EXHIBIT 10.7
11/10/94
NEWELL
PENSION PLAN FOR FACTORY AND DISTRIBUTION
HOURLY PAID EMPLOYEES
(As Amended and Restated Effective January 1, 1989)
335
NEWELL
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PENSION PLAN FOR FACTORY AND DISTRIBUTION
HOURLY PAID EMPLOYEES
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(As Amended and Restated Effective January 1, 1989)
WHEREAS, Anchor Hocking Corporation established the Pension Plan
for Hourly Paid Employees of Shenango China Division of Anchor Hocking
Corporation ("Plan");
WHEREAS, the Plan was subsequently amended from time to time, and
was most recently amended on August 22, 1988;
WHEREAS, Newell Co., the parent of the Company, acquired Anchor
Hocking Corporation and assumed the Plan, effective July 2, 1987;
WHEREAS, effective September 1, 1991, the following retirement
plans were merged into the Plan: the Amerock Corporation Supplemental
Retirement Benefit Plan, the Anchor Hocking Service Retirement Plan
For Hourly Employees, the Newell Pension Plan for Factory and
Distribution Hourly Paid Employees and the Phoenix Hourly Plan;
WHEREAS, effective December 1, 1992, the following Retirement
Plans were merged into the Plan: the Sanford Corporation Union Pension
Plan, and the Sanford Corporation Retirement Plan for Non-Bargaining
Hourly Employees of Sterling Plastics;
WHEREAS, each of the Plans merged into the Plan was maintained by
the Company or an Affiliated Company; and
WHEREAS, the Company now deems it advisable to amend and restate
the Plan in its entirety, and to change the name of the Plan to be the
"Newell Pension Plan for Factory and Distribution Hourly Paid
Employees;
NOW THEREFORE, BE IT RESOLVED, that the Plan is hereby amended
and restated, effective January 1, 1989, except as otherwise
indicated, to reflect the aforementioned mergers and to read as
follows:
ARTICLE I
PURPOSE, INTENT AND EFFECTIVE DATES
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1.01 PURPOSE. The Company has established and maintains
the Newell Pension Plan for Factory and Distribution Hourly Paid
Employees to aid its eligible employees to attain a greater degree of
post-retirement financial security for themselves and their families.
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1.02 INTENT. The Company intends that the Plan, as set
forth in this amendment and restatement, and as it may from time to
time be further amended, shall constitute a qualified Plan under the
provisions of Section 401(a) (and further or successor applicable
provisions) of the Code and shall be in full compliance with the
provisions of ERISA. The Company intends that the Plan shall continue
to be maintained by it for the above purposes indefinitely, subject
always, however, to the rights reserved in the Company to amend and
terminate as hereinbelow set forth.
1.03 EMPLOYEES TERMINATED PRIOR TO JANUARY 1, 1989. The
provisions of the Plan as Amended and Restated Effective January 1,
1989, shall not be applicable to any employee of the Company or an
Affiliated Company whose employment terminated prior to January 1,
1989, except as otherwise provided herein. The rights of any such
person to receive benefits, if any, under the Plan, and the amount of
and conditions under which such benefits shall be payable, shall be
determined in accordance with the provisions of the Plan or such other
retirement plan, if any, as may have been applicable to the employee
as in effect on the date of his termination of employment. The
benefits of each person who terminated employment with the Company and
all Affiliated Companies prior to the date on which the plan in which
such person participated on the date of his termination of employment
was merged into this Plan, shall not be determined under this Plan,
but shall be determined under the provisions of the plan in which such
person was a participant as in effect on the date such person
terminated employment.
ARTICLE II
DEFINITIONS
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The following terms, when used herein and initially
capitalized as below indicated, shall, unless otherwise expressly
provided, have the following respective meaning:
"Accrued Benefit" when used in reference to a Participant as
of any given date means his Normal Retirement Benefit determined as
set forth in Section 4.01 hereof based on Credited Service through
such given date. The Accrued Benefit of a Participant attributable to
his own contributions shall be his accumulated contributions with
Credited Interest compounded annually to the date of determination,
multiplied by ten percent (10%) to convert such amount to an annual
benefit under a straight-life annuity without ancillary benefits.
Unless otherwise provided under the Plan, each Section 401(a)(17)
Employee's Accrued Benefit under this Plan will be the greater of the
Accrued Benefit determined for the Employee under (a) or (b) below:
(a) the Employee's Accrued Benefit determined with respect
to the benefit formula set forth in Section 4.01, applicable for
the Plan Year beginning on January 1, 1994, as applied to the
Employee's total years of Credited Service taken into account
under the Plan for the purposes of benefit accruals, or
337
(b) the sum of:
(i) the Employee's Accrued Benefit as of the last day
of the last Plan Year beginning before January 1, 1994,
frozen in accordance with Section 1.401(a)(4)-13 of the
regulations, and
(ii) the Employee's Accrued Benefit determined under
the benefit formula set forth in Section 4.01, applicable
for the Plan Year beginning on January 1, 1994, as applied
to the Employee's total years of Credited Service taken into
account under the Plan for Plan Years beginning on or after
January 1, 1994, for purposes of benefit accruals.
For purposes of this paragraph (b) an Employee's total years
of Credited Service will be considered in determining the
30-year maximum set forth in Section 4.01.
A Section 401(a)(17) Employee means an Employee whose current
Accrued Benefit as of a date on or after the first day of the first
Plan Year beginning on or after January 1, 1994, is based on
Compensation for a year beginning prior to the first day of the first
Plan Year beginning on or after January 1, 1994, that exceeded
$150,000.
"Actuarial (or Actuarially) Equivalent" means the equality
in value of the aggregate amounts expected to be received under
different forms of payment, determined on the basis of the assumptions
and methods set forth in Section 5.05 below.
"Actuary" means an actuary who is enrolled by the Joint
Board for the Enrollment of Actuaries established under ERISA and who
is selected by the Company from time to time to provide the actuarial
reports and perform the actuarial services for the Plan.
"Affiliated Company" means: (i) any corporation which is a
member of a controlled group of corporations (as defined in
Section 414(b) of the Code) which includes the Company; (ii) any trade
or business, whether or not incorporated, which is under common
control (as defined in Section 414(c) of the Code) with the Company;
and (iii) any member of an affiliated service group (as defined in
Section 414(m) of the Code), which includes the Company.
"Beneficiary" means the person or persons entitled to
receive benefits under the Plan by reason of the death of a
Participant.
"Board" means the Board of Directors of the Company as from
time to time constituted.
"Break in Service" means the period of an Employee's absence
from active employment commencing upon his Severance Date from all
Employers and ending (if at all) when he again performs an Hour of
Service, within the meaning of the first clause (i) of the definition
of "Hour of Service."
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"Code" means the Internal Revenue Code of 1986, as from time
to time amended.
"Company" means Newell Operating Company (formerly known as
Newell Co., Newell Companies, Inc., Newell National Co. and Newell
Mfg. Co.), a Delaware corporation and its predecessor, Newell Mfg. Co.
(formerly known as Western Newell Mfg. Co.), an Illinois corporation.
"Covered Compensation" means the annual basic compensation
of a Participant from a Participating Employer for the relevant period
for services rendered to the Participating Employer in any Plan Year,
including straight-time wages for regular work week time, and any
amounts withheld pursuant to the Newell Long-Term Savings and
Investment Plan or the Newell Flexible Benefits Account Plan, but
excluding bonuses, all shift premiums and overtime, and benefits under
this Plan or any other employee benefit plan. In no event shall the
compensation of a Participant taken into account under the Plan for
any Plan Year commencing after December 31, 1988 and prior to January
1, 1994, exceed $200,000 (or such greater amount provided pursuant to
Section 401(a)(17) of the Code). In addition to other applicable
limitations set forth in the Plan, and notwithstanding any other
provision of the Plan to the contrary, for Plan Years beginning on or
after January 1, 1994, the annual compensation of each Employee taken
into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is
$150,000, as adjusted by the Commissioner for increases in the cost of
living in accordance with Section 401(a)(17)(B) of the Code. The
cost-of-living adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which compensation is determined
(determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA '93
annual compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination
period, and the denominator of which is 12. For Plan Years beginning
on or after January 1, 1994, any reference in this Plan to the
limitation under Section 401(a)(17) of the Code shall mean the OBRA
'93 annual compensation limit set forth in this provision. If
compensation for any prior determination period is taken into account
in determining an Employee's benefits accruing in the current Plan
Year, the compensation for that prior determination period is subject
to the OBRA '93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination periods
beginning before the first day of the Plan Year beginning on January
1, 1994, the OBRA '93 annual compensation limit is $150,000.
"Credited Interest" means interest compounded annually at
the rate of three percent (3%) per annum through December 31, 1972, at
four percent (4%) per annum from January 1, 1973 through December 31,
1975, at five percent (5%) per annum from January 1, 1976 through
December 31, 1987, and beginning January 1, 1988, at 120% per annum of
the mid-term applicable Federal rate (AFR) (as in effect under Section
1274 of the Code for the first month of the Plan Year) established by
the Secretary of the Treasury pursuant to Section 204(c)(2)(C)(iii) of
ERISA, on the aggregate amount from time to time of a Participant's
contributions to the Plan.
339
"Credited Service" means all service of an Employee, while
on a nonclerical hourly-paid basis with a Participating Employer (on
and after the date specified in column 2 of Exhibit A hereto) that is
included in a period of Vesting Service, and that is completed while
the Employee is a Participant or during such Employee's Eligibility
Year of Service; SUBJECT, HOWEVER, to the following special rules:
(a) Credited Service will not include any service prior to
January 1, 1973 if the Employee was eligible to contribute to
this Plan at any time prior to January 1, 1973 and failed to
contribute the full amount required to this Plan; except that
Credited Service will include any period of service immediately
prior to January 1, 1973, when the Employee was contributing the
full amount required to this Plan.
(b) Credited Service will not include any period of service
during which an Employee is included in a unit of employees
covered by a collective bargaining agreement for which retirement
benefits were a subject of good faith negotiations, unless such
collective bargaining agreement provides for the participation of
such Employees in this Plan.
(c) Credited Service will not include leaves of absence
granted by an Employer to an Employee on and after August 5,
1993, pursuant to the Family and Medical Leave Act, regardless of
whether the Employee returns to work for an Employer at the end
of such leave of absence.
"Early Retirement Date" means the first day of the calendar
month following the month in which a Participant completes at least
fifteen (15) years of Vesting Service, attains age sixty (60) and
elects, by written notice delivered to the Pension Administrative
Committee at least thirty (30) days in advance of such Date, to Retire
prior to his Normal Retirement Date.
"Effective Date" means January 1, 1989.
"Eligibility Commencement Date" when used in reference to an
Employee means the later of the Effective Date and the first day
thereafter on which he meets all of the following requirements:
(a) He is employed on a nonclerical hourly-paid basis by a
Participating Employer (after it becomes a Participating
Employer);
(b) He is not included in a unit of employees covered by a
collective bargaining agreement for which retirement benefits
were a subject of good faith negotiations, unless such collective
bargaining agreement provides for the participation of such
Employees in this Plan; and
(c) He has completed an Eligibility Year of Service.
"Eligibility Year of Service" means the twelve (12) month
period, commencing with the later of (a) the date an Employee first
340
performs an Hour of Service for an Employer or an Affiliated Company
(whether or not it is a Participating Employer), and (b) the date
specified in column 1 of Exhibit A hereto, during which he completes
at least 1,000 Hours of Service, or if he does not complete 1,000
Hours of Service during such twelve (12) month period, then the first
Plan Year ending thereafter in which he does complete 1,000 Hours of
Service. Eligibility Years of Service shall include leaves of absence
granted by an Employer or an Affiliated Company to an Employee on and
after August 5, 1993 pursuant to the Family and Medical Leave Act, if
the Employee returns to work for an Employer or an Affiliated Company
at the end of such leave of absence.
"Eligible Spouse" means a person to whom a Participant is
legally married on the date benefit payments commence under
Section 4.01 (Normal), 4.02 (Postponed), 4.03 (Early) or 4.04
(Vested).
"Employee" means each person, officer or otherwise, in an
employee-employer relationship with an Employer.
"Employer" means (i) the Company's corporate management
group, (ii) each operating division of the Company, and (iii) each
Affiliated Company, whether or not it is a Participating Employer.
"ERISA" means the Employee Retirement Income Security Act of
1974 as from time to time amended.
"Excess Compensation" means that part of the Covered
Compensation (as defined above) of a Participant for a Plan Year that
exceeds $25,000. If a Participant's employment begins or ends during
a Plan Year, his Excess Compensation shall be determined by assuming
that he had Covered Compensation for the entire Plan Year at the same
rate as yields his actual Covered Compensation for so much of the Plan
Year as he was an Employee.
"Forfeiture" means the Accrued Benefit of a Participant to
which he (or his Beneficiary) does not become entitled upon a
Severance Date and which is thus forfeited pursuant to Section 4.10
below.
"Fund" means the entire trust fund from time to time held by
the Trustees pursuant to the Trust for the purposes of this Plan.
"Hour of Service" means:
(i) each hour for which an Employee is paid or
entitled to payment for the performance of duties for an
Employer on and after the later of (i) the date the Employee
is first hired by an Employer, and (ii) the date specified
in column (1) of Exhibit A hereto with respect to such
Employer (provided that, if no date is specified in such
column with respect to an Employer, the date on which such
Employer became an Affiliated Company shall be utilized for
purposes of this clause (ii)); and
341
(ii) each hour for which an Employee is directly or
indirectly paid by an Employer or is entitled to payment
from an Employer during which no duties are performed by
reason of vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of
absence (but not in excess of 501 hours in any continuous
period during which no duties are performed), on and after
the later of (i) the date the Employee is first hired by an
Employer, and (ii) the date specified in column (1) of
Exhibit A hereto with respect to such Employer (provided
that, if no date is specified in such column with respect to
an Employer, the date on which such Employer became an
Affiliated Company shall be utilized for purposes of this
clause (ii)).
Each Hour of Service for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Employer shall be
included under either subsection (i) or (ii) above as may be
appropriate. Hours of Service shall be credited:
(a) in the case of Hours referred to in subsection (i)
above, for the computation period in which the duties are
performed;
(b) in the case of Hours referred to in subsection (ii)
above, for the computation period or periods in which the period
during which no duties are performed occurs; and
(c) in the case of Hours for which back pay is awarded or
agreed to by an Employer, for the computation period or periods
to which the award or agreement pertains rather than to the
computation period in which the award, agreement or payment is
made.
If an Employee is paid for reasons other than the
performance of duties pursuant to subsection (ii) above: (i) in the
case of a payment made or due which is calculated on the basis of
units of time, an Employee shall be credited with the number of
regularly scheduled working hours included in the units of time on the
basis of which the payment is calculated; and (ii) an Employee without
a regular work schedule shall be credited with eight (8) Hours of
Service per day (to a maximum of forty (40) Hours of Service per week)
for each day that the Employee is so paid. Hours of Service shall be
calculated in accordance with Department of Labor Regulations Section
2530.200b-2 or any future legislation or regulation that amends,
supplements or supersedes said section. Persons described in
subsection (c) of the definition of "Vesting Service" (subject,
however, to the limitation of that subsection) shall be treated as
Employees of an Employer for purposes of calculating Hours of Service.
"Leased Employee" means a person who is not employed by an
Employer but who performs services for an Employer pursuant to an
agreement between the Employer and a leasing organization after such
person performs such services on a substantially full-time basis for a
twelve-month period, provided that the services are of the type
historically performed by employees in the business field. Subject to
342
the provisions of subsection (c) of the definition of "Vesting
Service" and the last sentence of the definition of "Hour of Service,"
a Leased Employee of an Employer shall not be considered an Employee
for purposes of the Plan.
"Named Fiduciary" means the entity which has ultimate
authority to control and manage the operation and administration of
the Plan and in this Plan means the Company as set forth in Section
8.01 below.
"Normal Retirement Benefit" when used in reference to a
Participant means his normal retirement benefit, if any, determined as
set forth in Section 4.01.
"Normal Retirement Date" means the first day of the calendar
month following a Participant's sixty-fifth (65th) birthday. A
Participant's Accrued Benefit shall be nonforfeitable on his sixty
fifth (65th) birthday.
"Participant" means an Employee or a former Employee who is
described as a Participant under Article III of the Plan.
"Participating Employer" means the Company and (i) each
Employer whose Employees participated in a Prior Plan immediately
prior to the Effective Date; and (ii) each other Employer (A) to which
the Board has extended this Plan by resolution specifying the date on
which this Plan becomes effective as to that Employer, and (B) if that
other Employer is separately incorporated, which has adopted this Plan
as its own plan by resolution of its board of directors. Each
Employer that is a Participating Employer is identified on Exhibit A
to this Plan, together with the date on and after which Hours of
Service, an Eligibility Year of Service, Vesting Service and Credited
Service shall be counted with respect to such Participating Employer.
"Pension Administrative Committee" means the Plan
administrative committee referred to in Article VIII hereof as from
time to time constituted.
"Pension Finance Committee" means the Plan finance committee
referred to in Article VIII hereof as from time to time constituted.
"Plan" means the NEWELL PENSION PLAN FOR FACTORY AND
DISTRIBUTION HOURLY PAID EMPLOYEES, as amended and restated effective
January 1, 1989, as herein set forth and as from time to time amended
and includes also the WESTERN NEWELL MFG. CO. PENSION PLAN, as
established February 1, 1949, and successive amendments thereto and
restatements thereof.
"Plan Year" means the fiscal year of the Plan and of the
Trust and, until changed, shall begin January 1 and end December 31 of
each year.
"Postponed Retirement Date" when used in reference to a
Participant means the date, following his Normal Retirement Date, on
which he Retires.
343
"Prior Plan" means any of the following:
(i) Anchor Hocking Service Retirement Plan for Hourly
Employees;
(ii) Amerock Corporation Supplemental Retirement
Benefit Plan;
(iii) Sanford Corporation Union Pension Plan;
(iv) Sanford Corporation Retirement Plan for Non-
Bargaining Hourly Employees of Sterling Plastics;
(v) Phoenix Hourly Retirement Plan; and
(vi) Pension Plan For Hourly Paid Employees of Shenango
China Division of Anchor Hocking Corporation.
"Qualified Joint and Survivor Annuity" means a monthly
annuity for the life of the Participant with a survivor annuity for
the life of his Eligible Spouse, the monthly payments of which are
equal to one-half of the monthly amount paid or payable to the
Participant.
"Retirement" or "Retires" or "Retiring" means the first day
of the calendar month following the termination of a Participant's
service with an Employer when he is entitled to a normal, postponed,
or early retirement benefit under Article IV hereof.
"Severance Date" means the earlier of:
(i) the date the employment of an Employee terminates
by reason of quitting, Retirement, death or discharge; and
(ii) the first anniversary of the first date of an
absence from the performance of duties as an Employee (with
or without pay) for any other reason (such as vacation,
holidays, sickness, disability, leave of absence or layoff).
If any Employee who is absent from work because of (i) the
Employee's pregnancy, (ii) the birth of the Employee's child,
(iii) the placement of a child with the Employee in connection with
the Employee's adoption of the child, or (iv) caring for such child
immediately following such birth or placement, shall be absent for
such reason beyond the first anniversary of the first date of absence,
his Severance Date shall be the second anniversary of the first day of
such absence, provided that the Employee furnishes to the Pension
Administrative Committee such timely information that the Pension
Administrative Committee may reasonably require to establish (A) that
the absence from work is for one of the reasons specified in clauses
(i) through (iv), and (B) the number of days for which there was such
an absence. Notwithstanding anything to the contrary contained
herein, in no event shall the period between the first and second
anniversary of the first day of such absence be counted as a period of
344
employment for purposes of calculating Vesting Service or Credited
Service.
"Spouse" means an Eligible Spouse or a Surviving Spouse.
"Surviving Spouse" means a person to whom a Participant is
legally married for at least the one (1) year period ending on the
Participant's date of death.
"Trust" means the Newell Co. Master Retirement Trust as set
forth in the Trust Agreement entered into on July 1, 1989, by and
between the Company and The Northern Trust Company, as Trustee, as the
same may from time to time be amended.
"Trustees" means the individual trustee under the Trust, or
any successor trustee or trustees under the provisions of the Trust.
"Vesting Service" means all service of an Employee with an
Employer or an Affiliated Company, based on calendar months, counted
from the earlier of (A) the later of (i) the date the Employee is
first hired by an Employer or an Affiliated Company, and (ii) the date
specified in column 1 of Exhibit A hereto with respect to such
Employer (provided that, if no date is specified in such column with
respect to an Employer, the date on which such Employer became an
Affiliated Company shall be utilized for purposes of this clause
(ii)), and (B) the date on which the Employee began accruing Vesting
Service under a Prior Plan, to his last Severance Date; SUBJECT,
HOWEVER, to the following special rules:
(a) Breaks in Service will be excluded in determining
Vesting Service, except that a Break in Service incurred when an
Employee quits, Retires, or is discharged will not be excluded if
the Employee returns to the performance of duties as an Employee
of an Employer prior to the first anniversary of his absence from
the performance of duties; provided that if such Break in Service
commenced while the Employee was absent from the performance of
duties for one of the reasons described in paragraph (ii) of the
definition of "Severance Date," the Break in Service will only
not be excluded if it is incurred, and the Employee returns to
the performance of duties as an Employee of an Employer, prior to
the first anniversary of his absence from the performance of
duties.
(b) For an Employee who is entitled to any portion of his
Accrued Benefit in accordance with Article IV or Article XII
hereof, service which would otherwise be Vesting Service which
occurs before a Break in Service of at least twelve (12)
consecutive months will be included in determining Vesting
Service if the Employee completes one Eligibility Year of Service
after the date on which the Break in Service ends.
(c) For an Employee who is not entitled to any portion of
his Accrued Benefit in accordance with Article IV or Article XII
hereof, service which would otherwise be Vesting Service which
occurs before a Break in Service of at least twelve (12) consecu-
345
tive months will be included in determining Vesting Service if
the Employee completes one year of Eligibility Service after the
date on which the Break in Service ends; provided that in no
event will such service be included in determining Vesting
Service if the length of the Break in Service exceeds: (i) if
the Break in Service commenced before January 1, 1985, the length
of the prior Vesting Service (determined after applying this same
rule to such prior Vesting Service) or (ii) if the Break in Ser-
vice commenced after December 31, 1984, the greater of the period
determined under clause (i) or five (5) years.
(d) Any Leased Employee of an Employer or an Affiliated
Company who subsequently becomes an Employee and thereafter
participates in the Plan shall receive credit for vesting
hereunder for his period of employment as a Leased Employee,
except to the extent that Section 414(n)(5) of the Code was
satisfied with respect to such Employee while he was a Leased
Employee.
(e) Vesting Service shall include leaves of absence granted
by an Employer or an Affiliated Company to an Employee on and
after August 5, 1993 pursuant to the Family and Medical Leave
Act, if the Employee returns to work for an Employer or an
Affiliated Company at the end of such leave of absence.
GENDER AND NUMBER. The masculine pronoun wherever used herein
shall be deemed to include the feminine and the neuter, and the
singular shall be deemed to include the plural whenever the context
requires.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
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3.01 REQUIREMENTS FOR PARTICIPATION. Each Employee who was
a Participant in the Plan immediately prior to the Effective Date
shall continue to participate in and receive benefits under the Plan
in accordance with its terms. Each other Employee shall become a
Participant on his Eligibility Commencement Date.
3.02 DURATION. (a) An Employee who became a Participant
and attained his Severance Date prior to January 1, 1993 continued to
be a Participant until the end of a Plan Year in which he completed
fewer than 501 Hours of Service and also continued to be a Participant
thereafter for so long as he was entitled to receive any benefits
hereunder regardless of when such benefits are payable. If such
Participant completed fewer than 501 Hours of Service in any Plan Year
before becoming entitled to receive (then or thereafter) a benefit
hereunder, he thereupon ceased to be a Participant unless and until he
thereafter completed another Eligibility Year of Service in which
event he was deemed to have become a Participant on the first day of
such completed Eligibility Year of Service.
346
Notwithstanding the foregoing, if a Participant who left an Employer
to serve in the armed forces of the United States for a period during
which his reemployment rights are guaranteed by law ceased to be a
Participant under the preceding provisions of this subsection (a), and
such Participant returned to work for an Employer prior to the
expiration of his reemployment rights, such Participant continued to
participate in the Plan until he so returned (and thereafter in
accordance with the terms of the Plan), despite his failure to
complete 501 Hours of Service during any Plan Year prior to January 1,
1993 because he was absent for such purpose.
(b) An Employee who is absent from work with an Employer
because of (i) the Employee's pregnancy, (ii) the birth of the
Employee's child, (iii) the placement of a child with the Employee in
connection with the Employee's adoption of the child, or (iv) caring
for such child immediately following such birth or placement shall
receive credit solely for purposes of subsection (a) above for the
Hours of Service provided in subsection (c) below; provided that the
total number of hours credited as Hours of Service under this sub-
section shall not exceed 501 Hours of Service.
(c) In the event of an Employee's absence from work for any
of the reasons set forth in subsection (b) above, the Hours of Service
that the Employee will be credited with under subsection (b) are (i)
the Hours of Service that otherwise would normally have been credited
to the Employee but for such absence, or (ii) eight (8) Hours of
Service per day of such absence if the Pension Administrative
Committee is unable to determine the Hours of Service described in
clause (i).
(d) An Employee who is absent from work for any of the
reasons set forth in subsection (b) above shall be credited with Hours
of Service under subsection (b): (i) only in the Plan Year in which
the absence begins, if the Employee would be prevented from ceasing to
be a Participant under subsection (a) above in that Year solely
because he receives credit for Hours of Service for the period of ab-
sence, as provided in subsections (b) and (c) above, or (ii) in any
other case, in the immediately following Plan Year.
(e) No credit for Hours of Service will be given pursuant
to subsections (b), (c) and (d) above unless the Employee furnishes to
the Pension Administrative Committee such timely information that the
Pension Administrative Committee may reasonably require to establish:
(i) that the absence from work is for one of the reasons specified in
subsection (b) and (ii) the number of days for which there was such an
absence. No credit for Hours of Service will be given pursuant to
subsections (b), (c), and (d) for any purpose of the Plan other than
the determination of whether an Employee has ceased to be a Par-
ticipant pursuant to subsection (a).
