THE PEP BOYS - MANNY, MOE & JACK
PENSION PLAN
TABLE OF CONTENTS
SECTION PAGE
INTRODUCTION 1
DEFINITIONS 3
2.1 Definitions 3
2.2 Construction 18
PARTICIPATION AND SERVICE 19
3.1 Eligibility to Participate 19
3.2 Cessation of Participation 19
3.3 Changes in Status and Transfers to Affiliates 20
3.4 Reemployment 21
PLAN BENEFITS 22
4.1 Normal Retirement 22
4.2 Deferred Retirement 23
4.3 Early Retirement 24
4.4 Disability Benefit 24
4.5 Termination Benefit 24
4.6 Form of Payments 25
4.7 Death Prior to the Annuity Starting Date 29
4.8 Form of Pension Payments 30
4.9 Restrictions and Limitations on Distributions 30
4.10 Restrictions on Death Distributions 31
4.11 Cash-Out of Small Benefits 32
4.12 Rollovers from the Plan 33
4.13 Payment to an Alternate Payee 33
VESTING 34
5.1 Vesting Schedule 34
5.2 Forfeitures 34
5.3 Reemployment 34
FUNDING 36
6.1 Contributions by Employer 36
6.2 Insurance 36
6.3 Investment Policies 36
AMENDMENT AND TERMINATION 38
7.1 Amendments Generally 38
7.2 Amendments to Vesting Schedule 38
7.3 Termination, Discontinuance of Contributions or
Curtailment 39
7.4 Distributions on Termination 39
7.5 Action by Company 39
ADMINISTRATION 40
8.1 Duties and Responsibilities of Fiduciaries;
Allocation of Responsibility Among Fiduciaries for
Plan and Fund Administration 40
8.2 Allocation of Duties and Responsibilities 41
8.3 Expenses 41
8.4 Claims Procedure 41
8.5 Records and Reports 43
8.6 Other Powers and Duties 44
8.7 Rules and Decisions 45
8.8 Authorization of Benefit Payments 45
8.9 Application and Forms for Benefits 45
8.10 Facility of Payment 45
8.11 Indemnification 46
8.12 Resignation or Removal of the Administrative Committee
46
LIMITATIONS ON CONTRIBUTIONS AND BENEFITS 48
9.1 Determination by Internal Revenue Service 48
9.2 Conditional Contributions 48
9.3 Twenty-Five HCE Limitation 48
9.4 General Limitation on Benefits 49
9.5 Suspension of Benefits on Reemployment 49
MERGER, TRANSFER OR CONSOLIDATION OF PLANS 52
10.1 Plan Assets 52
MISCELLANEOUS 53
11.1 Mandatory Commencement of Benefits 53
11.2 Nonguarantee of Employment 53
11.3 Rights to Fund Assets 53
11.4 Nonalienation of Benefits 54
11.5 Inability to Locate Payee 54
11.6 Applicable Law 54
DETERMINATION OF TOP-HEAVY STATUS 55
12.1 General 55
12.2 Top-Heavy Plan 55
12.3 Super Top-Heavy Plan 56
12.4 Cumulative Accrued Benefits and Cumulative Accounts 56
12.5 Definitions 56
12.6 Minimum Annual Retirement Benefit 57
12.7 Vesting 58
12.8 Defined Benefit and Defined Contribution Plans 59
ERISA TRANSITION PROVISIONS 60
13.1 Scope and Purpose 60
13.2 Calculation of Benefit 60
13.3 Form of Payment of Normal, Late, Early and Disability
Benefit 60
13.4 Payment of Vested Benefits 62
13.5 Death Benefits 63
13.6 Transfer of Benefit 64
13.7 Actuarial Equivalency 66
THE PEP BOYS - MANNY, MOE & JACK PENSION PLAN
INTRODUCTION
THE PEP BOYS - MANNY, MOE & JACK Pension Plan (the "Plan") is
established and maintained in accordance with the terms of this
instrument. The assets of this Plan are held by the Trustee in
accordance with the terms of the Trust Agreement, which is
considered to be an integral part of this Plan. Except as
provided herein or in the Trust Agreement, the Trustee has the
exclusive authority to manage and control the assets of this
Plan. Except as otherwise noted herein, this amended and
restated version of the Plan applies to those Participants who
are credited with an Hour of Service with the Employer on or
after January 1, 1989.
The Plan is further amended effective January 1, 1989 to
comply with the Tax Reform Act of 1986, as amended, ("TRA 86")
except for those provisions that became effective in years prior
to 1989 as described below, or as specifically noted in the Plan.
(1) Titles XI and XVIII of TRA '86;
(2) Subtitle C of Title IX of OBRA '86;
(3) Optional Form of Benefit Regulations;
(4) Temporary regulations under section 414(q) and (s);
(5) Proposed regulations under sections 401(a)(9);
(6) Notice 87-20, regarding amendments to sections
411(a)(11)(B) and 417(e)(3) of the Code made by section
1139 of TRA '86; and
(7) Notice 87-21, regarding changes to section 415 of the Code
made by TRA '86;
The rights of those individuals (or their beneficiaries) who
terminated employment prior to January 1, 1989, in and to their
benefits payable from the Plan, are governed by the terms and
conditions of the Plan in effect prior to such date.
ARTICLE II
DEFINITIONS
2.1 DEFINITIONS. When used in this Plan, the following
initially capitalized words and phrases shall have the meanings
indicated herein:
ACCRUED ANNUAL PENSION means as of any applicable date, the
pension determined in accordance with the provisions of Section
4.1 that the Participant would be entitled to receive commencing
on his Normal Retirement Date based on his Compensation and Years
of Credited Service through the applicable date. An Accrued
Annual Pension to which a Former Participant is entitled shall
not be increased or decreased by reason of any amendments to the
Plan adopted on or after the date he ceased to be a Participant
or the date of his Termination.
ACTUARIAL EQUIVALENT(CE) OR ACTUARIALLY EQUIVALENT means a
benefit of equivalent current value to the benefit which would
otherwise have been provided on the basis of the following
assumptions and determined as of the applicable Annuity Starting
Date:
For lump sum distributions, the UP-1984 Table of Mortality and
the immediate or deferred interest rate, as applicable, used by
the Pension Benefit Guaranty Corporation (in effect on January 1
of the Plan Year in which the distribution occurs) for valuing
benefits in pay status for plans terminating at the same time,
shall be used. The Actuarial Equivalent value of a lump sum
distribution that is payable to a Former Participant prior to
Early Retirement Date, shall be the Actuarial Equivalent value of
the benefit determined as of Normal Retirement Date (using the
applicable PBGC rate). For conversions under Section 4.6(b), for
optional forms paid according to Section 4.6(e), early retirement
under Section 4.3, conversions with respect to annuity payments
made pursuant to qualified domestic relations orders and
adjustments under Section 9.4, the UP-1984 Table of Mortality at
7 1/2 percent interest, shall be used. For purposes of establishing
present value for Top-Heavy determinations, interest at 7 1/2% shall
be used and the UP-1984 Table of Mortality.
ACTUARY means an enrolled actuary qualifying as such in
accordance with Title III of ERISA or any firm or entity
employing such enrolled actuaries.
ADMINISTRATIVE COMMITTEE means the individual or group of
individuals appointed to manage the administration of this Plan.
AFFILIATE means any employer which has not adopted this Plan
and is not a Participating Employer, but which is included as a
member with the Employer in a controlled group of corporations,
or which is a trade or business (whether or not incorporated)
included with the Employer in a brother-sister group or combined
group of trades or businesses under common control or which is a
member of an affiliated service group in which the Employer is a
member, determined in each instance in accordance with the
appropriate sections of the Code.
ANNUITY STARTING DATE means the first day on which benefits
are payable as an annuity or in the case of benefits not payable
as an annuity, the first day on which all events have occurred
which entitle the Participant or Former Participant to the
benefits.
BENEFICIARY means the individual or entity designated to
receive any death benefits payable under the Plan.
Anything herein to the contrary notwithstanding, in the case
of a married Participant or Former Participant, no Beneficiary
designation which designates a Beneficiary other than the
Participant's Spouse shall be effective unless such designation
constitutes a valid waiver of the qualified joint and survivor
annuity. In the event that the Participant failed to designate a
Beneficiary or is predeceased by all designated primary and
contingent Beneficiaries, death benefits under this Plan shall be
payable to the following classes of recipients, each class to
take to the exclusion of all subsequent classes, and all members
of each class to share equally:
(1) Surviving Spouse;
(2) lineal descendants (including adopted children and
step-children), by right of representation;
(3) surviving parents;
(4) surviving brothers and sisters;
(5) Participant's estate.
BOARD OF DIRECTORS means the board of directors of the
Company.
BREAK IN SERVICE OR ONE-YEAR BREAK IN SERVICE means a Plan
Year during which an individual is not credited with more than
500 Hours of Service. An Eligible Employee will not be deemed to
have incurred a Break in Service if he is absent from employment
by reason of (1) pregnancy of the Eligible Employee, (2) birth of
a child of the Eligible Employee, (3) placement of a child in
connection with the adoption of the child by an individual, or
(4) caring for the child during the period immediately following
the birth or placement for adoption. During the period of
absence the Eligible Employee shall be credited with the number
of hours that would be generally credited but for such absence or
if the general number of work hours is unknown, eight Hours of
Service for each normal workday during the leave (whether or not
approved). These hours shall be credited to the Plan Year in
which the leave of absence commences if crediting of such hours
is required to prevent the occurrence of a Break in Service in
such computation period, and in other cases in the immediately
following Plan Year. No more than 501 Hours of Service shall be
credited under this paragraph for any single continuous period
(whether or not such period occurs in a single computation
period).
CODE OR IRC means the Internal Revenue Code of 1986, as
amended, and includes any regulations issued thereunder.
COMPANY means the PEP BOYS - MANNY, MOE & JACK, a Pennsylvania
corporation.
COMPENSATION means, effective with respect to any Participant
who is credited with an Hour of Service on or after January 1,
1993, for any Plan Year, total income reported to the Participant
as wages for the Employee on Box 1 of Form W-2 (Box 10 prior to
1993) less any expense reimbursements and taxable fringe
benefits, including any amounts that the Participant has
authorized the Employer to make on his behalf to a 401(k) plan as
elective deferrals or to a cafeteria plan under Section 125 of
the Code.
Effective January 1, 1989, with respect to Participants who
Terminated employment on or after that date, Compensation shall
be limited to the amount permitted under the applicable
limitation of Section 401(a)(17) of the Code, as amended, in
effect for any Plan Year (adjusted each year to reflect such
higher amount as may be permitted each year under the Code).
Notwithstanding the foregoing, in applying the limits imposed by
Section 401(a)(17) for Plan Years beginning on or after January
1, 1989 and ending on or before January 1, 1994, with respect to
Participants who Terminated employment on or after January 1,
1989, Compensation up to $235,840 may be taken into account for
each Plan Year. Effective January 1, 1994, Compensation shall be
limited to $150,000 (adjusted each year to reflect such higher
amount as may be permitted each year under the Code).
