EXHIBIT 10.7(w)(ii)
OGDEN PROJECTS PENSION PLAN
OGDEN PROJECTS PENSION PLAN
TABLE OF CONTENTS
Section Page
1 INTRODUCTION AND PURPOSE . . . . . . . . . . . . . . . . . . . 1
2 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 MEMBERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1 Date of Membership . . . . . . . . . . . . . . . . . . . 10
3.2 Enrollment and Adjustment. . . . . . . . . . . . . . . . 11
3.3 Duration . . . . . . . . . . . . . . . . . . . . . . . . 11
3.4 Reemployment . . . . . . . . . . . . . . . . . . . . . . 11
4 RETIREMENT DATE. . . . . . . . . . . . . . . . . . . . . . . . 11
4.1 Normal Retirement and Deferred
Retirement Dates. . . . . . . . . . . . . . . . . . . . . 11
4.2 Early Retirement Date . . . . . . . . . . . . . . . . . . 11
5 ACCRUED BENEFIT. . . . . . . . . . . . . . . . . . . . . . . . 12
5.1 Computation of Accrued Benefit . . . . . . . . . . . . . 12
5.2 Effect of Reemployment on Accrued
Benefit. . . . . . . . . . . . . . . . . . . . . . . . . 12
6 NORMAL RETIREMENT BENEFIT. . . . . . . . . . . . . . . . . . . 12
6.1 Normal Retirement Benefit. . . . . . . . . . . . . . . . 12
7 EARLY RETIREMENT BENEFIT . . . . . . . . . . . . . . . . . . . 12
7.1 Early Retirement Benefit . . . . . . . . . . . . . . . . 12
7.2 Deferral of Payment After Early
Retirement Age . . . . . . . . . . . . . . . . . . . . . 12
8 TERMINATION OF SERVICE BEFORE RETIREMENT . . . . . . . . . . . 13
8.1 Vesting. . . . . . . . . . . . . . . . . . . . . . . . . 13
8.2 Payments After Termination of
Service at Early Retirement Date . . . . . . . . . . . . 13
8.3 Consent of Member. . . . . . . . . . . . . . . . . . . . 13
8.4 Forfeitures. . . . . . . . . . . . . . . . . . . . . . . 13
9 DISABILITY BEFORE RETIREMENT. . . . . . . . . . . . . . . . . . . . 14
9.1 Disability Prior to Retirement. . . . . . . . . . . . . . . . 14
10 DEATH BENEFITS BEFORE RETIREMENT. . . . . . . . . . . . . . . . . . 14
10.1 Death Benefit Before Retirement. . . . . . . . . . . . . . . 14
10.2 Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11 METHOD OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . 14
11.1 Payment of Benefits. . . . . . . . . . . . . . . . . . . . . 14
11.2 Optional Forms of Benefits . . . . . . . . . . . . . . . . . 15
11.3 Preretirement Survivor Annuity . . . . . . . . . . . . . . . 16
11.4 Commencement of Payment. . . . . . . . . . . . . . . . . . . 17
11.5 Explanation of Annuities . . . . . . . . . . . . . . . . . . 18
11.6 Small Amounts. . . . . . . . . . . . . . . . . . . . . . . . 18
11.7 Suspension of Retirement Benefits. . . . . . . . . . . . . . 19
11.8 Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.9 Deemed Distribution. . . . . . . . . . . . . . . . . . . . . 19
11.10 Automatic Payment of Retirement Benefits . . . . . . . . . . 19
11.11 Direct Rollover. . . . . . . . . . . . . . . . . . . . . . . 19
12 MAXIMUM AMOUNT OF RETIREMENT BENEFIT. . . . . . . . . . . . . . . . 20
12.1 Application of Section 12. . . . . . . . . . . . . . . . . . 20
12.2 Maximum Benefit. . . . . . . . . . . . . . . . . . . . . . . 20
12.3 Adjustment to Maximum Benefit. . . . . . . . . . . . . . . . 20
12.4 Inapplicability of Section 12. . . . . . . . . . . . . . . . 21
12.5 Limitation Prior to October 3, 1973. . . . . . . . . . . . . 22
12.6 Limitation Prior to December 31, 1982. . . . . . . . . . . . 22
12.7 Additional Limitations . . . . . . . . . . . . . . . . . . . 22
12.8 Maximum Limitations. . . . . . . . . . . . . . . . . . . . . 23
13 DESIGNATION OF BENEFICIARIES. . . . . . . . . . . . . . . . . . . . 24
13.1 Beneficiary Designation. . . . . . . . . . . . . . . . . . . 24
13.2 Failure to Designate Beneficiary . . . . . . . . . . . . . . 24
14 FUNDING AND CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . 24
14.1 Funding. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
14.2 Actuarial Assumptions. . . . . . . . . . . . . . . . . . . . 25
14.3 Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
14.4 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 25
14.5 Return of Contributions. . . . . . . . . . . . . . . . . . . 25
15 ADMINISTRATION OF THE PLAN. . . . . . . . . . . . . . . . . . . . . 26
15.1 Powers and Duties of Administrative
Committee. . . . . . . . . . . . . . . . . . . . . . . . . . 26
15.2 Powers and Duties of Investment Committee. . . . . . . . . . 26
15.3 Agents; Reports to Board of Directors. . . . . . . . . . . . 26
15.4 Structure of Committees. . . . . . . . . . . . . . . . . . . 27
15.5 Adoption of Procedures of Committee. . . . . . . . . . . . . 27
15.6 Demands for Money. . . . . . . . . . . . . . . . . . . . . . 27
15.7 Trust Agreement; Powers and Duties of
Trustee; Trust Fund. . . . . . . . . . . . . . . . . . . . . 28
15.8 Hold Harmless; Indemnification . . . . . . . . . . . . . . . 28
15.9 Claims for Benefits. . . . . . . . . . . . . . . . . . . . . 28
15.10 Communications . . . . . . . . . . . . . . . . . . . . . . . 29
15.11 Agent for Service of Process . . . . . . . . . . . . . . . . 30
15.12 Specific Powers and Duties . . . . . . . . . . . . . . . . . 30
16 TERMINATION OF PARTICIPATING COMPANY PARTICIPATION. . . . . . . . . 30
16.1 Termination of Participating Company Participation. . . . . . 30
16.2 Rights of Former Members. . . . . . . . . . . . . . . . . . . 30
16.3 Transfer to Successor Plan. . . . . . . . . . . . . . . . . . 30
17 AMENDMENT OR TERMINATION OF THE PLAN AND THE TRUST. . . . . . . . . 31
17.1 Right to Amend, Suspend or Terminate Plan . . . . . . . . . . 31
17.2 Retroactivity . . . . . . . . . . . . . . . . . . . . . . . . 32
17.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
17.4 Termination . . . . . . . . . . . . . . . . . . . . . . . . . 32
17.5 Not a Title IV Termination. . . . . . . . . . . . . . . . . . 32
17.6 Title IV Termination. . . . . . . . . . . . . . . . . . . . . 32
17.7 Asset Allocation by Court . . . . . . . . . . . . . . . . . . 34
17.8 Partial Termination . . . . . . . . . . . . . . . . . . . . . 34
18 TOP HEAVY PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . 34
18.1 Top Heavy Plan. . . . . . . . . . . . . . . . . . . . . . . . 34
18.2 Definition for Section 18 . . . . . . . . . . . . . . . . . . 35
18.3 Minimum Vesting . . . . . . . . . . . . . . . . . . . . . . . 37
18.4 Minimum Benefits. . . . . . . . . . . . . . . . . . . . . . . 38
18.5 Limitations on Benefits . . . . . . . . . . . . . . . . . . . 38
18.6 Other Plans . . . . . . . . . . . . . . . . . . . . . . . . . 38
19 LIMITATIONS ON DISTRIBUTIONS TO
CERTAIN HIGHLY PAID EMPLOYEES . . . . . . . . . . . . . . . . . . . 39
19.1 Limitations of Section 19 . . . . . . . . . . . . . . . . . . 39
19.2 Application of Section 19 . . . . . . . . . . . . . . . . . . 39
19.3 Limitation on Benefits. . . . . . . . . . . . . . . . . . . . 39
19.4 Unrestricted Benefits . . . . . . . . . . . . . . . . . . . . 40
19.5 Use of Reserves Resulting from Limitations. . . . . . . . . . 40
20 GENERAL LIMITATIONS AND PROVISIONS. . . . . . . . . . . . . . . . . 40
20.1 No Right to Continued Employment . . . . . . . . . . . . . . 40
20.2 Trust is Sole Source of Benefits . . . . . . . . . . . . . . 40
20.3 Payment on Behalf of Payee . . . . . . . . . . . . . . . . . 41
20.4 No Alienation. . . . . . . . . . . . . . . . . . . . . . . . 41
20.5 Missing Payee. . . . . . . . . . . . . . . . . . . . . . . . 41
20.6 Subject to Trust Agreement . . . . . . . . . . . . . . . . . 42
20.7 Required Information . . . . . . . . . . . . . . . . . . . . 42
20.8 Subject to Insurance Contract. . . . . . . . . . . . . . . . 42
20.9 Communications to Committees . . . . . . . . . . . . . . . . 42
20.10 Communications from Participating Company
or Committees. . . . . . . . . . . . . . . . . . . . . . . . 42
20.11 Gender; Tense. . . . . . . . . . . . . . . . . . . . . . . . 42
20.12 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . 42
20.13 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . 42
APPENDIX I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 1. INTRODUCTION AND PURPOSE
1.1 The purpose of the Ogden Projects Pension Plan
(the "Plan") is to provide retirement benefits and certain other
benefits to eligible employees of Ogden Projects, Inc. and its
participating subsidiaries and other participating companies, or
to the beneficiaries of such employees, and thereby to continue
to encourage employees to make and continue careers with Ogden
Projects, Inc., all as set forth herein and in the related trust
thereunder (the "Trust") adopted as a part of the Plan.
1.2 Prior to the adoption of the Plan, Ogden
Projects, Inc. was a "Participating Company" under the Ogden
Corporation Pension Plan (the "Prior Plan"), as such term is
defined therein, and the related trust thereunder (the "Prior
Plan Trust"). As a result of the Tax Reform Act of 1986, the
sponsor of the Prior Plan, Ogden Corporation, determined that it
would be in the best interest of all Prior Plan Participating
Companies, and their respective employees, to elect whether to
continue to be a Participating Company under the Prior Plan or to
establish a separate defined benefit plan. Effective as of
January 1, 1989, Ogden Projects, Inc. determined that it was in
the best interest of Ogden Projects, Inc. and its employees to
adopt the Plan, such plan being substantially similar to, and a
continuation of, the Prior Plan. All service credited to an
individual as a participant under the Prior Plan was credited to
such individual under the Plan; provided that such individual
becomes a participant of the Plan on or after January 1, 1989,
and further provided, that such service be credited solely in
accordance with the terms and provisions of the Plan. With the
adoption of the Plan, the trustee of the Prior Plan Trust
segregated a proportional share of the assets of the Prior Plan,
including surplus and any earnings, and held in trust for the
participants of the Prior Plan who continue to be participants of
the Plan.
1.3 Simultaneously with the establishment of the
Plan, another Participating Company under the Prior Plan, Ogden
Environmental Services Corporation ("OES") determined that it
would be in the best interest of OES' employees to establish a
separate defined benefit plan. Effective January 1, 1989, OES
adopted the Ogden Environmental Services Pension Plan ("OES
Plan"), such plan being substantially similar to, and a
continuation of, the Prior Plan. All service credited to an
individual as a participant under the Prior Plan was credited to
such individual under the OES Plan under certain conditions and
requirements, all as contained within the OES Plan. With the
adoption of the OES Plan, the trustee of the Prior Plan Trust
segregated a proportional share of the assets of the Prior Plan,
including surplus and earnings, and held in trust for the
employees of OES who participated in the OES Plan.
1.4 As a result of a corporate reorganization, OES
was merged into Ogden Projects, Inc. Effective January 1, 1992,
the OES Pension Plan was merged into, and became a part of, the
Plan. OES became a participating company as defined herein (a
"Participating Company") and all service credited to a
participant, and all benefits accrued by the participant, under
the OES Plan, was credited and transferred to the Plan.
1.5 As a result of the enactment of the Tax Reform
Act of 1986, and the establishment of the Plan and the Trust, an
application was filed with the District Director of Internal
Revenue, requesting a determination that the Plan and the Trust,
continued to be a qualified and tax-exempt plan and trust under
Sections 401(a) and 501(a) of the Internal Revenue Code of 1986
(the "Code"). By letter dated May 5, 1993, the District Director
determined that the Plan and Trust was qualified and tax-exempt.
1.6 With the passage of the Unemployment Compensation
Amendments of 1992, and the Omnibus Budge Reconciliation Act of
1993, the issuance of Treasury Regulations and related rulings
and procedures, the Plan has been amended and restated. The
Plan, as hereby amended and restated, and the Trust, are intended
to continue to qualify as a plan and a trust which meet the
requirements of Sections 401(a) and 501(a), respectively, of the
Code, amended, or any other applicable provisions of law,
including, without limitation, the Employee Retirement Income
Security Act of 1974, as now in effect or hereafter amended.
1.7 The Plan, as set forth herein, constitutes a
restatement of the Plan through January 1, 1994. Although this
restatement is generally effective January 1, 1994, the inclusion
of amendments to conform with the Tax Reform Act of 1986 and
other applicable laws necessitates different effective dates for
certain Plan provisions. Accordingly, notwithstanding the
general effective date of this restatement, Plan sections as
amended, shall be effective as indicated therein.
1.8 The rights of any person who terminated
employment or who retired on or before the effective date of a
particular amendment, including his eligibility for benefits and
the time and form in which benefits, if any, will be paid, shall
be determined solely under the terms of the Prior Plan, the OES
Plan or the Plan as in effect on the date of his termination of
employment or retirement, unless such person is thereafter
reemployed and again becomes a Member.
SECTION 2. DEFINITIONS
When used herein the following terms shall have the
following meanings:
2.1 "Accrued Benefit" means a Ten Year Certain and
Life Annuity commencing at age 65 or at any later date specified
under the Plan, whichever is applicable.
2.2 "Act" means the Employee Retirement Income
Security Act of 1974, as now in effect or as hereafter amended.
2.3 "Actuary" means the enrolled actuary (within the
meaning of the Act) engaged by the Administrative Committee.