3.03 CHANGE IN STATUS. If a Participant shall cease to be
employed on a nonclerical hourly-paid basis but continues to be an
Employee, he shall be deemed to be an inactive Participant until he
again is employed on a nonclerical hourly-paid basis or ceases to be
an Employee, whichever first occurs. After he becomes, and so long as
347
he remains, an inactive Participant, he shall accrue no Credited
Service for purposes of the Plan but shall continue to accrue Vesting
Service in accordance with its terms. Upon the Retirement, death,
disability or other termination of employment of an inactive
Participant, payment of his benefits will be made to him or to his
Spouse or Beneficiary pursuant to the applicable provisions of
Articles IV and V.
ARTICLE IV
PENSION BENEFITS
------------------
4.01 BENEFITS PAYABLE ON NORMAL RETIREMENT. Subject to the
provisions of Section 4.06 below and of subsection (e) of this Section
4.01, each Participant who Retires on his Normal Retirement Date shall
be entitled to receive his Normal Retirement Benefit, a monthly bene-
fit for the remainder of his lifetime, determined under subsections
(a), (b), (c) and (d) below, as appropriate, and based on Credited
Service determined in accordance with subsection (e) below.
(a) The portion of the Normal Retirement Benefit attribu-
table to Credited Service before January 1, 1982, shall be the
accrued benefit (determined under the terms and provisions of the
Plan as in effect on December 31, 1981) to which a Participant is
entitled as of January 1, 1982; PROVIDED, HOWEVER that for
purposes of determining such accrued benefit, the compensation
for the Plan Year 1977 for each Participant who was paid
compensation for the entire Plan Year 1978 shall be deemed to be
his compensation for the Plan Year 1978 divided by 1.06. For
purposes of determining the accrued benefit of a Participant as
of January 1, 1982 pursuant to this subsection (a), if the
"Social Security Reduction Amount," as that term was defined in
the Plan as of December 31, 1983, was calculated by using an
estimate of the wages of an Employee for some or all years of
employment for purposes of determining such Employee's "Primary
Social Security Amount," as described in the paragraph in the
Plan as of December 31, 1983, in which such term was so defined:
(i) The pre-termination (or pre-hire) wage history
shall be estimated by applying a salary scale, projected
backwards, to the Employee's compensation (as defined in
section 3.3 of Internal Revenue Service Revenue Ruling 71-
446) at termination of employment (or at hire) and the
salary scale shall be either:
(A) the actual change in the average wages from
year to year as determined by the Social Security
Administration, or
(B) a level percentage per year that is not less
than six percent per annum;
348
(ii) The Pension Administrative Committee shall give
clear written notice to each Employee of the Employee's
right to supply actual salary history and of the financial
consequences of failing to supply such history. The notice
must be given each time the summary plan description for the
Plan is provided to the Employee and must also be given upon
termination of employment. The notice must also state that
the Employee can obtain the actual salary history from the
Social Security Administration; and
(iii) The accrued benefit for any Participant will be
adjusted based on an actual salary history for years
previously estimated before termination of employment (and
an assumed post-termination compensation in accordance with
section 11.01 of Internal Revenue Service Revenue Ruling 71-
446 when applicable) if the Participant supplies
documentation of that history. Such documentation must be
provided no later than ninety (90) days following the later
of the date of termination of employment and the time when
the Participant is notified of the amount of retirement
income to which he is entitled.
The estimated wages may be used either only for years before
employment or for all years before termination of employment.
(b) The portion of the Normal Retirement Benefit of a
Participant included in a collective bargaining unit or employed
at a location set forth on Exhibit B attached hereto, attribut-
able to Credited Service from January 1, 1982 until the date
preceding the Formula Change Date set forth on Exhibit B for the
applicable unit or location, shall be one-twelfth (1/12) of the
sum of:
(i) one and one-tenth percent (1.1%) of his Covered
Compensation for each year of Credited Service from January
1, 1982 until the date preceding the applicable Formula
Change Date, plus
(ii) one and two-tenths percent (1.2%) of his Excess
Compensation for each year of Credited Service from January
1, 1982 until the date preceding the applicable Formula
Change Date.
(c) The portion of the Normal Retirement Benefit of a
Participant included in a collective bargaining unit or employed
at a location set forth on Exhibit B or Exhibit C attached
hereto, attributable to Credited Service from and after the
applicable Formula Change Date or Credited Service Date shall be
one-twelfth (1/12) of the sum of:
(i) one and thirty-seven hundredths percent (1.37%) of
his Covered Compensation that is not Excess Compensation for
each year of Credited Service from and after the applicable
Formula Change Date or Credited Service Date, plus
349
(ii) one and eighty-five hundredths percent (1.85%) of
his Excess Compensation for each year of Credited Service
from and after the applicable Formula Change Date or
Credited Service Date.
(d) The portion of the Normal Retirement Benefit of a
Participant included in a collective bargaining unit or employed
at a location set forth on Exhibit D attached hereto,
attributable to Credited Service from and after the Credited
Service Date set forth on Exhibit D for the applicable unit or
location shall be one-twelfth (1/12th) of the sum of:
(i) One and one-tenth percent (1.1%) of his Covered
Compensation for each year of Credited Service from and
after the applicable Credited Service Date; plus
(ii) One and two-tenths percent (1.2%) of his Excess
Compensation for each year of Credited Service from and
after the applicable Credited Service Date.
(e) For purposes of determining the portion of the Normal
Retirement Benefit to which a Participant is entitled pursuant to
subsections (b), (c) and (d) above:
(i) Not more than thirty (30) years of Credited
Service as a Participant under this Plan from and after the
applicable 30 year Credited Service Date set forth on
Exhibit A shall be taken into account for purposes of
subsections (b), (c) and (d) above.
(ii) In the case of a Participant with more than thirty
(30) years of Credited Service as a Participant under this
Plan from and after the applicable 30 year Credited Service
Date set forth on Exhibit A, the years of such Credited
Service to be taken into account for purposes of subsections
(b), (c) and (d) shall be those thirty (30) years (whether
or not consecutive) which make the greatest contribution to
his Normal Retirement Benefit under this Plan; and
(iii) If a Participant has Credited Service from
and after the applicable 30 year Credited Service Date set
forth on Exhibit A, as a Participant under this Plan and
under the Newell Pension Plan for Salaried and Clerical
Employees As Amended and Restated Effective January 1, 1989
(the "Salaried Plan"), the Participant shall be entitled to
credit for a maximum of thirty (30) years of Credited
Service under both this Plan and the Salaried Plan for
purposes of computing his aggregate benefit from and after
the applicable 30 year Credited Service Date set forth on
Exhibit A, under subsections (b), (c) and (d) of this
Section 4.01 and under the Salaried Plan; provided that if a
Participant has more than thirty (30) years of such Credited
Service from and after the applicable 30 year Credited
Service Date set forth on Exhibit A, the years of such
Credited Service to be taken into account for purposes of
350
computing such aggregate benefit under this Plan and the
Salaried Plan shall be those 30 years (whether or not
consecutive) which make the greatest contribution to such
aggregate Normal Retirement Benefit under both Plans; and
provided, further, that in no event will a Participant
receive Credited Service for purposes of determining his
Normal Retirement Benefit under this Plan while he is a
Participant under the Salaried Plan.
(f) In no event shall this Section 4.01 be applied to
reduce the Normal Retirement Benefit of any Participant below the
Accrued Benefit (determined under the terms and provisions of the
Plan as in effect on December 31, 1981) to which he was entitled
as of January 1, 1983, or the Accrued Benefit (determined under
the terms and provisions of the Plan as in effect on December 31,
1988) to which he was entitled as of January 1, 1989.
4.02 BENEFITS PAYABLE ON POSTPONED RETIREMENT. Subject to
the provisions of Section 4.06 below, each Participant who Retires on
his Postponed Retirement Date shall be entitled to receive a monthly
benefit for the remainder of his lifetime, commencing on the first day
of the month following such Postponed Retirement Date, equal to the
amount determined in Section 4.01 above based on Credited Service (as
limited by subsection 4.01(e)) as of his Postponed Retirement Date.
4.03 BENEFITS PAYABLE ON EARLY RETIREMENT. Subject to the
provisions of Section 4.06 below, each Participant who Retires on his
Early Retirement Date, shall be entitled to receive a monthly benefit
for the remainder of his lifetime equal to his Accrued Benefit upon
such Early Retirement Date, reduced where applicable by one-half of
one percent (0.5%) for each month by which the date such benefit pay-
ments commence precedes his Normal Retirement Date.
4.04 VESTED BENEFITS. Subject to the provisions of
Section 4.05 below, each Participant who upon a Severance Date caused
other than by death is not thereby eligible for the benefits described
in Section 4.01, 4.02 or 4.03 shall be entitled to receive, if the
Participant has completed five (5) years of Vesting Service at his
Severance Date, a monthly benefit equal to his Accrued Benefit at his
Severance Date, reduced where applicable by one-half of one percent
(0.5%) for each month by which the date such payments commence
precedes his Normal Retirement Date.
4.05 COMMENCEMENT OF BENEFITS.
(a) Unless a Participant otherwise elects as provided
below, payment of benefits under Sections 4.01, 4.02, 4.03, and 4.04
will commence on the later of the Participant's Normal Retirement Date
and his Postponed Retirement Date. A Participant who has completed at
least fifteen (15) years of Vesting Service may elect to have payment
of reduced benefits under Section 4.03 or 4.04 commence on the first
day of an earlier month but in no event before the later of his
Severance Date and his sixtieth (60th) birthday.
351
(b) Any election under this Section 4.05 shall be made by
written notice designating the selected date and delivered to the
Pension Administrative Committee at least thirty (30) days in advance
of that date. The provisions of subsections (a) and (b) are hereby
expressly made subject to the terms of subsection (c) below.
(c) Notwithstanding anything to the contrary contained
elsewhere in the Plan:
(i) The payment of benefits under the Plan to any
Participant will:
(A) be distributed to him not later than the
Required Distribution Date (as defined in subsection
(c)(iii)), or
(B) be distributed to him commencing not later
than the Required Distribution Date in accordance with
regulations prescribed by the Secretary of the Treasury
(I) over the life of the Participant or over the lives
of the Participant and his Beneficiary, or (II) over a
period not extending beyond the life expectancy of the
Participant or the life expectancy of the Participant
and his Beneficiary.
(ii) (A) If the Participant dies after distribution to
him has commenced pursuant to subsection (c)(i)(B) but
before his entire interest in a benefit under the Plan
has been distributed to him, then the remaining portion
of that interest will be distributed at least as
rapidly as under the method of distribution being used
under subsection (c)(i)(B) at the date of his death.
(B) If the Participant dies before distribution
to him has commenced pursuant to subsection (c)(i)(B),
then, except as provided in subsections (c)(ii)(C) and
(c)(ii)(D), his entire interest in a benefit under the
Plan will be distributed within five (5) years after
his death.
(C) Notwithstanding the provisions of subsection
(c)(ii)(B), if the Participant dies before distribution
to him has commenced pursuant to subsection (c)(i)(B)
and if any portion of his interest in a benefit under
the Plan is payable (I) to or for the benefit of a
Beneficiary, (II) in accordance with regulations
prescribed by the Secretary of the Treasury over the
life of the Beneficiary or over a period not extending
beyond the life expectancy of the Beneficiary, and
(III) beginning not later than one (1) year after the
date of the Participant's death or such later date as
the Secretary of the Treasury may prescribe by regula-
tions, then the portion of such interest referred to in
this subsection (c)(ii)(C) shall be treated as
352
distributed on the date on which such distributions
begin.
(D) Notwithstanding the provisions of subsections
(c)(ii)(B) and (c)(ii)(C), if the Beneficiary referred
to in subsection (c)(ii)(C) is the Surviving Spouse of
the Participant, then:
(I) the date on which the distributions are
required to begin under subsection
(c)(ii)(C)(III) shall not be earlier than the
date on which the Participant would have
attained age 70 1/2, and
(II) if the Surviving Spouse dies before the
distributions to such Spouse begin, then this
subsection (c)(ii)(D) shall be applied as if
the Surviving Spouse were the Participant.
(iii) For purposes of this subsection (c), the
"Required Distribution Date" means April 1 of the calendar
year following the calendar year in which the Participant
attains age 70 1/2; provided, however, that if the
Participant attained age 70 1/2 in calendar year 1988, the
Required Distribution Date means April 1, 1990, and further
provided that if the Participant attained age 70 1/2 prior
to January 1, 1988, the Required Distribution Date means the
April 1 following the later of the calendar year in which
the Participant: (A) attained age 70 1/2, or (B) terminated
service with all Employers, unless he was a five-percent
owner (as defined in Section 416 of the Code) of the Company
with respect to the Plan Year ending in the calendar year in
which he attained age 70 1/2, in which case clause (B) shall
not apply.
(iv) For purposes of this subsection (c), the life
expectancy of a Participant and his Spouse may be
redetermined, but not more frequently than annually.
4.06 NORMAL FORMS OF BENEFIT.
(a) If a Participant does not make a timely election not to
receive payments pursuant to this subsection (a) and to receive
payments pursuant to one of the optional forms of payment described in
Section 5.01 below, and has an Eligible Spouse at the time payments
under Section 4.01, 4.02, 4.03, or 4.04, above, commence, the benefits
payable thereunder to the Participant shall be payable as a Qualified
Joint and Survivor Annuity which shall be the Actuarial Equivalent of
the retirement benefit set forth in the applicable Section. Any elec-
tion by a Participant not to receive payments pursuant to this subsec-
tion (a) shall only be effective if the requirements contained in the
last sentence of Section 5.01(f) have been satisfied.
(b) If a Participant does not make a timely election not to
receive payments pursuant to this subsection (b) and to receive
payments pursuant to one of the optional forms of benefits described
353
in Section 5.01 below, and does not have an Eligible Spouse at the
time payments under Section 4.01, 4.02, 4.03, or 4.04, above, com-
mence, the benefits payable thereunder to the Participant shall be
payable as an annuity for the Participant's life ending on the first
day of the month during which his death occurs.
4.07 QUALIFIED PRERETIREMENT SURVIVOR ANNUITY.
(a) Upon the death of a Participant:
(i) Who dies after he has satisfied the requirements
for a benefit under Section 4.03, or after he has satisfied
the Vesting Service requirements of Section 4.04, or
Section 12.05 if applicable, and
(ii) Who has not commenced receiving benefit payments
accrued under the Plan,
his Surviving Spouse shall be entitled to receive a "Qualified
Preretirement Survivor Annuity."
(b)(i) A Qualified Preretirement Survivor Annuity payable
to a Surviving Spouse shall be a survivor annuity for the life of the
Surviving Spouse based upon the Participant's Accrued Benefit at his
Severance Date (but reduced as provided below), payable at the follow-
ing times:
(A) If the Participant shall have completed
fifteen (15) years of Vesting Service at his Severance
Date, and shall not have attained the age of sixty (60)
years on or prior to the date of his death, then such
Qualified Preretirement Survivor Annuity shall commence
on the first day of the month following the date that
would have been the Participant's sixtieth (60th)
birthday if he had lived until that date; provided,
however, his Surviving Spouse shall have the right to
request that payment of such Qualified Preretirement
Survivor Annuity be deferred until the first day of any
month after the date that would have been the
Participant's sixtieth (60th) birthday up to and
including the first day of the month following the date
that would have been the Participant's sixty-fifth
(65th) birthday. Any such request must be delivered in
writing to the Pension Administrative Committee at
least thirty (30) days prior to the date selected for
commencement of payment of such Qualified Preretirement
Survivor Annuity. Any such request may be revoked by
the Surviving Spouse by a subsequent written request
delivered to the Pension Administrative Committee at
least thirty (30) days prior to the date selected for
commencement in the request to be revoked.
(B) If the Participant (i) is working past his
Normal Retirement Date for an Employer as of the date
of his death, or (ii) shall have completed fifteen (15)
354
years of Vesting Service at his Severance Date and
shall have attained the age of sixty (60) years prior
to the date of his death, then such Qualified
Preretirement Survivor Annuity shall commence on the
first day of the month following the date of his death;
provided, however, that in the case of a Participant
described in clause (ii), his Surviving Spouse shall
have the right to request that payment of such
Qualified Preretirement Survivor Annuity be deferred
until the first day of any month after the date of the
Participant's death up to and including the first day
of the month following the date that would have been
the Participant's sixty-fifth (65th) birthday. Any
such deferral request shall be made and may be revoked
pursuant to the procedures described in paragraph (A)
next above.
(C) If the Participant (i) is not working
past his Normal Retirement Date for an Employer,
whether or not he has attained his Normal Retirement
Date, as of the date of his death, and (ii) shall have
completed at least five (5) but less than fifteen (15)
years of Vesting Service at his Severance Date, then
such Qualified Preretirement Survivor Annuity shall
commence on the first day of the month following the
later to occur of (i) the date of his death and (ii)
the date that would have been his sixty-fifth (65th)
birthday if he had lived until such date.
(ii) The amount of the Qualified Preretirement Sur-
vivor Annuity payable to a Surviving Spouse with respect to
his benefit under the Plan shall be as follows:
(A) If the Participant shall have completed
fifteen (15) years of Vesting Service at his Severance
Date, and shall not have attained the age of sixty (60)
years on or prior to the date of his death, then the
amount of such Qualified Preretirement Survivor Annuity
shall be determined as if the Participant had
terminated employment on the date of his death, sur-
vived to his sixtieth (60th) birthday, Retired and com-
menced receiving his early retirement benefit pursuant
to Section 4.03 in the form of a Qualified Joint and
Survivor Annuity on his sixtieth (60th) birthday and
died on the day after his sixtieth (60th) birthday;
provided, however, that if the Surviving Spouse elects
to defer payment of the Qualified Preretirement
Survivor Annuity pursuant to subparagraph (b)(i)(A) of
this section the amount of the Qualified Preretirement
Survivor Annuity shall be determined as if the
Participant had terminated employment on the date of
his death, survived to the selected commencement date,
Retired and commenced receiving a benefit in the form
of a Qualified Joint and Survivor Annuity on the
selected commencement date and died on the next day.
355
(B) If the Participant (i) is working past his
Normal Retirement Date for an Employer as of the date
of his death, or (ii) shall have completed fifteen (15)
years of Vesting Service at his Severance Date and
shall have attained the age of sixty (60) years prior
to the date of his death, then the amount of such
Qualified Preretirement Survivor Annuity shall be de-
termined as if the Participant had Retired and com-
menced receiving a benefit in the form of a Qualified
Joint and Survivor Annuity on the day before the date
of his death; provided, however, that if the Surviving
Spouse elects to defer payment of the Qualified
Preretirement Survivor Annuity pursuant to subparagraph
(b)(i)(B) of this section, the amount of the Qualified
Preretirement Survivor Annuity shall be determined as
if the Participant had terminated employment on the
date of his death, survived to the selected
commencement date, Retired and commenced receiving a
benefit in the form of a Qualified Joint and Survivor
Annuity on the selected commencement date and died on
the next day.
(C) If the Participant (i) is not working past
his Normal Retirement Date for an Employer, whether or
not he has attained his Normal Retirement Date, as of
the date of his death, and (ii) shall have completed at
least five (5) but less than fifteen (15) years of
Vesting Service then the amount of such Qualified
Preretirement Survivor Annuity shall be determined as
if the Participant had terminated employment on the
date of his death, survived to his sixty-fifth (65th)
birthday, Retired and commenced receiving a benefit in
the form of a Qualified Joint and Survivor Annuity on
his sixty-fifth (65th) birthday and had died on the day
after his sixty-fifth (65th) birthday.
Notwithstanding any provision of this subsection (b) to the contrary,
the benefit payable pursuant to this subsection (b) shall be based on
the Participant's Accrued Benefit at his Severance Date.
(c)(i) The Qualified Preretirement Survivor Annuity
payable to a Surviving Spouse pursuant to this Section shall
be payable in equal monthly installments until and including
the installment for the month in which the Surviving Spouse
dies.
(ii) Notwithstanding the provisions of this
Section 4.07, that portion of the Plan as in effect on
December 31, 1983 that provided a benefit to the Surviving
Spouse of a Participant who died prior to the commencement
of his benefit shall apply in lieu of the provisions of this
Section 4.07 with respect to (i) any Employee who died prior
to August 23, 1984, or (ii) any Employee who did not receive
credit for an Hour of Service on or after August 23, 1984;
except with respect to any Employee who elected to be
356
covered by the provisions of this Section 4.07 pursuant to
an opportunity provided in accordance with the Retirement
Equity Act of 1984.
(iii) If a Participant shall die on or after the date
of commencement of benefit payments to him under the Plan,
payments shall be made to his Surviving Spouse or Bene-
ficiary only in accordance with the form of payment
specified in Section 4.06(a), or as elected by the Partici-
pant pursuant to Section 5.01, if applicable.
(iv) The amount of any Qualified Preretirement Survivor
Annuity shall be reduced by one-half of one percent (0.5%)
for each month by which the date payment of the Qualified
Preretirement Survivor Annuity commences precedes the date
the Participant would have attained the age of sixty-five
(65) years.
4.08 DISABILITY BENEFITS. No benefits are provided under
the Plan solely by virtue of a Participant's disability.
4.09 RE-EMPLOYMENT AFTER TERMINATION OF SERVICE.
(a) If a Participant who has Retired and commenced
receiving a benefit is reemployed by an Employer after his Retirement,
such benefit shall continue to be paid notwithstanding his
reemployment.
(b) A Participant's benefit shall be suspended if he has
commenced receiving a benefit under Section 4.04 by reason of a
Severance Date other than Retirement and is reemployed for more than
three consecutive months by an Employer prior to his Normal Retirement
Date. In such event his benefit shall be suspended during such period
of reemployment beginning with the month following his completion of
three consecutive months of reemployment and up to his Normal
Retirement Date (subject to additional suspension as provided below).
(c) A Participant's benefit shall be suspended on and after
his Normal Retirement Date pursuant to subsection (d) if:
(i) He has commenced receiving a benefit under Section
4.04 by reason of a Severance Date other than Retirement and
is reemployed by an Employer on or after his Normal
Retirement Date for more than three consecutive months,
(ii) He has commenced receiving a benefit under
Section 4.04 by reason of a Severance Date other than
Retirement and is reemployed by an Employer before his
Normal Retirement Date but continues in employment with an
Employer after his Normal Retirement Date and such
employment continues for more than three consecutive month,
or
357
(iii) He continues in employment with an Employer
beyond his Normal Retirement Date without a prior
termination.
(d) In the case of a Participant described in subsection
(c)(i), (c)(ii), or (c)(iii), with respect to whom the additional
benefit accrued by reason of employment after his Normal Retirement
Date is less than the adjustment that would have been made to the
Participant's benefit if it had been increased to equal the Actuarial
Equivalent of the benefit accrued for such Participant at his Normal
Retirement Date, the Participant's benefit shall be suspended on and
after his Normal Retirement Date only in accordance with the following
provisions of this Section 4.09. Such provisions shall become
applicable to him as of the latest of (i) his Normal Retirement Date,
(ii) the first day of the month following his completion of three
consecutive months of reemployment, or (iii) the date as of which such
additional accrual is less than such adjustment.
(i) For purposes of this Section, the following
definitions shall apply:
(A) "Post-Retirement Date Service" means each
calendar month of employment of a Participant with an
Employer after the Participant's Normal Retirement Date
and subsequent to the time that:
(1) payment of a Vested Benefit commenced to
the Participant under Section 4.04 if he returned
to employment, or
(2) payment of a benefit would have com-
menced to him if he had not remained in employ-
ment,
if in either case the Participant completes forty
(40) or more Hours of Service in such calendar month.
The determination of the Employee's Employer with
respect to whether an Employee is performing Post-
Retirement Date Service shall be based on a reasonable
and good faith evaluation of the facts, and shall be
conclusive and binding.
(B) "Suspendable Amount" means:
(1) in the case of a benefit payable
periodically on a monthly basis for as long as a
life (or lives) continues, the monthly benefit
otherwise payable in a calendar month in which the
Participant is engaged in Post-Retirement Date
Service,
(2) in the case of a benefit payable other
than in the form described in clause (1) above,
the lesser of (a) the amount of such benefit that
would have been payable to the Participant if he
358
had been receiving monthly benefits under the Plan
since actual retirement based on a single life
annuity commencing at his actual retirement date;
or (b) the actual amount paid or scheduled to be
paid to the Participant for such month. Payments
which are scheduled to be paid less frequently
than monthly may be converted to monthly payments
for purposes of this clause (b).
(ii) Payment shall be permanently withheld of a
portion of a Participant's benefit, not in excess of the
Suspendable Amount, for each calendar month described in the
first two sentences of this subsection (d) during which the
Participant is employed in Post-Retirement Date Service.
(iii) If payments have been suspended pursuant to sub-
section (d)(ii) above, such payments shall resume no later
than the first day of the third calendar month after the
calendar month in which the Participant ceases to be em-
ployed in Post-Retirement Date Service; provided, however,
that no payments shall resume until the Participant has com-
plied with the requirements set forth in subsection (d)(vi)
below. The initial payment upon resumption shall include
the payment scheduled to occur in the calendar month in
which payments resume and any amounts withheld during the
period between the cessation of Post-Retirement Date Service
and the resumption of payment, less any amounts which are
subject to offset pursuant to subsection (d)(iv) below.
(iv) Benefit payments made subsequent to Post-Retire-
ment Date Service shall be reduced (A) by the Actuarial
Equivalent of any benefits paid to the Participant prior to
the time he is reemployed by an Employer after his Normal
Retirement Date (such reduction will occur only if such
benefits are not repaid in full to the Trust before the
earlier of five years after the first date on which the
Participant is subsequently reemployed by an Employer, or
the close of the first period of five consecutive one-year
Breaks in Service commencing after the payment of such
benefits; and (B) by the amount of any payments previously
made during those calendar months in which the Participant
was engaged in Post-Retirement Date Service; provided,
however, that such reduction under (B) shall not exceed in
any one month, twenty-five (25) percent of that month's
total benefit payment (excluding amounts described in sub-
section (d)(iii) above) which would have been due but for
the offset.
(v) Any Participant whose benefit payments are
suspended pursuant to subsection (d)(ii) above, shall be
notified (by personal delivery or certified mail) during the
first calendar month in which payments are withheld, that
his benefits are suspended. Such notification shall
include: (A) a description of the specific reasons for the
suspension of payments; (B) a general description of the
359
Plan provisions relating to the suspension; (C) a copy of
the provisions; (D) a statement to the effect that
applicable Department of Labor regulations may be found at
Section 2530.203-3 of the Code of Federal Regulations; (E)
the procedure for appealing the suspension, which procedure
shall be governed by Section 7.06; and (F) the procedure for
filing a benefits resumption notification pursuant to
subsection (d)(vi) below. If payments subsequent to the
suspension are to be reduced by an offset pursuant to
subsection (d)(iv) above, the notification shall speci-
fically identify the periods of employment for which the
amounts to be offset were paid, the Suspendable Amounts
subject to offset, and the manner in which the Plan intends
to offset such Suspendable Amounts.