In determining the Compensation of a Participant who is a five
percent owner or Highly Compensated Employee in the group
consisting of the ten Highly Compensated Employees paid the
greatest Compensation during the Plan Year, (the "limited
individuals"), then with respect to any individuals in such
Participant's family,
(i) such individual shall not be considered to be a separate
Participant, and
(ii) any Compensation paid to such individual (and any
applicable contribution or benefit on behalf of such
individual) shall be treated as if it were paid (or on
behalf of) to the five percent owner or Highly
Compensated Employee.
The term "family" shall include only the Spouse of the
Participant and any lineal descendants of the Participant who
might have not attained age 19 before the last day of the Plan
Year.
The term "family unit" shall include the limited individuals
and family.
The maximum amount of Compensation permitted to be taken into
account under Section 401(a)(17) of the Code for any Plan Year,
shall be allocated among the members of the family unit in
proportion to each member's Compensation for the Plan Year.
DIRECT ROLLOVER means a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
DISABILITY means a medically determinable physical or mental
impairment of a permanent nature which prevents a Participant
from performing his customary employment duties without
endangering his health.
DISTRIBUTEE means a Participant or Former Participant. In
addition, the Participant's or Former Participant's Spouse or
former Spouse who is the alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of the
Code, are Distributees with regard to the interest of the Spouse
or former Spouse.
EARLY RETIREMENT AGE means the date on which a Participant has
attained age 55 and completed five Years of Credited Service.
EARLY RETIREMENT DATE means the first day of any month
following attainment of his Early Retirement Age.
EFFECTIVE DATE of this amended and restated Plan means January
1, 1989, except as otherwise provided in the Plan. The original
effective date of the Plan is December 15, 1942.
ELIGIBLE EMPLOYEE means any individual employed by the
Employer. Eligible Employee shall not include any individual who
qualifies as a Leased Employee and any individual whose terms and
conditions of employment are covered by a collective bargaining
agreement that does not provide for participation in the Plan.
Notwithstanding the foregoing, (i) any individual initially
hired or rehired by the Employer or an Affiliate on or after
February 2, 1992, shall not be deemed to be an Eligible Employee
and shall not be eligible to participate or resume participation
in the Plan; and (ii) any individual whose employment status as
of February 1, 1992, is covered by a collective bargaining
agreement that does not provide for participation in the Plan and
whose employment status changes on or after February 2, 1992 so
that he (A) is no longer covered by a collective bargaining
agreement that does not provide for participation in the Plan,
and (B) would otherwise be eligible to participate in the Plan,
shall not be deemed to be an Eligible Employee and shall not be
eligible to participate in the Plan.
ELIGIBLE RETIREMENT PLAN means: (i) an individual retirement
account described in Section 408(a) of the Code; (ii) an
individual retirement annuity described in Section 408(b) of the
Code; (iii) an annuity plan described in Section 403(a) of the
Code; or (iv) a qualified trust described in Section 401(a) of
the Code, that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving Spouse, an Eligible Retirement Plan
is an individual retirement account or individual retirement
annuity.
ELIGIBLE ROLLOVER DISTRIBUTION means any distribution of all
or any portion of the balance to the credit of the Distributee,
but does not include: any distribution that is one of a series
of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of
the Distributee and the Distributee's designated Beneficiary, or
for a specified period of ten years or more; any distribution to
the extent such distribution is required under Section 401(a)(9)
of the Code; and the portion of any distribution that is not
includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities) and any other distribution that does not
qualify as an Eligible Rollover Distribution, as defined in
Section 401(a)(31)(C) of the Code.
EMPLOYEE means any individual employed in a common law
employment arrangement with the Employer. A Leased Employee
shall be deemed to be an Employee.
EMPLOYER means the Company and any Participating Employer,
which with the approval of the Board of Directors, has adopted
this Plan.
ENTRY DATE means January 1 and July 1 of each Plan Year.
ERISA means the Employee Retirement Income Security Act of
1974, as amended, and includes any regulations issued thereunder.
FINAL AVERAGE COMPENSATION means the average monthly
Compensation for the five consecutive Plan Years, out of the last
ten Plan Years that a Participant completes, coincident with or
prior to the date of determination (or actual period of
employment if shorter than five years) in which a Participant was
employed by the Employer for which such average is the highest.
FORMER PARTICIPANT means any Eligible Employee, who was a
Participant in the Plan and with respect to whom a benefit
remains payable from the Plan.
FUND means the trust or account consisting of the assets of
the Plan.
HIGHLY COMPENSATED EMPLOYEE means:
(a) employees who were five percent owners, as defined in
section 416(i)(1)(iii) of the Code, at any time during the
determination year or the look-back year;
(b) Employees with Compensation greater than $75,000 (as
adjusted at the same time and in the same manner as
Section 415(d) of the Code) during the look-back year;
(c) Employees with Compensation greater than $50,000 (as
adjusted at the same time and in the same manner as
Section 415(d) of the Code) during the look-back year and
who are in the top-paid group for the look-back year;
(d) Employees who are officers during the look-back year and
who have compensation in the look-back year greater than
150% of the contribution limit in Section 415(c) of the
Code; and
(e) Employees who are both described in paragraph (b), (c), or
(d) above when these paragraphs are modified to substitute
the determination year for the look-back year and one of
the 100 Employees who receive the highest compensation
from the Employer during the determination year.
(1) The top-paid group shall consist of the top 20% of
active Employees, ranked on the basis of compensation received
from the Employer during the year excluding Employees with less
than 6 months of service, part-time Employees (less than 17 1/2
hours per week or less than 6 months a year), Employees who are
not yet age 21 and nonresident aliens. These Employees shall not
be excluded for purposes of identifying the particular Employees
in the top-paid group. If the Plan being tested covers only non-
collective bargaining Employees, and collective bargaining
Employees constitute 90 percent or more of the Employer's
Employees, then such collective bargaining Employees shall be
excluded both from the total number of active Employees and the
identification of particular Employees in the top-paid group.
The top-paid group shall not include Employees who perform no
service during the year.
(2) For purposes of determining whether an Employee is
highly compensated, the determination year is the Plan Year for
which the determination is being made. The look-back year shall
be the preceding Plan Year. Notwithstanding the foregoing, the
Administrative Committee shall have the authority to make the
look-back year be the calendar year ending with or within the
current Plan Year of determination. If the Administrative
Committee makes this election, it shall be deemed to apply to all
plans of the Employer and Affiliates.
(3) The number of officers shall be limited to the lesser
of (a) 50, or (b) the greater of 3 or 10 percent of all
Employees. If the Employer does not have at least one officer
whose compensation is in excess of 150% of the limit in Section
415(c) of the Code, then the highest paid officer of the Employer
shall be treated as a Highly Compensated Employee.
(4) For purposes of defining Highly Compensated Employee,
compensation means any permissible definition of compensation as
defined in Section 415(c)(3) of the Code, including elective
contributions. The dollar limits are those for the calendar year
in which the determination or look-back year begins.
(5) The Plan shall take into account Employees of all
employers aggregated under Sections 414(b), (c), (m) and (o) of
the Code, in determining who is highly compensated. Also, for
this purpose, the term "Employee" shall include Leased Employees.
HOURS OF SERVICE means:
(a) PERFORMANCE OF DUTIES. The actual hours for which an
Eligible Employee is paid or entitled to be paid for the
performance of duties by the Employer;
(b) NONWORKING PAID TIME. Each hour for which an Eligible
Employee is paid or entitled to be paid by the Employer on
account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity,
disability, layoff, jury duty, military duty or leave of absence;
provided, however, no more than 501 Hours of Service shall be
credited to an Eligible Employee on account of any single
continuous period during which he performed no duties; and
provided further that no credit shall be given for payments made
or due under a plan maintained solely for the purpose of
complying with applicable workers' or unemployment compensation
or for payments which solely reimburse an Eligible Employee for
medical or medically related expenses incurred by the Eligible
Employee;
(c) BACK PAY. Each hour for which pay, irrespective of
mitigation of damages, is either awarded or agreed to by the
Employer; provided, however, Hours of Service credited under
paragraphs (a) and (b) above shall not be recredited by operation
of this paragraph;
(d) EQUIVALENCIES. The Administrative Committee shall
have the authority to adopt any of the following equivalency
methods for counting Hours of Service that are permissible under
regulations issued by the Department of Labor: (1) Working Time;
(2) Periods of Employment or (3) Earnings.
The adoption of any equivalency method for counting Hours of
Service shall be evidenced by a certified resolution of the
Administrative Committee, which shall be attached to and made
part of the Plan. Such resolution shall indicate the date from
which such equivalency shall be effective.
(e) MISCELLANEOUS. Unless the Administrative Committee
directs otherwise the methods of determining Hours of Service
when payments are made for other than the performance of duties
and of crediting such Hours of Service to Plan Years set forth in
Regulations Sec. 2530.200b-2(b) and (c) promulgated by the Secretary
of Labor, shall be used hereunder and are incorporated by
reference into the Plan.
Participants on military leaves of absence who are not
directly or indirectly compensated or entitled to be compensated
by the Employer while on such leave shall be credited with Hours
of Service as required by Section 9 of the Military Selective
Service Act.
Notwithstanding any other provision of this Plan to the
contrary, an Eligible Employee shall not be credited with Hours
of Service more than once with respect to the same period of
time.
INVESTMENT MANAGER means an investment adviser, bank or
insurance company which meets the requirements of Section 3(38)
of ERISA.
LEASED EMPLOYEE means any person who is not an Employee of the
Employer and who provides services to the Employer if:
(a) such services are provided pursuant to an agreement
between the Employer and any leasing organization;
(b) such person has performed such services for the
Employer (or for the Employer and Affiliates) on a substantially
full-time basis for a period of at least one year; and
(c) such services are of a type historically performed in
the business field of the Employer by Employees.
Notwithstanding the foregoing, a person shall not be deemed to
be a Leased Employee if he is covered by a plan maintained by the
leasing organization and Leased Employees (as determined without
regard to this paragraph) do not comprise more than 20% of the
Employer's nonhighly compensated workforce. Such plan must be a
money purchase pension plan providing for nonintegrated employer
contributions of ten percent of compensation and also providing
for immediate participation and vesting.
LIMITATION YEAR means the Plan Year.
NORMAL ANNUAL PENSION means the lifetime annual pension
determined in accordance with the provisions of Section 4.1.
NORMAL RETIREMENT AGE means the Participant's 65th birthday.
NORMAL RETIREMENT DATE means the first day of the month
coincident with or next following Normal Retirement Age.
PARTICIPANT means an Eligible Employee participating in the
Plan in accordance with the provisions of Article III.
PARTICIPATING EMPLOYER means any direct or indirect subsidiary
of the Company or any other entity designated by the Board of
Directors, which has adopted this Plan with the approval of the
Company. Participating Employers shall be limited to those
direct or indirect subsidiaries of the Company that would be
Affiliates except for the fact that they have adopted the Plan.
PLAN means THE PEP BOYS - MANNY, MOE & JACK Pension Plan, as
herein set forth and as it may be amended hereafter. This Plan
also includes the PEP BOYS - MANNY, MOE & JACK of California
Pension Plan, the assets and liabilities of which were merged
with and into this Plan, effective as of December 31, 1987.