2.4 "Administrative Committee" means the OPI
Administrative Committee as provided for in Section 15. For
purposes of the Act, the Administrative Committee shall be the
administrator of the Plan and its members shall be named
fiduciaries with respect to matters for which they are responsible
under the Plan.
2.5 "Affiliate" means any corporation which is
included in a controlled group of corporations (within the
meaning of Section 414(b) of the Code) which includes the
Company, any trade or business (whether or not incorporated)
which is under common control with the Company (within the
meaning of Section 414(c) of the Code), any organization included
in the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Company and any other entity
required to be aggregated with the Company pursuant to
Regulations under Section 414(o) of the Code; except that for
purposes of applying the provisions of Sections 12 and 18 with
respect to the limitations on benefits, Section 415(h) of the
Code shall apply.
2.6 "Beneficiary" means the beneficiary or
beneficiaries designated by a Member pursuant to Section 13 to
receive the amount, if any, payable under the plan upon the death
of such Member.
2.7 "Board of Directors" means the Board of Directors
of the Company.
2.8 "Break in Service" means a Plan Year during which
an individual has not completed more than 500 Hours of Service,
as determined by the Administrative Committee in accordance with
the Regulations. Solely for purposes of determining whether a
Break in Service has occurred, an individual shall be credited
with the Hours of Service which such individual would have
completed but for a maternity or paternity absence, as determined
by the Administrative Committee in accordance with this Section
2.8 and the Labor Department Regulations; provided, however, that
the total Hours of Service so credited shall not exceed 501 Hours
and that the individual timely provide the Administrative
Committee with such information as it shall require. Hours of
Service credited for a maternity or paternity absence shall be
credited entirely (i) in the Plan Year in which the absence began
if such Hours of Service are necessary to prevent a Break in
Service in such Plan Year, or (ii) in the following Plan Year.
For purposes of this Section 2.8, maternity or paternity absence
shall mean an absence from work by reason of the individual's
pregnancy, the birth of the individual's child or the placement
of a child with the individual in connection with adoption of the
child by such individual, or for purposes of caring for a child
for the period immediately following such birth or placement.
2.9 "Code" means the Internal Revenue Code of 1986,
as now in effect or as hereafter amended. All citations to
Sections of the Code are to such sections as they may from time
to time be amended or renumbered.
2.10 "Committee" means the Administrative Committee
and the Investment Committee.
2.11 "Company" means Ogden Projects, Inc., a Delaware
corporation.
2.12 "Compensation" means for each Plan Year beginning
before January 1, 1994, an Employee's first $200,000 (as adjusted
for cost of living to the extent permitted by the Code and IRS
Regulations) of total remuneration paid or payable for Service
while an Employee, without giving effect to any reduction therein
pursuant to an election under Sections 125 and 401(k) of the Code
nor any contributions by the Employer to the Plan as reported on
IRS Form W-2. For each Plan Year beginning on or after January
1, 1994, Compensation means an Employee's first $150,000 (as
adjusted by the Commissioner of the IRS, for years beginning
after December 31, 1993, for increases in the cost of living in
accordance with Section 401(a)(17)(B) of the Code) ("annual
salary limit") of total remuneration paid or payable for Service
while an Employee, without giving effect to any reduction therein
pursuant to an election under Sections 125 and 401(k) of the
Code. Compensation does not include imputed income or other
noncash compensation, severance pay, any contributions to the
Plan, reimbursed expenses and contributions to the plan
maintained by the Employer except to Section 125 or 401(k) Plan.
If less than a full Plan Year of Salary is taken into account,
then the annual salary limit shall be multiplied by the ratio
obtained by dividing the number of full months in the period by
12. In determining the Salary of a Member for purposes of the
annual salary limit, the rules of Section 414(q)(6) of the Code
shall apply, except that in applying such rules, the term Family
Member shall include only the spouse of the Member and any lineal
descendants of the Member who have not attained age 19 before the
close of the Plan Year. If, as a result of the application of
such rules the adjusted annual salary limit is exceeded, then the
limit shall be prorated among the affected individuals in
proportion to each such individual's Compensation as determined
under this Section 2.12 prior to the application of the annual
salary limit.
2.13 "Credited Service" means the number of full years
and months of employment beginning on the date the Employee first
performed an Hour of Service with the Employer and ending on the
date of his retirement or other termination of employment. If an
Employee was a participant of the Prior Plan on December 31, 1988
and thereafter becomes a Participant of the Plan, Credited
Service shall also include his period of Service under the Prior
Plan, as defined by such Prior Plan. Years and months of
employment shall be determined by the Administrative Committee in
accordance with the Regulations.
2.14 "Direct Rollover" means (i) a distribution by the
Plan to an Eligible Retirement Plan as specified by a
Distributee.
2.15 "Disabled" or "Disability" means a Member's
inability to perform the duties of employment with an Employer as
would constitute disability under the Employer's long term
disability plan.
2.16 "Distributee" means a Member or a former Member.
A Member's or former Member's spouse or a former spouse of a
Member or former Member who is a payee under a Qualified Domestic
Relations Order to which a distribution is to be made under the
Plan shall also be deemed to be a Distributee.
2.17 "Early Retirement Age" means the date on which a
Member has attained age 55 and has completed 10 years of Credited
Service.
2.18 "Early Retirement Date" means the first day of
the month coincident with or next following a Member's retirement
after reaching his Early Retirement Age but prior to his Normal
Retirement Age.
2.19 "Effective Date" means, for this amendment and
restatement, January 1, 1994, and for the Plan, January 1, 1989.
2.20 "Eligible Employee" means any Employee and any
leased employee who completes at least 1,000 Hours of Service
during a Plan Year, but excluding (i) any nonresident alien, and
(ii) any Employee who is included in a unit of Employees covered
by a collective bargaining agreement which does not provide for
his membership in the Plan, and for the 1994 Plan Year, (iii) any
Highly Compensated Employee designated by the Administrative
Committee to be ineligible to participate in the Plan unless the
Administrative Committee rescinds such prohibition. A director
of the Employer is not eligible for membership in the Plan unless
he is also an Eligible Employee. For all purposes of the Plan, a
"leased employee" means (i) any individual who provides services
pursuant to an agreement between the Employer and any other
person, (ii) such individual performs such services for the
Employer on a substantially full time basis for a period of at
least one year, and (iii) such services are of a type
historically performed, in the business field of the Employer, by
Employees. Notwithstanding the foregoing, if such leased
employees constitute less than 20% of the Employer's nonhighly
compensated work force within the meaning of Section
414(n)(5)(C)(ii) of the Code, such leased employees are not
Employees if they are covered by a plan meeting the requirements
of Section 414(n)(5)(B) of the Code.
2.21 "Eligible Retirement Plan" means (i) an
individual retirement account, as described in Section 408(a) of
the Code, (ii) an individual retirement annuity, as described in
Section 408(b) of the Code, (iii) an annuity plan, as described
in Section 403(a) of the Code, and (iv) a qualified plan and
trust, as described in Sections 401(a) and 501(a) of the Code;
provided, however, that in the case of an Eligible Rollover
Distribution to a spouse, an Eligible Retirement Plan means an
individual retirement account or an individual retirement
annuity, as described in Sections 408(a) and 408(b) of the Code,
respectively.
2.22 "Eligible Rollover Distribution" means any
distribution from the Plan of all or any portion of the balance
to the credit of a Distributee, except that an Eligible Rollover
Distribution shall not include: (i) any distribution to the
extent such distribution is required under Section 11.4 and
Section 401(a)(9) of the Code, (ii) any distribution that is one
of a series of substantially equal periodic payments (not less
frequently than annually) made for the life of the Distributee or
the joint lives (or joint life expectancies) of the Distributee
and the Distributee's Beneficiary, or for a period of ten years
or more, and (iii) the portion of any distribution that is not
includible in gross income.
2.23 "Employee" means any individual in the employ of
the Employer.
2.24 "Employer" means the Company and each other
Participating Company, or any of them.
2.25 "Equivalent Actuarial Value" or "Actuarial
Equivalent" means, unless otherwise specified in the Plan, a
benefit of equivalent value to another form of benefit, computed
on the basis of the actuarial tables and interest rates specified
in Appendix I attached hereto; provided, however, that the
interest rate used to determine the Equivalent Actuarial Value of
any lump sum payment that may be made under the Plan shall not be
greater than:
(i) the applicable interest rate if the accrued
benefit (using such rate) is not in excess of $25,000; or
(ii) 120 percent of the applicable interest rate
if the accrued benefit exceeds $25,000 (as determined under
clause (i)). In no event shall the present value determined
under clause (i) be less than $25,000.
For purposes of clauses (i) and (ii), the applicable
interest rate shall mean the interest rate or rates announced by
the PBGC as of the first day of each Plan Year in which a
distribution occurs for purposes of determining the present value
of a Member's benefits under the Plan if the Plan had terminated
on the date distribution commences with insufficient assets to
provide benefits guaranteed by the PBGC on that date. In no
event shall the amount of any benefit or annuity determined
hereunder exceed the maximum benefit permitted under Section 415
of the Code.
2.26 "Family Member" means a spouse, lineal ascendants
and descendants of the Employee or former Employee and the
spouses of such lineal ascendants and descendants.
2.27 "Final Average Compensation" means a Member's
average annual Compensation for the five consecutive calendar
years out of his last 10 (or fewer) consecutive Years of Service
rendered immediately prior to his Normal Retirement Date, or his
earlier retirement or other termination of employment, as the
case may be, during which his Compensation was the highest.
2.28 "High-3 Year Average Compensation" means the
average annual amount of the Participant's total renumeration
from the Company for the three consecutive Years of Service
during which such renumeration was the highest.
2.29 "Hours of Service" means the hours for which an
Employee shall receive credit for purposes of the Plan, as
follows:
(a) One hour for each hour for which he is
directly or indirectly paid, or entitled to payment, by the
Company or an Affiliate for the performance of duties during the
applicable computation period for which his Hours of Service are
being determined under the Plan. (These hours shall be credited
to the Employee for the computation period or periods in which
the duties were performed, and shall include hours for which back
pay has been either awarded or agreed to by the Company or an
Affiliate as provided by the Regulations under the Act, with no
duplication of credit for hours.)
(b) One hour for each hour, in addition to the
hours in paragraph (a) above, for which he is directly or
indirectly paid, or entitled to payment, by the Company or an
Affiliate, for reasons other than for the performance of duties
during the applicable computation periods, such as paid vacation,
paid holiday, paid sickness, and similar paid periods of
nonworking time. (These hours shall be counted in the
computation period or periods in which the hours for which
payment is made occur).
(c) One hour for each hour of the normally
scheduled work hours for each day during any period he is on
leave of absence from work with the Company or an Affiliate for
military service with the armed forces of the United States, but
not to exceed the period required under the law pertaining to
veterans' reemployment rights; provided, that if he fails to
report for work at the end of such leave during which he has
reemployment rights he shall not receive credit for hours on such
leave.
(d) The number of normally scheduled work hours
for each day of authorized leave of absence granted by the
Company or an Affiliate in accordance with reasonable policies
established therefor for which he is not compensated.
When no time records are available, the Employee shall
be given credit for Hours of Service based upon the number of
normally scheduled work hours for each day he is on the Company's
or an Affiliate's payroll, as determined in accordance with
reasonable standards and policies from time to time adopted by
the Administrative Committee under Section 2530.200b-2(b) and (c)
of the Regulations, which are incorporated herein by this
reference thereto. Notwithstanding the foregoing, an Employee
shall be credited with 45 Hours of Service with respect to each
week for which he is entitled to be credited with at least one
Hours of Service. The Administrative Committee may, on a
uniform, nondiscriminatory basis, give credit to Participants for
Hours of Service for employment with employers other than the
Company or an Affiliate.
2.30 "IRS" means the United States Internal Revenue
Service.
2.31 "Investment Committee" means the OPI Investment
Committee as provided for in Section 15. For purposes of the
Act, the members of the Investment Committee shall be the named
fiduciaries (with respect to the matters for which they are
hereby made responsible under the Plan) of the Plan.
2.32 "Labor Department" means the United States
Department of Labor.
2.33 "Member" means any Eligible Employee who is
enrolled in the membership of the Plan as provided in Section 3.
2.34 "Normal Retirement Age" means the date which is
the Member's 65th birthday.
2.35 "Normal Retirement Date" means the first day of
the month coincident with or next following a Member's attainment
of his Normal Retirement Age.
2.36 "Participating Company" means an Affiliate of the
Company, designated by the Board of Directors as such, the board
of directors or equivalent governing body of which shall adopt
the Plan and the Trust Agreement by appropriate action and the
Employees of which shall be eligible to participate in the Plan
in the manner and to the extent determined by the Board of
Directors so long as such Affiliate remains so designated. Any
such Affiliate so designated and which adopts the Plan shall be
deemed thereby to appoint the Company, the Administrative
Committee, the Investment Committee and the Trustee its exclusive
agents to exercise on its behalf all of the powers and authority
conferred hereby, or by the Trust Agreement, upon the Company and
shall make its allocable contributions to the Plan. The
authority of the Company, the Administrative Committee, the
Investment Committee, and the Trustee to act as such agent shall
continue until the Plan has terminated as to such Affiliate and
the relevant Trust Fund assets have been distributed by the
Trustee as provided in Section 16 of the Plan.
2.37 "PBGC" means the Pension Benefit Guaranty
Corporation.
2.38 "Plan" means the Ogden Projects Pension Plan, as
set forth herein and as may be amended from time to time.
2.39 "Plan Year" means the calendar year.
2.40 "Preretirement Survivor Annuity" means a benefit
providing for payment of a survivor annuity to a Member's
Surviving Spouse, if any, for the life of such Surviving Spouse
equal to 50% of the annuity which would have been payable for the
life of the Member under a Qualified Joint and Survivor Annuity.
2.41 "Prior Plan" means the Ogden Corporation Pension
Plan.
2.42 "Qualified Domestic Relations Order" means any
judgment, decree, or order (including approval of a property
settlement agreement) which has been determined by the
Administrative Committee in accordance with procedures
established under the Plan, to constitute a qualified domestic
relations order within the meaning of Section 414(p)(1) of the
Code.