If the Summary Plan Description ("SPD") for the Plan
contains information that is substantially the same as
information required pursuant to this subsection (d)(v), the
notification required by this subsection (d)(v) may refer
the Participant to the relevant pages of the SPD. If the
notification refers to the SPD, the notification shall also
inform the Participant how to obtain a copy of the SPD, or
relevant pages thereof, and any request for the referenced
information shall be honored within thirty (30) days of the
receipt by the Participant's Employer of such request.
(vi) Payments shall not resume as set forth in
subsection (d)(iii) above until a Participant performing
Post-Retirement Date Service notifies his Employer in
writing of the cessation of such Service and supplies such
Employer with such proof of the cessation as such Employer
may reasonably require.
(vii) A Participant may request, pursuant to the pro-
cedure contained in Section 7.06, a determination whether
specific contemplated employment will constitute Post-
Retirement Date Service.
(e) In the case of a Participant covered by subsection (b),
(c)(i), or (c)(ii), above, the monthly benefit of such Participant
commencing by reason of his subsequent Severance Date (including
Retirement) shall be redetermined in accordance with the Plan. The
Vesting Service and Credited Service of such Participant for purposes
of such redetermination shall include the Vesting Service and Credited
Service which entitled him to a benefit by reason of such prior
Severance Date as well as all subsequent Vesting Service and Credited
Service (as limited by subsection 4.01(e) above). The monthly benefit
amount as so redetermined shall be adjusted, however, so that the
Actuarial Equivalent of the sum of the benefit amounts already paid by
reason of such prior Severance Date and such redetermined benefit will
equal the greater of the amount of such redetermined benefit or the
amount of the benefit that would have been payable from such new
Severance Date by reason of such prior termination of service.
360
4.10 FORFEITURES. If upon his Severance Date a Participant
(or his Beneficiary) does not become entitled to any benefit under
this Plan other than the Accrued Benefit attributable to his own
contributions, if any, his Accrued Benefit as of such Severance Date
attributable to Employer contributions shall be deemed a Forfeiture
and shall be used to reduce Employer contributions; PROVIDED, HOWEVER,
that except as expressly provided in Sections 7.05 and 7.07 below, a
Participant's Accrued Benefit under this Plan shall become
nonforfeitable after he attains his Normal Retirement Date or
completes five (5) years of Vesting Service, whichever occurs first.
In no event shall any Forfeitures of benefits hereunder for any reason
be applied to increase the benefits any Participant or Beneficiary
would otherwise receive under this Plan.
4.11 RIGHTS FIXED AT SEVERANCE DATE. All rights and
benefits provided under this Plan for a Participant or the Beneficiary
of a Participant are determined under the terms and provisions of the
Plan as they exist on the Participant's Severance Date and such rights
and benefits, as so determined, shall become fixed and shall not be
changed by any amendment to the Plan effective after such Severance
Date. Benefits shall not be decreased due to subsequent increases in
social security benefits.
4.12 RETURN OF PARTICIPANT'S CONTRIBUTIONS AND INTEREST.
None of the Participant, his Spouse, or his Beneficiary, may at any
time elect a return of such Participant's contributions to the Plan
and/or Credited Interest thereon. However, upon the death of the
Participant and his Spouse or other Beneficiary, if any, designated
under the form of payment applicable with respect to the Participant
under Sections 4.06 and 5.01, the excess, if any, of the amount of
such contributions and Credited Interest over the aggregate payments
made to the Participant and/or his Spouse or other Beneficiary shall
be paid in cash, as soon as practicable, to his designated
Beneficiary, or if none, then pursuant to Section 5.03, in a lump sum.
4.13 MAXIMUM BENEFIT. (a) Notwithstanding any other pro-
vision of the Plan, in no event may a Participant's annual retirement
income attributable to Employer contributions exceed the equivalent,
determined in accordance with subsection (f) below and with rules
determined by the Commissioner of the Internal Revenue Service
pursuant to Code Section 415, of a straight life annuity payment equal
to the lesser of:
(i) $118,800, or such other amount as may hereafter be
set forth in Section 415 of the Code or determined by
Treasury regulations issued pursuant to Section 415(d) of
the Code; or
(ii) one hundred percent (100%) of the Participant's
average annual compensation over the three consecutive
calendar years during which he had the greatest aggregate
compensation from all Employers, increased to reflect cost
of living adjustments determined by Treasury regulations
issued pursuant to Section 415 of the Code;
361
(iii) if the Participant has fewer than ten (10) years
of participation in the Plan, the amount determined under
the provisions of clause (i) above multiplied by a fraction,
the numerator of which is the Participant's number of years
of participation (or part thereof) and the denominator of
which is ten (10); provided, however, that such product
shall not be less than one-tenth of the amount determined
under clause (i); and
(iv) if the Participant has fewer than ten (10) years
of service with all Employers, the amount determined under
the provisions of clause (ii) above multiplied by a
fraction, the numerator of which is the Participant's number
of years of service with all Employers (or part thereof) and
the denominator of which is ten (10); provided, however,
that such product shall not be less than one-tenth of the
amount determined under clause (ii).
(b) The maximum benefit permitted under subsection (a)
above shall be in the form of a straight life annuity (with no
ancillary benefits) under a plan to which employees do not contribute
and under which no rollover contributions are made.
(c) Notwithstanding the foregoing provisions of this
Section 4.13, a retirement income payable with respect to the Plan
shall not be deemed to exceed the limitation of this Section 4.13 in a
Plan Year if the retirement income derived from Employer contributions
payable with respect to the Participant under this Plan and all other
defined benefit plans of any Employer do not in the aggregate exceed
$10,000 for such Plan Year. The provisions of this subsection (c)
shall not apply with respect to any Participant if an Employer has at
any time maintained a defined contribution plan in which the
Participant participated. If the Participant has fewer than ten (10)
years of service with all Employers, the $10,000 amount referred to
above shall be multiplied by a fraction, the numerator of which is the
Participant's number of years of service with all Employers (or part
thereof) and the denominator of which is ten (10); provided, however,
that the resulting product shall not be less than $1,000.
(d) Participant contributions will be treated as a separate
defined contribution plan maintained by the Company which is subject
to the limitations on contributions and other additions described in
Treasury Regulation Section 1.415-6.
(e) If the amount contained in subsection (a)(i) above is
increased pursuant to Treasury regulations issued under Section 415(d)
of the Code, such increase shall be effective as of January 1 of the
calendar year for which such Treasury regulations were effective and
shall apply with respect to Limitation Years ending with or within
that calendar year.
(f) For purposes of this Section 4.13:
(i) If the retirement income under the Plan is payable
in any form other than a straight life annuity, the deter-
362
mination as to whether the limitation described in sub-
section (a) above has been satisfied shall be made in
accordance with regulations prescribed by the Secretary of
the Treasury, by adjusting such benefit so that it is the
equivalent to the benefit described in such subsection (a).
For purposes of this subsection (f)(i), any ancillary
benefit which is not directly related to retirement income
benefits shall not be taken into account and that portion of
any joint and survivor annuity which constitutes a Qualified
Joint and Survivor Annuity shall not be taken into account.
(ii) If the retirement income under the Plan begins
before the Social Security Age, the determination as to
whether the dollar limitation set forth in subsection (a)
has been satisfied shall be made in the case of a retirement
income commencing on or after age 62, in accordance with
regulations prescribed by the Secretary of the Treasury, by
adjusting such income so that it is equivalent to a benefit
beginning at the Social Security Retirement Age. In the
case of a retirement income commencing prior to age 62, such
determination shall be made (A) by reducing such retirement
income for the period between the Social Security Retirement
Age and age 62 in accordance with the procedure described in
the preceding sentence, and (B) by further reducing such
retirement income to its Actuarial Equivalent for the period
between age 62 and the date payment commences. The
reduction under this subsection (f)(ii) shall be made in
such manner as the Secretary of the Treasury may prescribe
that is consistent with the reduction for old-age insurance
benefits commencing before the Social Security Retirement
Age under the Social Security Act.
(iii) If the retirement income under the Plan begins
after the Social Security Age, the determination as to
whether the dollar limitation set forth in subsection (a)
has been satisfied shall be made, in accordance with
regulations prescribed by the Secretary of the Treasury, by
adjusting such benefit so that it is equivalent to such a
benefit beginning at the Social Security Age.
(iv)(A) For purposes of adjusting any benefit under
subsection (f)(i) above, the interest rate assumption shall
be the greater of five (5) percent or the rate specified in
Section 5.05 below.
(B) For purposes of adjusting any benefit under
subsection (f)(ii) above, the interest rate assumption
shall be the greater of five (5) percent or the rate
utilized in reducing the amount of retirement income
payable to a Participant on account of commencement
prior to such Participant's Normal Retirement Date
under Section 4.03 above.
363
(C) For purposes of adjusting any benefit under
subsection (f)(iii) above, the interest rate assumption
shall be five (5) percent.
(g) In the event that any Participant under this Plan is
also a Participant in a defined contribution plan or plans (as defined
in Section 415 of the Code) maintained by an Employer, the sum of the
defined benefit plan fraction and the defined contribution plan
fraction for any Limitation Year with respect to such Participant
shall not exceed one (1.0). If such sum exceeds one (1.0) and the
annual additions (as defined in Code Section 415(c)(2)) for such
Participant to such defined contribution plan or plans are not reduced
to obtain compliance with Code Section 415(e), then the Participant's
retirement income under this Plan shall be reduced to obtain such
compliance.
(h)(i) The total annual benefit payable to a
Participant under all qualified plans maintained by his
Participating Employer will not exceed the limits under
Section 415 of the Code as set forth in subsection (a)
above.
(ii) For purposes of the limitations imposed by this
Section 4.13, a defined benefit plan or defined contribution
plan shall be treated as maintained by a Participating
Employer if the plan is maintained by any employer that is,
along with such Participating Employer, a member of a
controlled group of corporations or under common control
with such Employer (as defined in Section 414(b) and (c) of
the Code, as modified by Section 415(h) thereof) or a member
of an affiliated service group (as defined in Section 414(m)
of the Code).
(i) For purposes of this Section 4.13, the term "Limitation
Year" means the period to be used in determining the Plan's compliance
with Section 415 of the Code and the regulations thereunder. The
Company shall take all actions to ensure that the Limitation Year is
the same period as the Plan Year.
(j) For purposes of this Section 4.13:
(1) "compensation" shall mean wages, salaries,
fees for professional services actually rendered in the
course of employment with an Employer (including, but
not limited to commissions paid salesmen, compensation
for services on the basis of a percentage of profits,
tips and bonuses); shall include all compensation
actually paid or made available to a Participant; shall
include any other items or amounts paid to or for the
benefit of a Participant that is currently includible
in the Participant's gross income, and shall not
include contributions made by an Employer to a plan of
deferred compensation to the extent that, before the
application of Section 415 of the Code to the Plan, the
contributions are not includable in the gross income of
364
the Participant for the taxable year in which
contributed. In no event shall the compensation of a
Participant taken into account under the Plan for any
year exceed $150,000 (or such greater amount provided
pursuant to Section 401(a)(17) of the Code);
(2) "defined benefit plan fraction" for any
Limitation Year for a Participant means a fraction, the
numerator of which is the projected annual benefit of
the Participant under all defined benefit plans
maintained by the Company and all Affiliated Companies,
determined as of the close of the Limitation Year, and
the denominator of which is the lesser of (A) the
product of 1.25, and the dollar limitation in effect
under Section 415(b)(1)(A) of the Code for such
Limitation Year, or (B) the product of 1.4 and the
amount determined under subsection (a)(ii) of Sub-
section 4.13 hereof for such Limitation Year;
(3) "defined contribution plan fraction" for any
Limitation Year for any Participant is a fraction, the
numerator of which is the sum of the annual additions
to the Participant's accounts under all defined
contribution plans maintained by the Company and all
Affiliated Companies as of the close of the Limitation
Year, and the denominator of which is the sum of the
lesser of the following amounts determined for such
Limitation Year and for each prior year of service with
the Company or an Affiliated Company: (A) the product
of 1.25 and the dollar limitation in effect under
Section 415(c)(1)(A) of the Code for such Year (deter-
mined without regard to Section 415(c)(6) of the Code),
and (B) the product of 1.4 and the amount which may be
taken into account under Section 415(c)(1)(B) of the
Code with respect to such Participant for such
Limitation Year; and
(4) "Social Security Retirement Age" means the
age used as the retirement age for a Participant under
Section 216(l) of the Social Security Act, except that
such section shall be applied (i) without regard to the
age increase factor, and (ii) as if the early
retirement age under Section 216(l)(2) of that Act were
sixty-two (62).
(k) Notwithstanding any provision of this Section 4.13 to
the contrary, in the case of any benefit payable to or with respect to
any person who was a Participant in the Plan before January 1, 1983,
(1) the Pension Administrative Committee may elect to apply the
transition rules set forth in Sections 235(d) and 235(g)(3) of the Tax
Equity and Fiscal Responsibility Act of 1982, and (2) the limitations
of this Section shall be adjusted as necessary in accordance with the
provisions of Section 235(g)(4) of that Act.
Notwithstanding any provisions of this Section 4.13 to the
contrary, in the case of any benefit payable to or with respect to any
365
person who was a Participant in the Plan before January 1, 1987, the
limitations of this Section shall be adjusted, as necessary, in
accordance with the provisions of Section 1106(g)(3) of the Tax Reform
Act of 1986.
4.14 CERTAIN CASH OUTS AND REPAYMENTS. (a) If, following
a Participant's Severance Date and prior to the commencement of his
monthly benefit payment, (i) the monthly benefit payment payable
hereunder to such Participant, or to his Spouse or Beneficiary, shall
fall below $100 and (ii) the Actuarial Equivalent of the entire
nonforfeitable benefit to which he is entitled is not in excess of
$2000, the Pension Administrative Committee shall distribute to such
Participant, Spouse or Beneficiary the Actuarial Equivalent of the
entire nonforfeitable benefit to which such person is entitled in a
lump sum as soon as administratively feasible after such Severance
Date. If such Participant is reemployed by a Participating Employer
and again becomes a Participant in this Plan, the Credited Service
with respect to which such distributed benefit was determined shall be
disregarded unless such Participant repays to the Fund the entire
amount of such distribution, plus Credited Interest thereon, before
the earlier of five years after the first date on which the
Participant is subsequently reemployed by an Employer, or the close of
the first period of five consecutive one-year Breaks in Service,
commencing after the distribution. For purposes of this Section 4.14,
the Actuarial Equivalent of a benefit to which a Participant, Spouse
or Beneficiary is entitled shall be:
(1) the Actuarial Equivalent of the benefit payable at
an Early Retirement Date pursuant to Section 4.03, in the
case of a Participant, Spouse or Beneficiary who is entitled
to such benefit; or
(2) the Actuarial Equivalent of the Normal Retirement
Benefit payable pursuant to Section 4.01 with respect to a
Participant, Spouse or Beneficiary who is not described in
clause 1 above.
(b) A lump sum benefit that is the Actuarial Equivalent of zero
dollars shall be deemed to be paid to a Participant whose Severance
Date or death occurs before he completes five (5) years of Vesting
Service, and before he attains his Normal Retirement Date.
(c) This subsection (c) applies to distributions made pursuant
to this Section 4.14 on or after January 1, 1993. Notwithstanding any
provision of the Plan to the contrary that would otherwise limit a
Distributee's election under this subsection, a Distributee may elect,
at the time and in the manner prescribed by the Pension 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.
(i) Definitions.
(A) "Eligible Rollover Distribution" is any
distribution pursuant to this Section 4.14 of all or any
366
portion of the balance to the credit of the Distributee,
except that an Eligible Rollover Distribution 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 includible in gross income
(determined without regard to the exclusion for net
unrealized appreciation with respect to employer
securities).
(B) "Eligible Retirement Plan" is an individual
retirement account described in Section 408(a) of the Code,
an individual retirement annuity described in Section 408(b)
of the Code, an annuity plan described in Section 403(a) of
the Code, or 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 a Surviving Spouse, an Eligible
Retirement Plan is an individual retirement account or
individual retirement annuity.
(C) "Distributee" includes an Employee or former
Employee. In addition, the Employee's or former Employee's
Surviving Spouse, and the Employee's or former Employee'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 Surviving Spouse, Spouse or former Spouse.
4.15 AUTHORIZED DEDUCTIONS. Notwithstanding anything to
the contrary contained herein, if a Participant who has commenced
receiving benefit payments hereunder or a Surviving Spouse or
Beneficiary of a deceased Participant (1) elects to join, or to
continue in, a medical or life insurance program provided by the
Company, and (2) authorizes the deduction of the amount to be paid by
him under any such program from the benefit payable to him pursuant to
the Plan, the Pension Administrative Committee may direct the Trustee
to deduct such amount (as from time to time certified to the Trustee
by the Pension Administrative Committee) from the benefit payable to
such Participant Surviving Spouse, or Beneficiary pursuant to the Plan
and to pay such amount directly to the Company; provided, however,
that no deduction shall be made until the Company files a written
acknowledgement with the Pension Administrative Committee that
satisfies the requirements of Treasury Regulations
section 1.401(a)-13(e)(2), and no deduction shall be made after such
Participant, Surviving Spouse or Beneficiary shall have revoked his
authorization of such deduction.
367
ARTICLE V
OPTIONAL FORMS OF PENSION
-------------------------
5.01 ELECTION OF OPTION. (a) In lieu of the amount and
method of payment of a monthly benefit payable under Section 4.06, and
subject to the provisions of this Section 5.01, a Participant may
elect by written request (which may be an original request or a
revocation or an amendment of a prior request) to receive payment of
the Actuarial Equivalent of such benefit in accordance with such of
the following options as he may elect with the consent of his Eligible
Spouse if applicable:
(i) STRAIGHT LIFE ANNUITY. A monthly benefit payable
to a Participant for his lifetime;
(ii) TEN-YEARS CERTAIN. A monthly benefit of a
smaller amount, payable to the Participant for his lifetime
and, in the event of the Participant's death before the end
of a 10-year period commencing with the date on which
payments commenced, the same benefit amount shall be payable
to the Beneficiary designated by the Participant in a
writing filed with the Pension Administrative Committee
before his death for the remainder of such period; or
(iii) JOINT-AND-SURVIVOR. A monthly benefit payable
to the Participant for the joint lives of the Participant
and his Eligible Spouse and thereafter to the Eligible
Spouse if such Spouse survives the Participant in an amount
equal to 100% of the amount payable during their joint
lives.
(b) The value of the single-sum Actuarial Equivalent of any
benefit payable under the Plan to a Participant (other than a
Qualified Joint and Survivor Annuity) shall be greater than the value
of the single-sum Actuarial Equivalent of the benefit, if any, payable
to his Beneficiary or Eligible Spouse, computed at the date of his
Retirement.
(c) Within a reasonable time prior to the first to occur of
the commencement of benefit payments to a Participant, and the
Participant's Normal Retirement Date, and again within a reasonable
time prior to the commencement of benefit payments to a Participant
who Retires on a Postponed Retirement Date, the Pension Administrative
Committee shall give such Participant written notice, in nontechnical
terms, of his right to elect not to receive benefits pursuant to
Section 4.06 above and of his right to make an election of an optional
form of payment of such benefits pursuant to subsection (a) above.
Such notice shall include a description of (i) the terms and con-
ditions of the normal form of benefit under Section 4.06, (ii) the
Participant's right to make and the effect of an election to waive
such form, (iii) the rights of the Participant's Eligible Spouse, if
any, not to consent to such election, (iv) the right to make, and the
effect of, a revocation of such an election, (v) the optional forms of
368
payment available under subsection (a) above, and (vi) the right to
request an estimate of the financial effect upon the Participant's
pension benefits of waiving the form of benefit available under
Section 4.06 above and electing one of the optional forms of payment
under subsection (a) above.
(d) The elections provided in Section 4.06 and
subsections (a) above may be made by the Participant by giving a
written notice of election to the Pension Administrative Committee at
any time during the Election Period consisting of the ninety (90) day
period ending either on the date benefit payments commence or on his
Normal Retirement Date, as applicable. Any election provided in
Section 4.06 and subsection (a) above may be modified or revoked at
any time before the date benefit payments commence and, except as
otherwise provided in Section 5.02, shall be automatically revoked if
the Participant dies before commencement of payment of his benefits to
him.
(e) If a Participant makes a request for additional
information pursuant to subsection (c) above with respect to the
elections provided in Section 4.06 or subsection (a) above on or
before the last day of the Election Period, the Election Period shall
be extended to the extent necessary to include at least the ninety
(90) calendar days immediately following the day the additional
requested information is personally delivered or mailed to the
Participant.
(f) Any election by a Participant not to receive benefits
in the normal form set forth in Section 4.06 shall not take effect
unless such Participant's Eligible Spouse irrevocably consents in
writing to such election, such consent acknowledges the effect of such
election and such consent is witnessed by a representative of the Plan
or a notary public, unless the Participant establishes to the
satisfaction of the Pension Administrative Committee that such consent
may not be obtained because there is no Eligible Spouse, the Eligible
Spouse cannot be located, or because of such other circumstances as
the Secretary of the Treasury may by regulations prescribe. If a
Participant who has an Eligible Spouse elects to have benefits paid to
a Beneficiary other than such Eligible Spouse, the consent by such
Eligible Spouse required under this subsection (f) must acknowledge
the specific Beneficiary. In such event, the Participant may not
subsequently change Beneficiaries without the consent of his Eligible
Spouse. Any consent by an Eligible Spouse shall be irrevocable. Any
consent by an Eligible Spouse, or establishment that the consent of an
Eligible Spouse may not be obtained, under this subsection, shall be
effective only with respect to such Eligible Spouse.
5.02 DEATH OF PARTICIPANT BEFORE BENEFIT COMMENCEMENT. If
a Participant who has elected option (ii) or option (iii) under
Section 5.01(a) above shall die prior to his Normal Retirement Date
and prior to the date of commencement of payment pursuant to such
option, no death benefit will be payable under such option to his
Beneficiary (provided that nothing in this sentence shall be construed
as limiting any death benefit payable pursuant to Section 4.07 above).
If a Participant who has elected option (i), (ii) or (iii) under
369
Section 5.01(a) above shall die after his Normal Retirement Date but
before actual Retirement, and such Participant is survived by a
Surviving Spouse, the election of such option shall automatically be
revoked. If a Participant described in the preceding sentence is not
survived by a Surviving Spouse, a death benefit, if any, shall be
payable to his Beneficiary under such option as if he had retired at
the end of the calendar month next preceding the date of his death.
5.03 PAYMENTS UNDER OPTION (II). A Participant who has
elected option (ii) under Section 5.01(a) above may change his
designation of Beneficiary at any time before his death; but if no
Beneficiary has been designated or if the Beneficiary does not survive
the Participant, the Actuarial Equivalent of the remaining monthly
benefit amounts due under said option (ii) shall be paid to the estate
of such Participant in a lump sum. If the Beneficiary of an option
(ii) election by a Participant shall die subsequent to such Bene-
ficiary's becoming entitled to payments hereunder and no successor
Beneficiary shall have been properly designated by such Participant,
Actuarial Equivalent of the remaining monthly benefit amounts due
thereunder shall be paid to the estate of such deceased Beneficiary in
a lump sum.
5.04 PAYMENTS UNDER OPTION (III). If the Participant has
elected option (iii) under Section 5.01(a) and his Eligible Spouse
shall die before the date on which payment of the Participant's
benefit commences, the option so elected will be automatically
cancelled and the monthly benefit payable to such Participant here-
under will be made as though the election of the option had not been
made, except that Participant may again elect an optional form of
benefit in accordance with Section 5.01(a) above.
5.05 ACTUARIAL EQUIVALENCE. Actuarial Equivalence of
optional forms of benefit to the normal form, where no other
particular assumptions are required by ERISA or other applicable law
or regulations thereunder, shall be determined on the basis of the
adjustment factors specified in: Exhibit E (joint and 50% survivor),
Exhibit F (joint and 100% survivor), or Exhibit G (life with ten years
certain), to this Plan, whichever is appropriate. For purposes of
determining lump sum equivalents, the interest rate used shall be (a)
the interest that would be used (as of the first day of the applicable
Plan Year) by the Pension Benefit Guaranty Corporation for purposes of
determining the present value of a lump sum distribution on plan
termination if the Participant's vested Accrued Benefit (using such
rate) does not exceed $25,000, or (b) 120% of such Pension Benefit
Guaranty Corporation rate if the Participant's vested Accrued Benefit
exceeds $25,000 (as determined under clause (a)). In no event,
however, shall the present value determined under clause (b) be less
than $25,000. For purposes of determining lump sum equivalents, the
mortality rate used shall be that set forth in the 1984 Unisex Pension
Table (set one year forward for males, four years backwards for
females, with 75% male/25% female blended annuities). Notwithstanding
the foregoing, for purposes of determining the Actuarial Equivalent of
a benefit accrued for a Participant at his Normal Retirement Date
under Section 4.09(d)(iv) and 4.09(e), an interest rate of 5% shall be
used. For purposes of Plan funding, the Actuary shall retain the
370
right to modify the actuarial assumptions as needed to enable
certification of Plan costs on a reasonable and appropriate basis.
Notwithstanding the foregoing, in no event shall this Section 5.05 be
applied to reduce the Accrued Benefit of any Participant below the
Accrued Benefit to which he was entitled on the date as of which this
Section was incorporated into the Plan or the effective date of any
amendment to this Section, based on his Credited Service and Covered
and Excess Compensation (as defined in Article II on such date) to
such date, and on the terms of the Plan as in effect immediately prior
to such date.
5.06 OTHER BENEFITS. This Plan provides for no benefits
payable in the event of death, dismissal, resignation or other
termination of employment of a Participant except as specifically set
forth in Articles IV and V hereof, and except upon termination of this
Plan as set forth in Article XI below, and Participants and their
Surviving Spouses and Beneficiaries shall be entitled to only the
benefits expressly provided for in the Plan.