PLAN YEAR means the period from January 1 through December 31
of each year.
SPOUSE (SURVIVING SPOUSE) means the spouse or surviving spouse
of the Participant or Former Participant; provided that a former
spouse will be treated as the spouse or surviving spouse to the
extent provided under a qualified domestic relations order as
described in Section 414(p) of the Code.
TERMINATED (OR TERMINATION) means a termination of employment
with the Employer or with an Affiliate for any reason other than
a transfer of employment from the Employer to an Affiliate or
from an Affiliate to another Affiliate.
TRUST AGREEMENT means the agreements forming a part of the
Plan pursuant to which the assets of the Plan are held and
managed by the Trustee.
TRUSTEE means the trustee or trustees named in the Trust
Agreement, or any successor thereto.
YEARS OF CREDITED SERVICE means the periods of employment
taken into account in determining a Participant's Accrued Annual
Pension or Normal Annual Pension under this Plan. A Participant
shall be credited with a Year of Credited Service for each Plan
Year in which he has completed 1,000 Hours of Service with the
Employer.
A Participant shall be credited with a partial Year of
Credited Service, to the completed month, for the portion of a
Plan Year during which he was not a Participant for the entire
Plan Year, provided that the number of Hours completed by the
Participant during such portion of a Plan Year equal or exceed
the product of (i) 83.33 and (ii) the number of full months the
Participant was actually a Plan Participant in such Plan Year.
A Participant who was employed by the Employer between
December 15, 1978 and December 31, 1978, shall be credited with
.04167 of a Year of Credited Service for such period.
A Participant shall not earn Years of Credited Service prior
to the Entry Date on which he first became a Participant except
that any Participant who was employed on December 14, 1976, shall
earn Years of Credited Service for his pre-participation
eligibility waiting period to the extent that such service would
have been credited as Years of Credited Service, if the
eligibility requirements in effect on December 15, 1976 had been
in effect when such Participant's employment commenced with the
Employer.
YEAR OF SERVICE means:
(a) when applied to eligibility provisions, (i) the
12-month period commencing on an individual's date of employment
with the Employer in which he is credited with 1,000 or more
Hours of Service, and (ii) thereafter, the Plan Year which
includes the first anniversary of the Eligible Employee's initial
date of employment and successive anniversaries of such Plan
Year, in which he is credited with 1,000 or more Hours of
Service; and (b) when applied to vesting provisions, each Plan
Year in which an Eligible Employee is credited with 1,000 Hours
of Service.
An Employee who was credited with 1,000 Hours of Service
in the 12 consecutive month period beginning (i) December 15,
1977 and ending on December 14, 1978; and (ii) beginning January
1, 1978 and ending December 31, 1978, shall earn a Year of
Service for such additional time periods.
Years of Service completed prior to December 15, 1976
shall be disregarded if such service would have been disregarded
under the break in service rules then in effect.
For purposes of determining an Eligible Employee's
eligibility to participate in the Plan pursuant to Section 3.1
and vesting pursuant to Section 5.1, Years of Service shall
include an Eligible Employee's Years of Service (i) as a Leased
Employee of the Employer or an Affiliate (after the employer
became an Affiliate) and not described in Section 414(n)(5) or
(ii) as an Employee of the Employer or an Affiliate (after the
employer became an Affiliate) covered by the terms of a
collective bargaining agreement that does not provide for
participation in this Plan, (iii) while a common law Employee of
the Employer who is not deemed to be an Eligible Employee or as a
common law Employee of an Affiliate, or (iv) while an Employee of
a predecessor organization of the Employer in any case where the
Employer maintains the plan of such predecessor organization.
2.2 CONSTRUCTION. The masculine gender, where appearing in
this Plan, shall be deemed to include the feminine gender, unless
the context clearly indicates to the contrary. Titles of
sections are inserted for convenience and shall not affect the
meaning or construction of the Plan.
ARTICLE III
PARTICIPATION AND SERVICE
3.1 ELIGIBILITY TO PARTICIPATE. Each Eligible Employee who
was a Participant in the Plan on December 31, 1988 shall continue
as a Participant on January 1, 1989 if he is still employed on
that date. Each other Eligible Employee shall commence
participation in the Plan on the Entry Date coincident with or
next following attainment of age 21 and completion of one Year of
Service.
Any individual hired or rehired by the Employer or an
Affiliate on or after February 2, 1992, shall not be eligible to
commence or resume participation in the Plan. Notwithstanding
any provision of this Plan to the contrary, any individual whose
employment status as of February 1, 1992, is covered by the terms
of a collective bargaining agreement that does not provide for
participation in the Plan and whose employment status changes on
or after February 2, 1992 so that he is no longer covered by a
collective bargaining agreement that does not provide for
participation in the Plan, shall not be eligible to participate
in the Plan.
3.2 CESSATION OF PARTICIPATION. An Eligible Employee shall
cease to be a Participant upon the earliest of: (a) the date on
which he retires under the retirement provisions of the Plan; (b)
the date on which he ceases to satisfy the eligibility
requirements of Section 3.1; or (iii) the date on which his
employment Terminates for any reason including death, or
Disability.
3.3 CHANGES IN STATUS AND TRANSFERS TO AFFILIATES.
(a) An Employee who transfers from an Affiliate to the
Employer and becomes an Eligible Employee or an Employee of the
Employer who becomes an Eligible Employee shall be eligible to
participate in the Plan on the date as of which he has satisfied
the eligibility requirements of Section 3.1. He shall commence
participation in the Plan on the later of his transfer or change
in status or the Entry Date next following the date he has
satisfied the eligibility requirements of Section 3.1.
(b) A Participant's status as such under the Plan shall be
changed, as provided below, upon and after the occurrence of:
(1) In the case of a Participant whose employment was not
covered by a collective bargaining agreement at the time the
Participant became such, the date as of which the Participant's
employment becomes covered by a collective bargaining agreement
that excludes such individual from participation in this Plan;
(2) The date as of which a Participant becomes a Leased
Employee; or
(3) The date as of which a Participant is transferred to
or hired by an Affiliate.
(c) The Participant's status under the Plan upon and after the
occurrence of one of the above events shall be modified as
follows:
(1) The Participant's Accrued Annual Pension shall not be
increased or decreased thereafter by reason of the Participant's
continued employment with the Employer or with an Affiliate or by
reason of any increases or decreases in Compensation after such
date; and
(2) The Participant will remain eligible for the benefits
provided by Article IV, if at the time his employment with the
Employer or an Affiliate ceases, he has satisfied the age,
service and other requirements of this Plan for such benefits.
(3) The Participant will continue to be credited with
additional Years of Service if he continues to be employed by the
Employer or an Affiliate except as otherwise provided for under
the Plan.
3.4 REEMPLOYMENT. A Participant who Terminated employment
with the Employer and is reemployed by the Employer shall again
be eligible to become a Participant on the date he again performs
an Hour of Service for the Employer. A former Eligible Employee
who is reemployed by the Employer prior to incurring five
consecutive one year Breaks in Service, shall become eligible to
become a Participant on the Entry Date he has satisfied the age
and service requirements of Section 3.1 or the date he is
reemployed by the Employer, if later. A former Eligible Employee
who is reemployed after incurring five consecutive one year
Breaks in Service shall be treated as a new Eligible Employee and
must meet the requirements of Section 3.1 for purposes of
eligibility to participate.
ARTICLE IV
PLAN BENEFITS
4.1 NORMAL RETIREMENT. A Participant may retire on his Normal
Retirement Date.
Each Participant who retires on his Normal Retirement Date,
and who has not received benefits, under other provisions of the
Plan, shall be entitled to receive the greater of a Normal Annual
Pension or an Accrued Annual Pension determined as of any
previous date on which the Participant was eligible for early
retirement pursuant to Section 4.3. Any Former Participant whose
rights and interests in the Plan are vested, and who has not
received benefits under other provisions of the Plan, shall be
entitled to receive an Accrued Annual Pension commencing on his
Normal Retirement Date and continuing during his lifetime.
The Plan may suspend the benefits of a Participant who
continues in the service of the Employer after Normal Retirement
Date, provided that if such Participant is an Eligible Employee,
such Eligible Employee receives payment from the Employer for 80
Hours of Service during a calendar month. Any Participant whose
Normal Annual Pension is suspended shall be notified in writing
by personal delivery or first class mail during the first month
or payroll period for which payment of benefits is suspended.
The Normal Annual Pension payable to each Participant or
Former Participant shall be equal to .008 of the Participant's
Final Average Compensation, multiplied by his Years of Credited
Service, multiplied by 12.
Notwithstanding the foregoing, in no event shall (i) a
Participant's monthly benefit hereunder exceed $1,666.67; nor
(ii) a Participant's monthly benefit hereunder be less than his
Accrued Annual Pension as of December 31, 1988, (with Final
Average Compensation and Years of Credited Service determined as
of such date) without the limitations on Compensation that became
effective on January 1, 1989.
In addition, the monthly benefit payable to any Participant
who is employed by the Employer on or after January 1, 1994 shall
not be less than his Accrued Annual Pension determined as of
December 31, 1993, (with Final Average Compensation and Years of
Credited Service determined as of such date) based on the
limitations on Compensation that were in effect under Section
401(a)(17) of the Code prior to January 1, 1994.
A Participant or Former Participant to whom Article XIII of
the Plan relates, shall receive the greater of the benefit
described in this Section 4.1 or the benefit set forth in Section
13.2.
4.2 DEFERRED RETIREMENT. A Participant who continues in
employment beyond his Normal Retirement Date may retire on the
first day of any succeeding calendar month that coincides with or
next follows the month in which his actual retirement occurs. A
Participant's deferred retirement benefit shall be determined
either under (a) or (b), whichever produces the greater benefit:
(a) by continuing to apply the formula set forth in
Section 4.1 to his Compensation and Years of Credited Service
after his Normal Retirement Date; or
(b) by using the increased Actuarial Equivalent of the
Participant's benefit which he had accrued under the terms of the
Plan as of his Normal Retirement Date.
4.3 EARLY RETIREMENT. By written notice delivered to the
Administrative Committee before the date his pension is to
commence, effective January 1, 1989, a Participant who has
attained Early Retirement Date and whose employment Terminates on
or after January 1, 1989, may elect to receive an early
retirement pension after Termination. In such event he shall be
entitled to either:
(a) A deferred pension commencing at his Normal Retirement
Date equal to the Accrued Annual Pension determined on the basis
of his Compensation and Years of Credited Service to the date of
his early retirement hereunder; or
(b) A pension commencing as of the first day of any month
coincident with or next following his Early Retirement Date which
is equal to the Actuarial Equivalent of the benefit calculated
under Section 4.1 payable at the Participant's Normal Retirement
Date.
4.4 DISABILITY BENEFIT. A Participant who becomes Disabled
shall be eligible to receive a pension commencing at his Normal
Retirement Date in an amount equal to his Accrued Annual Pension,
determined as of his Disability Date. In lieu of the foregoing,
a Participant may elect to receive his Accrued Annual Pension as
of the first day of any month following his Disability, which
shall be the Actuarial Equivalent of the Participant's benefit
payable at his Normal Retirement Date.