2.43 "Qualified Joint and Survivor Annuity" means a
benefit providing an annuity for the life of the Member, ending
with the payment due on the first day of the month coincident
with or preceding the date of his death, and, if the Member dies
leaving a Surviving Spouse, a survivor annuity for the life of
such Surviving Spouse equal to 50% of the annuity payable for the
life of the Member under his Qualified Joint and Survivor
Annuity, commencing on the first day of the month following the
date of the Member's death and ending with the payment due on the
first day of the month coincident with or preceding the date of
such Surviving Spouse's death.
2.44 "Regulations" means the applicable regulations
issued under the Code (referred to herein as "IRS Regulations"),
the Act (referred to herein as "Labor Department Regulations") or
other applicable law, by the IRS, the PBGC, the Labor Department
or any other governmental authority and any temporary regulations
or rules promulgated by such authorities pending the issuance of
such regulations.
2.45 "Retirement Benefit" means a benefit payable on
the dates, in the forms and in the amounts specified in Sections
6, 7, and 8, whichever is applicable.
2.46 "Retirement Date" means a Member's Early
Retirement Date, Normal Retirement Date or any other retirement
date that has become effective in lieu thereof pursuant to
Section 4.
2.47 "Salary" means for each Plan Year beginning
before January 1, 1994 an Employee's first $200,000 and for Plan
Years beginning on or after January 1, 1994, an Employee's first
$150,000 (adjusted for cost of living in accordance with Section
401(a)(17) of the Code) of total salary and other compensation
earned (whether or not received by an Employee during such Plan
Year) for the benfit of an Employee by a Participating Company,
including any amount which such Employee elects to have the
Company contribute to a qualified plan under Section 401(k) of
the Code or benefit payments under a plan under Section 125 of
the Code, but does not include imputed income or other non-cash
compensation, severance pay, any contributions to the Plan other
than such contributions under Section 401(k) of the Code or
benefit payments under a plan under Section 125 of the Code or
reimbursed expenses.
2.48 "Service" means employment or reemployment
(whether or not as an Eligible Employee) with the Company, any
Participating Company or with any subsidiary of or other
corporation or entity affiliated or associated with the Company
which is a member of the same controlled group of corporations
(within the meaning of Section 1563(a) of the Code). Service
includes all periods of employment credited to a Member while a
participant under the Prior Plan.
2.49 "Straight Life Annuity" means an annuity payable
for the life of a Member, ending with the payment due on the
first day of the month coincident with or preceding the date of
the annuitant's death.
2.50 "Surviving Spouse" means the survivor of a
deceased Member or a deceased former Member to whom such deceased
Member or deceased former Member has been legally married (as
determined by the Administrative Committee) throughout the one-
year period ending on the earlier of (i) the date as of which
payments commence under the Plan, or (ii) the date of the
Member's death. For purposes of Section 11, if a Member marries
within one year of the date as of which payments commence under
the Plan and was married to that spouse for at least a one-year
period ending on or before the date of the Member's death, such
Member and his spouse shall be treated as having been married
throughout the one-year period ending on the date as of which
payments commence.
2.51 "Ten Year Certain and Life Annuity" means a
benefit providing an annuity for the life of the Member, ending
with the payment due on the first day of the month coincident
with or preceding the date of his death, with a guaranteed
payment period of 120 months.
2.52 "Trust" or "Trust Fund" means the Trust established
by the Company pursuant to the Trust Agreement as a part of the Plan.
2.53 "Trustee" means the trustee or trustees of the Trust.
2.54 "Trust Agreement" means the agreement entered
into between the Company and the Trustee regarding the investment
and holding of Plan assets, as provided in the Plan, as amended
or restated from time to time.
2.55 "Year of Service" means any Plan Year during
which an individual completed at least 1,000 Hours of Service as
determined by the Administrative Committee in accordance with the
Regulations. In addition, solely for purposes of determining
whether an Eligible Employee is enrolled as a Member as provided
in Section 3 and his vested interest under Section 8.1 and 18.3,
if an Employee does not complete 1,000 Hours of Service during
the Plan Year in which his Service commenced but does complete at
least 1,000 Hours of Service during the 12 consecutive month
period beginning on the date his Service commenced, as determined
by the Administrative Committee, then, he shall be credited with
a Year of Service for such 12 consecutive month period. In
determining the number of Years of Service a Member is credited
with, he shall be credited with all years of service he had
completed, as of December 31, 1988, under the Prior Plan.
SECTION 3. MEMBERSHIP
3.1 Date of Membership. (a) Each Eligible Employee
who was a Member of the Plan on December 31, 1993, shall continue
to be enrolled in the membership of the Plan, and each Eligible
Employee in Service on December 31, 1993, but who was not then a
Member of the Plan shall be enrolled in the membership of the
Plan on the first day of the month coincident with or next
following the earlier of:
(i) the date on which he satisfies the
requirements for membership in the Plan as in
effect on December 31, 1993; and
(ii) the date on which he satisfies the
requirements of Section 3.1(b) for enrollment
in the membership of the Plan.
(b) Each Eligible Employee who commences Service
on or after the January 1, 1994 shall be automatically enrolled
in the membership of the Plan on the first day of the month
coincident with or next following the date on which the Eligible
Employee has (i) attained age 21, and (ii) the later of (a) the
completion of one Year of Service, and (b) the date which is the
anniversary of the Eligible Employee's date of hire; provided, he
is an Eligible Employee on such date.
3.2 Enrollment and Adjustment. The Administrative
Committee shall take any necessary or appropriate action to
enroll each Eligible Employee who has met the requirements of
this Section 3 and, if it is determined that an Eligible Employee
has for any reason not been enrolled in the membership of the
Plan or, if an administrative adjustment is required, such
Employee shall be retroactively enrolled or such administrative
adjustment shall be made.
3.3 Duration. The membership of a Member shall
cease upon his Retirement Date or death or upon any Break in
Service. The membership of a Member who, without any Break in
Service, ceases to be an Eligible Employee shall not cease on
account thereof but, notwithstanding Section 2.48, no subsequent
Service shall be treated as Credited Service unless and until he
again becomes an Eligible Employee.
3.4 Reemployment. (a) If a Member without any
nonforfeitable right to his Retirement Benefit (as determined
under Section 8.1) incurs any Break in Service and if the number
of consecutive Plan Years in which he incurred a Break in Service
equals or exceeds the greater of five or the aggregate number of
his Years of Service prior to such Break in Service (excluding
any Years of Service previously disregarded under this Section),
then, in the event that he returns to Service, he shall be
treated as a new Employee for all purposes of the Plan.
(b) In all other cases following a Break in
Service, if a former Member completes one Year of Service he
shall again be enrolled in the membership of the Plan as of the
first day of the month coincident with or next following the date
such Year of Service commenced, except that, if he is not then an
Eligible Employee, he shall again be enrolled in the membership
of the Plan as of the first day of the month coincident with or
next following the date, if any, on which he again becomes an
Eligible Employee.
SECTION 4. RETIREMENT DATE
4.1 Normal Retirement and Deferred Retirement Dates.
Any Member may retire on his Normal Retirement Date.
Notwithstanding the previous sentence, a Member may elect to
defer his Normal Retirement Date. A retiring Member shall submit
a written application for benefits to the Administrative
Committee not less than 30 days nor more than 90 days prior to
the day the Member will retire from Service. The Deferred
Retirement Date of a Member shall be the first day of the month
coincident with or next following the date of his termination of
Service following this Normal Retirement Age. Notwithstanding
any provision in the Plan to the contrary, a Member shall have a
100% vested right to his Retirement Benefit upon attaining his
Normal Retirement Age.
4.2 Early Retirement Date. A Member may retire on
his Early Retirement Date. A Member must make written
application to the Administrative Committee specifying an Early
Retirement Date which is the first day of a month and not less
than 30 nor more than 90 days following the date of the filing of
the application.
SECTION 5. ACCRUED BENEFIT
5.1 Computation of Accrued Benefit. As of any date,
a Member's Accrued Benefit is equal to (a) less (b) where:
(a) is 1.5% of his Final Average Compensation
multiplied by his years of Credited Service; and
(b) is the amount of his Prior Plan accrued benefit
determined as of December 31, 1988.
5.2 Effect of Reemployment on Accrued Benefit. If a
Member who incurs a Break in Service for any reason returns to
Service and is treated as a new Eligible Employee pursuant to
Section 3.4, then on his subsequent retirement or termination of
Service, his Accrued Benefit shall be based only upon his
Credited Service subsequent to his return to Service. In all
other cases following a Break in Service, a Member's Accrued
Benefit shall be based on his total Credited Service (provided
this does not decrease his Accrued Benefit), reduced by the
Equivalent Actuarial Value of any payments to him before his
return to Service.
SECTION 6. NORMAL RETIREMENT BENEFIT
6.1 Normal Retirement Benefit. Subject to Section
11.4, a Member who retires from Service on his Normal Retirement
Date shall be entitled to receive a Retirement Benefit equal to
his Accrued Benefit (or any larger Retirement Benefit he could
have received commencing on any date which could have been his
Early Retirement Date), commencing on the first day of the month
in which his Normal Retirement Date occurs.
SECTION 7. EARLY RETIREMENT BENEFIT
7.1 Early Retirement Benefit. A Member who retires
from Service on an Early Retirement Date shall be entitled to
receive, commencing on the first day of the month in which his
Early Retirement Date occurs, a Retirement Benefit which is the
Actuarial Equivalent of the Retirement Benefit which would be
payable on his Normal Retirement Date reduced by an early
retirement factor of .5% for each month between the day on which
his payments would have commenced if he had not retired until the
first date of the month coincident with or next following the
Member's Normal Retirement Age.
7.2 Deferral of Payment After Early Retirement Age.
Subject to Section 11.4, a Member who retires on an Early
Retirement Date may elect, at least 60 days prior to his Early
Retirement Date, to defer commencement of the payment of his
Retirement Benefit until the first day of any month after his
Early Retirement Date but no later than the first month in which
his Normal Retirement Date could have occurred. Such an election
may be revoked only with the consent of the Administrative
Committee. If a Member makes such an election and dies before
the payment of his Retirement Benefit commences, then except as
provided in Section 10 or 11.3 no benefit shall be payable under
the Plan.
SECTION 8. TERMINATION OF SERVICE BEFORE RETIREMENT
8.1 Vesting. Subject to Section 11.4, a Member
whose Service terminates, after his completion of five Years of
Service, for any reason other than death, Disability or
retirement shall have a nonforfeitable right to a Retirement
Benefit equal to his Accrued Benefit as of the date of his
termination of Service and shall be entitled to receive his
Retirement Benefit commencing on the first day of the month
following the month in which he attains his Normal Retirement
Age.
8.2 Payment after Termination of Service at Early
Retirement Date. A Member who has completed 10 years of Credited
Service and who has terminated his Service as described in
Section 8.1 may elect, by written notice to the Administrative
Committee at least 30 days prior to his Early Retirement Date, to
commence payment of his Retirement Benefit on his Early
Retirement Date or on the first day of any subsequent month, but
not later than the first day of the month in which the first date
which could have been his Normal Retirement Date occurs,
actuarially reduced. Such an election may be revoked only with
the consent of the Administrative Committee.
8.3 Consent of Member. Notwithstanding any other
provisions of this Section 8, to the extent required by the Code
and IRS Regulations, if the Equivalent Actuarial Value of the
Retirement Benefit of a Member is in excess of $3,500 at the time
of the distribution or any prior distribution, no benefit shall
be paid pursuant to this Section 8 prior to his Normal Retirement
Date without the Member's written consent, and if the Member is
married at the date payments would otherwise commence and his
benefit is to be paid in a form other than a Qualified Joint and
Survivor Annuity, the written consent of the Member's Surviving
Spouse. Absence of any required consent shall be deemed to be an
election under Section 8.2 to receive the Actuarial Equivalent of
the Member's Retirement Benefit commencing at the earlier of (i)
the later of (A) the first day of the month following receipt of
the required consent by the Administrative Committee or (B) the
date otherwise designated under Section 8.2, or (ii) the Member's
Normal Retirement Date.
8.4 Forfeitures. If a Member's Service terminates
for any reason other than death, Disability or retirement (as
provided in Sections 6, 7, 9 and 10) prior to his completion of
five Years of Service, no benefit shall be payable under the
Plan. In determining whether a Member has completed five Years
of Service for this purpose, his Years of Service before any
Break in Service shall be disregarded if he had not then
completed five Years of Service and if the number of consecutive
Plan Years in which he incurred a Break in Service equals or
exceeds the greater of five or the aggregate number of his Years
of Service prior to such Break in Service (excluding any Years of
Service previously disregarded under this Section).
SECTION 9. DISABILITY BEFORE RETIREMENT
9.1 Disability Prior to Retirement. A Member who is
Disabled shall have a nonforfeitable right to a Retirement
Benefit, determined as of the date of the Member's Disability, in
accordance with the provisions of Section 5.1 and shall not
thereafter be credited with Credited Service. Such Retirement
Benefit shall commence on his Normal Retirement Date.
SECTION 10. DEATH BENEFITS BEFORE RETIREMENT
10.1 Death Benefit Before Retirement. Subject to
11.3, the Beneficiary of a Participant who dies before the
payment of his Retirement Benefit commences shall have a
nonforfeitable right to a Retirement Benefit equal to the
Participant's Accrued Benefit, such Retirement Benefit to
commence on his Early Retirement Date, reduced as provided in
Section 7.1. A Participant shall receive any death benefit to
which he was entitled under the Prior Plan as in effect on
December 31, 1984 for benefits accrued prior to January 1, 1985.
10.2 Consent. Notwithstanding the foregoing Section
10.1 to the extent required by the Code and IRS Regulations, if,
immediately prior to his death, the Member had a Retirement
Benefit and the Equivalent Actuarial Value of such Retirement
Benefit is in excess of $3,500 at the time of the distribution or
any prior distribution, no lump sum cash payment shall be made
under Section 10.1 to the Member's Surviving Spouse prior to the
date which was or would have been the Member's Normal Retirement
Date (had he lived) without the Surviving Spouse's written
consent.
SECTION 11. METHOD OF PAYMENT
11.1 Payment of Benefits. The Retirement Benefit to
which an unmarried Member or a Member who has not been legally
married for at least one year ending on the date as of which
payment of his Retirement Benefit commences, is entitled under
the Plan shall, except as otherwise provided in this Section 11,
be payable in the form of a Ten Year Certain and Life Annuity.
