times the remainder of his Total Benefit Base less his Adjusted Basic
Pension Plan Benefit Base, minus (iii) .0125 times his Years of Service times
his Social Security Benefit, minus (iv) the Member's Benefit Base (as reduced,
if at all, on account of Benefit Limitations) under the Basic Pension Plan.
(a) Adjusted Basic Pension Plan Benefit Base equals the Benefit Base
as determined under the Basic Pension Plan without reduction on account of
Benefit Limitations and adjusted as if deferrals under the National Fuel Gas
Company Deferred Compensation Plan were not excluded from the definition of
Final Average Pay under the Basic Pension Plan, and multiplied by the
appropriate Early Retirement Percentage, if applicable, as provided for in
Section 4.02 of the Basic Pension Plan.
<PAGE 12>
(b) The Early Retirement Percentage under the Plan is determined in
accordance with the following scale:
Retirement Age Early Retirement
Percentage
65 100
64 94
63 88
62 82
61 70
60 58
59 46
58 34
57 22
56 10
55 years and 2 months 0
The Early Retirement Percentage determined in accordance with the
above scale respecting ages 62, 63 and 64, shall be increased by 1/2 of 1% for
each whole calendar month by which a Member's Early Retirement Date follows the
first of the month coinciding with or immediately following his 62nd, 63rd, or
64th birthday, as the case may be. The Early Retirement Percentage determined
in accordance with the above scale respecting ages 55 years and 2 months, 56,
57, 58, 59, 60, and 61, shall be increased by 1% for each whole calendar month
<PAGE 13>
by which his Early Retirement Date follows the first of the month coinciding
with or immediately following his 55 year and 2 month, 56th, 57th, 58th, 59th,
60th and 61st birthdays, as the case may be. Furthermore, the Early Retirement
Percentage shall be increased by .125% for each whole calendar month by which a
Member's Years of Service exceed 30; provided, however, that this shall never
result in an Early Retirement Percentage in excess of 100%. (In the event a
Member desires to retire on the earliest possible Early Retirement Date, i.e.,
on the first of the month coinciding with or immediately following his 55th
birthday, the increase in percentage as a result of Years of Service in excess
of 30 shall be made from a base percentage of -2%, in computing Early
Retirement Percentage.)
(c) The benefit a Member will receive through the Plan if he retires
early consists of two parts. The first part will make him whole for any
reduction in the regular pension he receives under the Basic Pension Plan
resulting from Internal Revenue Code limitations and his participation in the
National Fuel Gas Company Deferred Compensation Plan. This is frequently
called a "tophat." The second part is a benefit equal to a percentage of the
Plan benefit normally paid at age 65. This normal Plan benefit is calculated
by subtracting the amount received under the Basic Pension Plan and the
"tophat" from the Total Benefit Base. The percentages are set forth in Section
3.4(b) on page 10. The benefit payable under this second part but not the
"tophat" will be reduced by a lesser Social Security offset. The offset is
.0125 times Years of Service times Social Security Benefit (as defined in 3.2).
<PAGE 14>
For example, if an employee had 30 Years of Service under this Plan
(29 under the Basic Pension Plan) and a Final Average Salary of $100,000; if he
desired to retire at age 58 (10% reduction under the Basic Pension Plan); if
the applicable limits under Section 415 of the Code capped the Basic Pension
Plan annual benefits expressed as a Benefit Base equivalent, at $85,000; and if
his Social Security Benefit as determined hereunder were $10,000; the formula
would work as follows:
(i) Adjusted Basic Pension Benefit Base =
[(.0125) ($7,800) + (.015) ($92,200)] (29) (.90) =
$38,641.05
(ii) Early Retirement Percentage times [Total
Benefit Base minus (i)] = (.34) [(.591) ($100,000)
- $38,641.05] = $6,956.04
(iii) Additional Benefit Base = $38,641.05 +
$6,956.04 - [(.0125) (30) ($10,000)] - $38,641.05
= $3,206.04
(d) If, respecting any Member, his Early Retirement Percentage times
the remainder of Total Benefit Base less Adjusted Basic Pension Plan Benefit
Base, results in a figure which is less than or equal to .0125 times his Years
of Service times his Social Security Benefit, Additional Benefit Base shall
equal Adjusted Basic Pension Plan Benefit Base less the Member's Benefit Base
(as reduced, if at all, on account of Benefit Limitations) under the Basic
Pension Plan. This provides that, if the bonus for Early Retirement under the
Plan is less valuable than the Social Security offset provided hereunder, the
Member will not be prejudiced thereby; i.e., will not lose any portion of the
benefits provided for under the Plan to undo the impact of Benefit Limitations.