ARTICLE VI
CONTRIBUTIONS
--------------
6.01 COMPANY CONTRIBUTIONS. For each Plan Year during the
continuance of the Plan, the Company shall pay the entire cost of the
Plan with respect to Participants in its employment, and in the
employment of other Participating Employers, and their Spouses and
Beneficiaries; and intends, but does not guarantee, to contribute to
the Fund an amount which will, as shown on the annual report of the
Plan's Actuary, meet the minimum funding standards of Section 412 of
the Code and Sections 302 through 306 of ERISA and the regulations
thereunder. All Company contributions to the Plan are conditioned
upon the qualification of the Plan under Section 401(a) of the Code
and upon the deductibility of the contribution under Section 404 of
the Code.
6.02 EMPLOYEE CONTRIBUTIONS. After December 31, 1972, the
Participants are neither required nor permitted to make contributions
to the Fund under the Plan.
ARTICLE VII
MISCELLANEOUS PROVISIONS RESPECTING PARTICIPANTS
-------------------------------------------------
7.01 INFORMATION FROM PARTICIPANTS. Participants shall
furnish to the Pension Administrative Committee such information as it
considers necessary or desirable for the purpose of administering the
Plan. If such information is not submitted or shows that such
information previously has been misstated on the records of the Plan,
the Pension Administrative Committee will make such corrections and
371
adjustments for the purposes of the Plan in accordance with the
available facts as it considers appropriate.
7.02 EMPLOYER RECORDS CONTROLLING. The regularly kept
records of each Employer shall be conclusive and binding upon all
persons with respect to the nature and length of employment, the type
and amount of compensation paid and the manner of payment thereof, the
type and length of absence from work and all other matters contained
therein relating to Employees of such Employer.
7.03 SPENDTHRIFT CLAUSE. (a) Except as provided in
subsection (b) below, or Section 8.07 of the Plan, benefit amounts
payable under the Plan to a Participant, a Spouse, or a Beneficiary
(except a minor or person under legal disability), shall be made only
to him and upon his personal receipt; and no benefit payable under the
provisions of this Plan shall be subject in any manner to antici-
pation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge, and any attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge shall be void; nor shall the Fund
or any part thereof be in any manner liable for or subject to the
debts, contracts, liabilities, engagements or torts of the person
entitled to any benefit payment.
(b) Notwithstanding the provisions of subsection (a) above,
all or any part of the Accrued Benefit of a Participant shall be
subject to and payable in accordance with the applicable requirements
of any Qualified Domestic Relations Order, as that term is defined in
Section 206(d)(3) of ERISA, and the Pension Administrative Committee
shall direct the Trustees to provide for payment in accordance with
such Order and Section and any regulations promulgated under such
Section. All such payments pursuant to Qualified Domestic Relations
Orders shall be subject to reasonable rules and regulations promul-
gated by the Pension Administrative Committee; provided that such
rules and regulations are consistent with such Section. If prior to
the commencement of payment to or with respect to a Participant of any
benefit hereunder, any amount of his Accrued Benefit is paid to an
alternate payee or payees pursuant to a Qualified Domestic Relations
Order, the amount of his Accrued Benefit shall be reduced by the
Actuarial Equivalent of any such payment.
7.04 NOT EMPLOYMENT CONTRACT. Nothing contained in this
Plan shall be construed as a contract of employment between any
Employer and any Employee, or as giving the right to any Employee to
be continued in the employment of such Employer or as a limitation of
the right of any Employer to discharge any Employee at any time with
or without cause.
7.05 FAILURE TO MAINTAIN CONTACT. Each person entitled to
benefits under this Plan shall file with the Pension Administrative
Committee from time to time in writing his complete mailing address
and each change of mailing address. Any check representing payment
hereunder and any communication addressed to a Participant or to any
other person at his last address so filed, or if no such address has
been filed then at his last address indicated on the records of the
Employer, shall be deemed to have been received by such person for all
372
purposes of the Plan; and neither the Pension Administrative
Committee, nor the Employer, nor the Trustees, shall be obliged to
search for or ascertain the location of any such person. If a check
representing payment of benefits hereunder to a Participant (or a
Surviving Spouse or Beneficiary) is returned unclaimed to the Pension
Administrative Committee and such benefits remain unclaimed for two
years, the benefits of the Participant (or Surviving Spouse or
Beneficiary) shall be deemed forfeited; PROVIDED, HOWEVER, that if at
any time thereafter the Participant (or Surviving Spouse or Benefi-
ciary) makes a claim for such benefits, such benefits shall be rein-
stated and may be paid as an expense of the Plan.
7.06 CLAIMS. No claim or application for benefits is
required for commencement of benefits under this Plan. Any claim for
benefits which are not received shall be made in writing to the
Pension Administrative Committee. In the event a claim for benefits
is wholly or partially denied by the Pension Administrative Committee,
the Pension Administrative Committee shall, within a reasonable period
of time, but no later than ninety (90) days after receipt of the
claim, notify the claimant in writing of the denial of the claim. If
the claimant shall not be notified in writing of the denial of the
claim within ninety (90) days after it is received by the Pension
Administrative Committee, the claim shall be deemed denied. A notice
of denial shall be written in a manner calculated to be understood by
the claimant, and shall contain (a) the specific reason or reasons for
denial of the claim, (b) a specific reference to the pertinent Plan
provisions upon which the denial is based, (c) a description of any
additional material or information necessary for the claimant to
perfect the claim, together with an explanation of why such material
or information is necessary, and (d) an explanation of the Plan's
review procedure. Within sixty (60) days of the receipt by the claim-
ant of the written notice of denial of the claim, or within sixty (60)
days after the claim is deemed denied as set forth above, if
applicable, the claimant may file a written request with the Pension
Administrative Committee that it conduct a full and fair review of the
denial of the claimant's claim for benefits, including the conducting
of a hearing, if deemed necessary by the Pension Administrative
Committee. In connection with the claimant's appeal of the denial of
his benefit, the claimant may review pertinent documents and may
submit issues and comments in writing. The Pension Administrative
Committee shall render a decision on the claim appeal promptly, but
not later than sixty (60) days after the receipt of the claimant's
request for review, unless special circumstances (such as the need to
hold a hearing, if necessary) require an extension of time for
processing, in which case the sixty (60) day period may be extended to
one hundred and twenty (120) days. The Pension Administrative
Committee shall notify the claimant in writing of any such extension.
The decision upon review shall (i) include specific reasons for the
decision, (ii) be written in a manner calculated to be understood by
the claimant and (iii) contain specific references to the pertinent
Plan provisions upon which the decision is based.
7.07 SPECIAL BENEFIT LIMITATIONS. To prevent
discrimination in favor of Highly Compensated Participants, the
373
provisions of this Section 7.07 shall be applicable notwithstanding
anything elsewhere contained in the Plan to the contrary.
(a) In this Section, the following terms shall have the
meaning stated below:
1. "Accrued Benefit" shall have the meaning such
forth in Article II.
2. "Actuarial Equivalent" shall have the meaning set
forth in Article II.
3. "Benefit" shall include among other benefits under
the Plan, loans in excess of the amounts set forth in
Section 72(p)(2)(A) of the Code, any periodic income, any
withdrawal values payable to a living Employee or former
Employee and any death benefits under the Plan not provided
for by insurance on the Employee's or former Employee's
life.
4. "Covered Compensation" shall have the meaning set
forth in Article II.
5. "Current Liabilities" shall have the meaning set
forth in Section 412(1)(7) of the Code.
6. "Highly Compensated Participant" shall mean a
Participant who, during the current Plan Year or the
preceding Plan Year, (a) was at any time a 5% owner of the
Company or any Employer, (b) received Covered Compensation
from the Company or any Employer in excess of $75,000 (or
such greater amount provided by the Secretary of the
Treasury pursuant to Section 414(q) of the Code), (c)
received Covered Compensation from the Company or any
Employer in excess of $50,000 (or such greater amount
provided by the Secretary of the Treasury pursuant to
Section 414(q) of the Code) and was in the top paid group of
Employees for such Plan Year, or (d) was at any time an
officer of the Company or any Employer and received Covered
Compensation from the Company or any Employer greater than
50% of the amount in effect under Section 415(b)(1)(A) of
the Code for such Plan Year. The provisions of Section
414(q) of the Code shall apply in determining whether a
Participant is a Highly Compensated Participant. The
Company for any Plan Year may elect to identify Highly
Compensated Participants based upon the current Plan Year to
the extent permitted by Section 414(q) of the Code and
regulations issued thereunder.
7. "Social Security Supplement" shall have the
meaning set forth in Internal Revenue Service Regulation
Section 1.411(a)-7(c)(4)(ii).
(b) LIMITATIONS.
374
1. In the event of termination of the Plan, the
Benefit of any Highly Compensated Participant (and any
former Highly Compensated Participant) is limited to a
Benefit that is nondiscriminatory under Section 401(a)(4) of
the Code.
2. In any Plan Year, the payments under the Plan to
or on behalf of any Employee described in paragraph (c)
shall not exceed an amount equal to the payments that would
be made to or on behalf of the Employee in that Plan Year
under:
(A) A straight life annuity that is the Actuarial
Equivalent of the Accrued Benefit and other Benefits to
which the Employee is entitled under the Plan (other
than a Social Security Supplement), and
(B) The amount of the payments that the Employee
is entitled to receive under a Social Security
Supplement.
3. The restrictions in subparagraph 2 above do not
apply, if any of the following requirements is satisfied:
(A) After payment to or on behalf of an Employee
described in paragraph (c) of all Benefits payable to
or on behalf of the Employee, the value of Plan assets
equals or exceeds 110% of the value of Current
Liabilities,
(B) The value of Benefits payable to or on behalf
of an Employee described in paragraph (c) is less than
1% of the value of the Current Liabilities before
distribution, or
(C) The value of the Benefits payable to or on
behalf of an Employee described in paragraph (c) does
not exceed the amount described in Section
411(a)(11)(A) of the Code.
(c) The Employees whose Benefits are restricted on
distribution include all Highly Compensated Participants and former
Highly Compensated Participants. A Highly Compensated Participant or
former Highly Compensated Participant is not subject to restriction
under this Section if he is not one of the 25 (or larger number chosen
by the Company) nonexcludable Employees and former Employees of the
Employers with the largest amount of Covered Compensation in the
current or in any prior Plan Year.
375
ARTICLE VIII
PROVISIONS RELATING TO THE PLAN COMMITTEES
-------------------------------------------
8.01 ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR
TRUST ADMINISTRATION. The Company ("Named Fiduciary"), Pension
Finance Committee, Pension Administrative Committee and Trustees
("Fiduciaries") shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under
this Plan and the Trust. In general, the Company, through the Board,
shall have the sole right to determine who shall be the Trustees
(subject to the terms of the Trust), the members of the Pension
Finance Committee and the members of the Pension Administrative
Committee; the sole right to determine the funding policy of the Fund
(within the limits set by the Actuary); and the sole responsibility to
amend or terminate, in whole or in part, the Plan. The Company shall
have the sole responsibility for making the contributions necessary to
provide benefits under the Plan. The Pension Administrative Committee
shall have the responsibility for administration of the Plan. The
Trustees shall have the responsibility for and shall control and
manage the operation and administration of the Trust and the assets
held under the Trust in accordance with the Trust provisions. Each
Fiduciary may rely upon any direction, information or action of
another Fiduciary as being proper under the Plan, and is not required
under the Plan to inquire into the propriety of any such direction,
information or action. It is intended under this Plan that each
Fiduciary shall be responsible for the proper exercise of its own
powers, duties, responsibilities and obligations under this Plan and
shall not be responsible for any act or failure to act of another
Fiduciary. No Fiduciary guarantees the Fund in any manner against
investment loss or depreciation in asset value. Any person may serve
in more than one fiduciary capacity with respect to the Plan or Trust
if, pursuant to the Plan and/or Trust Agreement, he is assigned or
delegated any multiple fiduciary capacities.
8.02 PENSION FINANCE COMMITTEE. The Pension Finance
Committee shall perform such duties and have such authority as is
granted to it in the Trust Agreement, the provisions of which are
hereby incorporated by reference. The Pension Finance Committee shall
consist of one or more members who may be, but are not required to be,
Employees. The members of the Pension Finance Committee shall be
appointed by the President of the Company and shall serve at his
discretion.
8.03 PENSION ADMINISTRATIVE COMMITTEE. Except to the
extent that particular responsibilities are assigned or delegated to
other Fiduciaries, pursuant to the Trust Agreement or other Sections
of the Plan, the Pension Administrative Committee shall have the
responsibility for administration of the Plan and shall have such
powers as are necessary to carry out the provisions of the Plan. The
Pension Administrative Committee shall consist of such members, not
less than three (3), as shall from time to time be appointed and
acting hereunder. The Pension Administrative Committee may also be
the administrator of any other benefit plan or plans of any Employer
376
if the Board so provides. Each member of the Pension Administrative
Committee shall be appointed by the President of the Company and shall
thereafter serve until his death, resignation or removal from such
office. Any member may resign at any time by notice in writing to the
President of the Company and to the remaining members of the Pension
Administrative Committee. The President of the Company may remove any
member of the Pension Administrative Committee at any time by written
notice to him and to the remaining members of the Pension
Administrative Committee. Members of the Pension Administrative
Committee may or may not be Employees. The Company shall notify the
Trustees in writing of the membership of the Pension Administrative
Committee and any changes therein and the Trustees will be protected
in relying on such written notice in dealing with the Pension
Administrative Committee.
The Pension Administrative Committee shall interpret the
Plan and shall solely determine all questions arising in the
administration, interpretation and application of the Plan, including
but not limited to, questions of eligibility and the status and rights
of Participants, Beneficiaries and other persons. The regularly kept
records of the Company shall be conclusive and binding upon all
persons with respect to an Employee's age, time and amount of Covered
Compensation and the manner of payment thereof, and all other matters
contained therein relating to Employees. All rules and determinations
of the Pension Administrative Committee shall be uniformly and
consistently applied to all persons in similar circumstances and shall
be conclusive and binding on all persons.
8.04 THE SECRETARY OF THE PENSION ADMINISTRATIVE COMMITTEE.
The Pension Administrative Committee will appoint a Secretary who may,
but need not, be a member of the Pension Administrative Committee, and
any document required to be filed with, or any notice required to be
given to, the Pension Administrative Committee will be properly filed
or given if mailed by registered mail, or delivered, to the Secretary
of the Pension Administrative Committee in care of the Company. The
Company shall notify the Trustees in writing of the person appointed
to act as Secretary of the Pension Administrative Committee and of any
changes therein, and the Trustees will be protected in relying upon
such written notice in dealing with the Secretary. The Secretary
shall be the agent of the Plan for service of process.
8.05 RECORDS AND REPORTS OF THE PENSION ADMINISTRATIVE COM-
MITTEE. The Pension Administrative Committee shall have (a) the
responsibility to comply with the reporting and disclosure require-
ments with respect to the Plan, including annual reports to the
Department of Labor and the Internal Revenue Service and reports and
premium payments to the Pension Benefit Guaranty Corporation, and (b)
such other assignments with respect to the administration of the Plan
designated by the Board. The Pension Administrative Committee shall
also 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' Vesting and
Credited Service, Accrued Benefits, and whether such benefits are
nonforfeitable under the Plan.
377
8.06 PENSION ADMINISTRATIVE COMMITTEE'S POWERS. The
Pension Administrative Committee, as the same shall be from time to
time constituted, shall have full power and authority, within the
limits provided by the Plan:
(i) To determine all questions arising concerning the
construction and interpretation of the Plan and in its
administration, including, but not by way of limitation, the
determination of the rights or eligibility under the Plan of
Employees and Participants and their Eligible Spouses and
Beneficiaries, and the amount of their respective benefits,
and of the initial and continuing eligibility of a
Participant's Surviving Spouse and children for benefits
hereunder; and all such determinations shall be final and
binding upon all persons whomsoever;
(ii) To adopt such rules and regulations as it may
deem reasonably necessary for the proper and efficient
administration of the Plan and consistent with its purpose;
(iii) To enforce the Plan, in accordance with its
terms and with its own rules and regulations;
(iv) To direct the Trustees with respect to all
matters involving distributions from the Fund;
(v) To receive and review the periodic reports of the
Actuary;
(vi) To prepare and distribute, in such manner as the
Pension Administrative Committee determines to be
appropriate, information explaining the Plan;
(vii) To create subcommittees and appoint agents, and
to delegate such of its rights, powers and discretions to
such subcommittees or agents as it deems desirable; and
(viii) To do all other acts, in its judgment necessary
or desirable, for the proper and advantageous administration
of the Plan;
and the due exercise by the Pension Administrative Committee of any
and all of such powers and authorities shall be conclusive and binding
on all persons whomsoever for the purposes of the Plan.
8.07 DISTRIBUTIONS TO PERSONS UNDER DISABILITY. In the
event any portion of the Fund becomes distributable under the terms
hereof to any person who is a minor or under a legal disability or is,
although not adjudicated incompetent by reason of illness or mental
disability, in the opinion of the Pension Administrative Committee
unable properly to handle his own affairs, the Pension Administrative
Committee, in its sole discretion, may direct that such distributions
shall be made in any one or more of the following ways:
(a) Directly to said minor or other person;
378
(b) To the legal guardian or conservator of said minor or
other person;
(c) To the spouse, parent, brother, sister, child or other
relative of said minor or other person for the use of said minor
or other person; or
(d) For the expenditures of the same for the education,
health, maintenance and support of said minor or other person.
Except as to (d) above, the Pension Administrative Committee shall not
be required to see to the application of any distributions so made to
any of said persons, but his or their receipts therefor shall be a
full discharge of the liability of the Pension Administrative
Committee and the Fund to such minor or other person therefor.
8.08 COMMITTEE ACTIONS. The Pension Administrative
Committee and each subcommittee shall act with or without a meeting by
the vote or concurrence of a majority of its members; but no member
who is a Participant shall take part in Pension Administrative
Committee action on any matter that has particular reference to his
own interest hereunder. A dissenting Pension Administrative Committee
member who within a reasonable time after he has knowledge of any
action or failure to act by the majority, registers his dissent in
writing delivered to each other Committee members, the Secretary, the
Board, and the Trustees shall not be responsible for any such action
or failure to act. All written directions by the Pension
Administrative Committee may be made over the signature of its
Secretary or the signatures of a majority of its members and all
persons shall be protected in relying on such written directions.
8.09 COMMITTEE EXPENSES. The Company shall provide the
Committees with all of the clerical, bookkeeping and stenographic help
and facilities that may be necessary to enable it to perform its
functions hereunder for the cost of which the Company may be
reimbursed out of the Fund if requested by the Company. The
Committees may appoint actuaries, consultants, accountants, legal
counsel, or other agents, including the Trustees with their consent,
as they deem advisable to assist in carrying out their duties
hereunder.
8.10 RULES AND DECISIONS. Subject to Section 5.05 above,
the Committees may adopt such rules and actuarial tables as they deem
necessary, desirable or appropriate. All rules and decisions of the
Committees shall be uniformly and consistently applied to all Partici-
pants in similar circumstances. When making a determination or
calculation, the Committees shall be entitled to rely upon information
furnished by a Participant, Spouse, or Beneficiary, the Company, an
Employer, legal counsel, the Actuary or the Trustees.
8.11 INDEMNIFICATION BY THE COMPANY. The Committees and
the individual members thereof, shall be indemnified by the Company
against any and all liabilities arising by reason of any act or
failure to act in good faith pursuant to the provisions of the Plan,
379
including expenses reasonably incurred in the defense of any claim
relating thereto.
8.12 FIDUCIARY DUTIES. All Fiduciaries shall discharge
their duties solely in the interest of the Participants, Spouses and
Beneficiaries and for the exclusive purpose of (a) providing benefits
to Participants, Spouses and their Beneficiaries, and (b) defraying
reasonable expenses of administering the Plan and Trust. They shall
discharge their duties with care, skill, prudence and diligence under
the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims.
8.13 PROHIBITED TRANSACTIONS TO BE AVOIDED. The
Fiduciaries shall not take any action, and shall not cause the Trust
to engage in any transaction, prohibited under or in violation of Part
4 of Title I of ERISA, or which would subject any person or the
Company to imposition of a tax under Section 4975 of the Code.
8.14 INFORMATION TO BE PROVIDED TO PARTICIPANTS AND OTHERS.
At least once in each Plan Year, the Pension Administrative Committee
shall furnish to each Participant, Spouse and Beneficiary requesting
the same in writing a statement indicating on the basis of the latest
available information:
(a) his total Accrued Benefit, under the Plan;
(b) his total accrued benefit, if any, under a Prior Plan;
and
(c) his nonforfeitable pension benefits, if any, which have
accrued, or the earliest date on which benefits will become
nonforfeitable.
For every Plan Year, the Pension Administrative Committee shall
furnish to every Participant:
(i) whose employment is terminated during said Plan
Year,
(ii) who is entitled to a deferred nonforfeitable
benefit under the Plan, and
(iii) who was paid no benefit during said Plan Year,
a statement of the nature, amount and form of the deferred
nonforfeitable benefits to which such Participant is entitled. The
Pension Administrative Committee shall furnish and make available to
Participants, Spouses and Beneficiaries, and to the Secretary of Labor
or his delegate and to the Secretary of the Treasury or his delegate,
such plan descriptions, summaries, reports, registration statements,
notifications and other documents that may be required by ERISA and
the Code and regulations thereunder.
380
8.15 ANNUAL REPORTS. The Pension Finance Committee and the
Pension Administrative Committee shall prepare, or cause to be
prepared, an annual report for each Plan Year containing such
financial statement, actuarial reports and other information in such
form and for such delivery and availability at such times and in such
manner, all as may be required by ERISA and the Code and regulations
thereunder and the Pension Administrative Committee shall retain such
records for such periods as may be required by such laws and
regulations.
ARTICLE IX
PROVISIONS RELATING TO THE TRUST FUND
-------------------------------------
9.01 PURPOSE OF FUND. The Fund is maintained for the
purposes of the Plan and the assets thereof will be held, invested,
administered and distributed in accordance with the terms of the
Trust.
9.02 NON-DIVERSION OF FUND. The Fund will be used and
applied only in accordance with the Plan and no part of the principal
or income of the Fund will be used for or diverted to purposes other
than for the exclusive benefit of Participants, and their Spouses and
Beneficiaries, in accordance with the provisions hereof, and for the
payment, if not paid by the Company, of the expenses referred to in
Section 9.03 below. Except as otherwise provided in Section 11.01
below, no Employer shall have any right, title or interest in the Fund
or any part thereof and none of the contributions made thereto by the
Company will revert to any Employer. However, without regard to the
foregoing provisions of this Section 9.02:
(i) If contribution under the Plan is conditioned on
initial qualification of the Plan under Section 401(a) of
the Code and the Plan receives an adverse determination with
respect to its initial qualification, the Trustee shall,
upon written request of the Company, return to the Company
the amount of such contribution (increased by earnings
attributable thereto and reduced by losses attributable
thereto) within one calendar year after the date that
qualification of the Plan is denied, provided that the
application for determination is made by the time prescribed
by law for filing the Company's return for the taxable year
in which the Plan is adopted, or such later date as the
Secretary of the Treasury may prescribe;
(ii) If a contribution is conditioned upon the
deductibility of the contribution under Section 404 of the
Code, then, to the extent the deduction is disallowed, the
Trustee shall upon written request of the Company, return
the contribution (to the extent disallowed) to the Company
within one year after the date the deduction is disallowed;
381
(iii) If a contribution or any portion thereof is made
by the Company by a mistake of fact, the Trustee shall, upon
written request of the Company, return the contribution or
such portion to the Company within one year after the date
of payment to the Trustee; and
(iv) Earnings attributable to amounts to be returned
to the Company pursuant to subsection (b) or (c) above shall
not be returned and losses attributable to amounts to be
returned pursuant to subsection (b) or (c) shall reduce the
amount to be so returned.
9.03 FUND EXPENSES. All expenses incurred in the
Administration of the Plan, including, but not limited to, expenses of
the Company, the Pension Finance Committee and the Pension
Administrative Committee and the expenses and compensation of their
counsel, consultants, actuaries, accountants and other agents, and the
expenses incurred by the Trustees in the administration of the Fund,
including fees for legal services rendered to the Trustees, such
compensation to the Trustees as may be agreed upon from time to time
between the Company and the Trustees, and all other proper charges and
expenses of the Trustees and of their agents and counsel, shall be
paid from the Fund except to the extent the Company elects to pay such
items. All taxes of any kind whatsoever that may be levied or
assessed under existing or future laws upon the Fund or the income
thereof, and investment expenses, shall be paid from the Fund.
ARTICLE X
MISCELLANEOUS PROVISIONS RESPECTING THE EMPLOYERS
-------------------------------------------------
10.01 NON-LIABILITY OF EMPLOYERS AND AGENTS. The Company
will make contributions to the Fund for the purpose of providing the
benefits under the Plan, but neither the Company, nor any other
Employer, nor any of the officers or employees of the Company or any
other Employer, guarantees in any manner the payment of such benefits.
All contributions made by the Company will be paid into the Fund and
all benefits payable under the Plan will be paid from the Fund alone.
Any person claiming benefits under the Plan will look solely to the
Fund for payment and no Participant, Spouse, or Beneficiary, shall
have any right to, or interest in, any part of the Fund assets upon
Retirement or otherwise except as, and to the extent, expressly
provided in this Plan.
10.02 AMENDMENT OF PLAN. This Plan may be amended at any
time and from time to time by the duly adopted resolution of the
Board, but such power of amendment shall under no circumstances
include the right in any way or to any extent to revest or otherwise
transfer any interest in or to the Fund, or any income therefrom, to
the Company or any other Employer, nor shall the power of amendment
include the right in any way or to any extent to divest any
382
Participant of the interest in the Fund to which he would be entitled
if the Plan were terminated as of the date of such amendment. Neither
shall such power of amendment be exercised in any way which would or
could give to any Participant any right or thing of exchangeable value
in advance of the receipt of distributions in accordance with the
terms provided therefor. No amendment shall ever operate to enable
any part of the corpus or income or other assets of the Fund to be
used for or diverted to any purpose other than the exclusive benefit
of Participants or their Spouses or Beneficiaries. Notwithstanding
the foregoing provisions of this Section 10.02, however, this Plan may
be amended in any manner whatsoever, with prospective or retroactive
effect, for the purpose of qualifying it under Section 401 of the Code
or any similar law hereafter applicable.
10.03 COMPANY ACTIONS. All written directions by the
Company and the exercise of any of the Company's rights, powers,
discretions, privileges and duties may be effected by a certified copy
of a resolution of the Board or its executive committee, or by a
person or persons authorized by the Board or said executive committee
to so act on behalf of the Company; and all persons shall be protected
in relying on such written directions.