The Equivalent Actuarial Value of the Retirement Benefit to which
a Member who has been legally married for at least one year
ending on the date as of which payment of his Retirement Benefit
commences is entitled under the Plan shall, except as otherwise
provided in this Section 11, be payable in the form of a
Qualified Joint and Survivor Annuity with a Ten Year Certain
Payment Period. A "Qualified Joint and Survivor Annuity with a
Ten Year Certain Payment Period" is a Qualified Joint and
Survivor Annuity that provides a guaranteed 120 month payments.
If the Member dies after the date his Retirement Benefit begins
but prior to receiving 120 monthly payments, the remainder of
such 120 payments shall be paid to his Surviving Spouse. After
receiving the remainder of such 120 payments, the Surviving
Spouse shall receive a monthly payment for life equal to 50% of
such amount.
11.2 Optional Forms of Benefits. (a) Subject to the
provisions of Sections 11.4 and 11.5, in lieu of receiving his
Retirement Benefit in the form described in Section 11.1, a
Member may elect to receive his Retirement Benefit in any one of
the optional forms described in Sections 11.2(a)(i) through (v)
below; provided, however, that the benefits under such options
shall be the Equivalent Actuarial Value of the Retirement
Benefits described in Section 11.1.
(i) Ten Year Certain and Life Annuity. In lieu
of receiving the continuing monthly payments as provided by a Ten
Year Certain and Life Annuity, the Member's Beneficiary may
elect, within 60 days after the date of the Member's death, to
receive in one lump cash sum the Actuarial Equivalent of such
payments.
(ii) Qualified Joint and Survivor Annuity. A
married Member with a Surviving Spouse may elect to receive the
Equivalent Actuarial Value of his Retirement Benefit in the form
of a Qualified Joint and Survivor Annuity.
(iii) Contingent Annuitant Option. A Member may
elect a benefit of Equivalent Actuarial Value payable to him for
life with payments to be made, after his death, in 100% of such
amount or 50% of such amount, to the Beneficiary designated by
such Member, if living, for the life of such Beneficiary. The
designation of a Beneficiary may be revoked or changed at any
time prior to the date the Member's Retirement Benefit is to
begin. In the event of the death of either the Member or the
Beneficiary prior to the date such Retirement Benefit is to
begin, the election of this option shall be inoperative.
(iv) Contingent Annuitant Option; Ten Year Certain
Payment Period. A Member may elect a benefit of Equivalent
Actuarial Value payable to him for life with monthly payments to
be made, after his death, in the same amount, or 50% of such
amount, to the Beneficiary designated by him, if living, for the
life of such Beneficiary. If the Participant dies after the date
his Retirement Benefit commences but prior to receiving 120
monthly payments, the remainder of such 120 monthly payments will
be paid to his Beneficiary (or, in the event of the death of the
Beneficiary after the death of the Member, to the Beneficiary's
estate). After such 120 monthly payments have been made, the
Beneficiary shall receive monthly payments for life in the same
amount, or 50% of such amount, in accordance with the Member's
election. The designation of a Beneficiary may be revoked or
changed at any time prior to the date payment of such Retirement
Benefit commences. In the event of the death of the Member prior
to the date payment of the Member's Retirement Benefit begins,
the election of the contingent annuitant portion of this option
shall be inoperative.
(v) Straight Life Annuity. A Participant may
elect to receive the Equivalent Actuarial Value of his Retirement
Benefit in the form of a Straight Life Annuity.
(b) If a Member has elected an option in
accordance with this Section 11.2 and dies prior to the date
payment of his Retirement Benefit commences (i) without leaving a
Surviving Spouse, or (ii) leaving a Surviving Spouse and having
made a valid election to waive the Preretirement Survivor Annuity
in accordance with Section 11.5, then such optional form of
benefit shall become payable to his Beneficiary in the same
amount, if any, that would have been payable to such Beneficiary
if the payments thereunder had commenced to the Member on the
first day of the month coincident with or preceding the date of
the Member's death. If such Member dies prior to the date
payment of his Retirement Benefit commences, leaving a Surviving
Spouse and without having made a valid election to waive the
Preretirement Survivor Annuity in accordance with Section 11.5,
then the election under this Section 11.2 shall be null and void,
and the Surviving Spouse shall receive the Preretirement Survivor
Annuity in accordance with Section 11.3.
(c) If a person entitled to receive payments
under this Section 11.2 is not the spouse of the Member, the
Equivalent Actuarial Value of the benefits allocated to such
person shall not be greater than one-half of the Equivalent
Actuarial Value of the Retirement Benefit which the Member could
otherwise have received.
11.3 Preretirement Survivor Annuity. Subject to
Section 11.5, a Preretirement Survivor Annuity shall be paid to
the Surviving Spouse of a Member or former Member who, after
earning a nonforfeitable right to his Accrued Benefit, dies
before the commencement of payment of his Retirement Benefit. In
the case of a Member who dies on or after the first date which
could have been his Early Retirement Date but before payment of
his Retirement Benefit has commenced, the Preretirement Survivor
Annuity shall be based on the Qualified Joint and Survivor
Annuity which would have been payable if the Member had retired
and payments under the Qualified Joint and Survivor Annuity had
commenced on the first day of the month coincident with or
preceding the date of his death. In the case of a Member who
dies before the first date which could have been his Early
Retirement Date, the Preretirement Survivor Annuity shall be
based on the Qualified Joint and Survivor Annuity which would
have been payable if the Member had terminated Service on the
date of death, survived until the first date which could have
been his Early Retirement Date, immediately began receiving
payments under the Qualified Joint and Survivor Annuity and died
on the day following such Early Retirement Date. Payment of a
Preretirement Survivor Annuity shall commence on the last day of
the month following the later of (i) the first month in which the
Member could have attained his Normal Retirement Date (had he
lived), or (ii) the month in which the Member dies; provided,
however, to the extent required by the Code and IRS Regulations,
if the Equivalent Actuarial Value of a Preretirement Survivor
Annuity is in excess of $3,500 at the time of distribution or any
prior distribution, it shall not commence to be paid prior to the
date which was or would have been the Member's Normal Retirement
Date (had the Member lived) without the written consent of the
Member's Surviving Spouse. In the absence of consent, payment of
the Preretirement Survivor Annuity shall not be made until the
earlier of (i) the first day of the month following receipt of
the required consent by the Administrative Committee, or (ii) the
date which would have been the Member's Normal Retirement Date
had the Member lived.
11.4 Commencement of Payment. (a) Notwithstanding
any other provision of the Plan, unless otherwise provided by
law, any benefit payable to a Member shall commence no later than
the April 1st of the calendar year following the calendar year in
which such Member attains age 70-1/2; provided, however, if a
Member attained age 70-1/2 prior to January 1, 1988, except as
otherwise provided in Section 11.4(e), any benefit payable to
such Member shall commence no later than the April 1st of the
calendar year following the later of (i) the calendar year in
which the Member attains age 70-1/2; or (ii) the calendar year in
which the Member retires. Such benefit shall be paid, in
accordance with IRS Regulations, over a period not extending
beyond the life expectancy of such Member or the joint life
expectancies of such Member and his Beneficiary. Life expectancy
for purposes of this Section shall not be recalculated annually
in accordance with the Regulations.
(b) If distribution of a Member's benefit has
commenced prior to a Member's death, and such Member dies before
his entire benefit is distributed to him, distribution of the
remaining portion of the Member's benefit to the Member's
Beneficiary shall be made at least as rapidly as under the method
of distribution in effect as of the date of the Member's death.
(c) If a Member dies before distribution of his
benefit has commenced, distributions to any Beneficiary shall be
made on or before the December 31st of the calendar year which
contains the fifth anniversary of the date of such Member's
death; provided, however, at the Beneficiary's irrevocable
election, duly filed with the Administrative Committee before the
applicable commencement date set forth in the following sentence,
any distribution to a Beneficiary may be made over the life of
the Beneficiary or a period not extending beyond the life
expectancy of the Beneficiary. Such distribution shall commence
not later than the December 31st of the calendar year immediately
following the calendar year in which the Member died or, in the
event such Beneficiary is the Member's spouse, on or before the
December 31st of the calendar year in which such Member would
have attained age 70-1/2, if later (or, in either case, on any
later date prescribed by IRS Regulations). If such Member's
spouse dies after such Member's death but before distributions to
such spouse commence, this Section 11.4(c) shall be applied to
require payment of any further benefits as if such spouse were
the Member.
(d) Pursuant to IRS Regulations, any benefit paid
to a child shall be treated as if paid to a Member's spouse if
such amount will become payable to such spouse on the child's
attaining majority, or other designated event permitted by the
Regulations.
(e) If a Member who is a five percent owner
attained age 70-1/2 before January 1, 1988, any benefit payable
to such Member shall commence no later than the April 1st of the
calendar year following the later of (i) the calendar year in
which the Member attains age 70-1/2 or (ii) the earlier of (A)
the calendar year within which the Member becomes a five percent
owner or (B) the calendar year in which the Member retires. For
purposes of this Section 11.4(e), a five percent owner shall mean
a five percent owner of such Member's Employer as defined in
Section 416(i) of the Code at any time during the Plan Year in
which such owner attains age 66-1/2 or any subsequent Plan Year.
(f) All distributions made hereunder shall be
made in accordance with the provisions of Section 401(a)(9) of
the Code and IRS Regulations thereunder.
(g) Notwithstanding the foregoing, distributions
to a Member may be made in accordance with a written designation
made before January 1, 1984 by the Member if such designation
satisfied the requirements of Section 242(b)(2) of the Tax Equity
and Fiscal Responsibility Act of 1982.
11.5 Explanation of Annuities. The Administrative
Committee shall furnish or cause to be furnished to each married
Member, to the extent required by the Code and IRS Regulations at
least 30 days but no more than 90 days prior to the date a
distribution is to be made under the Plan, explanations of the
Qualified Joint and Survivor Annuity and the Preretirement
Survivor Annuity under procedures developed by the Administrative
Committee in accordance with the Code and IRS Regulations. A
Member may, with the written consent of his Surviving Spouse
(unless the Administrative Committee makes a written
determination in accordance with the Code and IRS Regulations
that no such consent is required), elect in writing (i) to
receive his Retirement Benefit in one of the optional forms
described in Section 11.2 in lieu of a Qualified Joint and
Survivor Annuity within the 90-day period ending on the date
payment of his Retirement Benefit commences, or (ii) to waive the
Preretirement Survivor Annuity within the period beginning on the
first day of the Plan Year in which the Member attains age 35 and
ending on the date of his death. Any election made pursuant to
this Section 11.5 may be revoked by a Member, without spousal
consent, at any time within which such election could have been
made. Such an election or revocation must be made in accordance
with procedures developed by the Administrative Committee in
accordance with the Code and IRS Regulations.
11.6 Small Amounts. Notwithstanding any other
provisions of this Section 11, any annuity amounting to less than
$10 per month shall be paid in quarterly or semi-annual
installments, and payment of any Retirement Benefit with an
Equivalent Actuarial Value of $3,500 or less at the time of the
distribution or any prior distribution shall be made in a lump
sum cash payment in full settlement of the Plan's liability
therefor, provided, however, that in the case of an Member, no
such lump sum payment shall be made after benefits have commenced
without the consent of the Member and, if the Member is married
at the time such payment would otherwise commence, the consent of
the Member and his spouse or, if the Member has died, the
Member's Surviving Spouse or Beneficiary.
11.7 Suspension of Retirement Benefits. Except as
may be otherwise required in Section 11.4 and notwithstanding any
other provisions of this Section 11, if a Member for any reason
returns to Service, payment of his Retirement Benefit, if any,
shall, to the extent permitted under the Regulations, be
suspended until his subsequent termination of Service or
retirement. To the extent that the application of this Section
11.7 constitutes a suspension of benefits, such suspension shall
be in accordance with the Act, the Code and the Regulations.
11.8 Consent. Notwithstanding any other provisions
of this Section 11, to the extent required by the Code and IRS
Regulations, if the Equivalent Actuarial Value of the Retirement
Benefit of a Member who retires is, or has been, in excess of
$3,500, no benefit shall be paid until the Member's Normal
Retirement Date without the Member's written consent, and if the
Member is married at the date payment would otherwise commence
and his benefit is to be paid in a form other than a Qualified
Joint and Survivor Annuity, no benefit shall be paid without the
written consent of the Member's Surviving Spouse, unless it is
paid on the Member's Normal Retirement Date.
11.9 Deemed Distribution. If the Member's non-forfeitable
Retirement Benefit on the date he terminates Service equals zero, such
Member shall be deemed to have received his Retirement Benefit on the
date he terminates Service.
11.10 Automatic Payment of Retirement Benefits.
Notwithstanding any other provision of the Plan, unless a Member
elects to otherwise defer his distribution, payment of his
Retirement Benefit shall commence on the 60th day after the close
of the Plan Year following (i) the date the Member reaches his
Normal Retirement Date, (ii) the 10th anniversary of the date the
Member's membership in the Plan began, or (iii) the date the
Member terminates Service with the Employer, whichever is the
latest to occur.
11.11 Direct Rollover. (a) A Distributee may elect,
at a time and manner prescribed by the Administrative Committee,
to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by such
Distributee in the form of a Direct Rollover. A Distributee may
not elect to make a Direct Rollover if the total Eligible
Rollover Distributions to which the Distributee is entitled
during the calendar year equal, or are reasonable expected to
equal, less than $200. A Distributee may not elect to make a
Direct Rollover of any portion of an Eligible Rollover
Distribution if that portion is not at least $500 or more. A
Distributee may not make a Direct Rollover of less than the
entire amount of an Eligible Rollover Distribution if the entire
Eligible Rollover Distribution equals less than $500.
(b) The provisions of this Section 11.11 shall be
effective January 1, 1993, with respect to distributions made on
or after that date.
SECTION 12. MAXIMUM AMOUNT OF RETIREMENT BENEFIT
12.1 Application of Section 12. The provisions of
this Section 12 shall govern the benefits to which it is
applicable notwithstanding any other provision of the Plan. The
benefits to which this Section 12 is applicable are: (i) any
annuity payable to a Member for life as part of a Qualified Joint
and Survivor Annuity or as part of a survivorship option elected
by the Member under Section 11.2 and having the effect of a
Qualified Joint and Survivor Annuity (excluding in either case
any survivor annuity payable to a Surviving Spouse thereunder);
(ii) any Single Life Annuity payable to a Member under Section
11.1 or elected by a Member under Section 11.2; and (iii) any
other option elected by a Member under Section 11.2 (including
both the annuity payable to the Member and any other annuity or
benefit payable thereunder).