4.5 TERMINATION BENEFIT. A Participant who Terminates his
employment with a vested interest in his Accrued Annual Pension
shall be eligible to receive his benefit in accordance with
Section 4.1 or Section 4.3, as applicable. A Former Participant
who Terminated employment on or after January 1, 1989 who met the
service requirement for early retirement when he Terminated
employment, may elect to receive an early retirement pension as
of the first day of any month coincident with or next following
attainment of age 55.
4.6 FORM OF PAYMENTS.
(a) SINGLE PARTICIPANTS. If a Participant or Former
Participant is single on the Annuity Starting Date, the normal
form of payment, unless elected otherwise within the 90 day
period ending on the Annuity Starting Date, shall be a single
life annuity with payments guaranteed for 120 months.
(b) MARRIED PARTICIPANTS. If a Participant or Former
Participant is married on the Annuity Starting Date, the normal
form of payment, unless elected otherwise, within the 90 day
period ending on the Annuity Starting Date, and with the consent
of the Participant's or Former Participant's Spouse, pursuant to
subsection (d), shall be a qualified joint and survivor annuity,
which shall be the Actuarial Equivalent of the normal form for
single Participants described in Section 4.6(a), as applicable,
payable for life to the Participant or Former Participant and
thereafter, for the life of the Participant's or Former
Participant's Surviving Spouse in an amount equal to 50% of the
amount that was payable to the Participant or Former Participant.
(c) NOTICE AND INFORMATION TO PARTICIPANTS. The
Administrative Committee shall furnish each Participant or Former
Participant with the following information regarding benefits
payable under the Plan in written nontechnical language:
(1) A general description or explanation of the
automatic post-retirement Spouse's benefit described in Section
4.6(b) and single life annuity benefit with payments guaranteed
for 120 months described in Section 4.6(a) and notification of
the Participant's or Former Participant's right to waive the
right to receive his benefits in a qualified joint and survivor
annuity or single life annuity with payments guaranteed for 120
months and the right to make or revoke a previous election to
waive the qualified joint and survivor annuity or single life
annuity with payments guaranteed for 120 months.
(2) A general explanation of the relative financial
effect on a Participant's or Former Participant's benefits of any
of the foregoing elections.
(3) Notification of the availability, upon written
request of a Participant or Former Participant of an explanation
of the financial effect of any of the foregoing elections upon
the requesting Participant's or Former Participant's benefits
under the Plan and notification that each Participant or Former
Participant may make only one such request.
(4) A general explanation of the rights of a
Participant's or Former Participant's Spouse.
The Administrative Committee shall provide a Participant
or Former Participant with the information described in this
Section no later than 30 days and no earlier than 90 days prior
to each Participant's or Former Participant's Annuity Starting
Date.
(d) ELECTION AND REVOCATION OF SPOUSE'S ANNUITIES. A
Participant or Former Participant who is entitled to receive his
benefits or Spouse's benefits in the form described in Section
4.6(a) or (b) may elect to receive such benefits in any other
form permitted by the Plan by giving written notification to the
Administrative Committee during the election period of his intent
to receive his benefits in such other form. Such election period
shall be the 90 day period ending on the Annuity Starting Date.
Any election to waive the qualified joint and survivor annuity
under Section 4.6(b) shall not take effect unless the Spouse of
the Participant or Former Participant consents in writing to such
election and the Spouse's consent acknowledges the effect of such
election and is witnessed by a notary public or a representative
of the Administrative Committee. The requirements with respect
to spousal consent may be waived if it is established to the
satisfaction of the Administrative Committee that the consent may
not be obtained because there is no Spouse or because the Spouse
cannot be located or because of such other circumstances as may
be prescribed by regulation. Any consent necessary under this
provision will be irrevocable and valid only with respect to the
Spouse who signs the consent.
Any election made under this Section may be revoked by the
Participant or Former Participant during the specified election
period. Such revocation shall be effected by written
notification to the Administrative Committee. Following such
revocation, another election under this Section may be made at
any time during the specified election period. A revocation of a
prior waiver may be made at any time by a Participant or Former
Participant without the consent of the Spouse before the Annuity
Starting Date.
Any actual or constructive election under this paragraph (d)
having the effect of providing a Spouse's benefit shall
automatically be revoked if the electing person ceases to have a
Spouse during the election period. However, if the electing
person subsequently remarries, the spousal consent requirements
will automatically be reinstated at that time.
(e) OPTIONAL FORMS. In lieu of the normal form of benefit
set forth in Sections 4.6(a) and (b), a Participant or Former
Participant may elect one of the optional forms of payment
described below. All optional forms of payment shall be the
Actuarial Equivalent of the normal form for single Participants
set forth in Section 4.1, determined as of the Annuity Starting
Date.
(1) LIFE ANNUITY OPTION Guaranteed for 120 months. A
Participant or Former Participant may elect to have his pension
paid in the form of a straight life annuity with payments
guaranteed for 120 months. Under such annuity, payments will be
made monthly during the Participant's or Former Participant's
lifetime in an amount equal to the Participant's or Former
Participant's Normal Annual Pension or Accrued Annual Pension.
If the Participant or Former Participant should die before
receiving 120 months of payments, the remaining payments shall be
payable to a Beneficiary designated by such Participant or Former
Participant.
(2) LIFE ANNUITY OPTION. A Participant or Former
Participant may elect to have his pension paid in the form of a
straight life annuity. Under such annuity, payments will be made
monthly during the Participant's or Former Participant's lifetime
in an amount equal to the Participant's or Former Participant's
Normal Annual Pension or Accrued Annual Pension.
(3) ADDITIONAL OPTIONS. A Participant or Former
Participant to whom the provisions of Article XIII apply may
elect to have his Normal Annual Pension or Accrued Annual Pension
paid in the forms set forth therein.
Any election of an optional form of payment may be revoked by
the Participant or Former Participant prior to the first day on
which such optional form is scheduled to be paid.
If the Surviving Spouse or other joint annuitant, whichever is
applicable, dies before the first day on which an optional form
is scheduled to be paid, the optional form is replaced by the
normal form that would have been paid absent the election of an
optional form.
Any election of an optional form of benefit provided shall
provide that any death benefit payable hereunder shall comply
with the incidental death benefit requirements of Section
401(a)(9)(G) of the Code and regulations thereunder.
4.7 DEATH PRIOR TO THE ANNUITY STARTING DATE. If a
Participant or Former Participant dies prior to the Annuity
Starting Date, a death benefit may be payable under the
circumstances described below.
(a) On the death of a vested Participant or Former
Participant who has reached his Early Retirement Date, his Spouse
shall, if his Spouse has survived him and they have been married
through the one-year period ending on the date of death, be
entitled to receive immediately a monthly benefit equal to one-
half (1/2) of the Participant's Accrued Annual Pension or Normal
Annual Pension determined as of the date of his death, payable as
a qualified joint and 50% survivor annuity set forth in Section
4.6(b) and reduced for early payment, as applicable, in
accordance with Section 4.3.
(b) On the death of a vested Participant or Former
Participant who has not reached his Early Retirement Date, but
who is entitled to a vested interest in his Accrued Annual
Pension, his Spouse shall, if his Spouse has survived him and
they have been married through the one-year period ending on the
date of death, be entitled to receive a monthly benefit, payable
on the Participant's earliest retirement date under the Plan,
equal to one-half (1/2) of the Participant's Accrued Annual
Pension determined as of the date of his death, payable as a
qualified joint and 50% survivor annuity set forth in Section
4.6(b) and reduced for early payment, as applicable, in
accordance with Section 4.3.
(c) A Participant's or Former Participant's Surviving
Spouse shall have the right to elect to defer payment of the
Spouse's survivor benefit until the date the Participant would
have reached his Normal Retirement Date, had he lived.
4.8 FORM OF PENSION PAYMENTS. Payments shall be paid monthly
as of the first of the month, except that the Administrative
Committee shall direct that payments which would otherwise be
less than $20 per month be made quarterly, semi-annually or
annually.
4.9 RESTRICTIONS AND LIMITATIONS ON DISTRIBUTIONS.
Distribution of benefits to a Participant or Former Participant
must commence no later than April l of the calendar year
following the calendar year in which the Participant or Former
Participant attains age 70 1/2; provided, however, that distribution
to a Participant or Former Participant who attained age 70 1/2
before January 1, 1988 and is not a five percent owner as defined
in Section 416(i) of the Code (with respect to the Plan Year
ending in the calendar year in which the Participant or Former
Participant attains age 66 1/2 or any succeeding Plan Year) must
commence no later than April 1 of the calendar year following the
later of the calendar year in which the Participant or Former
Participant attains age 70 1/2 or the calendar year in which the
Participant or Former Participant retires.
To the extent a Participant continues to accrue additional
benefits, his Accrued Annual Pension shall be redetermined
annually to include such additional accruals, but shall not be
offset by the Actuarial Equivalent value of any payments
previously made. The Annuity Starting Date of such Participant
shall be deemed to occur at the date the first payment required
by this Section is due to be paid. Any additional accruals after
benefits commence hereunder shall be paid in accordance with the
election made by the Participant pursuant to Section 4.6.
4.10 RESTRICTIONS ON DEATH DISTRIBUTIONS. Distributions
pursuant to the death of a Participant or Former Participant
shall be distributed no later than December 31 of the calendar
year in which occurs the fifth anniversary of the Participant's
or Former Participant's death. However, if such distribution had
already commenced in the form of payments over a period permitted
by Section 4.5, the remaining benefits may be distributed over
such period.
The first sentence of the preceding paragraph shall not apply
if either condition of (a) or (b) as set forth below are
satisfied:
(a) If the Participant's or Former Participant's
designated Beneficiary is the Surviving Spouse of such
Participant or Former Participant, such distribution shall not be
required to begin prior to the later of (i) December 31 of the
calendar year following the calendar year in which the
Participant or Former Participant died, or (ii) December 31 of
the calendar year in which the Participant or Former Participant
would have attained age 70 1/2, and at such time may be distributed
over the life of such Spouse (if the Surviving Spouse dies prior
to commencement of distributions to such Spouse, then this
subsection (a) shall be applied as if the Surviving Spouse were
the Participant or Former Participant);
(b) If the Participant's or Former Participant's
distribution, or any portion thereof, is payable to a designated
Beneficiary, such distribution or portion thereof may be
distributed in accordance with regulations over the life of such
designated Beneficiary if such distribution or portion thereof
begins not later than December 31 of the calendar year in which
occurs the first anniversary of the Participant's or Former
Participant's death. For purposes of subsections (a) and (b),
life expectancy shall be calculated in accordance with the
provisions of Section 72 of the Code.
Any amount payable to a child pursuant to the death of a
Participant or Former Participant shall be treated as if it were
payable to the Participant's or Former Participant's Surviving
Spouse if such amount would become payable to the Surviving
Spouse upon such child reaching majority (or other designated
event permitted by regulations).