<PAGE 15>
3.5 Late Retirement. A Member's Years of Service shall be credited
if they extend beyond his Normal Retirement Date, (but shall not exceed 40 in
total), and the Final Average Pay determination shall reflect such Years of
Service. However, there shall be no actuarial adjustment to his Additional
Benefit Base on account of a Member's retirement after Normal Retirement Date;
for such purpose Additional Benefit Base hereunder shall be computed as if his
late retirement date were his Normal Retirement Date.
3.6 Adjustment of Retirement Benefit. The amount of Retirement
Benefits payable to or in respect of a Member shall be reduced by the amount of
any increases in the benefits payable under the Basic Pension Plan to or in
respect of such Member (whether due to increases in the Benefit Limitations or
otherwise) subsequent to the Member's Retirement Date, and shall be increased
by the amount of any such decrease subsequent to the Member's Retirement Date,
as the case may be. Notwithstanding the above, (i) any increase in benefits
payable under the Basic Pension Plan due to a full or partial cost of living
adjustment or (ii) any increase in Basic Pension Plan benefits due to a change
in benefit formula thereunder shall not cause a reduction in Retirement
Benefits. Moreover, any such increase in (i) or (ii) above, if and to the
extent ineffective respecting a Member due to Benefit Limitations, shall be
provided through this Plan.
<PAGE 16>
ARTICLE 4
Vesting; Forfeiture
4.1 Time of Vesting. No Retirement Benefits will be payable to or
in respect of any Member unless (i) that Member remains employed by the Company
until he is Vested under this Plan; or (ii) Section 4.4 applies.
4.2 Misconduct. Notwithstanding Section 4.1 hereof, no Retirement
Benefits will be payable to or in respect of a Member whose employment is
terminated by the Company for serious, willful misconduct in respect of his
obligations to the Company, including but not limited to the commission of a
felony or a perpetration of a common law fraud which has damaged, or is likely
to result in damage to, the Company.
4.3 Competition. If and so long as a Member or retired Member shall
be employed by any corporation, entity or individual which is then engaged in a
business competitive with the Company, or shall be engaged in any such
business, or shall aid, advise or assist or attempt to aid, advise or assist
any corporation, individual or entity in engaging in any such business, or
shall endeavor, directly or indirectly, to interfere with the relations between
the Company and any customer or engage in any activity that would be deemed by
the Committee in its sole discretion to be detrimental to the Company's best
interests, the rights of such Member or retired Member to Retirement Benefits,
including the rights of any Beneficiary, shall be forfeited with the same full
<PAGE 17>
force and effect as though the Retirement Benefits had not been granted under
any of the provisions of the Plan, unless the Committee determines that such
activity is not detrimental to the best interests of the Company; provided that
from and after 60 days following cessation by the Member or retired Member of
such activity and written notice by him to the Committee, his right to receive
Retirement Benefits hereunder shall be restored, unless the Committee, in its
sole discretion, determines that the prior activity has caused substantial
damage to the Company.
No action under the Section shall be taken upon or after the
occurrence of a Change in Control.
4.4 In the Event of a Change in Control. If a Change in Control
occurs, and a Member hereof at that time or within three years thereafter shall
no longer be an officer of, or employed by, a Company, his Retirement Benefit
shall vest at the time of his cessation of employment with a Company, and shall
be payable to him or for his benefit in the form of a lump sum, based upon his
accrued Additional Benefit Base at Normal Retirement Date and discounting same
by using the interest assumption(s) then used by the Pension Benefit Guaranty
Corporation for computing the value of immediate annuities upon the termination
of a tax-qualified defined benefit plan such as the Basic Pension Plan.
<PAGE 18>
ARTICLE 5
Form of Payment of Benefits
5.1 Coordination with Basic Pension Plan. Retirement Benefits shall
be payable to or in respect of a Member eligible therefor at the same time, in
the same manner and form, and subject to the same terms and conditions as
stated in Sections 5.02 to 5.06 of the Basic Pension Plan, except that there
shall be no disability benefit under this Plan. If Retirement Benefits are to
be paid after the Member's or retired Member's death to his Beneficiary,
Retirement Benefits shall be payable to such Beneficiary in the same time,
manner and form as payments under the Basic Pension Plan.
5.2 Right to Adjust. The Committee shall have the right to adjust
Retirement Benefits payable under this Plan to correct errors, and/or to
provide uniform treatment of Members, retired Members or Beneficiaries.
5.3 Spouse's Benefit. In the event of a Vested Member's death, his
spouse shall receive Retirement Benefits hereunder equal to the greater of (i)
or (ii):
(i) .50 times the Member's Additional Benefit Base computed under
Section 3.3, except that if the Member's surviving spouse is more than five
years younger than the Member, the .50 multiplier described in this clause
shall be reduced by .00125 for each month in excess of 60 that the surviving
spouse's age is less than that of the Member. Thus, for example, the
multiplier declines to .30 if the surviving spouse is 220 months younger than
the Member.