12.2 Maximum Benefit. The benefits to which this
Section 12 is applicable may not exceed the Actuarial Equivalent
of a Single Life Annuity equal to the lesser of (i) $90,000 (the
"Dollar Limitation"), or (ii) 100 percent of the Member's High-3
Year Average Compensation (the "Compensation Limitation"),
subject, however, to the following provisions of Section 12.
12.3 Adjustments to Maximum Benefit. The limitations
on the maximum amount of benefits contained in Section 12.2 shall
be adjusted as follows:
(a) The Dollar Limitation shall be adjusted
annually, for Plan Years beginning after December 31, 1987, for
increases in the cost-of-living in accordance with IRS
Regulations and, in the case of Members who have separated from
Service, the Compensation Limitation shall be adjusted annually
for increases in the cost-of-living in accordance with IRS
Regulations. As a result of such an adjustment, a benefit which
had been limited by the provisions of this Section in a previous
Plan Year may be increased with respect to future payments to the
least of (i) the adjusted Dollar Limitation amount, (ii) the
adjusted Compensation Limitation or (iii) the amount of benefit
which would have been payable under the Plan without regard to
the provisions of this Section 12.
(b) In the case of a benefit beginning prior to a
Member's "social security retirement age", as defined in Section
415(b)(8) of the Code, but on or after age 62, the Dollar
Limitation applicable to such benefit shall be reduced as
follows:
(i) If a member's social security retirement
age is 65, the Dollar Limitation for benefits
commencing on or after age 62 is determined by
reducing the Dollar Limitation by 5/9 of one
percent for each month by which benefits commence
before the month in which the Member attains age
65.
(ii) If a Member's social security
retirement age is greater than 65, the Dollar
Limitation for benefits commencing on or after age
62 is determined by reducing the Dollar Limitation
by 5/9 of one percent for each of the first 36
months and 5/12 of one percent for each of the
additional months (up to 24 months) by which
benefits commence before the month of the Member's
social security retirement age.
The adjustment provided for in the preceding sentence
shall be made in such manner as IRS Regulations may prescribe
which is consistent with the reduction for old-age insurance
benefits commencing before the social security retirement age
under the Social Security Act.
(c) If the annual benefit of a Member commences
prior to age 62, the Dollar Limitation shall be the actuarial
equivalent of an annual benefit beginning at age 62 reduced for
each month by which benefits commence before the month in which
the Member attains age 62. A decrease in the Dollar Limitation
determined in accordance with this Section 12.3(c) shall not
reflect the mortality decrement to the extent that benefits will
not be forfeited upon the death of the Member.
(d) In the case of a benefit beginning after the
Member's social security retirement age, the Dollar Limitation
shall be adjusted in accordance with IRS Regulations to an amount
which is equal to a Straight Life Annuity commencing at the same
time, which is the Actuarial Equivalent of a Single Life Annuity
equal to the Dollar Limitation commencing at social security
retirement age. For the purposes of this Section 12.3, actuarial
equivalence shall have the same meaning as described in Section
2.25, except the interest rate assumptions for the purposes of
Sections 12.3(b) and (c) shall not be less than the greater of
the interest rate assumptions provided in the Plan or five
percent, and the interest rate assumption for the purposes of
this Section 12.3(d) shall not be greater than the lesser of five
percent or the rate specified in the Plan.
(e) If a Member has fewer than 10 years of Plan
participation, the Dollar Limitation shall be multiplied by a
fraction, the numerator of which is the number of years (computed
to fractional parts of a year) of participation in the Plan, and
the denominator of which is 10. If the Member has fewer than 10
Years of Service, the Compensation Limitation shall be multiplied
by a fraction, the numerator being the Member's Years of Service
(computed to fractional parts of a year) and the denominator of
which is 10.
(f) In no event shall Section 12.3(e) above
reduce the Dollar Limitation and the Compensation Limitation to
an amount less than one-tenth of the applicable limitation
(determined without regard to Section 12.3(e)). To the extent
provided by IRS Regulations and pronouncements, Section 12.3(e)
above shall be applied separately with respect to each change in
the benefit structure of the Plan.
12.4 Inapplicability of Section 12. The limitations
contained in Section 12.2 shall not be applicable if (i) the
annual benefits subject to Section 12 with respect to the Member
do not exceed $10,000 and (ii) the Member has not participated in
any defined contribution plan (within the meaning of Section
414(i) of the Code) maintained by the Company; provided, however,
that the $10,000 limitation contained in this Section 12.4 shall
be reduced in the same manner as the Compensation Limitation is
reduced under Section 12.3(d).
12.5 Limitation Prior to October 3, 1973. In the
case of any individual who was a Member prior to October 3, 1973
the benefits to which Section 12 is applicable may not exceed the
greater of (i) the limitations contained in either Section 12.2
or Section 12.4, adjusted as described in Section 12.3, or (ii)
the smallest of (A) the Actuarial Equivalent of a Single Life
Annuity (as described in Section 11.2) equal to 100% of the
Member s annual rate of Compensation on October 2, 1973 (or the
date of his termination of Service, if earlier), (B) the
Actuarial Equivalent of the benefits which would have been
provided under the Plan as in effect on October 2, 1973 without
taking account of any increases in his annual rate of
compensation after such date, or (C) in the case of a Member
whose Service terminated prior to October 2, 1973, the Actuarial
Equivalent of his nonforfeitable benefits after his termination
of Service.
12.6 Limitation Prior to December 31, 1982.
Notwithstanding the foregoing provisions of this Section 12, the
maximum limitation on a Member's Retirement Benefits, with
respect to any person who was a Member prior to December 31, 1982
and whose Retirement Benefit (determined without regard to any
changes in the Plan after July 1, 1982 and without regard to
cost-of-living adjustments, if any, occurring after July 1, 1982)
as of December 31, 1982, exceeds the limitations set forth in
Section 12.2, shall be such Member's Retirement Benefit as of
December 31, 1982; provided that, such Member's Retirement
Benefit did not exceed the maximum limitation thereon as of
December 31, 1982.
12.7 Additional Limitations. (a) Notwithstanding
the foregoing provisions of this Section 12, and subject to the
provisions of Section 12.7(c), if a Member in the Plan also
participates or ever participated in any defined contribution
plan (as defined in Sections 414(i) and 415(k) of the Code)
currently or formerly maintained by the Company or any of its
Affiliates, the sum of the Member's "Defined Benefit Fraction"
(as defined in Section 12.7(b)(1)) and the Member's "Defined
Contribution Fraction" (as defined in Section 12.7(b)(2)) shall
not exceed 1.0. If the Plan satisfied the applicable
requirements of Section 415 of the Code as in effect for all
Limitation Years beginning before January 1, 1987, an amount
shall be subtracted from the numerator of the Defined
Contribution Fraction (not exceeding such numerator) as
prescribed by IRS Regulations so that the sum of the defined
benefit plan fraction and defined contribution plan fraction
computed under Section 415(e)(1) of the Code does not exceed 1.0
for such Limitation Year. In the event that in any Plan Year the
sum of a Member's Defined Benefit Fraction and the Member's
Defined Contribution Fraction exceeds 1.0, then the Retirement
Benefit payable under the Plan shall be reduced so that the sum
of such fractions in respect of that Member will not exceed 1.0.
(b) For purposes of Section 12.7(a) the following
terms shall have the meanings set forth below:
(1) "Defined Benefit Fraction" shall mean as to any
Member for any Plan Year, a fraction, (A) the numerator of
which is the projected annual Retirement Benefit the Member
is expected to receive under the Plan determined as of the
end of the Plan Year and in accordance with the IRS
Regulations and (B) the denominator of which is the lesser
of (i) the product of 1.25 multiplied by the dollar
limitation in effect under clause (i) of Section 12.2 for
the Plan Year, or (B) the product of 1.4 multiplied by the
amount which may be taken into account under clause (ii) of
Section 12.2 with respect to the Member for the Plan Year;
and
(2) "Defined Contribution Fraction" shall mean, as to
any Member for any Plan Year, a fraction, (A) the numerator
of which is the sum of the annual additions (as defined in
Section 415(c)(2) of the Code) credited to the accounts of
the Member under any defined contribution plan (as defined
in Sections 414(i) and 415(k) of the Code) maintained by the
Company or any of its Affiliates for the Plan Year and for
all prior Plan Years, and (B) the denominator of which is
the sum of the lesser of the following amounts, determined
for such Plan Year and for each prior Year of Service
(regardless of whether the Member was a participant in the
defined contribution plan during any such prior Year of
Service) (i) the product of 1.25 multiplied by the dollar
limitation in effect under Section 415(c)(1)(A) of the Code
for such year, or (ii) the product of 1.4 multiplied by the
amount which may be taken into account under Section
415(c)(1)(B) of the Code with respect to the Member for such
year; provided, however, that for years ending prior to
January 1, 1976, the numerator of such fraction shall in no
event be deemed to exceed the denominator of such fraction;
further provided, that the Administrative Committee, in
determining the Defined Contribution Fraction, with respect
to defined contribution plans in existence on July 1, 1982,
for Plan Years ending after December 31, 1982, may elect to
use the special transitional rule provided for in Section
415(e)(6) of the Code.
(c) In the case of a Member with respect to whom
the sum of the Defined Benefit Fraction and the Defined
Contribution Fraction exceed 1.0 with respect to the last Plan
Year beginning before January 1, 1983, an amount, determined in
accordance with IRS Regulations, may be subtracted from the
numerator of the Defined Contribution Fraction (not exceeding
such numerator) so that the sum of such Member's Defined Benefit
Fraction and his Defined Contribution Fraction computed under
Section 12.7(b) does not exceed 1.0 for the last Plan Year
beginning before January 1, 1983.
12.8 Maximum Limitations. Notwithstanding the
foregoing provisions of this Section 12, the maximum limitation
on Retirement Benefits, with respect to any person who is a
Member prior to January 1, 1987 and whose Retirement Benefit
(determined without regard to any changes in the Plan after May
6, 1986 and without regard to cost of living adjustments
occurring after December 31, 1986), exceeds the limitations set
forth in Section 12.2, then, for purposes of such section and
Section 415(b) and (e) of the Code, the Dollar Limitation with
respect to such Member shall be equal to such Member's accrued
Retirement Benefit as of December 31, 1986; provided that such
Member's Retirement Benefit did not exceed the maximum limitation
as in effect for all Plan Years commencing prior to January 1,
1987.
SECTION 13. DESIGNATION OF BENEFICIARIES
13.1 Beneficiary Designation. Each Member shall file
with the Administrative Committee a written designation of one or
more persons as the Beneficiary who, subject to Section 11.5,
shall be entitled to receive the amount, if any, payable under
the Plan upon his death. Subject to the requirements of Section
11, a Member may from time to time revoke or change his
Beneficiary designation without the consent of any prior
Beneficiary by filing a new designation with the Administrative
Committee. The last such designation received by the
Administrative Committee shall be controlling, provided, however,
that no designation, or change or revocation thereof, shall be
effective unless received by the Administrative Committee prior
to the Member's death, and in no event shall it be effective as
of a date prior to such receipt. However, if a Member is
married, his Beneficiary shall be his spouse unless such spouse
has consented in writing to such other designation, on a form
supplied by the Administrative Committee and has waived her
rights pursuant to Section 11.5 of the Plan.
13.2 Failure to Designate Beneficiary. If no such
Beneficiary designation is in effect at the time of a Member's
death, or if no designated Beneficiary survives the Member, the
payment of the amount, if any, payable under the Plan upon his
death shall be made to the Member's Surviving Spouse, if any, or
if the Member has no Surviving Spouse, then the following persons
(if then living) in the following order of priority; (i)
children, in equal shares, (ii) parents, in equal shares, and
(iii) the Member's estate. If the Administrative Committee is in
doubt as to the right of any person to receive such amount, the
Administrative Committee may direct the Trustee to retain such
amount, without liability for any interest thereon, until the
rights thereto are determined, or the Administrative Committee
may direct the Trustee to pay such amount into any court of
appropriate jurisdiction and such payment shall be a complete
discharge of the liability of the Plan and the Trust therefor.
SECTION 14. FUNDING AND CONTRIBUTIONS
14.1 Funding. Subject to the provisions of Sections
16 and 17, the Company shall contribute to the Trust, not less
frequently than quarterly during each Plan Year, the amounts
recommended by the Actuary to the Administrative Committee as
necessary to maintain the Plan on a sound actuarial basis, in
accordance with the Act and the Code. The Administrative
Committee shall arrange for the establishment and maintenance by
the Actuary, or in accordance with his recommendations, of such
funding accounts as are required by the Act.
14.2 Actuarial Assumptions. The Administrative
Committee shall adopt and may change from time to time, in
accordance with the provisions of the Act and the Code, such
actuarial assumptions and methods as are recommended by the
Actuary for purposes of actuarial valuations of the Plan. The
Actuary shall make an annual actuarial valuation of the Plan and
shall estimate the contributions required under Section 14.1 on
the basis thereof. At least once in each three year period the
Actuary shall make an actuarial study of the mortality, Service
and compensation experience of the Members of the Plan and the
investment experience and any other relevant experience gains and
losses under the Plan, including such calculations as may be
necessary to determine whether the Plan is adequately funded, and
shall report the results of its study to the Administrative
Committee. Prior to termination of the Plan, forfeitures of
benefits arising from termination of Service, death or any other
reason under the Plan shall not be applied to increase the
benefits that any Member would otherwise be entitled to receive
under the Plan, but may be anticipated in estimating costs under
the Plan and shall be applied to reduce the Company's
contributions under the Plan.
14.3 Trustee. All monies, securities or other
property received as contributions under the Plan shall be
delivered to the Trustee under the Trust, to be managed,
invested, reinvested and distributed in accordance with the Plan,
the Trust and any agreement with an insurance company or other
financial institution constituting a part of the Plan and the
Trust.
14.4 Expenses. The expenses of administering the
Plan including (i) the fees and expenses of any Employee and of
the Trustee for the performance of their duties under the Trust,
(ii) the expenses incurred by the members of the Administrative
Committee and of the Investment Committee in the performance of
their duties under the Plan (including reasonable compensation
for any legal counsel, certified public accountants and any
agents and cost of services rendered in respect of the Plan), and
(iii) all other proper charges and disbursements of the Trustee
or the members of the Administrative Committee and of the
Investment Committee (including settlements of claims or legal
actions approved by counsel to the Plan) are to be paid out of
the Trust unless the Participating Companies pay such expenses
directly in such proportions as shall be determined by the
Administrative Committee. In estimating costs under the Plan,
administrative costs may be anticipated.