4.11 CASH-OUT OF SMALL BENEFITS.
(a) Notwithstanding any other provision of this Article
IV, the Actuarial Equivalent value of (i) a qualified joint and
survivor annuity payable to a Participant or Former Participant
who meets the requirements of Section 4.6(b) and who is fully
vested or (ii) a single life annuity with payments guaranteed for
120 months payable to a Participant or Former Participant who
shall be distributed to the Participant or Former Participant no
later than the end of the second Plan Year after his retirement
or termination if such Actuarial Equivalent value of his entire
Accrued Annual Pension or Normal Annual Pension is $3,500 or
less. A Participant who has a zero vested interest in his
Accrued Annual Pension shall be deemed to have received a
distribution of his Accrued Annual Pension immediately upon his
Termination of employment.
(b) Notwithstanding any other provision of this Article
IV, the Actuarial Equivalent value of the Spouse's death benefit
payable to the Spouse of a Participant or Former Participant
pursuant to Section 4.7 shall be distributed to such Spouse as
soon as practicable following the Participant's or Former
Participant's death if such Actuarial Equivalent value is $3,500
or less.
(c) In the event a Former Participant who received a
distribution pursuant to subsection (a), is reemployed, his prior
Years of Credited Service attributable to the distribution shall
be restored hereunder, but the Participant's subsequent Accrued
Annual Pension or Normal Annual Pension under the Plan shall be
adjusted to offset the subsequent benefit by the Actuarial
Equivalent of the amount of Accrued Annual Pension attributable
to the distribution.
4.12 ROLLOVERS FROM THE PLAN. Notwithstanding any provision
of the Plan to the contrary, effective January 1, 1993, a
Distributee may elect, at the time and in the manner prescribed
by the Administrative Committee, to have any portion of an
Eligible Rollover Distribution paid directly to an Eligible
Retirement Plan, specified by the Distributee, in a Direct
Rollover.
4.13 PAYMENTS TO AN ALTERNATE PAYEE. Payments to an Alternate
Payee pursuant to a qualified domestic relations order under
Section 414(p) of the Code shall not be made prior to the date
that the Participant or Former Participant has reached or would
have reached his earliest retirement date under the Plan, except
for any small payments provided under Section 4.11.
ARTICLE V
VESTING
5.1 VESTING SCHEDULE. A Participant's right to a Normal
Annual Pension or an Accrued Annual Pension shall be fully vested
and nonforfeitable if he is living and employed by the Employer
or an Affiliate on his Normal Retirement Age. Prior thereto, the
rights and interests of a Participant or Former Participant in
and to his Accrued Annual Pension under the Plan shall become
fully vested and nonforfeitable in accordance with the following
schedule:
Years of ServiceVested PercentageForfeited Percentage
less than 5 years 0% 100%
5 years of more 100% 0%
5.2 FORFEITURES. Notwithstanding Section 5.1, and except as
otherwise provided under the Plan, a Participant's or Former
Participant's rights and interests in the Plan, shall be
forfeited, if prior to full vesting under Section 5.1, he dies
before Normal Retirement Date or actual retirement date,
whichever is later. All forfeitures shall occur immediately upon
Termination of employment and shall not be used to increase the
benefits of any Participant.
5.3 REEMPLOYMENT.
(a)Upon the reemployment of a Participant who was vested
when he Terminated employment, his Years of Service and Years of
Credited Service shall be reinstated as of his date of
reemployment.
(b)Upon the reemployment of a Participant or Employee who
was not vested when he Terminated employment, his Years of
Service and Years of Credited Service shall be reinstated as of
his date of reemployment unless the number of his consecutive
One-Year Breaks in Service equals or exceeds the greater of five
years or the number of his Years of Service with which he was
credited prior to such consecutive One-Year Breaks in Service.
ARTICLE VI
FUNDING
6.1 CONTRIBUTIONS BY EMPLOYER. The Employer shall contribute
to the Fund on account of each Plan Year an aggregate amount, in
cash or other property, determined pursuant to a funding method
and actuarial assumptions, which shall be selected by the
Administrative Committee, and which shall be, in the opinion of
an Actuary who shall be appointed by the Administrative
Committee, designed to fund the Plan's benefits on a sound
actuarial basis. Such amount shall also be sufficient to satisfy
the Plan's "minimum funding standard" within the meaning of the
Code for that Plan Year. The Employer's contribution for each
Plan Year shall be made no later than the time permitted under
the Code and regulations promulgated by the Secretary of the
Treasury.
6.2 INSURANCE. The Employer may enter into a contract or
contracts with an insurance company, qualified to perform
services under the laws of more than one state, which shall
become part of this Plan, for purposes of providing the benefits
and funding the Plan.
6.3 INVESTMENT POLICIES. The investment policies of the Plan
shall be established and may be changed at any time by the
Administrative Committee, which shall thereupon communicate such
policies to any persons having authority to manage the Plan's
assets. The Investment Manager shall have the authority to
invest in any collective investment fund maintained exclusively
for the investment of assets of exempt, qualified employee
benefit trusts. The assets so invested shall be subject to all
the provisions of the instrument establishing such collective
investment fund, as amended from time to time, which is hereby
incorporated herein by reference and deemed to be an integral
part of the Plan and corresponding Trust.
The Administrative Committee, whose membership is to be
determined by the Board, is the named fiduciary to act on behalf
of the Company in the management and control of the Plan assets
and to establish and carry out a funding policy consistent with
the Plan objectives and with the requirements of any applicable
law. The Administrative Committee shall carry out the Company's
responsibility and authority:
(a)To appoint as such term is defined in Section 3(38) of
ERISA, one or more persons to serve as Investment Manager with
respect to all or part of the Plan assets, including assets
maintained under separate accounts of an insurance company;
(b)To allocate the responsibilities and authority being
carried out by the Administrative Committee among the members of
the Administrative Committee.
(c)To take any action appropriate to assure that the Plan
assets are invested for the exclusive purpose of providing
benefits to Participant and their Beneficiaries in accordance
with the Plan and defraying reasonable expenses of administering
the Plan, subject to the requirements of any applicable law.
(d)To establish any rules it deems necessary. The
Administrative Committee including each member and former member
to whom duties and responsibilities have been allocated, shall be
indemnified and held harmless by the Employer with respect to any
breach of alleged responsibilities performed or to be performed
hereunder.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 AMENDMENTS GENERALLY. The Company, by action of the Board
of Directors or to the extent indicated under Section 8.2, by the
Administrative Committee, reserves the right to make from time to
time any amendment or amendments to this Plan or Trust Agreement
that do not cause any part of the Fund to be used for, or
diverted to, any purpose other than the exclusive benefit of
Participants or Former Participants.
Except as may be permitted by ERISA or the Code, no amendment
to the Plan shall decrease a Participant's or Former
Participant's accrued benefits or eliminate an optional form of
benefit as those terms are defined in the Code.
7.2 AMENDMETNS TO VESTING SCHEDULE. Any future amendment to
the Plan which alters the vesting schedule set forth in Section
5.1 or which affects a Participant's nonforfeitable percentage in
and to his rights and interests in benefits provided by Employer
contributions shall be deemed to include the following terms:
(a)The vested percentage of a Participant applicable to
his Accrued Annual Pension under the Plan determined as of the
later of the date such amendment is adopted or the date such
amendment becomes effective shall not be reduced unless the
amendment is for purposes of conforming the Plan to requirements
of the Code, or any other applicable law; and
(b)A Participant with at least three Years of Service on
the later of the adoption or effective date of any amendment to
the Plan may elect to have his nonforfeitable interest computed
under the Plan without regard to such amendment. Such election
must be made within 60 days from the later of date on which the
amendment was adopted, the amendment was effective or the
Participant was issued written notice of such amendment by the
Administrative Committee.
7.3 TERMINATION, DISCONTINUANCE OF CONTRIBUTIONS OR
CURTAILMENT. Subject to the provisions of Title IV of ERISA, the
Plan may be terminated or curtailed, or the Employer's obligation
to contribute to the Fund may be discontinued, in whole or in
part, at any time without the consent of any other person by
action of the Board of Directors.
7.4 DISTRIBUTIONS ON TERMINATION. In the event that the Plan
is completely or partially terminated, the rights of all
affected, actively employed Participants to their Accrued Annual
Pensions to the date of such termination shall become fully
vested and nonforfeitable only to the extent funded. The assets
of the Plan available to provide benefits shall be allocated
among the persons who are entitled or who may become entitled to
benefits under the Plan, subject to and in the manner prescribed
by the applicable provisions of Title IV of ERISA. Any other
provision of the Plan to the contrary notwithstanding, if there
remain any assets of the Plan after all liabilities of the Plan
to Participants or Former Participants and their Beneficiaries
have been satisfied or provided for, such residual assets shall
thereupon be distributed to the Employer subject to and in
accordance with Title IV of ERISA.
7.5 ACTION BY COMPANY. Any action by the Company under the
Plan shall be by a duly adopted resolution of the Board of
Directors or by any person or persons duly authorized by a duly
adopted resolution of that Board to take such action.
ARTICLE VIII
ADMINISTRATION
8.1 DUTIES AND RESPONSIBILITIES OF FIDUCIARIES; ALLOCATION OF
RESPONSIBILITY AMONG FIDUCIARIES FOR PLAN AND TRUST
ADMINISTRATION. A Fiduciary shall have only those specific
powers, duties, responsibilities and obligations as are
specifically given him under this Plan or the Trust. In general,
the Employer, shall have the sole responsibility for making the
contributions provided for under Section 6.1. The Board of
Directors shall have the sole authority to appoint and remove the
Trustee and the Administrative Committee and to amend or
terminate, in whole or in part, this Plan or the Trust. The
Administrative Committee shall have the sole responsibility for
the administration of this Plan, which responsibility is
specifically described in this Plan and the Trust. The
Administrative Committee also shall have the right to appoint and
remove any Investment Manager which may be provided for under the
Trust and to designate investment and funding policies under
which the Trustee and any Investment Manager shall act, which
provisions are described in Section 6.3. Except as provided in
the Trust agreement and within the scope of any funding and
investment policies designated by the Administrative Committee
the Trustee shall have the sole responsibility for the
administration of the Trust and the management of the assets held
under the Trust. It is intended that each Fiduciary shall be
responsible for the proper exercise of his own powers, duties,
responsibilities and obligations under this Plan and the Trust
and generally shall not be responsible for any act or failure to
act of another Fiduciary. A Fiduciary may serve in more than one
fiduciary capacity with respect to the Plan (including service
both as Trustee and as a member of the Administrative Committee).
8.2 ALLOCATION OF DUTIES AND RESPONSIBILITIES. The
Administrative Committee shall be appointed by the Board of
Directors and shall have the sole responsibility for actual
administration of the Plan, as delegated by the Board of
Directors. The Administrative Committee may also adopt
amendments to the Plan, which upon advice of counsel, it deems
necessary or advisable to comply with ERISA or the Code, or any
other applicable law, or to facilitate the administration of the
Plan. The Administrative Committee may designate persons other
than their members to carry out any of its duties and
responsibilities. Any duties and responsibilities thus allocated
must be described in the written instrument. If any person other
than an Eligible Employee of the Employer is so designated, such
person must acknowledge in writing his acceptance of the duties
and responsibilities thus allocated to him. All such instruments
shall be attached to, and shall be made a part of, the Plan.