ARTICLE XI
TERMINATION OF THE PLAN AND DISTRIBUTION OF THE FUND
----------------------------------------------------
11.01 TERMINATING ACTS AND DISTRIBUTION PROCEDURES. The
Company reserves the right, upon thirty (30) days' written notice to
the Trustees, to terminate the entire Plan at any time by action of
its Board. In the event of any such termination, the rights of all
Participants to the benefits accrued to the date of such termination,
all as more particularly set forth below in this Article XI, shall
become nonforfeitable, except to the extent provided in Sections 7.05
and 7.07 above. For the period required to complete such termination,
the Trustees shall continue to hold, administer, invest and distribute
the Fund in accordance with the provisions of the Trust and the
directions of the Pension Administrative Committee, unless and until
the Pension Benefit Guaranty Corporation institutes proceedings under
Section 4042 of ERISA. In the event of the termination of the Plan,
the assets of the Fund available to provide benefits shall be
allocated among the Participants and Beneficiaries in the following
order:
(1) FIRST, the Actuarial Equivalent of that
portion (if any) of the benefit of each Participant or
Beneficiary which was derived from a Participant's
contributions;
(2) SECOND, in the case of each Participant and
Beneficiary to whom an annuity was being paid on the
date of such termination and as of the beginning of the
third (3rd) year before such termination date, the
Actuarial Equivalent of the benefit determined at the
383
lowest benefit level paid during such three (3) year
period or provided under the Plan during the five (5)
year period before such termination date;
(3) THIRD, in the case of each Participant and
Beneficiary to whom an annuity would have been payable
at the beginning of the third (3rd) year before such
termination date if the Participant had Retired prior
thereto, the Actuarial Equivalent of the benefit deter-
mined at the lowest benefit level provided under the
Plan during the five (5) year period before such
termination date;
(4) FOURTH, the Actuarial Equivalent of each
benefit of a Participant and Beneficiary other than
provided for in First, Second and Third above which is
guaranteed under ERISA Section 4022 (determined without
regard to paragraph (b)(5) thereof);
(5) FIFTH, the Actuarial Equivalent of each
benefit of a Participant or Beneficiary other than
provided for in First, Second, Third or Fourth above
which is nonforfeitable under the provisions of the
Plan (other than benefits which become nonforfeitable
upon termination under this Section 11.01);
(6) SIXTH, the Actuarial Equivalent of each
benefit of a Participant or Beneficiary other than
provided for in First, Second, Third, Fourth and Fifth,
above, provided for under the Plan.
If the assets of the Fund available for allocation under any of
paragraphs FIRST, SECOND, THIRD and FOURTH, above are insufficient to
satisfy in full all of the benefits described in such paragraph, such
assets shall be allocated PRO RATA among such benefits on the basis of
the Actuarial Equivalent referred to in such paragraph of their
respective benefits; and if the assets of the Fund available for allo-
cation under paragraph FIFTH above are insufficient to satisfy in full
all of the benefits described in such paragraph, such assets shall be
allocated among such benefits PRO RATA as such benefits are determined
under the Plan as in effect at the beginning of the five (5) year
period ending on such termination date and if sufficient for that
purpose, and if the Plan has been amended during such five (5) year
period, the remainder available for allocation under paragraph FIFTH
shall be allocated PRO RATA among any benefits in addition to such
benefits (as were in effect at the beginning of such five (5) year
period) for which each such amendment provided, in the order of
occurrence until all such assets are exhausted. The manner and time
of paying benefits not already being paid shall be determined by the
Pension Administrative Committee (or the Company if there is no
Pension Administrative Committee) subject to the applicable provisions
of ERISA and the Code. After all expenses of administration of the
Plan have been provided for, and all liabilities of the Plan to
Participants employed by an Employer, former Participants and their
384
respective Spouses and Beneficiaries have been satisfied, the Company
shall be entitled to any remaining balance of such assets.
11.02 PARTIAL TERMINATION OF PLAN. If a Participating
Employer shall discontinue its participation in the Plan in whole or
in substantial part by any one or more of the following actions:
(a) The termination or partial termination of that
Employer's business with consequent termination of employment of
a substantial number of Participants employed by such Employer;
or
(b) Disposition of all or a substantial part of its
business operations unless the acquiring entity, with the consent
of the Board, continues the Plan and assumes the responsibilities
of a Participating Employer under the Plan,
then the Plan shall be deemed to be terminated with respect to such
Participating Employer and as it relates to, and is for the benefit
of, the affected Participants to the extent that they are or have been
Employees of such Participating Employer, and their respective
Surviving Spouses and Beneficiaries, other than any such Participant
who may by a transfer of his employment continue his participation in
the Plan. In the event of any such partial termination, the rights of
all affected Participants (and Surviving Spouses and Beneficiaries) to
the benefits accrued to the date of such termination, all as more
particularly set forth in this Article XI, shall become non-
forfeitable, except to the extent provided in Sections 7.05 and 7.07
above. Upon any such partial termination, an appropriate portion of
the assets of the Fund attributable to the Participants (and Surviving
Spouses and Beneficiaries) affected by such partial termination shall
be separated by the Trustees with the aid and counsel of the Actuary
and the accountants for the Plan and in accordance with applicable
rules in ERISA or regulations thereunder, and such separated portion
of the assets of the Fund shall be allocated among the Participants
(and Surviving Spouses and Beneficiaries) affected by such partial
termination in accordance with the provisions of Section 11.01 above.
11.03 MERGER. In the event of any merger or consolidation
of part or all of the Plan with, or the transfer of part of all of its
assets or liabilities to, any other plan or trust ("other plan") each
Participant in the Plan whose interests were so merged, consolidated
or transferred into, with, or to the other plan shall be entitled to
receive a benefit immediately thereafter (if the other plan then
terminated) which would be equal to or greater than the benefit he
would have been entitled to receive immediately theretofore (if this
Plan then terminated).
385
ARTICLE XII
TOP-HEAVY PROVISIONS
--------------------
12.01 TOP-HEAVY STATUS. The provisions of this Article
shall not apply to the Plan with respect to any Plan Year for which
the Plan is not Top-Heavy (except as provided in subsections 12.05(b)
and 12.05(c)). If the Plan is or becomes Top-Heavy in any Plan Year,
the provisions of this Article XII will supersede any conflicting
provisions elsewhere in the Plan.
12.02 DEFINITIONS. For purposes of this Article XII, the
following words and phrases shall have the meanings stated below
unless a different meaning is plainly required by the context:
(a) "Compensation" shall, for any Plan Year in which the
Plan is Top-Heavy, have the meaning set forth in
Section 414(q)(7) of the Code.
(b) "Determination Date" shall mean, with respect to any
Plan Year: (i) the last day of the preceding Plan Year, or (ii)
in the case of the first Plan Year of the Plan, the last day of
such Plan Year.
(c) "Key Employee" shall mean an Employee meeting the
definition of "key employee" contained in Section 416(i)(1) of
the Code and the Treasury Regulations interpreting said Section.
(d) "Non-Key Employee" shall mean any Employee who is not a
Key Employee.
(e) "Permissive Aggregation Group Plan" shall mean any plan
of the Company or an Affiliated Company which is not in the
Required Aggregation Group and which, when considered with the
Required Aggregation Group Plans, meets the requirements of
Sections 401(a)(4) and 410 of the Code.
(f) "Required Aggregation Group Plan" shall mean (1) each
plan of the Company or an Affiliated Company in which a Key
Employee is a participant, and (2) each other plan of the Company
or an Affiliated Company which enables any plan described in (1)
to meet the requirements of Sections 401(a)(4) and 410 of the
Code.
(g) "Valuation Date" shall mean with respect to a
particular Determination Date, the most recent date for valuation
of the Fund occurring within a twelve (12) month period ending on
the applicable Determination Date and used for computing Plan
costs for purposes of the minimum funding requirements of the
Code.
12.03 DETERMINATION OF TOP-HEAVY STATUS. (a) The Plan will
be "Top-Heavy" with respect to any Plan Year if, as of the
Determination Date applicable to such Year, the ratio of the present
386
value of Accrued Benefits under the Plan for Key Employees (determined
as of the Valuation Date applicable to such Determination Date) to the
present value of Accrued Benefits under the Plan for all Employees
(determined as of such Valuation Date) exceeds 60%. For purposes of
computing such ratio, and for all other purposes of applying and
interpreting this subsection (a), the provisions of Section 416 of the
Code and all Treasury Regulations interpreting said Section shall be
applied.
(b) For purposes of determining whether the Plan is Top-
Heavy, all qualified retirement plans that are Required Aggregation
Group Plans shall be aggregated. All qualified retirement plans that
are Permissive Aggregation Group Plans shall be aggregated only to the
extent permitted by Section 416 of the Code, and Treasury Regulations
promulgated thereunder, and elected by the Company.
12.04 ACTUARIAL ASSUMPTIONS. For purposes of determining
whether the Plan is Top-Heavy, the actuarial assumptions provided in
Section 5.05 above shall be used.
12.05 VESTING. (a) If the Plan becomes Top-Heavy, the
vested interest of a Participant in the portion of his Accrued Benefit
referred to in subsection (b) below shall be determined in accordance
with the following formula in lieu of the provisions of Sections 4.04
and 4.10 above:
Years of Vested Forfeitable
Vesting Service Percentage Percentage
--------------- ---------- -----------
[S] [C] [C]
Less than 2 0% 100%
2 but less than 3 20% 80%
3 but less than 4 40% 60%
4 but less than 5 60% 40%
5 or more 100% 0%
For purposes of the above schedule, years of Vesting Service shall
include all years of Vesting Service required to be counted under
section 411(a) of the Code, disregarding all years of Vesting Service
permitted to be disregarded under Section 411(a)(4) of the Code.
(b) The vesting schedule set forth in subsection (a) above
shall apply to all Accrued Benefits which have accrued while the Plan
is Top-Heavy and during the period of time before the Plan becomes
Top-Heavy. This vesting schedule shall not apply to the Accrued
Benefit of any Employee who does not have an Hour of Service after the
Plan becomes Top-Heavy.
(c) If the Plan becomes Top-Heavy and subsequently ceases
to be Top-Heavy, the vesting schedule set forth in subsection (a)
above shall automatically cease to apply, and the provisions of
Sections 4.04 and 4.10 above shall automatically apply, with respect
387
to all Accrued Benefits which accrue to a Participant for all Plan
Years after the Plan Year with respect to which the Plan was last Top-
Heavy. For purposes of this subsection (c), this change in vesting
provisions shall only be valid to the extent that the conditions of
Section 10.02 above and Section 411(a)(10) of the Code are satisfied.
12.06 MINIMUM BENEFIT. (a) If the Plan shall be Top-
Heavy, the Accrued Benefit at any point in time for each Non-Key
Employee described in subsection (c) below shall be the Actuarial
Equivalent (based on the assumptions set forth in Section 12.04 above)
of a single life annuity payable over the life of the Non-Key
Employee, commencing on his sixty-fifth (65th) birthday, equal to a
percentage of such Employee's average Compensation for the five
consecutive Plan Years when the Employee had the highest aggregate
amount of such Compensation from any Employers. Such percentage shall
equal the lesser of (i) two percent (2%) multiplied by such Employee's
years of service (as computed pursuant to subsection (b) below), or
(ii) twenty percent (20%). The minimum benefit payable pursuant to
this Section 12.06 will be determined without regard to any
contributions for any Employee under the Federal Social Security Act.
Notwithstanding the provisions of Section 4.09, if the benefit pay-
ments of a Non-Key Employee do not commence until after his sixty-
fifth (65th) birthday or are suspended for any period after his sixty-
fifth (65th) birthday pursuant to Section 4.09, the Accrued Benefit
required under this Section upon the commencement or recommencement of
benefit payments to such Non-Key Employee after his sixty-fifth (65th)
birthday shall be adjusted so that it is equal to the Actuarial
Equivalent of the Accrued Benefit required by this Section at his
sixty-fifth (65th) birthday minus the Actuarial Equivalent of any
benefit payments previously made to or with respect to the
Participant.
(b) For purposes of this Section 12.06, years of service
shall not include Plan Years when (i) the Plan was not Top-Heavy for
any Plan Year ending during such year of service, and (ii) years of
service completed in a Prior Plan plan year beginning before
January 1, 1984.
(c) Each Non-Key Employee who completes at least 1,000
Hours of Service in a Plan Year shall accrue the minimum Accrued
Benefit described in subsection (a) above for such Plan Year. A Non-
Key Employee shall not fail to accrue such benefit merely because the
Employee was not employed on a specific date or because he failed to
earn a minimum amount of Compensation for such Year.
(d) For purposes of subsection (c) above, Compensation in
Prior Plan years ending before January 1, 1984 and Compensation in
Plan Years after the close of the last Plan Year in which the Plan is
Top-Heavy shall be disregarded.
12.07 PARTICIPATION IN MORE THAN ONE PLAN. In the event
that a Participant is simultaneously covered under this Plan, at a
time when the Plan is Top-Heavy, and a defined contribution plan of
the Company or an Affiliated Company, at a time when the plan is Top-
Heavy, the Participant shall be entitled only to the defined benefit
388
minimum under this Plan, and not to the defined contribution minimum
under the defined contribution plan.
12.08 MAXIMUM LIMITATION. For purposes of determining
whether the Plan would be Top-Heavy if "90%" were substituted for
"60%" each place it appears in paragraphs (1) (A) or (2)(B) of Section
416(g) of the Code, as required by Section 416(h) of the Code, all of
the preceding provisions of this Article should be applicable except
that the phrase "90%" shall be substituted for the phrase "60%" where
it appears in subsection 12.03(a). If, pursuant to the preceding
sentence, it is determined that the Plan would be Top-Heavy if "90%"
were substituted for "60%", then for purposes of applying Section
415(e) and 416(h) of the Code, and Section 4.13 of the Plan, to the
benefit of any Participant, "1.0" shall be substituted for "1.25" in
each applicable place in paragraphs (2)(B) and (3)(B) of Section
415(e) of the Code.
Subject to the exceptions provided below, if for any Plan
Year the Plan is Top-Heavy, then the overall limitation imposed by
Section 415(e) and (h) of the Code, and Section 4.13 of the Plan, in
the case of a Key Employee who is a Participant in both the Plan and a
Top-Heavy defined benefit plan maintained by any Employer or any
Affiliated Company, shall be applied by substituting "1.0" for "1.25"
in each applicable place in paragraphs (2)(B) and (3)(B) of Section
415(e) of the Code. The change in the Section 415(e) limitations
specified in the preceding sentence shall not be applicable to a
Participant for a Plan Year in which the Plan is Top-Heavy if (a) the
sum of the present values of the accrued benefits and the account
balances of all participants in all defined benefit plans and all
defined contribution plans maintained by any Employer or any
Affiliated Company who are Key Employees does not exceed 90% of the
sum of the present values of the accrued benefits and the account
balances of all participants in all defined benefit plans and all
defined contribution plans maintained by any Employer or any
Affiliated Company, and (b) the minimum benefit percentage under the
Top-Heavy provisions of such defined benefit plans is increased to 3%.
ARTICLE XIII
PROVISIONS RELATING TO MERGERS OF PLANS
---------------------------------------
13.01 DEFINITIONS. For purposes of this Article, the
following words and phrases shall have the meanings set forth below:
(a) "BernzOmatic Union Plan" shall mean the BernzOmatic
Corporation Union Employees' Pension Plan.
(b) "Foley Hourly Plan" shall mean the Foley Company
Retirement Plan for Factory Hourly Employees.
(c) "Mirro Hourly Plan" shall mean the Mirro Corporation
Hourly Employees' Retirement Plan.
389
(d) "Combined Benefit" shall mean the sum of a
Participant's Accrued Benefit as defined in Article II (except as
otherwise provided in Section 14.02 in the case of a Participant
subject to Article XIV), of this Plan, and his accrued benefit earned
under a Constituent Plan.
(e) "Constituent Plan" shall mean each of the Foley Hourly
Plan, the Mirro Hourly Plan or the BernzOmatic Union Plan, as in
existence on the Merger Date.
(f) "Constituent Plan Participant" shall mean any person
who has earned an accrued benefit under a Constituent Plan, as of the
Merger Date for such Plan (as set forth in subsection (g) below), if
such benefit has not been fully distributed or an annuity has not been
purchased for and distributed to the Constituent Plan Participant with
respect to such benefit as of such Merger Date.
(g) "Merger Date" shall mean September 14, 1985.
13.02 GENERAL. (a) Effective September 14, 1985, the
assets held in trust under the BernzOmatic Union Plan (with the
consent of its Joint Pension Committee), the Mirro Hourly Plan and the
Foley Hourly Plan, respectively, were merged with and into the assets
held in trust under this Plan. In connection with these mergers, this
Plan assumed all liabilities of Constituent Plan Participants for
accrued benefits under the Constituent Plans at the Merger Date. This
Article will set forth special rules applicable with respect to
Constituent Plan Participants under this Plan and will supplement the
other provisions of this Plan with respect to such Constituent Plan
Participants in connection with the portion of their Combined Benefits
attributable to the Constituent Plans. The provisions of this Article
shall be applied to such portion of their Combined Benefits, not-
withstanding any inconsistent provision contained elsewhere in this
Plan.
(b) The merged assets of the Constituent Plans shall be
used to provide benefits with respect to all Participants under this
Plan, including Constituent Plan Participants.
(c) The Combined Benefit, on a termination basis (within
the meaning of Treasury Regulation Section 1.414(1)), to which any
Constituent Plan Participant is entitled under this Plan, shall
immediately after the Merger Date be equal to or greater than the
benefit to which such Constituent Plan Participant was entitled, on a
termination basis, under the applicable Constituent Plan immediately
prior to the Merger Date. This subsection (c) shall not be construed
to increase or decrease the nonforfeitable benefit accrued for any
Constituent Plan Participant under the applicable Constituent Plan, or
under this Plan, as of the Merger Date. This Article XIII shall be
administered consistent with the requirements of Sections 411 and
414(1) of the Code, and Treasury Regulations promulgated thereunder.
(d) A Constituent Plan Participant who becomes a
Participant under this Plan shall be deemed to have satisfied the
requirements for a pension under Section 4.04 for purposes of
390
eligibility for a Qualified Pre-retirement Survivor Annuity under
Section 4.07 if he has a nonforfeitable interest in a Combined
Benefit. The Qualified Preretirement Survivor Annuity payable under
Section 4.07 with respect to a Constituent Plan Participant shall be
based on his Combined Benefit, except to the extent that any portion
of such Benefit is otherwise distributable pursuant to this Article or
otherwise.
(e) Notwithstanding any term to the contrary contained
herein or in any of the Constituent Plans, the provisions of this
Amendment and Restatement included to conform this Plan to the
requirements of (i) the Code as amended by the Tax Equity and Fiscal
Responsibility Act of 1982, the Tax Reform Act of 1984, and the
Retirement Equity Act of 1984 ("REA"); (ii) ERISA as amended by REA;
and (iii) governmental rulings and regulations applicable to this Plan
as of January 1, 1984, shall apply to the Foley Hourly Plan, to the
BernzOmatic Union Plan, and to the Mirro Hourly Plan as of the
effective date applicable with respect to each such Plan in the case
of each such Act, ruling, or regulation.
13.03 SPECIAL PROVISIONS RELATING TO BERNZOMATIC UNION
PLAN.
(a) Effective September 1, 1982, contributions to the
BernzOmatic Union Plan were permanently discontinued and all benefits
accrued thereunder as of September 1, 1982 became nonforfeitable. As
of such date, participants under the BernzOmatic Union Plan, and other
nonclerical hourly-paid employees of the BernzOmatic Division of the
Company became eligible to participate in this Plan in accordance with
the terms of this Plan. For purposes of determining the Accrued
Benefit for Participants who are employed by such Division, such
Participants shall receive credit for periods of employment with the
Company from and after September 1, 1982 and not for periods of
employment with the Company, such Division, or BernzOmatic
Corporation, prior to September 1, 1982. For purposes of determining
such Participants' nonforfeitable interest in their Accrued Benefits,
and their eligibility to participate in this Plan, such Participants
shall receive credit for periods of employment with the Company from
and after April 1, 1982 and not for periods of employment with the
Company or BernzOmatic Corporation prior to April 1, 1982.
(b) The portion of the Combined Benefit of a Constituent
Plan Participant earned under the BernzOmatic Union Plan through its
Merger Date shall be payable to such Participant (in addition to his
pension benefit set forth under Article IV of this Plan) at the times
and in the manner set forth in Articles IV and V of this Plan.
Notwithstanding the preceding sentence, if at any time the Constituent
Plan Participant has satisfied all eligibility requirements contained
in the BernzOmatic Union Plan necessary to entitle him to receive
payment of the portion of his Combined Benefit earned under the
BernzOmatic Union Plan at the Merger Date commencing at a date earlier
than the date applicable under the terms of this Plan, such
Participant shall be entitled, subject to the terms and conditions ap-
plicable under the BernzOmatic Union Plan, to have payment of such
portion of his Combined Benefit commence as follows:
391
(i) If a Constituent Plan Participant's employment
with BernzOmatic Corporation and all Employers terminates:
(A) before or after the Merger Date, and (B) before he
attains age 65, and if he attains age 55 and completes five
years of Credited Service (as defined in the BernzOmatic
Union Plan) on or after May 15, 1967, such Constituent Plan
Participant shall be entitled to commence receipt (in
accordance with the terms of this Plan) of the portion of
his Combined Benefit earned under the BernzOmatic Union Plan
at the Merger Date on the first day of any calendar month
selected by the Participant on or after the later to occur
of the Merger Date and the date of his termination of
employment with BernzOmatic Corporation and all Employers,
but not later than his Normal Retirement Date. The amount
of such portion of his Combined Benefit earned under the
BernzOmatic Union Plan shall be reduced by one-half of one
percent for each full month that the date as of which
payment of such Benefit portion commences precedes the
Constituent Plan Participant's Normal Retirement Date. Any
selection of a distribution date pursuant to this paragraph
shall be made by written instrument delivered by the
Constituent Plan Participant to the Pension Administrative
Committee at least 30 days before the selected date.
(ii) If any Constituent Plan Participant's employment
with BernzOmatic Corporation and all Employers terminates:
(A) before or after the Merger Date, and (B) before he
attains age 65, and before he attains age 55 and completes
five years of Credited Service (as defined in the
BernzOmatic Union Plan) on or after May 15, 1967, he shall
immediately receive a lump sum distribution equal to his own
contributions under the BernzOmatic Union Plan together with
interest compounded annually at a rate of 3.5% per annum for
periods through April 30, 1976, and 5% per annum for periods
after that date, computed from the end of the year in which
the money was contributed. Notwithstanding any provision of
this clause (ii) to the contrary, if the Actuarial
Equivalent of the Combined Benefit of a Constituent Plan
Participant exceeds $3,500, and such Participant received
credit for at least one (1) Hour of Service on or after
August 23, 1984, then (A) no distribution shall be made to
him without his written consent before his Normal Retirement
Date, and (B) if the Participant has an Eligible Spouse,
distribution must be made in accordance with Sections 4.06
and 5.01 of this Plan unless such Eligible Spouse consents,
in the manner set forth in Section 5.01(e) above, to a
distribution of the Constituent Plan Participant's
contributions, with earnings, in a lump sum.
(c) The portion of the Qualified Preretirement Survivor
Annuity attributable to the portion of the Combined Benefit of a
Constituent Plan Participant earned under the BernzOmatic Union Plan
through the Merger Date shall be payable to the Surviving Spouse of
such Participant (in addition to the Qualified Preretirement Survivor
Annuity set forth under Section 4.07 of this Plan) at the times and in
392
the manner set forth in Section 4.07 of this Plan. Notwithstanding
the preceding sentence, if the Constituent Plan Participant at the
date of his death has satisfied all eligibility requirements contained
in the BernzOmatic Union Plan necessary to entitle him to receive
payment of the portion of his Combined Benefit earned under the
BernzOmatic Union Plan at the Merger Date commencing at a date earlier
than the date applicable under the terms of this Plan, the Surviving
Spouse of such Participant shall be entitled, subject to the terms and
conditions applicable under the BernzOmatic Union Plan, to have
payment of such portion of the Qualified Preretirement Survivor
Annuity commence as follows:
(i) If a Constituent Plan Participant's employment
with BernzOmatic Corporation and all Employers terminates by
reason of his death: (A) after the Merger Date, and (B)
before he attains age 65 and after he attains age 55 and
completes five years of Credited Service (as defined in the
BernzOmatic Union Plan) on or after May 15, 1967, his
Surviving Spouse shall be entitled to commence receipt (in
accordance with the terms of this Plan) of the portion of
the Qualified Preretirement Survivor Annuity attributable to
the portion of the Combined Benefit earned under the
BernzOmatic Union Plan at the Merger Date on the first day
of any calendar month selected by the Surviving Spouse on or
after the date of death of the Constituent Plan Participant
but not later than the date that would have been his Normal
Retirement Date. The amount of such portion of the
Qualified Preretirement Survivor Annuity shall be reduced by
one-half of one percent for each full month that the date as
of which payment of such Annuity portion commences precedes
the first day of the month following the month in which the
Constituent Plan Participant would have attained his Normal
Retirement Date. Any selection of a distribution date
pursuant to this paragraph shall be made by written
instrument delivered by the Surviving Spouse to the Pension
Administrative Committee at least 30 days before the
selected date.
(ii) If a Constituent Plan Participant's employment
with BernzOmatic Corporation and all Employers terminates by
reason of death: (A) after the Merger Date, and (B) before
he attains age 65, and before he attains age 55 and
completes five years of Credited Service (as defined in the
BernzOmatic Union Plan), on or after May 15, 1967, his
Surviving Spouse shall immediately receive a lump sum
distribution equal to the contributions of the Constituent
Plan Participant to the BernzOmatic Union Plan, together
with interest compounded annually at a rate of 3.5% per
annum for periods through April 30, 1976, and 5% per annum
for periods after that date, computed from the end of the
year in which the money was contributed. Notwithstanding
any provision of this Clause (ii) to the contrary, if the
Actuarial Equivalent of the Combined Benefit of a
Constituent Plan Participant exceeds $3,500 and such
Participant received credit for at least one (1) Hour of
393
Service on or after August 23, 1984, then no distribution
shall be made to the Surviving Spouse without her written
consent before what would have been the Normal Retirement
Date of the Constituent Plan Participant.
13.04 SPECIAL PROVISIONS RELATING TO FOLEY HOURLY PLAN.
(a) Any Constituent Plan Participant participating in the
Foley Hourly Plan on the Merger Date and previously employed by Foley-
ASC, Inc. shall become eligible to participate under this Plan as of
the Merger Date and shall remain eligible to participate and receive
benefits hereunder in accordance with the terms of this Plan.