14.5 Return of Contributions. Any contribution made
by an Employer because of a mistake of fact shall be returned to
the Employer which made such contribution within one year of such
contribution. Any contribution made by an Employer that is
conditioned upon the contribution's deductibility or the Plan's
initial qualification under the Code, and if either the deduction
or the initial qualification is denied, such contribution shall
be returned to the Employer which made such contribution within
one year after the date such deduction or qualification is
denied.
SECTION 15. ADMINISTRATION OF THE PLAN
15.1 Powers and Duties of Administrative Committee.
The Administrative Committee shall have general responsibility
and discretionary authority for the administration, establishment
and interpretation of the Plan (including, but not limited to,
complying with reporting and disclosure requirements,
establishing and maintaining Plan records, adopting amendments to
the Plan as described in Section 17.1, deciding all questions
arising in connection with the Plan, including eligibility,
benefit payments, vesting and factual questions). The
Administrative Committee shall engage the Actuary and 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 Administrative Committee shall have sole discretionary
authority to determine, a Member's or Beneficiary's
benefit eligibility. The Administrative Committee shall
communicate any requirements and objectives of the Plan, and any
audit information which may be pertinent to the investment of
Plan assets to the Investment Committee, which shall establish
investment standards and policies and communicate the same to the
Trustee (or other funding agencies under the Plan). The
Administrative Committee shall have no responsibility for the
investment of assets under the Plan and the Trust.
15.2 Powers and Duties of Investment Committee. The
Investment Committee shall periodically review the investment
performance and methods of the Trustee and any other funding
agency, including any insurance company, under the Plan and may
appoint and remove or change the Trustee and any such funding
agency. The Investment Committee shall have the power to appoint
or remove one or more Investment Managers and to delegate to such
Investment Manager authority and discretion to manage (including
the power to acquire and dispose of) the assets of the Plan, or
any portion thereof, provided that (i) each Investment Manager
with such authority and discretion shall be either a bank, an
insurance company or a registered investment adviser under the
Investment Advisers Act of 1940, and shall acknowledge in writing
that it is a fiduciary with respect to the Plan and (ii) the
Investment Committee shall periodically review the investment
performance and methods of each Investment Manager with such
authority and discretion. The Administrative Committee shall
communicate any requirements and objectives of the Plan
(including any interest rate or other actuarial assumptions)
which may be pertinent to the investment of Plan assets, to the
Investment Committee which shall establish investment standards
and policies incorporating such requirements and objectives and
communicate the same to the Trustee (or other funding agencies
under the Plan). If annuities are to be purchased under the
Plan, the Investment Committee shall determine what contracts
should be made available to terminated Members or purchased by
the Trust.
15.3 Agents; Reports to Board of Directors. The
Administrative Committee and the Investment Committee may arrange
for the engagement of 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 Committees may rely upon the written
opinion of such counsel and the Actuary and accountants engaged
by the Administrative Committee and may delegate to any agent or
to any sub-committee or member of such Committee its authority to
perform any act hereunder, including, without limitation, those
matters involving the exercise of discretion (including the
appointment of an Investment Manager), provided that such
delegation shall be subject to revocation at any time at the
discretion of the Committee. The Committees shall report to the
Board of Directors, or to a committee of the Board of Directors
designated for that purpose, no less frequently than at each
annual meeting as shall be specified by the Board of Directors,
or such committee with respect to the Board of Directors with
regard to the matters for which it is responsible under the Plan.
15.4 Structure of Committees. The Administrative
Committee and the Investment Committee shall consist of at least
three members, each of whom shall be appointed by, shall remain
in office at the will of, and may be removed, with or without
cause, by the Board of Directors. Any member of either of said
Committees may resign at any time. No member of either of said
Committees shall be entitled to act on or decide any matter
relating solely to himself or any of his rights or benefits under
the Plan. The members of the Administrative Committee and of the
Investment Committee shall not receive any special compensation
for serving in their capacities as members of such Committees but
shall be reimbursed for any reasonable expenses incurred in
connection therewith. Except as otherwise required by the Act,
no bond or other security need be required of the Administrative
Committee or the Investment Committee or any member thereof in
any jurisdiction. Any person may serve on both Committees, and
any member of either Committee, any sub-committee or agent to
whom either Committee delegates any authority, and any other
person or group of persons, may serve in more than one fiduciary
capacity (including service both as a trustee and administrator)
with respect to the Plan.
15.5 Adoption of Procedures of Committee. Each
Committee shall elect or designate its own Chairman, establish
its own procedures and the time and place for its meetings, and
provide for the keeping of minutes of all meetings. A majority
of the members of a Committee shall constitute a quorum for the
transaction of business at a meeting of such Committee. Any
action of a Committee may be taken upon the affirmative vote of a
majority of the members of such Committee at a meeting or, at the
direction of its Chairman, without a meeting by mail, telegraph,
telex, telecopier or telephone, provided that all of the members
of such Committee are informed by mail, telegraph, telex,
telecopier or telephone, of their right to vote on the proposal
and of the outcome of the vote thereon.
15.6 Demands for Money. All demands for money of the
Plan shall be signed by an officer or officers or such other
person or persons as the Administrative Committee may from time
to time designate in writing who shall cause to be kept full and
accurate accounts of receipts and disbursements of the Plan,
shall cause to be deposited all funds of the Plan to the name and
credit of the Plan, in such depositories as may be designated by
the Investment Committee, shall cause to be disbursed the monies
and funds of the Plan when so authorized by the Administrative
Committee and shall generally perform such other duties as may be
assigned to him from time to time by either such Committee.
15.7 Trust Agreement; Powers and Duties of Trustee;
Trust Fund. The Company has entered into the Trust Agreement
with the Trustee providing for the administration and management
of the Trust Fund. The Trustee shall have responsibility under
the Plan for the management and control of the assets of the Plan
but shall have no discretionary responsibility for the investment
and management of such assets unless, and if so, only to the
extent that the Trustee has been appointed an investment adviser
pursuant to Section 15.2. All benefits and other amounts payable
hereunder shall be paid exclusively from the Trust Fund, and
neither the Company, any Affiliate, any Trustee, nor any
director, officer, Employee or agent of the Company assumes any
responsibility or liability therefor. The Trust Fund may be
commingled for investment purposes with like separate trust funds
of any other plans and trusts of the Company or any Affiliate
which meet the requirements of Sections 401(a) and 501(a) of the
Code.
15.8 Hold Harmless; Indemnification. Each Member,
each Beneficiary or each other person who shall claim the right
to any payment under the Plan shall look exclusively to the Trust
Fund therefor and shall not have any right or claim therefor
against the Company, any Participating Company, any Trustee, or
any director, officer, Employee or agent of the Company. Except
as otherwise required by the Act, neither the Company, nor any
member of the Administrative Committee or the Investment
Committee, any director, officer, Employee or agent of the
Company shall be required to inquire into or be responsible for
any act or failure to act of any Trustee or any Member. To the
maximum extent permitted by the Act and applicable state law,
each Trustee, each member of the Administrative Committee and the
Investment Committee, each director and officer of the Company,
any Participating Company and each Employee who performs service
on behalf of the Plan or the Trust, shall be indemnified and
saved harmless by the Company and by the Participating Company
out of their own assets (including the proceeds of any insurance
policy the premiums of which are paid by the Company) from and
against any and all losses, costs and expense (including any
amounts paid in settlement of a claim with the Company's or
Administrative Committee's approval) to which any of them may be
subjected by reason of any act done or omitted to be done in good
faith in their official capacities with respect to the Plan or
the Trust Agreement, including all expenses reasonably incurred
in their defense.
15.9 Claims for Benefits. (a) All claims for
benefits under the Plan shall be submitted to, and within a
reasonable period of time decided by, a person or persons
designated in writing by the Administrative Committee. If the
claim is wholly or partially denied, written notice of the denial
shall be furnished within 90 days after receipt of the claim;
provided that, if special circumstances require an extension of
time for processing the claim, an additional 90 days from the end
of the initial period shall be allowed for processing the claim,
in which event the claimant shall be furnished with a written
notice of the extension prior to the termination of the initial
90 day period indicating the special circumstances requiring an
extension. The written notice denying the claim shall set forth
the reasons for the denial, including specific reference to
pertinent provisions of the Plan on which the denial is based, a
description of any additional information necessary to perfect
the claim and information regarding review of the claim and its
denial.
(b) A claimant may review all pertinent documents
and may request a review by the Administrative Committee of such
a decision denying the claim. Such a request shall be made in
writing and filed with the Administrative Committee within 60
days after delivery to the claimant of written notice of the
decision. Such written request for review shall contain all
additional information which the claimant wishes the
Administrative Committee to consider. The Administrative
Committee may hold a hearing or conduct any independent
investigation, and the decision on review shall be made as soon
as possible after the Administrative Committee's receipt of the
request for review. Written notice of the decision on review
shall be furnished to the claimant within 60 days after receipt
by the Administrative Committee of a request for review, unless
special circumstances require an extension of time for
processing, in which event an additional 60 days shall be allowed
for review and the claimant shall be so notified in writing.
Written notice of the decision on review shall include specific
reasons for the decision. For all purposes under the Plan, such
decisions on claims (where no review is requested) and decisions
on review (where review is requested) shall be final, binding and
conclusive on all interested persons as to participation and
benefits eligibility, the amount of benefits and as to any other
matter of fact or interpretation relating to the Plan.
15.10 Communications. Any notice, election,
application, instruction, designation or other form of
communication required to be given or submitted by any Member,
other Employee or Beneficiary shall be in such form as is
prescribed from time to time by the Administrative Committee or
Investment Committee, sent by first class mail or delivered in
person, and shall be deemed to be duly given only upon actual
receipt thereof by such Committee. Any notice, statement, report
and other communication from the Company or either Committee to
any Member, other Employee or Beneficiary required or permitted
by the Plan shall be deemed to have been duly given when
delivered to such person or mailed by first class mail to such
person at his address last appearing on the records of the
Company or the Committee. Each person entitled to receive a
payment under the Plan shall file in accordance herewith his
complete mailing address and each change therein. A check or
communication mailed to any person at his address on file with
the Company or the appropriate Committee shall be deemed to have
been received by such person for all purposes of the Plan, and no
Employee or agent of the Company, of a Participating Company or
member of the Administrative Committee or the Investment
Committee shall be obliged to search for or ascertain the
location of any such person except as required by the Act. If
the Administrative Committee shall be in doubt as to whether
payments are being received by the person entitled thereto, it
may, by registered mail addressed to such person at his address
last known to the Administrative Committee notify such person
that all future payments will be withheld until such person
submits to the Administrative Committee his proper mailing
address and such other information as the Administrative
Committee may reasonably request.
15.11 Agent for Service of Process. The agent for the
service of legal process of the Plan shall be the Secretary of
the Company or such other person as may from time to time be
designated by the Board of Directors.
15.12 Specific Powers and Duties. The Administrative
Committee and the Investment Committee each shall have only those
specific powers, duties, responsibilities, and obligations as are
specifically given them under the Plan or the Trust as such plan
or Trust may be amended from time to time. It is intended that
each Committee shall be responsible for the proper exercise of
its own powers, duties, responsibilities and obligations and
shall not be responsible for any act or failure to act on the
part of the other Committee or of another fiduciary.
SECTION 16. TERMINATION OF PARTICIPATING COMPANY PARTICIPATION
16.1 Termination of Participating Company
Participation. Any Participating Company may terminate its
participation in the Plan by giving the Administrative Committee
prior written notice specifying a termination date which shall be
the last day of a month at least 60 days subsequent to the date
such notice is received by the Administrative Committee. The
Administrative Committee may terminate any Participating
Company's participation in the Plan, as of any termination date
specified by the Administrative Committee, for the failure of the
Participating Company to make proper contributions or to comply
with any other provision of the Plan. In the event of any such
termination, the Administrative Committee shall promptly notify
the IRS and request such determination as counsel to the Plan may
recommend and as the Administrative Committee may deem desirable.
16.2 Rights of Former Members. To the maximum extent
permitted by the Act, any rights of Members no longer employed by
the Participating Company, former Member's and their Beneficiaries,
Surviving Spouses and other eligible survivors under the
Plan shall be unaffected by a termination of the Plan as to any
Participating Company. Subject to the provisions of Section
17.8, the benefits provided under the Plan with respect to each
member who is employed by such Participating Company as of the
termination date will be paid or forfeited in accordance with the
Plan as if such termination had not occurred except that the
Administrative Committee may direct the Trustee to segregate such
portion of the assets of the Trust (the "Distributable Reserve")
as the Actuary shall determine to be properly allocable in
accordance with the Act to the Members who are Employees of such
Participating Company and direct the Trustee to apply the
Distributable Reserve for the benefit of the Participants
employed by the Participating Company as of the termination date
in such matter as the Administrative Committee shall determine
including, without limitation, payment to such Members in lump
cash sums, cash installments, or the purchase of immediate or
deferred annuities, a transfer to a successor employee benefit
plan which is qualifie3d under Section 401(a) of the Code, or any
combination thereof; provided, however, that in the event of any
transfer of assets to a successor employee benefit plan the
provisions of Section 16.3 will apply. Any such payments or
transfers of the Distributable Reserve shall constitute a
complete discharge of all liabilities under the Plan with respect
to such Participating Company's participation in the Plan and any
Member then employed by such Participating Company. To the
maximum extent permitted by the Act, the termination of the Plan
as to any Participating Company shall not in any way affect any
other Participating Company's participation in the Plan.
16.3 Transfer to Successor Plan. No transfer of the
Plan's assets and liabilities to a successor employee benefit
plan (whether by merger or consolidation with such successor plan
or otherwise) shall be made unless each Member would, if either
the Plan or such successor plan then terminated, receive a
benefit immediately after such transfer which (after taking
account of any distributions or payments to them as part of the
same transaction) is equal to or greater than the benefit he
would have been entitled to receive immediately before such
transfer if the Plan had then been terminated. The
Administrative Committee or the Investment Committee or both of
the Committees may also request appropriate indemnification from
the employer or employers maintaining such successor plan before
making such a transfer.