8.3 ADMINISTRATION AND INTERPRETATION. Subject to the
limitations of the Plan, the Administrative Committee shall have
complete authority and control regarding the administration and
interpretation of the Plan and the transaction of its business,
and shall, from time to time, establish such rules as may be
necessary or advisable in connection therewith. To the extent
permitted by law, all acts and determinations of the
Administrative Committee, as to any disputed question or
otherwise, shall be binding and conclusive upon Participants,
retired Participants, Employees, Spouses, Beneficiaries and all
other persons dealing with the Plan. The Administrative
Committee may deem its records conclusively to be correct as to
the matters reflected therein with respect to information
furnished by an Employee. All actions, decisions and
interpretations of the Administrative Committee in administering
the Plan shall be performed in a uniform and nondiscriminatory
manner.
8.4 EXPENSES. The Employer shall pay all expenses authorized
and incurred by the Administrative Committee in the
administration of the Plan except to the extent such expenses are
paid from the Trust.
8.5 CLAIMS PROCEDURE:
(a)FILING OF CLAIM. Any Participant, Former Participant
or Beneficiary under the Plan ("Claimant"), may file a written
claim for a Plan benefit with the Administrative Committee or
with a person named by the Administrative Committee to receive
claims under the Plan.
(b)NOTIFICATION ON DENIAL OF CLAIM. In the event of a
denial or limitation of any benefit or payment due to or
requested by any Claimant, he shall be given a written
notification containing specific reasons for the denial or
limitation of his benefit. The written notification shall
contain specific reference to the pertinent Plan provisions on
which the denial or limitation of benefits is based. In
addition, it shall contain a description of any additional
material or information necessary for the Claimant to perfect a
claim and an explanation of why such material or information is
necessary. Further, the notification shall provide appropriate
information as to the steps to be taken if the Claimant wishes to
submit his claim for review. This written notification shall be
given to a Claimant within 90 days after receipt of his claim by
the Administrative Committee unless special circumstances require
an extension of time to process the claim. If such an extension
of time for processing is required, written notice of the
extension shall be furnished to the Claimant prior to the
termination of said 90-day period and such notice shall indicate
the special circumstances which make the postponement
appropriate. Such extension shall not extend to a date later
than 120 days after receipt of the request for review of a claim.
(c)RIGHT OF REVIEW. In the event of a denial or
limitation of benefits, the Claimant or his duly authorized
representative shall be permitted to review pertinent documents
and to submit to the Administrative Committee issues and comments
in writing. In addition, the Claimant or his duly authorized
representative may make a written request for a full and fair
review of his claim and its denial by the Administrative
Committee provided, however, that such written request must be
received by the Administrative Committee (or his delegate to
receive such requests) within sixty days after receipt by the
Claimant of written notification of the denial or limitation of
the claim. The sixty day requirement may be waived by the
Administrative Committee in appropriate cases.
(d)DECISION ON REVIEW.
(i)A decision shall be rendered by the Administrative
Committee within 60 days after the receipt of the request for
review, provided that where special circumstances require an
extension of time for processing the decision, it may be
postponed on written notice to the Claimant (prior to the
expiration of the initial 60 day period), for an additional 60
days, but in no event shall the decision be rendered more than
120 days after the receipt of such request for review.
(ii)Notwithstanding subparagraph (i), if the
Administrative Committee specifies a regularly scheduled time at
least quarterly to review such appeals, a Claimant's request for
review will be acted upon at the specified time immediately
following the receipt of the Claimant's request unless such
request is filed within 30 days preceding such time. In such
instance, the decision shall be made no later than the date of
the second specified time following the Administrative
Committee's receipt of such request. If special circumstances
(such as a need to hold a hearing) require a further extension of
time for processing a request, a decision shall be rendered not
later than the third specified time of the Administrative
Committee following the receipt of such request for review and
written notice of the extension shall be furnished to the
Claimant prior to the commencement of the extension.
(iii)Any decision by the Administrative Committee shall be
furnished to the Claimant in writing and in a manner calculated
to be understood by the Claimant and shall set forth the specific
reason(s) for the decision and the specific Plan provision(s) on
which the decision is based.
8.6 RECORDS AND REPORTS. The Administrative Committee shall
exercise such authority and responsibility as it deems
appropriate in order to comply with ERISA and governmental
regulations issued thereunder relating to records of
Participants' account balances and the percentage of such account
balances which are nonforfeitable under the Plan; notifications
to Participants; and annual reports and registration with the
Internal Revenue Service.
8.7OTHER POWERS AND DUTIES. The Administrative Committee
shall have such duties and powers as may be necessary to
discharge its duties hereunder, including, but not by way of
limitation, the following:
(a)to construe and interpret the Plan, decide all
questions of eligibility and determine the amount, manner and
time of payment of any benefits hereunder;
(b)to prescribe procedures to be followed by Participants,
Former Participants or Beneficiaries filing applications for
benefits;
(c)to prepare and distribute information explaining the
Plan;
(d)to receive from the Employer and from Participants,
Former Participants and Beneficiaries such information as shall
be necessary for the proper administration of the Plan;
(e)to furnish the Employer, upon request, such annual
reports with respect to the administration of the Plan as are
reasonable and appropriate;
(f)to receive, review and keep on file (as it deems
convenient or proper) reports of the financial condition, and of
the receipts and disbursements, of the Trust Fund from the
Trustees;
(g)to appoint or employ advisors including legal and
actuarial counsel to render advice with regard to any
responsibility of the Administrative Committee under the Plan or
to assist in the administration of the Plan; and
(h)to determine the status of qualified domestic relations
orders under Section 414(p) of the Code.
The Administrative Committee shall have no power to add to,
subtract from or modify any of the terms of the Plan, or to
change or add to any benefits provided by the Plan, or to waive
or fail to apply any requirements of eligibility for a benefit
under the Plan.
8.8 RULES AND DECISIONS. The Administrative Committee may
adopt such rules as it deems necessary, desirable, or
appropriate. All rules and decisions of the Administrative
Committee shall be applied uniformly and consistently to all
Participants in similar circumstances. When making a
determination or calculation, the Administrative Committee shall
be entitled to rely upon information furnished by a Participant,
Former Participant or Beneficiary, the Employer, the legal
counsel of the Employer, or the Trustee.
8.9 AUTHORIZATION OF BENEFIT PAYMENTS. The Administrative
Committee shall issue proper directions to the Trustee concerning
all benefits which are to be paid from the Trust Fund pursuant to
the provisions of the Plan.
8.10APPLICATION AND FORMS FOR BENEFITS. The
Administrative Committee may require a Participant, Former
Participant or Beneficiary to complete and file with it an
application for a benefit, and to furnish all pertinent
information requested by it. The Administrative Committee may
rely upon all such information so furnished to it, including the
Participant's, Former Participant's or Beneficiary's current
mailing address.
8.11FACILITY OF PAYMENT. Whenever, in the Administrative
Committee's opinion, a person entitled to receive any payment of
a benefit or installment thereof hereunder is under a legal
disability or is incapacitated in any way so as to be unable to
manage his financial affairs, the Administrative Committee may
direct the Trustee to make payments to such person or to his
legal representative or to a relative or friend of such person
for his benefit, or he may direct the Trustee to apply the
payment for the benefit of such person in such manner as it
considers advisable.
8.12INDEMNIFICATION. The Employer shall indemnify each
individual who is an officer, director or Employee of the
Employer and who may be called upon or designated to perform
fiduciary duties or to exercise fiduciary authority or
responsibility with respect to the Plan and shall save and hold
him harmless from any and all claims, damages, and other
liabilities, including without limitation all expenses (including
attorneys' fees and costs), judgments, fines and amounts paid in
settlement and actually and reasonably incurred by him in
connection with any action, suit or proceeding, resulting from
his alleged or actual breach of such duties, authority or
responsibility, whether by negligence, gross negligence or
misconduct, to the maximum extent permitted by law, provided,
however, that this indemnification shall not apply with respect
to any actual breach of such duties, authority or responsibility,
if the individual concerned did not act in good faith and in the
manner he reasonably believed to be in (or not opposed to) the
best interest of the Employer, or, with respect to any criminal
action or proceeding, had reasonable cause to believe his conduct
was unlawful.
8.12RESIGNATION OR REMOVAL OF THE ADMINISTRATIVE COMMITTEE.
An Administrative Committee member may resign at any time by
giving ten days' written notice to the Employer and the Trustee.
The Board of Directors may remove any member of the
Administrative Committee by giving written notice to him and the
Trustee. Any such resignation or removal shall take effect at a
date specified on such notice, or upon delivery to the
Administrative Committee if no date is specified.
ARTICLE IX
LIMITATIONS ON CONTRIBUTIONS AND BENEFITS
9.1 DETERMINATION BY INTERNAL REVENUE SERVICE. Contributions
to the Trust Fund are conditioned specifically upon the initial
qualification of the Plan under the Code and if the Plan does not
so initially qualify, such contribution or part thereof shall be
returned to the Employer within one year after such denial of
initial qualification.
9.2 CONDITIONAL CONTRIBUTIONS. To the extent permitted under
ERISA and the Code, all contributions to the Plan are subject to
the following conditions:
(a)All contributions made to the Plan by the Employer
shall be conditioned upon the deductibility of such contributions
under the Code. To the extent that any such deduction is
disallowed by the Internal Revenue Service, the Employer by
action of the Administrative Committee shall have the right to
demand and receive the return of the related contribution to the
extent disallowed within one year after the disallowance of said
deduction.
(b)If the Employer makes a contribution, or any part
thereof, by mistake of fact, such contribution or part thereof
shall be returned to the Employer within one year after such
contribution is made.
9.3 TWENTY-FIVE HCE LIMITATION. Effective for Plan Years
commencing on or after January 1, 1991, the annual payments made
by the Plan to any individual who is one of the twenty-five (25)
highest-paid Highly Compensated Employees, for any Plan Year,
shall not exceed the limitations set forth in Treas. Reg. Section
1.401(a)(4)-5.
9.4 GENERAL LIMITATION ON BENEFITS. In addition to the
limitations possibly applicable by reason of Section 9.3, and any
other provision of the Plan to the contrary notwithstanding, the
annual benefit payable to any Participant or Former Participant
shall not exceed the limitations imposed by Section 415 of the
Code. The provisions of Section 415 of the Code are incorporated
into this Plan by reference. If a Participant's participation in
other plans maintained by the Employer or an Affiliate would
result in a violation of the limitations of Section 415 of the
Code, the Participant's benefit under this Plan shall be reduced
to the extent necessary to satisfy Section 415 of the Code.