(b) Subject to subsections (d) and (e) below, the portion
of the Combined Benefit of a Constituent Plan Participant earned under
the Foley Hourly Plan through the Merger Date shall be payable to such
Participant (in addition to his pension benefit set forth under
Article XIV of this Plan) at the times and in the manner set forth in
Articles IV (except Section 4.01), and V, of this Plan.
Notwithstanding the preceding sentence, if at any time the Constituent
Plan Participant has satisfied all eligibility requirements contained
in the Foley Hourly Plan necessary to entitle him to receive payment
of the portion of his Combined Benefit earned under the Foley Hourly
Plan at the Merger Date commencing at a date earlier than the date
applicable under the terms of this Plan, such Participant shall be
entitled, subject to the terms and conditions applicable under the
Foley Hourly Plan, to have payment of such portion of his Combined
Benefit commence as follows:
(i) If a Constituent Plan Participant's employment
with Foley-ASC, Inc. and all Employers terminates: (A)
before or after the Merger Date, and (B) before he attains
age 65, and if he attains age 55 and completes ten years of
Vesting Service (as defined in the Foley Hourly Plan), such
Participant shall be entitled to commence receipt (in
accordance with the terms of this Plan) of such portion of
his Combined Benefit earned under the Foley Hourly Plan at
the Merger Date on the first day of any calendar month
selected by the Participant on or after the later to occur
of the Merger Date and the date of his termination of
employment with Foley-ASC, Inc. and all Employers, but not
later than his Normal Retirement Date. The amount of such
portion of his Combined Benefit shall be reduced by one-half
of one percent for each full month that the date as of which
payment of such Benefit commences precedes the Constituent
Plan Participant's Normal Retirement Date. Any selection of
a distribution date pursuant to this paragraph shall be made
by written instrument delivered by the Constituent Plan
Participant to the Pension Administrative Committee at least
30 days before the selected date.
(ii) If a Constituent Plan Participant's employment
with Foley-ASC, Inc. and all Employers terminates: (A)
before or after the Merger Date, and (B) before he attains
age 55, and if he completes ten years of Vesting Service (as
defined in the Foley Hourly Plan), such Participant shall be
394
entitled to commence receipt (in accordance with the terms
of this Plan) of such portion of his Combined Benefit earned
under the Foley Hourly Plan at the Merger Date on the first
day of any calendar month selected by the Participant on or
after the date he attains age 55, but not later than his
Normal Retirement Date. The amount of such portion of his
Combined Benefit shall be reduced by one-half of one percent
for each full month that the date as of which payment of
such Benefit commences precedes the Constituent Plan
Participant's Normal Retirement Date. Any selection of a
distribution date pursuant to this paragraph shall be made
by written instrument delivered by the Constituent Plan
Participant to the Pension Administrative Committee at least
30 days before the selected date.
(c) Subject to subsections (d) and (e) below, the portion
of the Qualified Preretirement Survivor Annuity attributable to the
portion of the Combined Benefit of a Constituent Plan Participant
earned under the Foley Hourly Plan through the Merger Date shall be
payable to the Surviving Spouse of such Participant (in addition to
the Qualified Preretirement Survivor Annuity set forth under Section
4.07 of this Plan) at the times and in the manner set forth in Section
4.07 of this Plan. Notwithstanding the preceding sentence, if the
Constituent Plan Participant at the date of his death has satisfied
all eligibility requirements contained in the Foley Hourly Plan
necessary to entitle him to receive payment of the portion of his
Combined Benefit earned under the Foley Hourly Plan at the Merger Date
commencing at a date earlier than the date applicable under the terms
of this Plan, the Surviving Spouse of such Participant shall be
entitled, subject to the terms and conditions applicable under the
Foley Hourly Plan, to have payment of such portion of his Qualified
Preretirement Survivor Annuity commence as follows:
(i) If a Constituent Plan Participant's employment
with Foley-ASC, Inc. and all Employers terminates by reason
of his death: (A) after the Merger Date, and (B) before he
attains age 65 and after he attains age 55 and completes ten
years of Vesting Service (as defined in the Foley Hourly
Plan), his Surviving Spouse shall be entitled to commence
receipt (in accordance with the terms of this Plan) of such
portion of his Qualified Preretirement Survivor Annuity
attributable to the portion of the Combined Benefit earned
under the Foley Hourly Plan at the Merger Date on the first
day of any calendar month selected by the Surviving Spouse
on or after the date of death of the Constituent Plan
Participant but not later than the date that would have been
his Normal Retirement Date. The amount of such portion of
his Qualified Preretirement Survivor Annuity shall be
reduced by one-half of one percent for each full month that
the date as of which payment of such Annuity commences
precedes the first day of the month following the month in
which the Constituent Plan Participant would have attained
his Normal Retirement Date. Any selection of a distribution
date pursuant to this paragraph shall be made by written
instrument delivered by the Surviving Spouse to the Pension
395
Administrative Committee at least 30 days before the
selected date.
(ii) If a Constituent Plan Participant's employment
with Foley-ASC, Inc. and all Employers terminates by reason
of death: (A) after the Merger Date, and (B) before he
attains age 55 and after he completes 10 years of Vesting
Service (as defined in the Foley Hourly Plan), his Surviving
Spouse shall be entitled to commence receipt (in accordance
with the terms of this Plan) of such portion of his
Qualified Preretirement Survivor Annuity attributable to the
portion of the Combined Benefit earned under the Foley
Hourly Plan at the Merger Date on the first day of any
calendar month selected by the Surviving Spouse on or after
the date on which the Constituent Plan Participant would
have attained age 55, but not later than the date that would
have been his Normal Retirement Date. The amount of such
portion of his Qualified Preretirement Survivor Annuity
shall be reduced by one-half of one percent for each full
month that the date as of which payment of such Annuity
commences precedes the first day of the month following the
month in which the Constituent Plan Participant would have
attained his Normal Retirement Date. Any selection of a
distribution date pursuant to this paragraph shall be made
by written instrument delivered by the Surviving Spouse to
the Pension Administrative Committee at least 30 days before
the selected date.
(d) For purposes of determining the nonforfeitable interest
in the portion of the Combined Benefit earned under the Foley Hourly
Plan as of the Merger Date by any Constituent Plan Participant (under
the vesting provisions of the Foley Hourly Plan), and for purposes of
determining his nonforfeitable interest in the Accrued Benefit earned
under this Plan from and after the Merger Date (under the vesting
provisions of this Plan):
(i) such Constituent Plan Participant shall receive
credit for periods of employment with Foley-ASC, Inc.,
calculated in accordance with the terms of the Foley Hourly
Plan and this Plan, respectively, from and after his date of
hire by Foley-ASC, Inc., or its corporate predecessors, and
up to and including September 24, 1984; and
(ii) such Constituent Plan Participant shall receive
credit for periods of employment with the Company,
calculated in accordance with the terms of the Foley Hourly
Plan and this Plan, respectively, from and after
September 24, 1984.
(e) For purposes of determining the portion of a Combined
Benefit earned under the Foley Hourly Plan as of the Merger Date by
any Constituent Plan Participant:
(i) such Participant shall receive credit for periods
of employment with Foley-ASC, Inc., calculated in accordance
396
with the terms of the Foley Hourly Plan, from and after the
date such Participant became a participant in the Foley
Hourly Plan and up to and including September 24, 1984; and
(ii) such Participant shall receive credit for periods
of employment with the Company, calculated in accordance
with the terms of the Foley Hourly Plan, from and after
September 24, 1984 and up to and including June 30, 1985.
(f) Subject to Article XIV, for purposes of determining the
Accrued Benefit earned under this Plan by a Constituent Plan
Participant from and after the Merger Date, such Participant shall
receive credit only for periods of employment with the Company,
calculated in accordance with the terms hereof, from and after July 1,
1985.
(g)(1) The following service provisions shall apply to a
Constituent Plan Participant whose termination of employment with all
Employers occurred prior to January 1, 1993:
(i) Vesting Service is based upon each Plan Year
during which the Constituent Plan Participant completed
1,000 or more Hours of Service. For this purpose, no Hour
of Service was counted if, prior to January 1, 1985, it
occurred in a Plan Year prior to the Plan Year in which the
Constituent Plan Participant's 22nd birthday occurred or,
commencing January 1, 1985, it occurred in a Plan Year prior
to the Plan Year in which the 18th birthday of the
Constituent Plan Participant occurred.
(ii) Credited Service means each Plan Year in which
the Constituent Plan Participant earned a certain number of
Hours of Service in a Plan Year in accordance with the
following table:
Hours of Service in a Plan Year Year of Credited Service
------------------------------- ------------------------
1,800 or more 1.0
1,600 to 1,799 .9
1,400 to 1,599 .8
1,200 to 1,399 .7
1,000 to 1,999 .6
800 to 999 .5
799 or less 0
Only service while the Constituent Plan Participant was paid on a
factory hourly basis by Foley - ASC, Inc. or the Company as a
Participant in the Foley Hourly Plan or this Plan was counted as
Credited Service. Credited Service commenced on the first day of the
month following the date on which the Constituent Plan Participant
completed one Eligibility Year of Service. In the Plan Year in which
the Constituent Plan Participant became a Participant in the Foley
Hourly Plan or this Plan, his Hours of Service were annualized and he
received the portion of a year of Credited Service determined by
multiplying his annualized Hours of Service by a fraction, the
397
numerator of which was the number of months he was a Participant in
such Plan Year and the denominator of which was 12. In the Plan Year
in which the Constituent Plan Participant terminated service on a
factory hourly basis with Foley-ASC, Inc., or the Company or any other
Employer, Hours of Service were annualized and the Constituent Plan
Participant received credit for the portion of a year of Credited
Service determined by multiplying the annualized Hours of Service by a
fraction, the numerator of which was the number of months in which he
was a Participant in such Plan Year, and the denominator of which was
12.
(2) Vesting Service and Credited Service with respect to
Constituent Plan Participants whose termination of employment with all
Employers occurs on or after January 1, 1993 shall be based upon the
definitions set forth in Article II of the Plan, and the applicable
provisions of this Section 13.04.
13.05 SPECIAL PROVISIONS RELATING TO MIRRO HOURLY PLAN.
(a) From November 1, 1947 through September 1, 1983, benefits earned
under the Mirro Hourly Plan were funded through a Group Annuity
Contract, No. GA-379 issued by Aetna Life Insurance Company, which
provided for the issuance of deferred annuities covering the accrued
benefits of participants. Effective September 1, 1983, contributions
to the Mirro Hourly Plan were permanently discontinued and all
benefits accrued thereunder as of September 1, 1983 became
nonforfeitable. As of such date, participants under the Mirro Hourly
Plan, and other nonclerical hourly-paid employees of Mirro Corpo-
ration, became eligible to participate in this Plan in accordance with
the terms of this Plan. Effective July 1, 1985, Group Annuity
Contract No. GA-379 was converted into an immediate participation
guaranteed contract issued by Aetna Life Insurance Company. The
portion of the Combined Benefit earned under the Mirro Hourly Plan by
any Constituent Plan Participant as of the Merger Date is currently
maintained in the form of deferred annuities purchased for such Parti-
cipant pursuant to the terms of Group Annuity Contract No. GA-379 and
held under the terms of such immediate participation guaranteed
contract. The amount, and manner and time of payment, of such portion
of the Combined Benefit of a Constituent Plan Participant earned under
the Mirro Hourly Plan as of the Merger Date, shall be governed by the
provisions of such immediate participation guaranteed contract and the
deferred annuities maintained under such contract.
(b) For purposes of determining the Accrued Benefit for
Participants who are employed by Mirro Corporation, such Participants
shall receive credit for periods of employment with Mirro Corporation
from and after September 1, 1983 and not for periods of employment
with Mirro Corporation prior to September 1, 1983. For purposes of
determining such Participants' nonforfeitable interest in their
accrued benefits, and their eligibility to participate in this Plan,
such Participants shall receive credit for all periods of employment
with Mirro Corporation; provided that no such Participant shall be
eligible to participate in this Plan prior to September 1, 1983.
398
ARTICLE XIV
PROVISIONS RELATING TO CERTAIN PARTICIPANTS
--------------------------------------------
14.01 SCOPE.
The provisions of this Article XIV shall apply to certain
Participants as indicated herein. This Article shall control any
inconsistent provisions of this Plan with respect to such Participants
and will supplement the other provisions of this Plan.
14.02 BENEFIT FORMULAS FOR EMPLOYEES OF FOLEY DIVISION,
THOMAS DIVISION AND LAPCOR. Notwithstanding the definition of
"Accrued Benefit" contained in Article II, and the provisions of Sec-
tion 4.01 of this Plan, the benefits payable under Articles IV and V
with respect to Participants subject to this Section shall be computed
on the basis of a Normal Retirement Benefit under which a Participant
who Retires on his Normal Retirement Date shall be entitled to receive
a monthly pension for the remainder of his life equal to the
following:
(i) In the case of any such Participant who is
employed by the Foley Division of the Company at the date of
his termination of employment with all Employers: (A) If
the termination of employment with all Employers occurred
prior to April 1, 1986, $8.00 multiplied by the Partici-
pant's years of Credited Service earned from and after the
applicable date set forth in Section 13.04(e); (B) if the
termination of employment with all Employers occurred on or
after April 1, 1986 and before April 1, 1990, $8.50
multiplied by the Participant's years of Credited Service
earned from and after the applicable date set forth in
Section 13.04(e); (C) If the termination of employment with
all Employers occurred on or after April 1, 1990 and before
April 1, 1991, $9.00 multiplied by the Participant's years
of Credited Service earned from and after the applicable
date set forth in Section 13.04(e); (D) If the termination
of employment with all Employers occurred on or after April
1, 1991 and before April 1, 1992, $9.50 multiplied by the
Participant's years of Credited Service earned from and
after the applicable date set forth in Section 13.04(e); (E)
If the termination of employment with all Employers occurred
on or after April 1, 1992 and before January 1, 1993, $10.00
multiplied by the Participant's years of Credited Service
earned from and after the applicable date set forth in
Section 13.04(e); and (F) If the termination of employment
with all Employers occurs on or after January 1, 1993, the
sum of (i) $10.00 multiplied by the Participant's years of
Credited Service earned from and after the applicable date
set forth in Section 13.04(e) and prior to January 1, 1993,
and (ii) the amount determined pursuant to the formula set
forth in Section 4.01(b) of the Plan and Exhibit D with
respect to Credited Service earned from and after January 1,
1993.
399
(ii) In the case of any such Participant who is
employed by Lapcor Plastics, Inc. at the date of his termi-
nation of employment with all Employers: (A) If the
termination of employment with all Employers occurred prior
to April 1, 1988, $8.00 multiplied by the Participant's
years of Credited Service earned from and after April 1,
1984, (B) If the termination of employment with all
Employers occurred on or after April 1, 1988 and before
April 1, 1990, $8.50 multiplied by the Participant's years
of Credited Service earned from and after April 1, 1984; (C)
If the termination of employment with all Employers occurred
on or after April 1, 1990 and before April 1, 1991, $9.00
multiplied by the Participant's years of Credited Service
earned from and after April 1, 1984; (D) If the termination
of employment with all Employers occurred on or after April
1, 1991 and before April 1, 1992, $9.50 multiplied by the
Participant's years of Credited Service earned from and
after April 1, 1984; (E) If the termination of employment
with all Employers occurred on or after April 1, 1992, and
before January 1, 1993, $10.00 multiplied by the
Participant's years of Credited Service earned from and
after April 1, 1984, and (F) If the termination of
employment with all Employers occurs on or after January 1,
1993, the sum of (1) $10.00 multiplied by the Participant's
years of Credited Service earned from and after April 1,
1984 and prior to January 1, 1993, plus (ii) the amount
determined pursuant to the formula set forth in Section
4.01(b) of the Plan and Exhibit D with respect to Credited
Service earned from and after January 1, 1993. For purposes
of determining any such Participant's Vesting Service with
respect to any such Benefit, all periods of employment with
Lapcor Plastics, Inc. shall be considered.
(iii) In the case of any such Participant who is
employed by the Thomas Division of the Company at the date
of his termination of employment with all Employers, $6.50
multiplied by the Participant's years of Credited Service
earned from and after December 5, 1988, not in excess of 30
years.
14.03 SPECIAL PROVISIONS RELATING TO EMPLOYEES OF THE
THOMAS DIVISION. The following provisions shall apply to a
Participant who is employed by the Thomas Division of the Company
("Thomas Participant") notwithstanding any provision of the Plan to
the contrary:
(a) The Early Retirement Date of a Thomas Participant shall
mean the first day of a calendar month following the month in which
the Thomas Participant completes at least ten (10) years of Vesting
Service, attains age sixty (60) and elects, by written notice
delivered to the Pension Administrative Committee at least thirty (30)
days in advance of such Date, to Retire prior to his Normal Retirement
Date. Each Thomas Participant who Retires on his Early Retirement
Date shall be entitled to receive a monthly benefit for the remainder
of his lifetime equal to his Accrued Benefit upon such Early
400
Retirement Date, reduced pursuant to the following table to reflect
the period between the date such benefit payments commence and his
Normal Retirement Date. A Thomas Participant shall not be entitled
to a benefit pursuant to Section 4.03 of the Plan.
Years by Which Early Retirement Date Percentage of
Precedes Normal Retirement Date Benefit
------------------------------------ ------------
0 100%
1 88.64%
2 78.79%
3 70.21%
4 62.72%
5 56.15%
(b) The benefit payable to a Thomas Participant pursuant to
Section 4.04 shall be payable on the first day of the month following
his Normal Retirement Date; provided that if the Thomas Participant
has completed ten (10) years of Vesting Service at his Severance Date
he shall be entitled to receive his benefit on the first day of any
month he selects commencing on or after his Early Retirement Date and
prior to his Normal Retirement Date, reduced pursuant to the table set
forth in paragraph (a) of this Section to reflect the period between
the date payments commence and his Normal Retirement Date. Any
selection of a distribution date pursuant to the preceding sentence
shall be made by written instrument delivered by the Thomas
Participant to the Pension Administrative Committee at least thirty
(30) days before the selected date.
(c) The Surviving Spouse of a deceased Thomas Participant
who completed ten years of Vesting Service at his Severance Date shall
have the right to request that payment of the Qualified Preretirement
Survivor Annuity payable with respect to such Thomas Participant,
pursuant to Section 4.07(b) of the Plan, be deferred until the first
day of any month after the date that payment of the Preretirement
Qualified Survivor Annuity would otherwise have commenced, up to and
including the first day of the month following the date that would
have been the Thomas Participant's sixty-fifth (65th) birthday. Any
such request may be revoked by the Surviving Spouse by a subsequent
written request delivered to the Pension Administrative Committee at
least thirty (30) days prior to the date selected for commencement in
the request to be revoked. Any payment pursuant to this paragraph
shall be reduced pursuant to the table set forth in paragraph (a) of
this Section to reflect the period between the date such payments
commence and the date the Thomas Participant would have attained age
sixty-five (65).
(d) If a Thomas Participant becomes Permanently and Totally
Disabled after he completes fifteen (15) years of Vesting Service and
has attained the age of fifty (50) years, he shall be entitled to a
Disability Retirement Benefit pursuant to the terms of this paragraph.
The monthly amount of such Disability Retirement Benefit shall be the
sum of $50 reduced by any amounts received by the Thomas Participant
from Workers Compensation or any disability plan or program funded by
401
amounts paid by the Company or any Affiliated Company. A Thomas
Participant shall be deemed to be Permanently and Totally Disabled
only if a physician selected by the Company or an Affiliated Company
shall have found, on the basis of medical evidence, that he has been
Permanently and Totally Disabled by illness or injury so as to be
prevented thereby from engaging in any employment or occupation for
compensation and profit, and that his Total and Permanent Disability
will presumably be permanent and continuous during the remainder of
his life. In any case when the physician selected by the Company or
an Affiliated Company is required to make a finding with respect to
the Permanent and Total Disability of any Thomas Participant applying
for, or claiming or receiving, any Disability Retirement Benefit, such
Thomas Participant shall be required to submit to such examination as
shall be necessary for such physician to determine whether he is
Permanently and Totally Disabled and, when relevant, when his
disability began. The medical opinion of such physician shall decide
the question and shall be conclusive and binding for purposes of this
paragraph upon all persons as to the condition of such Thomas
Participant. A Thomas Participant who shall refuse to submit to any
physical examination required hereunder shall not be entitled to
receive any Disability Retirement Benefit for as long as he refuses to
submit to such examination. Any Thomas Participant who shall be
receiving a Disability Retirement Benefit shall be required to submit
to a disability examination in the manner set forth above for the
purpose of determining his condition whenever such examination is
requested by the Company or an Affiliated Company. If the physician
selected by the Company or an Affiliated Company shall find that the
Thomas Participant ceased, before attaining age sixty-five (65), to be
Permanently and Totally Disabled, his Disability Retirement Benefit
shall stop. The Disability Retirement Benefit shall commence on the
first day of the month after at least six consecutive months shall
have elapsed since the date on which the Permanent and Total
Disability began. After a Disability Retirement Benefit begins, it
shall continue until the first to occur of (1) the date of the Thomas
Participant's death, (2) the date on which the Thomas Participant
ceases to be Permanently and Totally Disabled and (3) the date the
Thomas Participant commences receiving a Normal Retirement Benefit, an
Early Retirement Benefit or a vested Accrued Benefit pursuant to the
applicable section of the Plan.
(e) The optional forms applicable to the benefit payable to
a Thomas Participant hereunder, shall, in lieu of those optional forms
set forth in Article V of the Plan, include the following options as
the Thomas Participant may elect, with the consent of his Eligible
Spouse if applicable, pursuant to Article V:
(1) STRAIGHT-LIFE ANNUITY. A monthly benefit payable to
the Thomas Participant for his lifetime only.
(2) JOINT AND SURVIVOR. A monthly benefit payable to the
Thomas Participant for the joint lives of the Thomas Participant
and his Eligible Spouse, or any other Beneficiary designated by
the Participant in a written instrument filed with the Pension
Administrative Committee before his death, and thereafter to the
Eligible Spouse or Beneficiary if such Eligible Spouse or
402
Beneficiary survives the Thomas Participant, in an amount equal
to 50% or 75% (as designated by the Thomas Participant in a
written instrument filed with the Pension Administrative
Committee) of the amount payable during their joint lives.
(3) LEVEL INCOME OPTION. A Thomas Participant who Retires
after attaining age sixty (60), and before reaching the earliest
age at which a retired worker may elect to receive his old age
benefits under the U.S. Social Security Act, may elect (in
accordance with procedures established by the Pension
Administrative Committee), to have the amount of his benefit
otherwise payable to him increased before such earliest age and
decreased thereafter to the end that his benefit, when combined
with his old age benefits under the U.S. Social Security Act (as
in effect at his Retirement) in the amount estimated to be
payable beginning at such earliest age, will provide a level
amount of benefit insofar as practicable. A Thomas Participant's
election of the Level Income Option shall become void if he does
not become entitled to a benefit under the Plan.
(f) The benefits applicable to a Thomas Participant shall
be based upon the assumptions and methods set forth in the attached
schedules applicable to Thomas Participants.
14.04 SPECIAL PROVISIONS RELATING TO EMPLOYEES OF THE
MASTERSET (EZ PAINTR) UNIT. Notwithstanding any provision of the Plan
to the contrary, Covered Compensation, as defined in Article II, with
respect to a Participant who is a member of Masterset (EZ Paintr)
Upholsterers, United Steelworkers of America, Local 29, shall include
any annual lump sum payment that is agreed upon between the Company or
any Affiliated Company and the collective bargaining representative
for such Participant, in lieu of, or in addition to, a base pay
increase.
14.05 SPECIAL PROVISIONS RELATING TO CLERICAL UNION
EMPLOYEES AT CONNELLSVILLE, PENNSYLVANIA. The following provisions
shall apply to a Participant who is a member of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America Local Union 491 at Connellsville, Pennsylvania ("Connellsville
Participant") notwithstanding any provision of the Plan to the
contrary:
(a) Covered Compensation, as defined in Article II, with
respect to a Connellsville Participant, shall include any bonus
(whether paid or deferred pursuant to the Company's Incentive Bonus
Plan) up to $3,000 in any Plan Year.
(b) Special Survivor Annuity.
(i) Upon the death of a Connellsville Participant:
(A) Who has attained his thirty-fifth (35th)
birthday,
403
(B) Who has completed at least five (5) years of
Vesting Service, and
(C) Whose Vesting Service is terminated by such
death,
his Surviving Spouse shall be entitled to receive a
monthly pension equal to the retirement benefit
determined for the Connellsville Participant as set
forth in Section 4.01 above based on Credited Service
(as limited by subsection 4.01(e)) as of the date of
his death, commencing on the first day of the month
next following the death of such Connellsville
Participant and ending with the earliest to occur of:
(i) such Surviving Spouse's death, (ii) such Surviving
Spouse's remarriage if, at the time of such remarriage,
there are one or more Dependent Children of such
Participant entitled to receive a benefit under
paragraph (c) below, or (iii) the date when the
aggregate number of monthly payments that were made to
such Surviving Spouse pursuant to this paragraph (b),
and to the Participant's Dependent Children pursuant to
paragraph (c) below, equals one hundred twenty (120).
Notwithstanding the foregoing, if a Surviving Spouse's
benefit under this paragraph (b) terminates by her
remarriage and, prior to the time that one hundred
twenty (120) payments have been made pursuant to this
paragraph (b) and paragraph (c) below, there are no
longer any Dependent Children of the applicable
Connellsville Participant remaining, the Surviving
Spouse (if still living) shall again become eligible to
receive the benefit described in this paragraph (b),
commencing on the first day of the month next following
the month in which the benefit under paragraph (c)
ceased to be paid and ending with the earlier to occur
of: (i) such Surviving Spouse's death, or (ii) the date
when the aggregate number of monthly payments that were
made to such Surviving Spouse pursuant to this
paragraph (b), and to the Participant's Dependent
Children pursuant to paragraph (c) below, equals one
hundred twenty (120).
In any month in which a Surviving Spouse is eligible to
receive a monthly pension both under this paragraph (b)
and under subsection 4.07(a), such Surviving Spouse
shall receive whichever monthly pension amount is the
greater, but not both, during the period of time that
the monthly pension is payable to the Surviving Spouse
under this paragraph (b).