SECTION 17. AMENDMENT OR TERMINATION OF THE PLAN AND THE TRUST
17.1 Right to Amend, Suspend or Terminate Plan.
(a) Subject to the provisions of Section 17.1(b),
the Board of Directors reserves the right at any time, by
majority consent in writing or by a meeting, to amend, suspend or
terminate the Plan, any contributions thereunder, the Trust or
any contract issued by an insurance carrier forming a part of the
Plan, in whole or in part and for any reason and without the
consent of any Participating Company, Member, other Employee
Beneficiary or Surviving Spouse. Each Participating Company by
its adoption of the Plan shall be deemed to have delegated this
authority to the Board of Directors and the Administrative
Committee.
(b) The Administrative Committee may adopt amendments, by
majority consent in writing or by a meeting, which may be necessary or
appropriate to facilitate the administration,
management, or interpretation of the Plan or to conform the Plan
thereto, or to qualify or maintain the Plan and the Trust as a
plan and trust meeting the requirements of Sections 401(a) and
501(a) of the Code or any other applicable section of law (including
the Act) and the Regulations, provided that any such
amendment does not materially increase the cost to the Employer
of maintaining the Plan.
(c) No amendment or modification shall be made
which would retroactively impair any right to any benefit under
the Plan which any Member, Beneficiary or Surviving Spouse would
otherwise have had at the date of such amendment by reason of the
contributions theretofore made, except as provided in Section
17.2 below, or (ii) make it possible for any part of the funds of
the Plan (other than such part as is required to pay taxes, if
any, and administrative expenses as provided in Section 13.4) to
be used for or diverted to any purposes other than for the
exclusive benefit of Members and their Beneficiaries and
Surviving Spouses under the Plan prior to the satisfaction of all
liabilities with respect thereto.
17.2 Retroactivity. Subject to the provisions of
Section 17.1, any amendment, modification, suspension or
termination of any provisions of the Plan may be made
retroactively if necessary or appropriate to qualify or maintain
the Plan, the Trust and any contract with an insurance company
which may form a part of the Plan as a plan and trust meeting the
requirements of Sections 401(a) and 501(a) of the Code or any
other applicable section of law (including the Act) and the
Regulations issued thereunder.
17.3 Notices. Notice of any amendment, modification,
suspension or termination of the Plan shall be given by the Board
of Directors or the Administrative Committee, whichever adopts
the amendment to the other and to the Trustee, and all
Participating Companies and, where and to the extent required by
law, to Members and other interested parties.
17.4 Termination. Upon termination of the Plan, no
amount shall thereafter be payable under the Plan to or in
respect of any Member except as provided in this Section 17. To
the maximum extent permitted by the Act, transfers, distributions
or other disposition of the assets of the Plan as provided in
this Section 17 shall constitute a complete discharge of all
liabilities under the Plan. The Administrative and Investment
Committees shall remain in existence and all of the provisions of
the Plan which in the opinion of the Administrative Committee are
necessary for the execution of the Plan and the administration
and distribution transfer or other disposition of the assets of
the Plan in accordance with this Section 17.4 shall remain in
force.
17.5 Not a Title IV Termination. If the termination
of the Plan does not constitute a plan termination for purposes
of Title IV of the Act, the assets of the Plan shall be applied
for the benefit of Members, former Members, Beneficiaries and
Surviving Spouses in such manner as the Administrative Committee
shall determine; provided, however, that in the event of any
transfer of assets to a successor employee benefit plan the
provisions of Section 16.3 will apply.
17.6 Title IV Termination. (a) If the termination of
the Plan does constitute a plan termination for purposes of Title
IV of the Act, then the rights of all Members to their Retirement
Benefits accrued to the date of such termination shall thereupon
be nonforfeitable, but only to the extent that such Retirement
Benefits have then been funded by contributions made prior to
such termination and that such funds are available to provide
such Retirement Benefits upon the allocations hereinafter
provided in this Section 17.6.
(b) Upon receipt by the Administrative Committee
of all necessary PBGC regulatory approvals with respect to the
sufficiency of the assets of the Plan to discharge when due all
obligations thereunder with respect to benefits which are
guaranteed by the PBGC under Title IV of the Act, the assets of
the Plan which remain after reservation of an amount sufficient
to pay all expenses of final administration shall be allocated,
to the extent sufficient, in the following order of priority:
(i) To provide for the benefits payable under Section
11 of the Plan or, if the Plan existed on December 31, 1975, the
corresponding Section or Sections of the Plan as in effect on
December 31, 1975, to or in respect of Members who retired or
died, who could have retired, or who, having terminated Service,
either began receiving payments of such benefits or could have
begun receiving such payments if they had not elected to defer
commencement of such payments, at least three years prior to the
termination date, determined in each case on the basis of the
provisions of the Plan at any time during the five year period
ending on the termination date when such benefits were or would
have been the lowest and without regard to any increases in such
benefits which accrued less than three years prior to the
termination date; then
(ii) To provide all other benefits under the Plan which
are guaranteed by the PBGC under Title IV of the Act, or which
would be guaranteed if Sections 4022(B)(a) and 4022(b)(5) of the
Act were not applicable, but which have not been allocated under
(i) above; then
(iii) To provide all other benefits which had become
nonforfeitable under the Plan prior to the termination date but
which have not been allocated under (i) or (ii) above; then
(iv) To provide all other benefits which had accrued
under the Plan prior to the termination date but which have not
been allocated under (i), (ii) or (iii) above; then
(v) Any surplus assets of the Plan remaining after the
payment of all expenses of final administration and after the
satisfaction of all liabilities accrued to the termination date
with respect to Members, former Members, Beneficiaries and
Surviving Spouses under the Plan shall revert to the Company.
(c) The foregoing allocations shall be made by
the Administrative Committee in accordance with determinations
made pursuant to the Labor Department Regulations. If the
balance remaining for allocation under any of the foregoing
Sections 17.6(b)(i), (ii), (iii), (iv) or (v) is insufficient to
provide in full the allocations under such Section, allocations
to individuals under such Section shall be reduced pro rata
(except that, under Section 17.6(b)(iii) only, such balance shall
first be allocated to provide the benefits described therein
determined on the basis of the provisions of the Plan which were
in effect at the beginning of the five year period ending on the
termination date and then, if the balance remaining for
allocation is sufficient, to provide the benefits described
therein which result from each successive amendment to the Plan
during such five year period until the first such amendment as to
which such balance is insufficient before reducing such
allocation pro rata) and no allocations shall be made under a
subsequent Section. The assets of the Plan allocated in
accordance with Sections 17.6(b)(i), (ii), (iii) and (iv) above
shall be distributed in such manner as the Administrative
Committee shall determine, including without limitation, lump sum
cash payments, cash installments, the purchase of immediate or
deferred annuities or any combination of the foregoing as the
PBGC and, if applicable, the IRS, may approve.
17.7 Asset Allocation by Court. Notwithstanding the
provisions of Section 17.6, if the PBGC notifies the
Administrative Committee that it is unable to determine whether
the assets of the Plan are sufficient (or that such assets are
insufficient) to discharge when due all obligations thereunder
with respect to benefits which are guaranteed by the PBGC under
Title IV of the Act, then the assets of the Plan shall be
allocated and distributed only as a court having competent
jurisdiction over the Plan and the Trust, or a trustee appointed
by such court, shall direct or permit.
17.8 Partial Termination. In the event of a partial
termination (within the meaning of the Act) of the Plan has
occurred then (i) the rights of all Members affected thereby to
their Accrued Benefits accrued to the date of such partial
termination shall thereupon be nonforfeitable, but only to the
extent that such Accrued Benefits have then been funded by such
portion of the assets of the Trust as are determined to be
properly allocable to such Members and that such portion of
assets is available to provide such Retirement Benefits upon the
allocations provided in Section 17.6, and (ii) the provisions of
Sections 16.3, 17.2, 17.3, 17.4 and 17.7 which in the opinion of
the Administrative Committee are necessary for the execution of
the Plan and the allocation and distribution of the assets of the
Plan shall apply. If a partial termination of the Plan has
occurred as to any Participating Company, then to the maximum
extent permitted by the Act, only the Participating Company as to
which the partial termination of the Plan has occurred shall be
liable to the PBGC for any insufficiency of assets.
SECTION 18. TOP HEAVY PROVISIONS
18.1 Top Heavy Plan. The Plan will be considered a
Top Heavy Plan for any Plan Year if it is determined to be a Top
Heavy Plan as of the last day of the preceding Plan Year (or,
with respect to the first Plan Year, the last day of such Plan
Year). For purposes of determining whether the Plan is a Top
Heavy Plan, when appropriate, actuarial assumptions which reflect
reasonable mortality experience and a reasonable interest rate
that uniformly applies for accrual purposes under all plans
maintained by the Company and its Affiliates shall be used. Such
actuarial assumptions shall be the same assumptions used to
determine benefits under Section 11. The present value of a
Member's Accrued Benefit shall be determined as of the last
Valuation Date used for computing Plan costs for minimum funding
purposes which occurs within the Plan Year in which the
determination is being made, and shall include amounts
distributed to or on behalf of the Member within the four
preceding Plan Years. Notwithstanding any other provisions of
the Plan, the provisions of this Section 18 shall apply and
supersede all other provisions of the Plan during each Plan Year
with respect to which the Plan is determined to be a Top Heavy
Plan.
18.2 Definition for Section 18. For purposes of this
Section 18 and as otherwise used in the Plan, the following terms
shall have the meanings set forth below:
(a) "Determination Date" means the last day of
the preceding Plan Year or the last day of the first Plan Year.
(b) "Key Employee" means
(i) each person (and his Beneficiary) who at
any time during the five Plan Years ending on the Determination
Date:
(A) was an officer of the Company or an
Affiliate having an annual Salary greater than 50% of the amount
in effect under Section 415(b)(1)(A) of the Code for any such
Plan Year;
(B) was one of the 10 Employees owning
the largest interest of the Company and its Affiliates but only
if he received Salary equal to or greater than the dollar amount
applied for purposes of Section 415(c)(1)(A) of the Code for the
calendar year ending coincident with or immediately after the
Determination Date;
(C) owned at least five percent of an
Employer's outstanding shares of stock or at least five percent
of the total combined voting power of an Employer's shares of
stock; or
(D) owned at least one percent of an
Employer's shares of stock or at least one percent of the total
combined voting power of an Employer's shares of stock, and whose
annual Salary from the Employer exceeds $150,000.
(ii) The following special rules apply to
this definition:
(A) No more than 50 officers, or, if
less, the greater of three or 10% of all Employees will be Key
Employees under Section 18.2(b)(i)(A). If there are more
officers than are counted under the preceding sentence, only
those who had the highest aggregate Salary, during the five Plan
Years ending on the Determination Date will be considered Key
Employees.
(B) A person is an officer only if he
is in regular and continued service as an administrative
executive of the Company or a Participating Company.
(C) No person will be a Key Employee
under more than one paragraph of this definition unless he also
is a Beneficiary of a deceased Key Employee.
(D) A person will be treated as owning
all shares of stock which he owns directly or constructively by
application Section 318 of the Code.
(E) For purposes of determining whether
a person is a one percent or five percent owner of the Company or
any Affiliate, his ownership interest in any entity related to
the Company solely by reason of Sections 414(b), (c) and (m) of
the Code shall be disregarded.
(F) For purposes of determining whether
a person receives an annual Salary of more than $150,000, Salary
received from each Employer required to be aggregated under
Sections 414(b), (c) and (m) of the Code shall be taken into
account.
(c) "Non-Key Employee" means (i) any Employee who
is not a Key Employee, or (ii) a Beneficiary of a Non-Key
Employee.
(d) "Permissive Aggregation Group" means all
qualified employee pension benefit plans in the Required
Aggregation Group and any qualified employee pension benefit
plans sponsored by the Company or an Affiliate which are not part
of the Required Aggregation Group, but which satisfy the
requirements of Sections 401(a)(4) and 410 of the Code when
considered together with the Required Aggregation Group and which
the Company elects to have included in the Permissive Aggregation
Group.
(e) "Required Aggregation Group" means the Plan
and any other qualified employee pension benefit plan that was
sponsored during the five year period ending on the applicable
Determination Date by the Company or an Affiliate (i) in which a
Key Employee participates or (ii) which enables the Plan to meet
the requirements of Sections 401(a)(4) or 410 of the Code.
(f) "Top Heavy Group" means all qualified
employee pension benefit plans of the Company and its Affiliates
in the Required Aggregation Group and any other qualified
employee benefit plan of the Company and its Affiliates which the
Company elects to aggregate as part of a Permissive Aggregation
Group if, on any Determination Date, the Value of the cumulative
annual accrued benefits for Key Employees under all defined
benefit plans and the aggregate Value of all Key Employees'
accounts under all defined contribution plans exceed 60% of a
similar sum determined for all Employees. For purposes of this
computation, the account balances and cumulative annual accrued
benefits of a Member (i) who is a Non-Key Employee but who was a
Key Employee in a prior Plan Year, or (ii) who has not been
credited with at least one Hour of Service with any Employer at
any time during the five year period ending on the Determination
Date will be disregarded. If the aggregated plans do not have
the same Determination Date, this test will be made using the
Value calculated as of each plan's Determination Date occurring
during the same Plan Year.
(g) "Top Heavy Plan" means the Plan if, on any
Determination Date, the present Value of the cumulative accrued
benefits under the Plan for Key Employees exceeds 60% of the
Value of the cumulative accrued benefits under the Plan for all
Employees. For purposes of the comparison, the cumulative
accrued benefits of all Non-Key Employees who were, but no longer
are, Key Employees will be disregarded. The Plan is Super Top
Heavy if it would be a Top Heavy Plan if 90% were substituted for
60% wherever it appears in the definition of Top Heavy Plan and
Top Heavy Group.
(h) "Top Heavy Plan Year" means any Plan Year
during which the Plan is Top Heavy or part of a Top Heavy Group.
(i) "Value" means:
(i) for all defined benefit plans, the
present value calculated as provided in those plans; and
(ii) for all defined contribution plans, the
fair market value of each Member's account (including amounts
attributable to voluntary employee contributions from a qualified
employee pension benefit plan sponsored by the Company or an
Affiliate) determined as of the most recent Determination Date
increased by:
(A) distributions made during the five
Plan Years ending on the Determination Date (except distributions
already included in determining the Value of the accounts and
distributions made during the five Plan Years preceding the
Determination Date under a terminated plan which, if it had not
been terminated, would have been required to be included in the
Required Aggregation Group); and
(B) all rollover contributions
distributed from the plans to a qualified employee benefit plan
not sponsored by the Company or an Affiliate, and decreased by;
(C) any deductible employee
contributions; and
(D) rollover contributions received by
the plans from a qualified employee benefit plan not sponsored by
the Company or an Affiliate; and
(E) rollover contributions distributed
from the Plan to a qualified employee pension benefit plan
sponsored by the Company or an Affiliate.