9.5 SUSPENSION OF BENEFITS ON REEMPLOYMENT.
(a)In the event that any person receiving benefits under
the Plan by reason of retirement is reemployed by the Employer,
the Plan shall suspend the payment of benefits as of the first
day of the month following the first month in which an Eligible
Employee receives payment from the Employer for at least 80 Hours
of Service performed during a calendar month during such person's
reemployment;
(b)Benefits suspended hereunder shall resume as of the
first day of the third month commencing after the earlier of the
day the reemployed person Terminates employment with the Employer
or, if such person is an Eligible Employee, receives payment from
the Employer for any Hours of Service performed for fewer than 80
Hours of Service during a calendar month in such reemployed
status;
(c)Any person whose benefits are suspended under this
Section shall be entitled to receive a pension on subsequent
retirement or Termination that is not less than the pension
received as of the date of suspension hereunder. The person's
resumed pension shall be determined on the basis of the
Participant's Compensation and Years of Credited Service before
the suspension hereunder and Compensation and Years of Credited
Service after his reemployment, reduced however, by the value of
any pension benefits paid to him previously either (i) prior to
his Normal Retirement Date; or (ii) while reemployed by the
Employer under circumstances in which his benefits should have
been suspended under paragraph (a), but were not.
(d)Any Participant whose benefits are suspended pursuant
to the foregoing shall be notified in writing of the suspension
by personal delivery or first class mail during the first
calendar month or payroll period in which benefits are suspended.
(e)The Annuity Starting Date with respect to a Participant
who is reemployed after commencement of his benefits at Normal
Retirement Date, shall be the date his benefits originally
commenced for benefits accrued before and after the suspension.
(f)The Annuity Starting Date with respect to a Participant
who is reemployed after commencement of his benefits at Early
Retirement Date shall be:
(1)the date his benefits originally commenced with respect
to the benefits accrued prior to the suspension; and
(2)with respect to the benefits he accrued after his
reemployment (if any), and the suspension of his original benefit
payments hereunder, the date such subsequent accruals commence to
be paid. The provisions of Section 4.6(d) of the Plan shall
apply to such subsequent accruals as a second Annuity Starting
Date.
ARTICLE X
MERGER, TRANSFER OR CONSOLIDATION OF PLANS
10.1PLAN ASSETS. There shall be no merger or consolidation of
the Plan with, or transfer of assets or liabilities of the Fund
to, any other plan of deferred compensation maintained or to be
established for the benefit of all or some of the Participants of
the Plan, unless each Participant would (if either this Plan or
the other plan then terminated) receive a benefit immediately
after the merger, consolidation or transfer which is equal to or
greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation or transfer (if this
Plan had then terminated), and unless a duly adopted resolution
of the Board of Directors authorizes such merger, consolidation
or transfer of assets.
ARTICLE XI
MISCELLANEOUS
11.1MANDATORY COMMENCEMENT OF BENEFITS. Notwithstanding any
provision of this Plan to the contrary, payment of benefits under
this Plan shall commence upon the written election of a
Participant or Former Participant not later than sixty days after
the close of the Plan Year in which the latest of the following
events occurs: (a) the Participant attains Normal Retirement
Date; (b) the tenth anniversary of the Plan Year in which the
Participant commenced participation in the Plan; or (c) the
Termination of the Participant's service with the Employer.
11.2NONGUARANTEE OF EMPLOYMENT. Nothing contained in this
Plan shall be construed as a contract of employment between the
Employer and any Eligible Employee, or as a right of any Eligible
Employee to be continued in the employment of the Employer, or as
a limitation of the right of the Employer to discharge any of its
Eligible Employees with or without cause.
11.3RIGHTS TO FUND ASSETS. No Eligible Employee or
Beneficiary shall have any right to, or interest in, any assets
of the Fund upon Termination of his employment or otherwise,
except as provided from time to time under this Plan, and then
only to the extent of the benefits payable under the Plan to such
Eligible Employee out of the assets of the Fund. All payments of
benefits as provided for in this Plan shall be made solely out of
the assets of the Fund.
11.4NONALIENATION OF BENEFITS. Benefits payable under this
Plan shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumber, charge,
garnishment, execution, or levy of any kind, either voluntary or
involuntary, including any such liability which is for alimony or
other payments for the support of a spouse or former spouse, or
for any other relative of the Eligible Employee prior to actually
being received by the person entitled to the benefit under the
terms of the Plan, except as required under a qualified domestic
relations order as defined in Section 414(p) of the Code. Any
attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of any right to benefits
payable hereunder, shall be void. The Fund shall not in any
manner be liable for, or subject to, the debts, contracts,
liabilities, engagements or torts of any person entitled to
benefits hereunder.
11.5INABILITY TO LOCATE PAYEE. Each person entitled to
receive benefits under the Plan shall be responsible for
informing the Administrative Committee of his mailing address for
purposes of receiving such benefits. If the Administrative
Committee is unable to locate any person entitled to receive
benefits under the Plan, such benefits shall not be forfeited but
shall be carried as a contingent liability of the Plan and shall
be payable when a proven and legitimate claim therefor has been
submitted to the Administrative Committee.
11.6APPLICABLE LAW. This Plan shall be construed,
interpreted, administered and enforced in accordance with the
laws of the Commonwealth of Pennsylvania, except to the extent
superseded, only when required, by ERISA as in effect from time
to time.
ARTICLE XII
DETERMINATION OF TOP-HEAVY STATUS
12.1GENERAL. Notwithstanding any other provision of the Plan
to the contrary, for any Plan Year, in which the Plan is a
Top-Heavy Plan or Super Top-Heavy Plan, as defined below, the
provisions of this Article 12 shall apply, but only to the extent
required by Section 416 of the Code and the regulations
thereunder.
12.2TOP-HEAVY PLAN. This Plan shall be Top-Heavy and an
Aggregation Group shall be a Top-Heavy Group if as of the
Determination Date for such Plan Year, the sum of the Cumulative
Accrued Benefits and Cumulative Accounts of Key Eligible
Employees for the Plan Year exceeds 60% of the aggregate of all
the Cumulative Accounts and Cumulative Accrued Benefits. The
Cumulative Accrued Benefits and Cumulative Accounts of those
Participants who have not performed any service for the Employer
during the five year period ending on the Determination Date,
shall be disregarded.
(a)If the Plan is not included in a Required Aggregation
Group with other plans, then it shall be Top-Heavy only if (i)
when considered by itself it is a Top-Heavy Plan and (ii) it is
not included in a Permissive Aggregation Group that is not a
Top-Heavy Group.
(b)If the Plan is included in a Required Aggregation Group
with other plans, it shall be Top-Heavy only if the Required
Aggregation Group, including any permissively aggregated plans,
is Top-Heavy.
12.3SUPER TOP-HEAVY PLAN. This Plan shall be a Super
Top-Heavy Plan if it would be a Top-Heavy Plan under Section
12.2, but substituting 90% for 60%.
12.4CUMULATIVE ACCRUED BENEFITS AND CUMULATIVE ACCOUNTS. The
determination of the Cumulative Accrued Benefits and Cumulative
Accounts under the Plan shall be made in accordance with Section
416 of the Code and the regulations thereunder.
12.5DEFINITIONS.
(a)"Aggregation Group" means either a Required Aggregation
Group or a Permissive Aggregation Group.
(b)"Determination Date" means with respect to any Plan
Year, the last day of the preceding Plan Year or in the case of
the first Plan Year of any plan, the last day of such Plan Year
or such other date as permitted by the Secretary of the Treasury
or his delegate.
(c)"Group Employer" means the Employer that adopts this
Plan and all members of a controlled group of corporations (as
defined in Section 414(b) of the Code), all commonly controlled
trades or businesses (as defined in Section 414(c) of the Code)
or affiliated service groups (as defined in Section 414(m) of the
Code) of which the Employer is a part.
(d)"Key Eligible Employee" means those individuals
described in Section 416(i)(1) of the Code and the regulations
thereunder.
(e)"Non-Key Eligible Employee" means those Eligible
Employees who are not Key Eligible Employees and includes a
former Key Eligible Employee.
(f)"Permissive Aggregation Group" means a Required
Aggregation Group plus any other plans selected by the Company
provided that all such plans when considered together satisfy the
requirements of Section 401(a)(4) and 410 of the Code.
(g)"Required Aggregation Group" means each plan of the
Employer in which a Key Eligible Employee participates (in the
Plan Year containing the Determination Date or any of the four
preceding Plan Years) and each other plan which enables any plan
in which a Key Eligible Employee participates during the period
tested to meet the requirements of Section 401(a)(4) or 410 of
the Code. All employers aggregated under Section 414(b), (c) or
(m) of the Code are considered a single employer. The Required
Aggregation Group shall include any terminated plan that covered
a Key Eligible Employee and was maintained within the five year
period ending on the Determination Date.
(h)"Valuation Date" means the annual date on which Plan
assets must be valued for purposes of determining the Plan's
assets and liabilities and the value of account balances
maintained under any defined contribution plan of the Employer.
The valuation date for purposes of the preceding sentence shall
be the same valuation date for computing Plan costs for minimum
funding.
12.6MINIMUM ANNUAL RETIREMENT BENEFIT.
(a)Each Participant who is a Non-Key Eligible Employee
will receive the greater of his Accrued Annual Pension as defined
in Section 2.1 or a Minimum Annual Retirement Benefit (expressed
as a life annuity commencing at Normal Retirement Date) equal to
two percent of the Participant's average compensation (as
determined under any permissible definitions under Section 415 of
the Code and the regulations thereunder) for the five consecutive
years for which the Participant had the highest aggregate
compensation multiplied by the Participant's Years of Credited
Service with the Employer, up to a maximum of 20%.
(b)For purposes of this Section 12.6, Years of Credited
Service shall not include service if the Plan were not a
Top-Heavy Plan for any Plan Year ending in such period of Years
of Credited Service or Years of Credited Service completed in a
Plan Year commencing before January 1, 1984. For purposes of
this Section 12.6, compensation in years prior to January 1, 1984
and compensation in years after the close of the last Plan Year
in which the Plan is Top-Heavy shall be disregarded.
(c)A Minimum Annual Retirement Benefit shall not be
provided under this Section 12.6 to the extent that the
Participant is covered under any other plan or plans of the Group
Employer and the Group Employer has provided that the minimum
benefit requirements applicable to this Plan will be met by the
other plan or plans.
(d)A Participant who is a Non-Key Eligible Employee shall
not fail to accrue a Minimum Annual Retirement Benefit because of
(i) his level of Compensation or (ii) a failure to make mandatory
Eligible Employee contributions.
12.7VESTING. A Participant who is credited with one Hour of
Service in any Plan Year during which the Plan is Top-Heavy or
Super Top-Heavy shall have a nonforfeitable interest in that
portion of his Normal Annual Pension, Accrued Annual Pension or
Minimum Annual Retirement Benefit attributable to participation
during the Plan Year in which the Plan is Top-Heavy or Super
Top-Heavy and all prior Plan Years in accordance with the
following schedule:
Years of Service Nonforfeitable Percentage
less than 2 years 0
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 or more 100%
If the Plan ceases to be Top-Heavy in any Plan Year, the vesting
provisions of Section 5.1 determined without regard to this
Section 12.7, shall apply with respect to subsequent Plan Years,
subject to Section 7.2(b).