Notwithstanding the provisions of subsection 4.07(a),
the amount of the Qualified Preretirement Survivor
Annuity payable under subsection 4.07(a) with respect
to a Connellsville Participant shall be reduced by the
Actuarial Equivalent of any payments made to his
404
Surviving Spouse in accordance with this paragraph (b)
prior to the commencement of payment of the Qualified
Pre-retirement Survivor Annuity pursuant to subsection
4.07(a).
(c) Surviving Dependent Children's Benefit. Upon the death
of a Connellsville Participant:
(i) who has attained his thirty-fifth (35th) birthday,
(ii) who has completed at least five (5) years of
Vesting Service,
(iii) whose Vesting Service is terminated by such
death,
(iv) who is not survived by a Surviving Spouse, and
(v) who is survived by one or more of his unmarried
children (including posthumous children, and adopted
children but only those adopted at least one (1) year prior
to the date of his death) under the age of eighteen (18)
years at the date of his death or, at the date of his death,
under the age of twenty-two (22) years while then attending
school or college full-time (in this Section 14.05 called
"Dependent Children");
or upon the death or remarriage of such a Connellsville Participant's
said Surviving Spouse who is receiving, or entitled to receive, a
benefit under paragraph (b) above, the Dependent Children of such
Connellsville Participant shall be entitled to a monthly pension
benefit equal in the aggregate to the monthly pension benefit which
was being paid or would have been payable to such Connellsville
Participant's said unremarried Surviving Spouse under paragraph (b)
above. The payment for any month shall be payable in equal shares to
those persons who meet the definition of "Dependent Children" with
respect to such Connellsville Participant as of the last day of the
preceding month and as of the date of his death. Such surviving
Dependent Children's pension benefit shall be payable on the first day
of each month commencing with the month next following the month in
which such Connellsville Participant or such Connellsville
Participant's Surviving Spouse dies, or such Surviving Spouse
remarries, as the case may be, and ending with the earlier to occur of
(i) the last payment prior to the time when there are no longer any
Dependent Children remaining; or (ii) the date when the aggregate
number of monthly payments that were made to such Connellsville
Participant's said Surviving Spouse pursuant to paragraph (b) above,
and to his Dependent Children pursuant to this paragraph (c), equals
one hundred twenty (120).
14.06 SPECIAL PROVISIONS RELATING TO EMPLOYEES OF THE METAL
CLOSURE PLANT IN GLASSBORO, NEW JERSEY. The following provisions
apply to a Participant who is employed at the Metal Closure Plant at
Glassboro, New Jersey and is a member of the Glass Molders, Pottery,
Plastics & Allied Workers International Union, Local 4 ("Glassboro
405
Participant") notwithstanding any provision of the Plan to the
contrary:
A. A Glassboro Participant who was eligible to participate
in the Anchor Hocking Service Retirement Plan dated January 1,
1955 on March 31, 1992 became a Participant in this Plan on April
1, 1992.
B. Covered Compensation, as defined in Article II, with
respect to a Glassboro Participant shall (1) include straight
time wages lost due to attendance as an official delegate to the
convention of the GMP (limited to 3 weeks for up to 1 employee
per 100 or part thereof, not more frequently than one year out of
every four), (2) any straight time wages lost due to collective
bargaining negotiations over a renewal agreement (for up to four
employees), up to forty hours per week, calculated by multiplying
the wage rate at the time of leave, and (3) straight time wages
included in overtime pay.
14.07 SPECIAL PROVISIONS RELATING TO ANCHOR HOCKING GLASS
COMPANY, MEMBERS OF AMERICAN FLINT GLASS WORKERS UNION, AFL-CIO, LOCAL
UNION 73 (MOLD MAKER PARTICIPANTS). The following provisions shall
apply to a Participant who is an Anchor Hocking Glass Company employee
and a member of American Flint Glass Workers Union, AFL-CIO, Local
Union 73 ("Mold Maker Participant") notwithstanding any provision of
the Plan to the contrary:
A. A Mold Maker Participant who was eligible to
participate in either the Anchor Hocking Service Retirement Plan
dated January 1, 1955 ("1/1/55 Plan") or the Anchor Hocking
Contributory Service Retirement Plan dated October 1, 1986
("10/1/86 Plan") on December 31, 1992 became a Participant in
this Plan on January 1, 1993.
B. Covered Compensation, as defined in Article II, with
respect to a Mold Maker Participant, shall include straight-time
wages included in overtime pay.
C. A Mold Maker Participant who attained age fifty-five
(55) and completed ten (10) years of Vesting Service on October
1, 1992, and who Retires on or after January 1, 1993 and on or
before September 1, 1995, will receive a monthly Normal
Retirement Benefit equal to the greater of (1) or (2) and reduced
by (3):
(1) The sum of (a) his Accrued Benefit under this
Plan, based upon Credited Service earned from and after
January 1, 1993, plus (b) his accrued benefit earned under
either the 1/1/55 Plan or the 10/1/86 Plan as of December
31, 1992,
(2) The sum of (a) the benefit he would have earned,
based upon Benefit Service (as defined in the 1/1/55 Plan or
the 10/1/86 Plan) earned before and after January 1, 1993,
and the benefit level existing on September 30, 1992 in
406
either the 1/1/55 Plan or the 10/1/86 Plan in which the Mold
Maker Participant was participating on September 30, 1992,
plus (b) the benefit he would have earned in (a) based on
an additional $2 benefit level,
(3) The accrued benefit earned under the 1/1/55 Plan
or the 10/1/86 Plan as of December 31, 1992.
The Normal Retirement Benefit described in this paragraph C
shall be reduced to reflect commencement prior to the Normal
Retirement Date of a Mold Maker Participant as follows:
(1) The reduction applicable under Section 4.03 of
this Plan shall apply to the portion of the benefit
described in clause 1(a) of this paragraph C, and
(2) The reduction factor set forth in the 1/1/55 Plan
on January 1, 1993 shall apply to the portions of the
benefit described in clauses 1(b) , (2) and (3) of this
paragraph C.
14.08 SPECIAL PROVISIONS RELATING TO PHOENIX EMPLOYEES AT
MONACA, PENNSYLVANIA ("PHOENIX PARTICIPANTS"). The following
provisions shall apply to a Participant who is a member of American
Flint Glass Workers of America, AFL-CIO, Local Unions 36, 67, 512 and
544 at Monaca, Pennsylvania ("Phoenix Participant") notwithstanding
any provision of the Plan to the contrary:
A. A Phoenix Participant who was a participant in the
Phoenix Hourly Retirement Plan ("Phoenix Plan") on December 31,
1990 became a Participant in this Plan as of January 1, 1991.
B. Covered Compensation, as defined in Article II, with
respect to a Phoenix Participant, shall include straight-time
wages included in overtime pay. Covered Compensation shall
include any lump sum payment that is agreed upon between the
Company or any Affiliated Company and the collective bargaining
representative for a Phoenix Participant, in lieu of a base pay
increase, and shall, for the period from January 1, 1991 through
September 30, 1993, not include any other lump sum payments,
bonuses, shift differentials, premium portions of overtime pay or
severance pay.
C. A Phoenix Participant who attained age sixty (60) and
completed ten (10) years of Vesting Service, and who Retired on
or after January 1, 1991 and prior to January 1, 1993 shall
receive a monthly Normal Retirement Benefit equal to the greater
of:
(1) The sum of (a) his Accrued Benefit under this
Plan, based upon Credited Service earned from and after
January 1, 1991, plus (b) his accrued benefit earned under
the Phoenix Plan as of December 31, 1990, or
407
(2) $13 multiplied by the number of his years and
months of Credited Service earned both before and after
January 1, 1991.
The Normal Retirement Benefit described in this paragraph C
shall be reduced to reflect commencement prior to the Normal
Retirement Date of a Phoenix Participant as follows:
(1) The reduction applicable under Section 4.03 of
this Plan shall apply to the portion of the benefit
described in clause 1(a) of this paragraph C, and
(2) The reduction factor set forth in the Phoenix Plan
on January 1, 1991 shall apply to the portions of the
benefit described in clauses 1(b) and (2) of this paragraph
C.
14.09 SPECIAL PROVISIONS RELATING TO PLASTICS EMPLOYEES AT
ST. PAUL, MINNESOTA. The following provisions shall apply to a
Participant who is employed by Anchor Hocking Plastics in St. Paul,
Minnesota and is a member of the International Association of
Machinists, AFL-CIO, District Lodge No. 77 ("Plastics Participant")
notwithstanding any provision of the Plan to the contrary:
A. A Plastics Participant who was eligible to participate
in the Anchor Hocking Service Retirement Plan dated January 1,
1955 ("1/1/55 Plan") on December 31, 1992 became a Participant in
this Plan on January 1, 1993.
B. Covered Compensation, as defined in Article II, with
respect to a Plastics Participant shall be based upon straight-
time wages during a regular work week.
C. A Plastics Participant who attained age fifty-seven
(57) and completed ten (10) years of Vesting Service on January
1, 1993 will receive a monthly Normal Retirement Benefit equal to
the greater of (1) or (2) and reduced by (3):
(1) The sum of (a) his Accrued Benefit under this
Plan, based upon Credited Service earned from and after
January 1, 1993, plus (b) his accrued benefit earned under
the 1/1/55 Plan as of December 31, 1992,
(2) The sum of (a) the benefit he would have earned,
based upon Benefit Service (as defined in the 1/1/55 Plan)
earned prior to November 1, 1991 multiplied by $11, plus (b)
the benefit he would have earned, based upon Benefit Service
(as defined in the 1/1/55 Plan) earned from and after
November 1, 1991 to his date of Retirement or his Severance
Date multiplied by $12.
(3) The accrued benefit earned under the 1/1/55 Plan
as of December 31, 1992.
408
The Normal Retirement Benefit described in this paragraph C shall
be reduced to reflect commencement prior to the Normal Retirement
Date of a Plastics Participant as follows:
(1) The reduction applicable under Section 4.03 of
this Plan shall apply to the portion of the benefit
described in clause (1)(a) of this paragraph C, and
(2) The reduction factor set forth in the 1/1/55 Plan
on January 1, 1993 shall apply to the portions of the
benefit described in clauses (1)(b) , (2) and (3) of this
paragraph C.
Notwithstanding any other provisions of this Plan, the entire
benefit described in this paragraph C shall, at the written
election of a Plastics Participant, delivered to the Pension
Administrative Committee, be payable as of the first day of any
month commencing on or after the date of his Retirement or his
Severance Date, whichever is applicable.
14.10 SPECIAL PROVISIONS RELATING TO CLERICAL, NON-UNION
HOURLY EMPLOYEES AT COUNSELOR COMPANY. Notwithstanding any provision
of the Plan to the contrary, each Participant who was a clerical, non-
union, hourly employee of Counselor Company in Rockford, Illinois on
October 27, 1993 is entitled to receive a monthly benefit equal to his
entire Accrued Benefit as of his Severance Date, determined pursuant
to the provisions of Section 4.04 and other applicable provisions of
the Plan without regard to the number of years of Vesting Service
completed by such Participant on such date.
14.11 SPECIAL PROVISIONS RELATING TO CERTAIN EMPLOYEES OF
PACKAGING DIVISION OF ANCHOR HOCKING CORPORATION. For purposes of
this Section, Transferred Employees shall mean all Employees who were
actively employed (including Employees on authorized leave of absence,
disability leave, military service or layoff with recall rights) by
the Packaging Division of Anchor Hocking Corporation at its locations
in Weirton, West Virginia, Connellsville, Pennsylvania and Glassboro,
New Jersey on December 31, 1992 ("Transfer Date"). Notwithstanding
any other provisions of the Plan, the following provisions of this
Article shall apply to Transferred Employees:
(a) Accrued Benefits and Credited Service of Transferred
Employees shall cease, and Transferred Employees shall be considered
to have attained their Severance Dates, as of the Transfer Date.
(b) Notwithstanding paragraph (a) above, a Transferred
Employee who commenced employment with CarnaudMetalbox Holdings (USA),
Inc., a Delaware corporation, any successor thereto or any affiliates
thereof ("Subsequent Employer") on the Transfer Date, and whose
employment with the Subsequent Employer terminates for any reason at
any time after the Transfer Date, shall receive credit for actual
service with the Subsequent Employer after the Transfer Date for
purposes of determining Vesting Service and attainment of requirements
for an early retirement benefit under Section 4.03 of the Plan, but
shall not receive credit for any period of service with the Subsequent
409
Employer from and after the Transfer Date for purposes of determining
Credited Service, his Normal Retirement Benefit or his Accrued Benefit
under the Plan.
(c) If a Transferred Employee terminates employment with
the Subsequent Employer after the Transfer Date, but prior to
qualifying for an early retirement benefit payable pursuant to Section
4.03, a vested Accrued Benefit pursuant to Section 4.04, or payment of
a vested Accrued Benefit prior to a Normal Retirement Date pursuant to
Section 4.05(a), and he is later reemployed by the Subsequent
Employer, the Transferred Employee shall receive credit for actual
service with the Subsequent Employer before and after his later
reemployment for purposes of determining Vesting Service and
satisfaction of requirements for such benefit, to the extent provided
by the Break in Service provisions in the definition of Vesting
Service in Article II of the Plan, but shall not receive credit for
service after such reemployment for purposes of determining Credited
Service, his Normal Retirement Benefit, or his Accrued Benefit under
the Plan. The age of the Transferred Employee for purposes of
determining his eligibility for payment of a benefit shall be his age
at the time he initially terminates employment with the Subsequent
Employer, or at the time he later terminates employment with the
Subsequent Employer after an initial termination and a reemployment,
as the case may be.
ARTICLE XV
PROVISIONS RELATING TO
ADDITIONAL MERGERS OF PLANS
---------------------------
15.01 DEFINITIONS. For purposes of this Article, the
following words and phrases shall have the meanings set forth below:
(a) "Actuarial Equivalent" shall mean, with respect to each
Merged Plan, the Shenango Plan and the Sanford Plan, the equality in
value of aggregate amounts expected to be received under different
forms of payment, or to be received at different dates, determined on
the basis of the assumptions and methods set forth in the attached
schedule applicable to each Merged Plan, to the Shenango Plan, and to
the Sanford Plan, as of the applicable Plan Merger Date.
(b) "Amerock Plan" shall mean the Amerock Corporation
Supplemental Retirement Benefit Plan.
(c) "Anchor Hocking Plan" shall mean the Anchor Hocking
Service Retirement Plan for Hourly Employees.
(d) "Benefit Accrual Date" shall mean January 1, 1989 with
respect to each of the Amerock Plan, the Anchor Hocking Plan, and the
Newell Plan, January 1, 1991 with respect to the Phoenix Plan, and
January 1, 1993, with respect to each of the Sanford Plan and the
Sterling Plan.
410
(e) "Merged Plan" shall mean each of the Amerock Plan, the
Anchor Hocking Plan, the Phoenix Plan, the Newell Plan, and the
Sterling Plan.
(f) "Merged Plan Benefit' shall mean the portion of the
Total Benefit earned by a Merged Plan Participant under a Merged Plan
as of the applicable Plan Merger Date that has not been fully
distributed to, or used to purchase an annuity distributed to, the
Merged Plan Participant.
(g) "Merged Plan Participant" shall mean any person who has
earned an accrued benefit under a Merged Plan, as of the applicable
Plan Merger Date, if such benefit has not been fully distributed to,
or an annuity has not been purchased for and distributed to, the
Merged Plan Participant with respect to such accrued benefit as of the
Plan Merger Date.
(h) "Newell Plan" shall mean the Newell Pension Plan for
Factory and Distribution Hourly Paid Employees as in effect prior to
the Plan Merger Date.
(i) "Plan Merger Date" shall mean September 1, 1991 with
respect to each of the Amerock Plan, the Anchor Hocking Plan, the
Phoenix Plan, the Newell Plan and the Shenango Plan, and December 1,
1992 with respect to the Sanford Plan and the Sterling Plan.
(j) "Phoenix Plan" shall mean the Phoenix Hourly Plan.
(k) "Sanford Plan" shall mean the Sanford Corporation Union
Pension Plan.
(l) "Sanford Plan Benefit" shall mean the benefit earned by
a Sanford Plan Participant under the Sanford Plan both before and
after the Plan Merger Date that has not been fully distributed to, or
used to purchase an annuity distributed to, the Sanford Plan
Participant.
(m) "Sanford Plan Participant" shall mean any person who
participates in the Sanford Plan.
(n) "Shenango Plan" shall mean the Pension Plan for Hourly
Paid Employees of the Shenango China Division of Anchor Hocking
Corporation as in existence on the Plan Merger Date.
(o) "Shenango Plan Benefit" shall mean the portion of the
Total Benefit earned by a Shenango Plan Participant under the Shenango
Plan as of the Plan Merger Date that has not been fully distributed
to, or used to purchase an annuity distributed to, the Shenango Plan
Participant.
(p) "Shenango Plan Participant" shall mean any person who
has earned an accrued benefit under the Shenango Plan as of the Plan
Merger Date, if such benefit has not been fully distributed to, or an
annuity has not been purchased for and distributed to, the Shenango
411
Plan Participant with respect to such accrued benefit as of the Plan
Merger Date.
(q) "Sterling Plan" shall mean the Sanford Corporation
Retirement Plan for Non-Bargaining Hourly Employees of Sterling
Plastics.
(r) "Total Benefit" shall mean the sum of a Participant's
Accrued Benefit as defined in Article II of this Plan earned from and
after the applicable Benefit Accrual Date, his Merged Plan Benefit, if
any, and his Shenango Plan Benefit, if any.
15.02 GENERAL.
(a) Effective as of the applicable Plan Merger Date, the
assets held in trust under each of the Merged Plans and the Sanford
Plan were merged with and into the assets held in trust under this
Plan. In connection with these mergers, this Plan assumed all
liabilities to Merged Plan Participants and Sanford Plan Participants
for Merged Plan Benefits and Sanford Plan Benefits. Effective as of
the Plan Merger Date, the Shenango Plan was renamed the Newell Pension
Plan for Factory and Distribution Hourly Paid Employees. This Article
sets forth special rules applicable to Merged Plan Participants,
Shenango Plan Participants and Sanford Plan Participants under this
Plan and will supplement the other provisions of this Plan with
respect to such Merged Plan Participants in connection with their
Merged Plan Benefits, with respect to such Shenango Plan Participants
in connection with their Shenango Plan Benefits and with respect to
such Sanford Plan Participants in connection with their Sanford Plan
Benefits. The provisions of this Article shall be applied to Merged
Plan Benefits, Shenango Plan Benefits, and Sanford Plan Benefits,
as the case may be, notwithstanding, and in lieu of, any other
provision contained elsewhere in this Plan.
(b) The merged assets of the Merged Plans and the Sanford
Plan shall be used to provide benefits with respect to all
Participants under this Plan, including Merged Plan Participants,
Shenango Plan Participants and Sanford Plan Participants.
(c) The Total Benefit or Sanford Plan Benefit, on a
termination basis (within the meaning of Treasury Regulation Section
1.414(l)), to which any Merged Plan Participant or Sanford Plan
Participant is entitled under this Plan shall, immediately after the
applicable Plan Merger Date, be equal to or greater than the benefit
to which such Merged Plan Participant or Sanford Plan Participant was
entitled, on a termination basis, under the applicable Merged Plan or
Sanford Plan immediately prior to the applicable Plan Merger Date.
The Total Benefit to which any Shenango Plan Participant is entitled
under this Plan shall, immediately after the Plan Merger Date, be
equal to or greater than the benefit to which such Shenango Plan
Participant was entitled under the Shenango Plan immediately prior to
the Plan Merger Date. This subsection (c) shall not be construed to
increase or decrease the nonforfeitable benefit accrued for any Merged
Plan Participant or Sanford Plan Participant under the applicable
Merged Plan, the Sanford Plan or under this Plan, as of the applicable
412
Plan Merger Date, or for any Shenango Plan Participant under the
Shenango Plan, or under this Plan, as of the Plan Merger Date. This
Article XV shall be administered consistent with the requirements of
Sections 411 and 414(l) of the Code, and the Treasury Regulations
promulgated thereunder.
(d) A Merged Plan Participant or Sanford Plan Participant
who becomes a Participant under this Plan shall be deemed to have
satisfied the requirements for a pension under Section 4.04 hereof for
purposes of eligibility for a Qualified Preretirement Survivor Annuity
under Section 4.07(a) hereof if he has a nonforfeitable interest in a
Total Benefit or a Sanford Plan Benefit. A Shenango Plan Participant
who remains a Participant under this Plan shall be deemed to have
satisfied the requirements for a pension under Section 4.04 hereof for
purposes of eligibility for a Qualified Preretirement Survivor Annuity
under Section 4.07(a) hereof if he has a nonforfeitable interest in a
Total Benefit. The Qualified Preretirement Survivor Annuity payable
under Section 4.07(a) with respect to (1) a Merged Plan Participant or
a Shenango Plan Participant shall be based on his Total Benefit, and
(2) a Sanford Plan Participant shall be based on his Sanford Plan
Benefit, except to the extent that any portion of such Benefit is
otherwise distributable pursuant to this Article, or otherwise.
(e) Notwithstanding any provision to the contrary contained
herein, or in any of the Merged Plans, the Sanford Plan or the
Shenango Plan, the provisions of this Amendment and Restatement of
this Plan intended to conform this Plan to the requirements of (i) the
Code as amended by the Tax Reform Act of 1986, the Revenue Act of
1987, the Technical and Miscellaneous Revenue Act of 1988, the Omnibus
Budget Reconciliation Act of 1989, the Revenue Reconciliation Act of
1990, and the Revenue Reconciliation Act of 1993; (ii) ERISA as
amended by the Retirement Equity Act of 1984; and (iii) governmental
rulings and regulations applicable to this Plan as of January 1, 1994,
shall apply to each of the Merged Plans, as of the effective date
applicable with respect to each such Merged Plan, the Sanford Plan and
the Shenango Plan, in the case of each such Act, ruling or regulation.
(f) All distribution elections made by a Merged Plan
Participant, a Shenango Plan Participant, or a Sanford Plan
Participant, or his Surviving Spouse or Beneficiary, if applicable,
shall be made by written instrument delivered by the Merged Plan
Participant, the Shenango Plan Participant, the Sanford Plan
Participant or a Surviving Spouse or Beneficiary to the Pension
Administrative Committee at least thirty (30) days before such
election is to take effect.
(g) For purposes of the cash out provisions of Section 4.14
of this Plan, the Actuarial Equivalent of a Merged Plan Benefit, a
Shenango Plan Benefit or a Sanford Plan Benefit will be based upon
Section 15.01(a).
15.03 SPECIAL PROVISIONS RELATING TO THE AMEROCK PLAN.
413
The following shall apply with respect to Merged Plan
Participants who participated in the Amerock Plan on or before the
Plan Merger Date:
(a) Benefit accruals under the Amerock Plan were
permanently discontinued, and all benefits accrued thereunder by
Merged Plan Participants became nonforfeitable, effective as of
the Benefit Accrual Date. As of the Benefit Accrual Date,
Eligible Employees (as defined in the Amerock Plan for purposes
of this Section 15.03) paid on a distribution or factory hourly
basis became eligible to participate in this Plan in accordance
with the terms of this Plan. For purposes of determining the
Accrued Benefit earned from and after the Benefit Accrual Date by
Merged Plan Participants (1) who are paid on a distribution or
factory hourly basis, (2) who were Participants under the Amerock
Plan on the Benefit Accrual Date, and (3) who thereafter are
employed by an Employer, such Merged Plan Participants shall
receive credit for periods of employment with all Employers from
and after the Benefit Accrual Date and not for periods of
employment with any Employer or any other entity, prior to the
Benefit Accrual Date. For purposes of determining such Merged
Plan Participants' nonforfeitable interest in their Accrued
Benefits, and their eligibility to participate in this Plan, such
Merged Plan Participants shall receive credit (1) for periods of
employment with an Affiliated Company (as defined in Article II
of this Plan) from and after the Benefit Accrual Date, and (2)
for periods of employment only with Anchor Hocking Corporation
and its affiliates, and not for periods of employment with any
entity that was not an Affiliated Company, prior to the Benefit
Accrual Date.
(b) A Merged Plan Benefit shall be payable to a Merged Plan
Participant (in addition to his benefit set forth under Article
IV of this Plan) at the times set forth in Article IV of this
Plan. Notwithstanding the preceding sentence, if the Merged Plan
Participant has satisfied all eligibility requirements contained
in the Amerock Plan necessary to entitle him to receive payment
of his Merged Plan Benefit commencing at a date earlier than the
date applicable under the terms of this Plan, such Merged Plan
Participant shall be entitled, subject to the terms and
conditions applicable under the Amerock Plan, to have payment of
his Merged Plan Benefit commence as follows:
(i) If a Merged Plan Participant's employment with all
Employers and Affiliated Companies terminates before he
attains age sixty-five (65), and if at the time of such
termination he has either attained age sixty-two (62) and
completed ten (10) years of Vesting Service (as defined in
the Amerock Plan for purposes of this Section 15.03), or
attained age sixty (60) and completed twenty (20) years of
Vesting Service, such Merged Plan Participant shall be
entitled to commence receipt (in accordance with the terms
of this Plan) of his Merged Plan Benefit on the first day of
any calendar month selected by the Merged Plan Participant
on or after the later to occur of the Plan Merger Date and
414
the date of his termination of employment with all Employers
and Affiliated Companies, but not later than his Normal
Retirement Date (as defined in the Amerock Plan for purposes
of this Section 15.03). The amount of his Merged Plan
Benefit shall be reduced by 1/180 for each month it is paid
prior to his sixty-fifth (65th) birthday.
(ii) If a Merged Plan Participant's employment with all
Employers and Affiliated Companies terminates before he
satisfies either of the criteria set forth in subparagraph
(i) above, such Merged Plan Participant shall be entitled to
commence receipt (in accordance with the terms of this Plan)
of his Merged Plan Benefit on his Normal Retirement Date.
If the employment of a Merged Plan Participant who does not
satisfy either of the criteria in subparagraph (i) above
terminates after he has completed twenty (20) years of
Vesting Service (as defined in the Amerock Plan for purposes
of this Section 15.03), such Merged Plan Participant shall
be entitled to commence receipt (in accordance with the
terms of this Plan) of his Merged Plan Benefit on the first
day of any calendar month selected by the Merged Plan
Participant on or after the later to occur of the Plan
Merger Date and the date on which he attains age sixty (60),
but not later than his Normal Retirement Date. The amount
of a Merged Plan Benefit, payable pursuant to the preceding
sentence, shall be reduced by 1/180 for each month it is
paid prior to the Merged Plan Participant's sixty-fifth
(65th) birthday.