18.3 Minimum Vesting. (a) If a Plan is a Top Heavy
Plan with respect to any Plan Year, the nonforfeitable percentage
of the Accrued Benefit derived from Company contributions of each
Member who is credited with at least one Hour of Service on or
after the date the Plan becomes Top Heavy shall not be less than
the amount determined in accordance with the following vesting
schedule:
Years of Service Percentage
Less than 2 years 0%
2 years but less than 3 years 20%
3 years but less than 4 years 40%
4 years but less than 5 years 60%
5 years but less than 6 years 80%
6 or more 100%
(b) In the event the vesting provisions of
Section 8.1 are amended, or changed on account of the Plan
becoming or ceasing to be a Top Heavy Plan, any Member who has
completed at least three Years of Service may elect to have the
amount of his nonforfeitable right to his Retirement Benefit
computed under the Plan without regard to such amendment or
change by notifying the Administrative Committee in writing
within the election period hereinafter described. The election
period shall begin on the date such amendment is adopted or the
date such change is effective, as the case may be, and shall end
no earlier than the latest of the following dates: (i) the date
which is 60 days after the day such amendment is adopted; or (ii)
the date which is 60 days after the day such amendment or change
becomes effective; or (iii) the date which is 60 days after the
day the Member is given written notice of such amendment or
change by the Administrative Committee. Any election made
pursuant to this Section 18.3(b) shall be irrevocable.
18.4 Minimum Benefits. (a) Subject to the
provisions of Section 18.5, if the Plan is a Top Heavy Plan at
any point in time, the Accrued Benefit derived from the Company's
contributions for each Member who has completed a Year of Service
regardless of whether he is employed by the Employer on the last
day of the Plan Year and who is a Non-Key Employee shall not,
regardless of the Member's Salary, at such point, be less than
such Member's Average Compensation, multiplied by the lesser of
(i) two percent multiplied by the number of Years of Service or
(ii) 20%. For purposes of the preceding sentence, Years of
Service shall not include any Year of Service credited with
respect to Plan Years which began prior to January 1, 1984, or
any other Year of Service credited with respect to a Plan Year
during which the Plan was not a Top Heavy Plan.
(b) For purposes of this Section 18.4, "Average
Compensation" shall mean the average of a Member's Salary (or to
the extent required by the Code or Section 1.415-2(d) of the IRS
Regulations) for the period of five consecutive years (or, if the
Member does not have five consecutive years, his actual number of
consecutive years) during which the Member had the greatest
Salary (or to the extent required by the Code or Section 1.415-2(d)
of the IRS Regulations).
18.5 Limitations on Benefits. (a) For each Plan
Year that the Plan is a Top Heavy Plan, 1.0 shall be substituted
for 1.25 as the multiplicand of the dollar limitation in
determining the denominator of the defined benefit plan fraction
and of the defined contribution plan fraction for purposes of
Section 12.
(b) If, after substituting 90% for 60% wherever
the latter appears in Section 416(g) of the Code, the Plan is not
determined to be a Top Heavy Plan then the provisions of Section
18.5(a) shall not be applicable if the Accrued Benefit of any
Member who is a Non-Key Employee is determined in accordance with
Section 18.4(a) by substituting "three percent" for "two percent"
in Section 18.4(a) and increasing "20%" in Section 18.4(a) by one
for each Plan Year described in the last sentence of Section
18.4(a), but not beyond "30%".
18.6 Other Plans. If, with respect to a Non-Key
Employee who benefits in a Plan Year under both a defined
contribution and defined benefit plan which are Top Heavy Plans
maintained by the Employer, a top heavy minimum benefit is not
provided for such Plan Year under both plans, then such
determination for such Plan Year shall be made in conformity with
the comparability analysis described in Q&A M-12 of Section
1.416-1 of the IRS Regulations. Such analysis shall be modified,
where a factor of 1.25 is utilized for such Plan Year in
connection with the satisfaction of the limitations set forth in
Section 415(e) of the Code, in accordance with the last sentence
of Q&A M-14 of Section 1.416-1 of the IRS Regulations.
SECTION 19. LIMITATIONS ON DISTRIBUTIONS TO
CERTAIN HIGHLY PAID EMPLOYEES
19.1 Limitations of Section 19. In order to qualify
the Plan and the Trust as a qualified plan and trust under the
Code the benefits to be provided to certain Members will be
subject to the limitations set forth in this Section 19.
19.2 Application of Section 19. The provisions of
this Section 19.2, and Sections 19.3, 19.5 and 19.6 shall apply
for Plan Years prior to January 1, 1994, to any Member who on any
"Commencement Date" is one of the 25 highest paid employees of
the Employer and whose anticipated annual benefit under the Plan,
commencing at his Normal Retirement Date, provided by
contributions of the Employer will be in excess of $1,500
annually. Commencement Date for purposes of this Section 19
shall mean the Effective Date of the Plan or any subsequent
amendment to the Plan which increases the benefits of the Plan.
19.3 Limitation on Benefits. Notwithstanding any
other provision of the Plan, if during the first 10 years
following a Commencement Date, the Plan is terminated or benefits
become payable to a Member described in Section 19.2 above during
such 10 year period, the amount of contributions (or funds
attributable thereto) by the Employer which may be applied for
the benefit of any such Member shall be limited so that such
amount so applied under the Plan shall not exceed the largest of:
(a) The Employer's contributions (or funds
attributable thereto) which would have been applied to provide
benefits for the Member if the Plan, as in effect on the day
immediately preceding the Commencement Date, had been continued
without change;
(b) $20,000;
(c) The sum of (i) the Employer's contributions
(or funds attributable thereto) which would have been applied to
provide benefits for the Member if the Plan had been terminated
on the day immediately preceding such Commencement Date, plus
(ii) an amount computed by multiplying the smaller of $10,000 or
20% of the Member's average annual Salary during his last five
Years of Service by the number of years since such Commencement
Date;
(d) if the Plan is subject to Section 4021(a) of
the Act and if the Member is a "substantial owner" (as defined in
Section 4022(b)(5) of the Act), the present value of the benefit
guaranteed for such Member under Section 4022 of the Act (or
which would have been guaranteed under such section if the Plan
had terminated on the date payment of the Retirement Benefit
commenced); or
(e) if the Plan is subject to Section 4021(a) of
the Act and if the Member is not a substantial owner the present
value of the maximum benefit guaranteed under Section
4022(b)(3)(B) of the Act (or which would have been guaranteed
under such section if the Plan had terminated on the date payment
of his Retirement Benefit commenced) without regard to any other
limitation imposed by Section 4022 of the Act.
19.4 Unrestricted Benefits. The limitations
established under this Section 19 shall not restrict either the
payment of any monthly benefit due prior to the termination of
the Plan, or the payment of benefits to a Member's Surviving
Spouse under the Plan at any time if such payment shall have
commenced prior to the date of such termination. If the
foregoing limitations would otherwise become applicable the
Administrative Committee may, if it so elects, nevertheless pay
full benefits to or in respect of any Member who executes an
agreement with the Trustee, in form and in substance satisfactory
to the Administrative Committee, which is adequately secured and
which guarantees the repayment of any payment subject to such
limitations.
19.5 Use of Reserves Resulting from Limitations. Any
additional reserves arising by the application of the foregoing
limitations shall be used and applied for the benefit of the
other Members and their Beneficiaries and Surviving Spouses under
the Plan; provided, however, that if sufficient funds are
available to provide in full for the benefits accrued for all
such other Members and their Beneficiaries and Surviving Spouses
under the Plan, then such additional reserves shall be used, to
the extent available, to provide the benefits under the Plan of
the Members whose benefits would otherwise have been restricted
by operation of this Section 19.
SECTION 20. GENERAL LIMITATIONS AND PROVISIONS
20.1 No Right to Continued Employment. Nothing
contained in the Plan shall give any Employee the right to be
retained in the employment of the Company, any Participating
Company or any of its subsidiaries or affiliated or associated
corporations or affect the right of any such Employer to dismiss
any Employee. The adoption and maintenance of the Plan shall not
constitute a contract between the Employer and any Employee or
consideration for, or an inducement to or condition of, the
employment of any Employee.
20.2 Trust is Sole Source of Benefits. The Trust
shall be the sole source of benefits under the Plan and, except
as otherwise required by the Act, the Employer, the
Administrative Committee, and the Investment Committee, assume no
liability or responsibility for payment of such benefits, and
each Member, Surviving Spouse, Beneficiary or other person who
shall claim the right to any payment under the Plan shall be
entitled to look only to the Trust for such payment and shall not
have any right, claim or demand therefor against the Employer, or
the Administrative Committee or the Investment Committee or any
member thereof or any Employee or director of the Employer.
20.3 Payment on Behalf of Payee. If the
Administrative Committee shall find that any person to whom any
amount is payable under the Plan is found by a court of competent
jurisdiction to be unable to care for his affairs because of
illness or accident, or is a minor, or has died, then any payment
due him or his estate (unless a prior claim therefor has been
made by a duly appointed legal representative) may, if the
Administrative Committee so elects, be paid to his spouse, a
child, a relative, an institution maintaining or having custody
of such person, or any other person deemed by the Administrative
Committee to be a proper recipient on behalf of such person
otherwise entitled to payment. Any such payment shall be a
complete discharge of the liability of the Plan and the Trust
therefor.
20.4 No Alienation. Except insofar as may otherwise
be required by law or pursuant to the terms of a Qualified
Domestic Relations Order, no amount payable at any time under the
Plan and the Trust shall be subject in any manner to alienation
by anticipation, sale, transfer, assignment, bankruptcy, pledge,
attachment, charge or encumbrance of any kind nor in any manner
be subject to the debts or liabilities of any person and any
attempt to so alienate or subject any such amount, whether
presently or thereafter payable, shall be void. If any person
shall attempt to, or shall, alienate, sell, transfer, assign,
pledge, attach, charge or otherwise encumber any amount payable
under the Plan and Trust, or any part thereof, or if by reason of
his bankruptcy or other event happening at any such time such
amount would be made subject to his debts or liabilities or would
otherwise not be enjoyed by him, then the Administrative
Committee, if it so elects, may direct that such amount be
withheld and that the same or any part thereof be paid or applied
to or for the benefit of such person, his spouse, children or
other dependents, or any of them, in such manner and proportion
as the Administrative Committee may deem proper.
20.5 Missing Payee. If the Administrative Committee
cannot ascertain the whereabouts of any person to whom a payment
is due under the Plan, and if, after five years from the date
such payment is due, a notice of such payment due is mailed to
the last known address of such person, as shown on the records of
the Administrative Committee or the Employer, and within three
months after such mailing such person has not made written claim
therefor, the Administrative Committee, if it so elects, after
receiving advice from counsel to the Plan, may direct that such
payment and all remaining payments otherwise due to such person
be canceled on the records of the Plan and the amount thereof
applied to reduce the contributions of the Participating Company,
that had employed the Member, and upon such cancellation, the
Plan and the Trust shall have no further liability therefor,
except that, in the event such person later notifies the
Administrative Committee of his whereabouts and requests the
payment or payments due to him under the Plan, the amount so
applied shall be paid to him as provided in Section 11.
20.6 Subject to Trust Agreement. Any and all rights
or benefits accruing to any persons under the Plan shall be
subject to the terms of the Trust Agreement which the Company
shall enter into with the Trustee providing for the
administration of the Trust Fund.
20.7 Required Information. Each Member shall file
with the Administrative Committee such pertinent information
concerning himself, his spouse, his Beneficiary or any other
person as the Administrative Committee may specify and in such
manner and form as the Administratice Committee may specify or
provide, and no Member, Surviving Spouse or Beneficiary, or other
person shall have any rights or be entitled to any benefits or
further benefits under the Plan unless such information is filed
by or with respect to, him.
20.8 Subject to Insurance Contract. If the payment
of any benefit under the Plan is provided for by a contract with
an insurance company the payment of such benefit shall be subject
to all the provisions of such contract.
20.9 Communications to Committees. All elections,
designations, requests, notices, instructions, and other
communications from a Participating Company, a Member,
Beneficiary, Surviving Spouse or other person to the
Administrative Committee required or permitted under the Plan
shall be in such form as is prescribed from time to time by the
Administrative Committee, shall be mailed by first-class mail or
delivered to such location as shall be specified by the
Administrative Committee, and shall be deemed to have been given
and delivered only upon actual receipt thereof by the
Administrative Committee at such location.
20.10 Communications from Participating Company or
Committees. All notices, statements, reports and other
communications from a Participating Company or either Committee
to any Eligible Employee, Member, Beneficiary or other person
required or permitted under the Plan shall be deemed to have been
duly given when delivered to, or when mailed by first class mail,
postage prepaid and addressed to, such Eligible Employee, Member,
Beneficiary or other person at his address last appearing on the
records of the Administrative Committee.
20.11 Gender; Tense. Whenever used in the Plan the
masculine gender includes the feminine gender and the singular
includes the plural, unless the content indicates otherwise.
20.12 Captions. The captions preceding the Sections
of the Plan have been inserted solely as a matter of convenience
and in no way define or limit the scope or intent of any
provisions of the Plan.
20.13 Applicable Law. The Plan and all rights
thereunder shall be governed by and construed in accordance with
the Act and the laws of the State of New York.
OGDEN PROJECTS PENSION PLAN
APPENDIX I
ACTUARIAL ASSUMPTIONS AND TABLES
Except as limited in Section 2.25, the actuarial tables
and interest rates used to calculate the Equivalent Actuarial Value
or Actuarial Equivalent of a particular form of benefit shall be as
follows:
Interest: Eight percent, compounded annually.
Mortality: 1983 Group Annuity Table weighted to reflect
80% of the male and 20% of the female annuity
rates.
Provided, however, that for purposes of calculating Equivalent Actuarial
Values under Section 11.6, the interest rate shall be equal to the rate
promulgated by the Pension Benefit Guaranty Corporation for valuing annuities
of pension plans terminating as the first day of the Plan Year that contains
the proposed distribution date.