<PAGE 19>
(ii) 50% of the Retirement Benefit which the Member would have
received had payment thereof commenced on the day before the date of his death
in the form of the Automatic Joint and Survivor Annuity (as defined and
described in the Basic Pension Plan).
5.4 Lump Sum Payment Option. There shall be one exception to Section
5.1: A Member may elect to receive Retirement Benefits in the form of a lump
sum payment even if he does not or may not select such option under the Basic
Pension Plan. The most recently published mortality table that is generally
accepted by American actuaries and reasonably applicable to the Plan, and a 6
percent annual interest rate or discount rate, shall be used to convert the
Member's Additional Benefit Base to a lump sum equivalent. (However, with
respect to other forms of benefit available under the Plan, the mortality table
used in the Basic Pension Plan and described in Section 1.01 thereof, or a
successor section, shall continue to be used.) If the Member's Additional
Benefit Base, had it been paid in the form of an annuity, would otherwise have
been expected to increase or decrease subsequent to the Member's Retirement
Date, (for example, due to cost of living increases that effectively raise the
maximum amounts that may be paid from the Basic Pension Plan as a result of
the operation of Code Section 415 limits), the Company may adjust such lump sum
payment accordingly and shall later true it up either by paying an additional
sum to the Member or by receiving a refund of any excess from the Member.
<PAGE 20>
ARTICLE 6
Source of Payment
6.1 All payments provided for under the Plan shall be paid in cash
from the general funds of the Company; provided, however, that such payments
shall be reduced by the amount of any payments made to or in respect of a
Member from any trust or special or separate fund established by the Company to
assure such payments. The Company shall not be required to establish a special
or separate fund or other segregation of assets to assure such payments, and,
if the Company shall make any investments to aid it in meeting its obligations
hereunder, the Member and his Beneficiary shall have no right, title, or
interest whatever in or to any such investments except as may otherwise be
expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Plan, and no action taken pursuant to
its provisions, shall create or be construed to create a trust of any kind
between the Company and any Member or Beneficiary. To the extent that any
Member or Beneficiary acquires a right to receive payments from the Company
hereunder, such right shall be no greater than the right of an unsecured
creditor of the Company.
<PAGE 21>
ARTICLE 7
Administration of the Plan
7.1 Committee to Administer. The Plan shall be administered by the
Committee which shall have full power and authority to interpret, construe and
administer the Plan, and review claims for benefits under the Plan, and the
Committee's interpretations and constructions of the Plan and actions
thereunder shall be binding and conclusive on all persons and for all purposes.
7.2 Agents. For purposes of the Act, the members of the Committee
shall be the named fiduciaries of the Plan for administration of the Plan
(including but not limited to complying with reporting and disclosure
requirements and establishing and maintaining Plan records), and shall engage
such certified public accountants, who may be accountants for the Company, as
it shall require or may deem advisable for purposes of the Plan. The Committee
may arrange for the engagement of such legal counsel, who may be counsel for
the Company, and make use of such agents and clerical or other personnel as
they each shall require or may deem advisable for purposes of the Plan. The
Committee may rely upon the written opinion of such counsel and the accountants
engaged by the Committee and may delegate to any agent, who may be a Company
employee, or to any sub-committee or member of the Committee, its authority to
perform any act hereunder, including without limitation those matters involving
the exercise of discretion, provided that such delegation shall be subject to
revocation at any time at the discretion of the Committee.
<PAGE 22>
7.3 Liability; Indemnity. To the maximum extent permitted by the
Act, no member of the Committee, nor any of their agents, including Company
officers or employees, shall be personally liable by reason of any contract or
other instrument executed by any of them in their capacity as members of the
Committee or otherwise, nor for any mistake of judgment made in good faith, and
the Company shall indemnify and hold harmless, directly from its own assets,
each member of the Committee and each other officer, employee, or director of
the Company to whom any duty or power relating to the administration or
interpretation of the Plan or to the management or control of the assets of the
Plan may be delegated or allocated, against any cost or expense (including
counsel fees) or liability (including any sum paid in settlement of a claim
with the approval of the Company) arising out of any act or omission to act in
connection with the Plan unless arising out of such person's own fraud or bad
faith. Said persons shall be entitled to rely conclusively upon, and shall be
fully protected in any action taken by them or any of them in good faith in
reliance upon, any table, valuation, certificate, opinion or report which shall
be furnished to them or any of them by an actuary, accountant, counsel or other
expert who shall be employed or engaged by them.
7.4 Binding Effect of Decisions. The decision or action of this
Committee with respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final, conclusive and binding upon
all persons having any interest in the Plan.