12.8 DEFINED BENEFIT AND DEFINED CONTRIBUTION PLANS. For
each Plan Year in which the Plan is Super Top-Heavy or for each
Plan Year in which the Plan is Top-Heavy and the additional
minimum benefits or contributions required by Section 416(h) of
the Code are not provided, the dollar limitations in the
denominator of the defined benefit plan fraction and defined
contribution plan fraction as defined in Section 415(e) of the
Code shall be multiplied by 100 percent rather than 125 percent.
If the application of the provisions of this Section 12.8 would
cause any Participant to exceed 1.0 for any Limitation Year as
set forth in Section 9.4, then the application of this Section
12.8 shall be suspended as to such Participant until such time as
he no longer exceeds 1.0. During the period of such suspension,
there shall be no accruals for such Participant under this Plan
and no Group Employer contributions, forfeitures or voluntary
nondeductible contributions allocated to such Participant under
any defined contribution plan of the Group Employer.
ARTICLE XIII
ERISA TRANSITION PROVISIONS
13.1 SCOPE AND PURPOSE. The provisions of this Article XIII
shall apply only to those Participants or Former Participants who
were Participants on December 14, 1976 and Employees on December
15, 1976. The purpose of this Article XIII is to preserve for
those Participants or Former Participants certain of the
provisions of the Plan as in effect before December 15, 1976.
13.2 CALCULATION OF BENEFIT. With respect to a Participant
or Former Participant covered by this Section 13.2, the
Participant's or Former Participant's monthly benefit at his
Normal Retirement Date under the Plan shall be the greater of (i)
the Participant's or Former Participant's benefit calculated
under Section 4.1 or (ii) one-twelfth of the product of (A) and
(B), but not in excess of $625, where (A) equals 45% of the
Participant's or Former Participant's "Basic Salary" on December
15, 1975 and (B) equals a fraction, the numerator of which is the
Participant's or Former Participant's total number of "Years of
Participation" at December 14, 1976 and the denominator of which
is the total number of "Years of Participation" with which he
would have been credited if he separated from service on the
"Anniversary Date" nearest his 65th birthday, all as defined
under the terms of the Plan as in effect on December 14, 1976.
Such amount is set forth in Schedule A, Column 1.
13.3 FORM OF PAYMENT OF NORMAL, LATE, EARLY AND DISABILITY
BENEFIT. In addition to the forms of settlement provided under
Section 4.6(e), a Participant or Former Participant covered under
this Article XIII, shall be entitled to elect in writing on forms
provided by the Administrative Committee payment of the "value of
the accrued benefit" (as determined under Section 13.7) to which
he is entitled under Schedule A, Column 2, increased by interest
at the rate of 5% per annum from December 14, 1976 to the date of
determination, counting only completed months, in a lump sum upon
Normal, Late, Early or Disability Retirement in accordance with
the provisions of Sections 4.1, 4.2, 4.3 or 4.4. In the event a
Participant or Former Participant elects payment of some or all
of the amount of the "value of the accrued benefit" to which he
is entitled under Schedule A, Column 2, increased by interest as
described in the preceding sentence, in a lump sum, the
"actuarial value" (as determined under Section 13.7) of the
benefit to which he is otherwise entitled under Article IV shall
be reduced by the amount of such payment and the "remaining
value", if any, will be paid in a form provided by Section 4.6(e)
of the Plan. However, any Participant or Former Participant
covered under this Article XIII, the value of whose benefit under
Schedule A, Column 2, without increase, is $20,000 or more,
alternatively may elect in writing, on forms provided by the
Administrative Committee, payment of the value of the entire
benefit to which he is entitled under the Plan in an "actuarially
equivalent" (as determined under Section 13.6) lump sum upon
Normal, Late, Early or Disability Retirement in accordance with
the provisions of Section 4.6.
Notwithstanding the foregoing, effective January 1, 1989,
any Participant covered under this Section 13, who is a Highly
Compensated Employee, determined as of any date, and the value of
whose benefit under Schedule A, Column 2, without increase, is
$20,000 or more, alternatively may elect in writing, on forms
provided by the Administrative Committee payment of (i) the value
of the benefit which he had accrued as of December 31, 1988 under
the Plan in an actuarially equivalent lump sum (as determined
under Section 13.7) upon Normal, Late, Early or Disability
Retirement in accordance with the provisions of Section 4.1, 4.2,
4.3 or 4.4; and (ii) the remainder of his Accrued Annual Pension,
which he had accrued after December 31, 1988, paid to him in one
of the forms provided for under Section 4.6 of the Plan.
13.4 PAYMENT OF VESTED BENEFITS. Any Participant or Former
Participant covered under this Article XIII who terminates
employment with the Employer and all Affiliates with a
nonforfeitable benefit under Section 5.1 may elect in writing on
forms provided by the Administrative Committee to receive the
value of his benefit under Schedule A, Column 2, increased by
interest at the rate of 5% per annum from December 14, 1976 to
the date of determination, counting only completed months, in a
lump sum. The "remaining value" of his benefit, if any, shall be
paid in accordance with Section 4.6(e). Any such Participant or
Former Participant, the value of whose accrued benefit under
Schedule A, Column 2, without increase, is $20,000 or more,
alternatively may elect in writing, on forms provided by the
Administrative Committee, payment of the value of the entire
benefit to which he is entitled under the Plan in an "actuarially
equivalent" lump sum. If a Participant or Former Participant who
receives a distribution hereunder returns to service covered by
the Plan, his prior service shall be restored for purposes of
benefit accrual if he contributes to the Trust Fund in cash the
amount of the distribution he received, together with interest
thereon at the rate set forth in Section 411(c)(2)(C) of the Code
per annum, compounded annually, before suffering five consecutive
Breaks in Service or five years following the date he is
reemployed by the Employer, if earlier. If the Participant or
Former Participant does not make such a contribution as provided
above, his Accrued Annual Pension upon subsequent termination of
service shall be based on accruals arising from and after his
return to service under the terms of the Plan plus any "remaining
value" of his benefit at the date of his previous termination of
service not paid hereunder upon his previous termination of
service.
Notwithstanding the foregoing, effective January 1, 1989,
any Participant covered under this Section 13, who is a Highly
Compensated Employee, determined as of any date, and the value of
whose benefit under Schedule A, Column 2, without increase, is
$20,000 or more, alternatively may elect in writing, on forms
provided by the Administrative Committee, payment of (i) the
value of the benefit which he had accrued as of December 31, 1988
under the Plan in an actuarial equivalent lump sum (as determined
under Section 13.7) upon his Termination of employment in
accordance with the provisions of Section 4.5; and (ii) the
remainder of his Accrued Annual Pension, which he had accrued
after December 31, 1988, paid to him in one of the forms provided
for under Section 4.6 of the Plan.
13.5 DEATH BENEFITS. The Beneficiary of any Participant or
Former Participant covered under this Article XIII who attained
his Normal Retirement Date, as defined under the terms of the
Plan as in effect on December 14, 1976, on or before December 14,
1976, and dies on or after December 15, 1976, but prior to the
earlier of the date (i) benefit payments to him commence or (ii)
an annuity contract is purchased to provide his retirement
benefit, shall be entitled to receive a death benefit equal to
the "actuarial value" at the time of death of such Participant's
or Former Participant's accrued benefit under Schedule A, Column
2. The benefit will be paid in the mode of distribution
designated by the Participant or Former Participant in writing;
provided, however, if the Participant's or Former Participant's
designated Beneficiary should die on or before the commencement
of distribution of benefits or the Participant or Former
Participant fails to designate the mode of distribution, the mode
of distribution shall be determined by the Administrative
Committee after consultation with the Participant's or Former
Participant's Beneficiary. Notwithstanding the foregoing, if the
Participant or Former Participant is married, the Participant's
or Former Participant's Spouse shall be the Beneficiary unless
the Spouse waives the right to be the Beneficiary in writing
witnessed by a notary public or a member of the Administrative
Committee in accordance with the rules established by the
Administrative Committee.
Notwithstanding the foregoing, effective January 1, 1989,
any Participant covered under this Section 13, who is a Highly
Compensated Employee, determined as of any date, and the value of
whose benefit under Schedule A, Column 2, without increase, is
$20,000 or more, alternatively may elect in writing, on forms
provided by the Administrative Committee, payment of (i) the
value of the benefit which he had accrued as of December 31, 1988
under the Plan in an actuarial equivalent lump sum (as determined
under Section 13.7) upon his death paid to his Beneficiary; and
(ii) the remainder of his Accrued Annual Pension, which he had
accrued after December 31, 1988, paid to his Beneficiary in the
form provided for under Section 4.7 of the Plan.
13.6 TRANSFER OF BENEFIT.
(i) Any Participant or Former Participant (A) who
has reached his Normal Retirement Date on or before December 15,
1976, (B) whose benefit is calculated under the Plan as effective
prior to December 15, 1976 and (C) whose benefit payments have
not started prior to October 9, 1979, shall be entitled to elect
irrevocably in writing as hereinafter provided that the
Administrative Committee transfer the amount of his accrued
benefit to be held as a separate bookkeeping account under the
terms of the Trust Agreement. The election may be made effective
as of the January 1st or July 1st next following the delivery of
a written request to the Administrative Committee at least 30
days before such date.
(ii) In addition to the forms of settlement
provided under Section 4.6, a Participant or Former Participant
covered under this Section 13.5, shall be entitled to elect in
writing on forms provided by the Administrative Committee one of
the following settlement options:
(A) approximately equal monthly, quarterly
or annual installments as elected by the Participant or Former
Participant over a period not exceeding the life expectancy of
the Participant or Former Participant or the joint life
expectancy of the Participant or Former Participant and his
designated Beneficiary with the remainder of such installments,
if any, after the Participant's or Former Participant's death
payable to his designated beneficiary or Beneficiaries; or
(B) a lump sum; or
(C) any combination of the above.
Notwithstanding the foregoing, the Participant or
Former Participant must elect under this Section 13.5(ii) or
4.6(e) a method of settlement under which the present value of
the installments to be paid to the Participant or Former
Participant over his projected life span is more than 50% of the
present value of the installments payable to both the Participant
or Former Participant and his Beneficiary or Beneficiaries.
(iii) The Beneficiary of any Participant or
Former Participant eligible to make the election under Section
13.6(i) who is to receive death benefits under Section 13.5, may
subject to the approval of the Administrative Committee, request
that the value of the death benefit be held as a separate
bookkeeping account under the terms of the Trust Agreement, with
distribution to be made in the mode provided for under Section
13.5.
13.7 ACTUARIAL EQUIVALENCY. With respect to Article XIII,
when referring to amounts developed under Article IV, "actuarial
value", "remaining value", "actuarial equivalent" and "value of
the accrued benefit" shall be determined using GAM71 Male
mortality table and interest at the rate of 5.5% per annum.
However, the value so determined for any Participant or Former
Participant to whom this Article XIII applies shall not be less
than the actuarial value of the accrued benefit for that
Participant or Former Participant as of July 31, 1983, determined
using the GAM71 Male and Female (as appropriate) mortality table
and interest at the rate of 5.5% per annum. When referring to
amounts developed from Schedule A, Column 2, the amount of
accrued benefits and actuarial equivalents shall be determined as
described, using interest at the rate of 5% per annum.