<PAGE 23>
ARTICLE 8
Amendment and Termination
8.1 Subject to the application of Article 4 in the situations
therein enumerated, the Plan may be amended, suspended or terminated, in whole
or in part, by the Board of Directors, and Members may be adversely affected
thereby provided that such actions may not deprive Vested Members of Retirement
Benefits accrued until the date of such actions. However, any amendment that
changes the interest rate described in Section 5.4 or otherwise changes the
methods for computing lump sum equivalents thereunder, or that otherwise
reduces or eliminates the lump sum payment option or any other form of benefit
payment option under the Plan, shall not be considered to be a deprivation of
the accrued Retirement Benefits of Vested Members. In addition, prior to a
Change in Control, the rights of Vested Members may be affected if failing to
make changes would be administratively burdensome and if the Member voluntarily
consents to such change in writing, or if changes are required by law.
<PAGE 24>
ARTICLE 9
General Provisions
9.1 Effect of Corporate Reorganization. This Plan shall be binding
upon and inure to the benefit of the Company and its successors and assigns and
the Member, and his designees, Beneficiaries, legal representatives and estate.
Nothing in this Plan shall preclude the Company from consolidating or merging
into or with, or transferring all or substantially all of its assets to,
another corporation which assumes this Plan and all obligations of the Company
hereunder. Upon such a consolidation, merger or transfer of assets, and
assumption of the Plan, the term "Company" shall refer to such other
corporation and this Plan shall continue in full force and effect.
9.2 Right to Discharge Member. Neither the Plan nor any action
taken hereunder shall be construed as giving to a Member the right to be
retained in the employ of the Company or as affecting the right of the Company
to discharge any Member, at any time without regard to the effect such
discharge would have upon his eligibility for or receipt of benefits under the
Plan.
9.3 Withholding. The Company may withhold from any benefits payable
under this Plan all federal, state, city or other taxes as shall be required
(as determined by the Company) pursuant to any law or governmental regulation
or ruling.
9.4 Assignability. No right to any amount payable at any time under
the Plan may be assigned, transferred, pledged, or encumbered, either
voluntarily or by operation of law, except as provided
<PAGE 25>
expressly herein as to payments to a Beneficiary or as may otherwise be
required by law. If, by reason of any attempted assignment, transfer, pledge,
or encumbrance, or any bankruptcy or other event happening at any time, any
amount payable under the Plan would be made subject to the debts or liabilities
of the Member or his Beneficiary or would otherwise not be enjoyed by him, then
the Committee, if it so elects, may terminate such person's interest in any
such payment and direct that the same be held and applied to or for the benefit
of the Member, his Beneficiary, or any other person deemed to be the natural
objects of his bounty, taking into account the expressed wishes of the Member
(or, in the event of his death, his Beneficiary).
9.5 Inability to Utilize Benefits. If the Committee shall find that
any person to whom any amount is or was payable hereunder is unable to care for
his affairs because of illness or accident or other reasons, or has died, then
the Committee, if it so elects, may direct that any payment or any part thereof
due such person shall be paid to his estate (unless a prior claim therefor has
been made by a duly appointed legal representative) or be paid or applied for
the benefit of such person or to or for the benefit of his spouse, children or
other dependents, an institution maintaining or having custody of such person,
any other person deemed by the Committee to be a proper recipient on behalf of
such person otherwise entitled to payment, or any of them, in such manner and
proportion as the Committee may deem proper. Any such payment shall be in
complete discharge of the liability therefor of the Company, the Plan or the
Committee or any member, officer or employee thereof. The Committee may
<PAGE 26>
withhold the payment of any amount that shall be payable in accordance with the
provisions of the Plan to a person under legal disability until a
representative of such person competent to receive such payment on his behalf
shall have been properly appointed.
9.6 Actuarial Equivalents. Except as otherwise set forth in Section
5.4, whenever, under this Plan, it is necessary to determine whether one
benefit is less than, equal to, or larger than another, or whether one benefit
is the actuarial equivalent of another whether or not such benefits are
provided under this Plan, such determination shall be made using mortality,
interest and any other assumptions used at the time in determining actuarial
equivalents under the Basic Pension Plan.
9.7 Health Information. The Member shall provide to the Company, if
so requested and as a precondition for remaining a Member, all health
information and other information as the Company may require should it decide
to purchase life insurance policies or annuity contracts.
9.8 Additional Benefit. The benefits payable under this Plan shall
be in addition to all other benefits provided for Employees of the Company,
except as otherwise provided in this Plan.
9.9 Headings. The captions preceding the sections and articles
hereof have been inserted solely as a matter of convenience andin no way define
or limit the scope or intent of any provisions of the Plan.
9.10 Governing Law. This Plan shall be governed by the laws of the
State of New York as from time to time in effect.
CWL
2/17/94