(c) If a Merged Plan Participant dies after attaining age
sixty (60), or after he has a nonforfeitable right to any portion
of his Merged Plan Benefit, but before his Annuity Starting Date
(as defined in the Amerock Plan for purposes of this Section
15.03), his Surviving Spouse shall be entitled to commence
receipt (in accordance with the terms of this Plan) of his Merged
Plan Benefit as follows:
(i) In the case of the Surviving Spouse of a Merged
Plan Participant who dies while actively employed by the
Employer or an Affiliated Company either after attaining age
sixty (60), or after attaining age fifty (50) and completing
ten (10) years of service (as defined in the Amerock Plan
for purposes of this Section 15.03), the Merged Plan Benefit
to which she is entitled under the Amerock Plan shall
commence as of the first day of the month following the
month in which the Employer receives notice of the death of
the Merged Plan Participant. A Merged Plan Benefit payable
to a Surviving Spouse pursuant to this subparagraph (1)
shall not be reduced to reflect commencement of payment
prior to a date on which the Merged Plan Participant would
have attained age sixty-five (65).
(ii) In the case of a Surviving Spouse of a Merged Plan
Participant not described above in clause (i), the Merged
Plan Benefit to which she is entitled under the Amerock Plan
415
shall commence; as of the first day of the month coinciding
with or next following the latest of (A) the date the Merged
Plan Participant dies; (B) the earliest date the Merged Plan
Participant would have been eligible to receive an early
retirement benefit (within the meaning of the Amerock Plan
for purposes of this Section 15.03) or deferred vested
benefit (within the meaning of the Amerock Plan for purposes
of this Section 15.03) if he had survived; or (C) the date
the Merged Plan Participant's Surviving Spouse elects. A
Merged Plan Benefit payable to a Surviving Spouse pursuant
to this subparagraph (ii) shall be reduced by 1/180 for each
month it is paid prior to the date the Merged Plan
Participant would have attained age sixty-five (65).
The Merged Plan Benefit to which a Surviving Spouse is
entitled pursuant to this subsection (c) shall be a monthly
amount equal to one-half of the amount of the reduced annuity
that would have been payable to the Merged Plan Participant in
the form of a Qualified Joint and Survivor Annuity (as defined in
the Amerock Plan for purposes of this Section 15.03) if his
Annuity Starting Date were the date payment of such Merged Plan
Benefit commences. Payment of a Merged Plan Benefit to a
Surviving Spouse shall continue until the date of her death. The
amount of the Merged Plan Benefit payable to a Surviving Spouse
shall be based on the Merged Plan Participant's Merged Plan
Benefit as of the date of his death or separation from service,
whichever is earlier, and the right to receive the Merged Plan
Benefit shall remain in effect until the earliest of (1) the date
the Merged Plan Participant is divorced from his Spouse, (2) the
date the Merged Plan Participant's Spouse dies, or (3) the Merged
Plan Participant's Annuity Starting Date. In the event coverage
terminates, such coverage shall automatically resume on the date
the Merged Plan Participant has been remarried for one year, or
the Merged Plan Participant's benefits are suspended by reason of
reemployment, as the case may be.
This subsection (c) shall apply to each Merged Plan
Participant who performs any service for an Employer or an
Affiliated Company as an employee on or after August 23, 1984, or
any other Merged Plan Participant who has completed at least ten
(10) years of Vesting Service, has a nonforfeitable right to a
portion of his Merged Plan Benefit, performed any service for an
Employer or an Affiliated Company as an employee after the first
day of the Plan Year beginning in 1976, was living on August 23,
1984, and whose Annuity Starting Date had not then occurred.
(d) A Merged Plan Participant may elect, pursuant to the
spousal consent provisions of Section 5.01 of this Plan, any one
of the optional forms of benefits specified in this paragraph,
with respect to his Merged Plan Benefit. Any optional form of
benefit set forth in Article V of this Plan shall apply only to
the Accrued Benefit earned by the Merged Plan Participant from
and after the Benefit Accrual Date. Any optional form of
benefit, or a combination of optional forms of benefits, set
forth in this paragraph shall be the Actuarial Equivalent of the
416
Merged Plan Benefit otherwise payable with respect to the Merged
Plan Participant. The optional forms of benefit available
pursuant to this paragraph are as follows:
(i) monthly life income, with a guaranteed period of
10 or 20 years;
(ii) a joint (Merged Plan Participant and Beneficiary)
life income with the full, 1/2, or 3/4 of the joint amount
continued upon the death of either the Merged Plan
Participant or Beneficiary for the life of the survivor;
(iii) a joint and survivor annuity with the full,
1/2, or 3/4 of the joint amount continued for the life of
the Merged Plan Participant's Beneficiary if he survives the
Merged Plan Participant;
(iv) a Merged Plan Participant whose employment with
the Company and all Affiliated Companies terminated prior to
the Plan Merger Date is entitled to receive his Merged Plan
Benefit pursuant to an optional form of benefit that was
available under the Amerock Plan at the date of his
termination of employment, and that was elected by the
Merged Plan Participant prior to the date of his termination
of employment pursuant to the terms of the Amerock Plan;
provided, however, that any method or form of distribution
pursuant to this subsection (d) shall be designed to pay the
Merged Plan Participant the value of his interest over a period
not to exceed his life expectancy or the joint life expectancy of
the Merged Plan Participant and his designated Beneficiary, and
to pay to the Merged Plan Participant the greater part of the
value of his interest within his life expectancy unless his
designated Beneficiary is his Spouse. The life expectancy of a
Merged Plan Participant and the joint life expectancy of a Merged
Plan Participant and his designated Beneficiary shall be
determined in accordance with applicable law and regulations;
provided that the life expectancy of a Merged Plan Participant or
his Spouse may from time to time be redetermined, but not more
frequently than annually.
(e) The Pension Administrative Committee may, in its sole
discretion, direct the distribution of an annuity contract to any
Merged Plan Participant who has Retired or whose employment with
all Employers and Affiliated Companies has terminated. Any
annuity contract distributed as authorized by this subsection (e)
shall provide for payments in an amount equal to the Merged Plan
Benefit due the Merged Plan Participant, shall be subject to
restrictions imposed by the Code, if applicable, and at the
option of the Pension Administrative Committee such contract
shall be made non-assignable or non-commutable before its
delivery to such Merged Plan Participant. Such contract shall
also be subject to the election, spousal consent, written
explanation and Survivor Annuity (as defined in the Amerock Plan
for purposes of this Section 15.03) requirements described in the
417
Amerock Plan, if applicable. Delivery of any such contract to a
Merged Plan Participant shall be in full satisfaction of the
Merged Plan Participant's rights hereunder and upon the delivery
of any such contract to a Merged Plan Participant, the Merged
Plan Participant and his Spouse or Beneficiary shall no longer
have any interest in the Trust Fund (as defined in the Amerock
Plan for purposes of this Section 15.03) but shall look solely to
the insurer issuing such contract for the payment of his Merged
Plan Benefit.
15.04 SPECIAL PROVISIONS RELATING TO THE ANCHOR HOCKING
PLAN. The following shall apply with respect to Merged Plan
Participants who participated in the Anchor Hocking Plan on or before
the Plan Merger Date:
(a) Benefit accruals under the Anchor Hocking Plan were
permanently discontinued, and all benefits accrued thereunder by
Merged Plan Participants became nonforfeitable, effective as of
the Benefit Accrual Date. As of the Benefit Accrual Date,
Covered Class Employees (as defined in the Anchor Hocking Plan
for purposes of this Section 15.04) who were eligible to
participate in the Anchor Hocking Plan became eligible to
participate in this Plan in accordance with the terms of this
Plan. For purposes of determining the Accrued Benefit earned
from and after the Benefit Accrual Date by Merged Plan
Participants who were Participants on the Benefit Accrual Date,
and who thereafter are employed by an Employer, such Merged Plan
Participants shall receive credit for periods of employment with
all Employers from and after the Benefit Accrual Date, and not
for periods of employment with any Employer or any other entity,
prior to the Benefit Accrual Date. For purposes of determining
such Merged Plan Participants' nonforfeitable interest in their
Accrued Benefits, and their eligibility to participate in this
Plan, such Merged Plan Participants shall receive credit for (1)
periods of employment with an Affiliated Company (as defined in
Article II of this Plan) from and after the Benefit Accrual Date,
and (2) for periods of employment only with Anchor Hocking
Corporation and its affiliates, and not for periods of employment
with any entity that was not an Affiliated Company prior to the
Benefit Accrual Date.
(b) A Merged Plan Benefit shall be payable to a Merged Plan
Participant (in addition to his benefit set forth under Article
IV of this Plan) at the times set forth in Article IV of this
Plan. Notwithstanding the preceding sentence, if the Merged Plan
Participant has satisfied all eligibility requirements contained
in the Anchor Hocking Plan necessary to entitle him to receive
payment of his Merged Plan Benefit commencing at a date earlier
than the date applicable under the terms of this Plan, such
Merged Plan Participant shall be entitled, subject to the terms
and conditions applicable under the Anchor Hocking Plan, to have
payment of his Merged Plan Benefit commence as follows:
(i) If a Merged Plan Participant's employment with all
Employers and Affiliated Companies terminates before he
418
attains age sixty-five (65), and if at the time of such
termination (A) he has attained age fifty-five (55) and
completed five (5) full years of Vesting Service, and (B) he
is an active Member (as defined in the Anchor Hocking Plan
for purposes of this Section 15.04) (except that a Gas
Transport, Bremen or Weirton Employee (as defined in the
Anchor Hocking Plan) who is under age sixty (60) must have
at least ten (10) full years of Vesting Service (as defined
in the Anchor Hocking Plan) at the time of the termination
of his employment with all Employers and Affiliated
Companies unless he was a Member on, and reached age fifty-
five (55) before, October 1, 1977), such Merged Plan
Participant shall be entitled to commence receipt (in
accordance with the terms of this Plan) of his Merged Plan
Benefit beginning with any month after the later to occur of
the Plan Merger Date and the date of his termination of
employment with all Employers and Affiliated Companies, but
not later than his Normal Retirement Date (as defined in the
Anchor Hocking Plan for purposes of this Section 15.04). If
the Merged Plan Participant (a) attained age sixty (60) at
the time of his termination of employment, or (b) attained
age fifty-five (55) and completed thirty (30) full years of
Vesting Service, and was at the time of his termination a
Bremen, Gas Transport or Weirton Employee, the amount of his
Merged Plan Benefit shall be paid without reduction because
payments begin before his Normal Retirement Date. If a
Merged Plan Participant had not attained age sixty (60) and
had not attained age fifty-five (55) and completed thirty
(30) full years of Vesting Service at the time of such
termination, and was at the time of his termination a
Bremen, Gas Transport or Weirton Employee, the Merged Plan
Benefit shall be reduced by .5% for each full month it is
paid prior to the first day of the month after his sixtieth
(60th) birthday. If a Merged Plan Participant had attained
age fifty-five (55) and completed five (5) full years of
Vesting Service at the time of termination of employment,
and was at the time of his termination an Employee of
Plastics, Inc. at Coon Rapids, Minnesota, the amount of his
Merged Plan Benefit shall be reduced by .6% for each full
month it is paid prior to his Normal Retirement Date, but in
no event shall such Merged Plan Benefit be less than the
Actuarial Equivalent of the Merged Plan Benefit that would
be payable at his Normal Retirement Age (as defined in the
Anchor Hocking Plan for purposes of this Section 15.04).
Payment of a Merged Plan Benefit to a Merged Plan
Participant described in this clause (i) shall not commence
before his Normal Retirement Date unless he makes a written
election for an earlier commencement within the ninety (90)
day period ending on the date selected for commencement.
(ii) If the employment of a Merged Plan Participant not
described in subparagraph (i) with all Employers and
Affiliated Companies terminates before he attains age sixty-
five (65), payment of his Merged Plan Benefit shall commence
on his Normal Retirement Date, unless he elects to have it
419
begin within the ten-year period prior to his Normal
Retirement Date. If the Merged Plan Participant elects to
have such benefit begin earlier than his Normal Retirement
Date, his Merged Plan Benefit shall be a reduced benefit (in
a level amount) beginning on the date he selects, in an
amount equal to the Actuarial Equivalent of the Merged Plan
Benefit that would have been payable on the Merged Plan
Participant's Normal Retirement Date.
(c) If a Merged Plan Participant's employment with all
Employers and Affiliated Companies terminates (A) due to a Merged
Plan Participant becoming Permanently and Totally Disabled under
the terms and conditions of, and as defined under, the Anchor
Hocking Plan, (B) while he is an active Member (as defined in the
Anchor Hocking Plan for purposes of this Section 15.04), (C)
before he attains age sixty-five (65), (D) after completing at
least ten (10) full years of Vesting Service if he was a Bremen,
Gas Transport or Weirton Employee, or (E) after completing at
least fifteen (15) full years of Vesting Service if he was an
Employee of Plastics, Inc. at Coon Rapids, Minnesota, such Merged
Plan Participant shall be entitled to commence receipt (in
accordance with the terms of this Plan) of his Merged Plan
Benefit on or after the latest to occur of (1) the Plan Merger
Date, (2) the date of his termination of employment due to his
Permanent and Total Disability, and (3) the first day of the
month after at least six (6) consecutive months have elapsed
since the date on which his Permanent and Total Disability
begins. If the Merged Plan Participant satisfies the criteria in
(A) through (C) above, and in either (D) or (E) above as
appropriate, the amount of such Merged Plan Benefit shall be paid
without reduction to reflect payment before his Normal Retirement
Date. Such Merged Plan Benefit shall continue until the Merged
Plan Participant's death, but it shall stop if the Merged Plan
Participant ceases to be Permanently and Totally Disabled.
(d) If a Merged Plan Participant dies before payment of his
Merged Plan Benefit commences, his Surviving Spouse shall be
entitled to commence receipt (in accordance with the terms of
this Plan) of his Merged Plan Benefit as follows:
(i) In the case of a Surviving Spouse of a Merged Plan
Participant who dies while an active Participant and who had
attained age fifty (50) (age fifty-five (55) in the case of
a Merged Plan Participant who, on his QTAM (as defined in
the Anchor Hocking Plan, for purposes of this Section
15.04), is an Employee of Plastics, Inc. at Coon Rapids,
Minnesota), but not age sixty-five (65), and had completed
ten (10) years of Vesting Service, the Merged Plan Benefit
to which she is entitled (a) shall be a monthly pension
payable for her remaining lifetime in the amount specified
in subsequent sentences of this paragraph, (b) shall begin
on the first day of the month after such Merged Plan
Participant would have attained age sixty-five (65) had he
not died or, if the Surviving Spouse requests earlier
commencement thereof, on the first day of any earlier month
420
after the Merged Plan Participant's death, but in any case
only if the Surviving Spouse is living on such date and
otherwise eligible to receive such Merged Plan Benefit and
(c) shall cease with the payment for the month in which she
dies. If such Merged Plan Participant dies at or after age
fifty-five (55), the monthly amount of such Merged Plan
Benefit shall be equal to 50% of what would have been the
monthly amount of such Merged Plan Participant's Merged Plan
Benefit payable as an Early Retirement Pension (as defined
in the Anchor Hocking Plan, for purposes of this Section
15.04) if (A) he had survived to and Retired at the end of
the month in which he died, and (B) his Early Retirement
Pension had begun in the month after the month in which he
in fact died. If such Merged Plan Participant dies on or
after age fifty (50) and before age fifty-five (55), the
monthly amount of such Merged Plan Benefit payable to his
Surviving Spouse shall be equal to 50% of the monthly amount
of the Merged Plan Benefit payable as a Deferred Vested
Pension (as defined in the Anchor Hocking Plan for purposes
of this Section 15.04) beginning on the Merged Plan
Participant's Normal Retirement Date, to which he would have
been entitled if (A) he had resigned from employment with
all Employers and Affiliated Companies at the end of the
month in which he in fact died, and (B) he had continued to
live until his Normal Retirement Date . However, in
computing the amount of the Merged Plan Benefit payable to a
Surviving Spouse pursuant to this subparagraph (i), the Cap
(as defined in the Anchor Hocking Plan for purposes of this
Section 15.04), any early retirement reductions described in
subsection 15.04(b) and any joint and survivor annuity
adjustments shall be ignored.
(ii) In the case of a Surviving Spouse of a Merged Plan
Participant who dies while an active Participant and (A)
after attaining age sixty (60) (age fifty-five (55) in the
case of a Merged Plan Participant who, on his QTAM, is an
Employee of Plastics, Inc. in Coon Rapids, Minnesota), but
not age sixty-five (65), and before completing at least ten
(10) years of Vesting Service, or (B) after attaining age
sixty-five (65), the Merged Plan Benefit to which she is
entitled shall be such Merged Plan Benefit for the rest of
her lifetime as she would have been entitled to receive if
(a) such Merged Plan Participant had Retired in the month
preceding his death and under circumstances which would have
allowed the Merged Plan Participant to receive his Merged
Plan Benefit payable as an Early Retirement Pension under
the Anchor Hocking Plan, (b) his Early Retirement Pension
had begun the month in which he in fact died and (c) his
Early Retirement Pension was payable under the Semi-
Automatic 50% J&S Option (as defined in the Anchor Hocking
Plan for purposes of this Section 15.04). In computing the
amount of such Merged Plan Benefit, pursuant to this
subparagraph (ii), any reductions for early retirement
described in subsection 15.04(b) shall be taken into
account, but the Cap shall be ignored. Such Merged Plan
421
benefit (1) shall begin as provided in clause (b) of
paragraph (i) of this subsection (d), (2) shall, except as
otherwise provided herein, be payable monthly thereafter (on
the first of each month) during her remaining lifetime and
(3) shall cease with the payment for the month in which she
dies.
(iii) (A) In the case of a Surviving Spouse of a
Merged Plan Participant, not described in paragraph (i) or
(ii) above, who died (1) while an active Participant in this
Plan, or (2) after having terminated employment with all
Employers and Affiliated Companies, having at least one Hour
of Service (as defined in the Anchor Hocking Plan for
purposes of this Section 15.04) on or after August 23, 1984,
and having a vested benefit under the Anchor Hocking Plan or
(3) after August 23, 1984, having terminated employment with
all Employers and Affiliated Companies before August 23,
1984 with ten (10) or more years of Vesting Service, and
having at least one Hour of Service under the Anchor Hocking
Plan on or after January 1, 1976, the Merged Plan Benefit to
which she is entitled shall be a monthly benefit for the
life of the Surviving Spouse with payments equal to the
payment that would have been payable to such Surviving
Spouse under the Semi-Automatic 50% J & S Option (based on
the Merged Plan Participant's actual Benefit Service (as
defined in the Anchor Hocking Plan for purposes of this
Section 15.04)) if --
(1) in the case of a Merged Plan Participant who dies
after his attainment of the age and Vesting Service
requirements of paragraph (i) of subsection 15.04(b)
applicable to him (the "Qualified Earliest Retirement Age"),
such Merged Plan Participant had retired on the day before
his death with an immediate Semi-Automatic 50% J & S Option
in effect, or
(2) in the case of a Merged Plan Participant who dies
on or before the date on which he would have obtained his
Qualified Earliest Retirement Age, such Merged Plan
Participant had:
(a) terminated his employment with all Employers
and Affiliated Companies on the date of his death;
(b) survived to his Qualified Earliest Retirement
Age,
(c) retired at his Qualified Earliest Retirement
Age with
an immediate Semi-Automatic 50% J & S Option in effect, and
(d) died on the day after the day on which he
would have attained his Qualified Earliest Retirement
Age.
422
provided, in computing the amount of such Merged Plan
Benefit, any reductions for early retirement described in
subsection (b) and the Cap shall be taken into account.
(B) The Merged Plan Benefit provided for in
subparagraph (A) of this paragraph shall commence to be paid
to the Surviving Spouse on the first day of the month after
the Merged Plan Participant would have attained age sixty-
five (65) had he not died, or if the Surviving Spouse
requests earlier commencement thereof, on the first day of
any earlier month after the later of (a) the first day of
the month after the Merged Plan Participant's death or (b)
the first day of the month in which the Merged Plan
Participant would have attained his Qualified Earliest
Retirement Age, but in any case only if the Surviving Spouse
is living on such date and is otherwise eligible to receive
such Merged Plan Benefit. Payment shall continue during the
Surviving Spouse's remaining lifetime, the last monthly
payment of such benefit being payable on the first day of
the month in which the Surviving Spouse dies.
(e) (1) A Merged Plan Participant may elect, pursuant to
the spousal consent provisions of Section 5.01 of this Plan, any
one of the optional forms of benefits specified in this
subsection (e) with respect to his Merged Plan Benefit. Any
optional form of benefit set forth in Article V of this Plan
shall apply only to the Accrued Benefit earned by the Merged Plan
Participant from and after the Benefit Accrual Date. Any
optional form of benefit, or a combination of optional forms of
benefits, set forth in this subsection shall be the Actuarial
Equivalent of the Merged Plan Benefit otherwise payable with
respect to the Merged Plan Participant. The optional forms of
benefit available pursuant to this subsection are as follows:
(i) REGULAR J & S OPTION: This paragraph (i) of this
subsection (e) shall not apply to a Merged Plan Benefit that
begins more than ten (10) years before the Merged Plan
Participant's Normal Retirement Date. A Merged Plan
Participant may elect to receive his Merged Plan Benefit as
a reduced benefit payable to him during his lifetime, and
after his death to have a benefit payable during the
surviving lifetime of and for a natural person (herein
called "Joint Pensioner") designated by the Merged Plan
Participant for such purpose at the rate of 50% of the
reduced benefit payable to the Merged Plan Participant or
(if elected by the Merged Plan Participant and if he is or
becomes entitled to a Normal or Early Retirement Benefit) at
the rate of 100% of the reduced benefit payable to the
Merged Plan Participant. Evidence satisfactory to the
Pension Administrative Committee of the date of birth of the
Merged Plan Participant and of his Joint Pensioner must be
furnished within ninety (90) days of the filing of such
election with the Pension Administrative Committee. The
amount of the reduced pension payable under such an option
depends in part on (A) the age of the Merged Plan
423
Participant and his Joint Pensioner and (B) the percentage
of his reduced benefit to be paid after his death to his
Joint Pensioner. Payments for the Joint Pensioner shall
begin with the first day of the month after the month in
which the Merged Plan Participant dies, provided his death
does not void the election of this option, and provided his
Joint Pensioner is living on such day, and the last monthly
payment for her shall be payable on the first day of the
last month in which she is living. If a Merged Plan
Participant's Joint Pensioner dies before the Merged Plan
Participant's benefit commences, the election shall be of no
effect and the Merged Plan Participant shall be treated the
same as though he had not elected an option pursuant to this
paragraph. If a Merged Plan Participant's Joint Pensioner
dies on or after the date the Merged Plan Participant's
benefit commences and while the Merged Plan Participant is
living, the option elected shall continue in force and the
Merged Plan Participant's reduced pension shall not be
increased thereby.
(ii) LEVEL INCOME OPTION: A Merged Participant who
Retires before reaching the earliest age at which a retired
worker may elect to have his old age benefits under the
Social Security Act begin, and who is not eligible for a
Social Security disability benefit, may elect (in accordance
with procedures established by the Pension Administrative
Committee) to have the amount of his Merged Plan Benefit
otherwise payable increased before such earliest age and
decreased thereafter, to the end that his Merged Plan
Benefit, when combined with his old age benefits under the
Social Security Act (as in effect at his Retirement) in the
amount estimated to be payable beginning at such earliest
age, will provide a level amount of retirement income
insofar as practicable. A Merged Plan Participant's
election of this Level Income Option shall become void if
(A) he does not become entitled to a benefit under paragraph
(i) of subsection (b) of this Section, (B) his benefit is
payable under a J & S Option under subsection (e)(i) of this
Section, or (C) he is an Employee of Plastics, Inc. at Coon
Rapids, Minnesota immediately before his Qualifying
Termination of Active Membership (as defined in the Anchor
Hocking Plan for purposes of this Section 15.04).
(iii) A Merged Plan Participant whose employment
with the Company and all Affiliated Companies terminated
prior to the Plan Merger Date is entitled to receive his
Merged Plan Benefit pursuant to an optional form of benefit
that was available under the Anchor Hocking Plan at the date
of his termination of employment, and that was elected by
the Merged Plan Participant prior to the date of his
termination of employment pursuant to the terms of the
Anchor Hocking Plan.
(2) In the case of a Merged Plan Participant who is an
Employee of Plastics, Inc. at Coon Rapids, Minnesota
424
immediately before his Qualifying Termination of Active
Membership, the figure "60" shall be substituted for the
figure "72" wherever the figure "72" appears in the balance
of this paragraph (2). Notwithstanding the preceding
provisions of this Section 15.04:
(i) In the case of a Merged Plan Participant
whose Qualifying Termination of Active Membership
occurs on or after EDR-80 (as defined in the Anchor
Hocking Plan for purposes of this Section 15.04) and
who dies on or after the date payment of his Merged
Plan Benefit commences, (A) if such death occurs before
he has become entitled to receive 72 monthly payments
of such Merged Plan Benefit, and if a J & S Option
under paragraph (i) of subsection (e) of this Section
15.04 is not applicable to him, his Death Beneficiary
(as defined in the Anchor Hocking Plan, for purposes of
this Section 15.04) shall be paid the same monthly
Merged Plan Benefit as would have been payable to such
Merged Plan Participant if he had continued to live
until the equivalent of 72 monthly payments have been
made to him and/or his Death Beneficiary, or (B) if a J
& S Option is applicable to such Merged Plan
Participant, and if he and his Joint Pensioner die
before one or more of them have become entitled to
receive 72 monthly payments with respect to his Merged
Plan Benefit, such Merged Plan Participant's Death
Beneficiary shall be paid the same monthly Merged Plan
Benefit as would have been payable to the survivor of
such Merged Plan Participant and his Joint Pensioner if
such survivor had continued to live until the
equivalent of 72 monthly payments had been paid to such
Merged Plan Participant, his Joint Pensioner and/or his
Death Beneficiary, except that, for this purpose, a
Merged Plan Participant's Joint Pensioner shall not be
considered to survive such Merged Plan Participant if
she dies before a payment becomes payable to her under
such Merged Plan Participant's J & S Option.
(ii) In the case of a Merged Plan Participant
whose Merged Plan Benefit is payable under the Level
Income Option specified in paragraph (ii) of subsection
(e) of this Section, if he dies during the 72-month
period certain specified herein, the same monthly
payments shall be made to his Death Beneficiary for the
balance of such period certain as would have been
payable to the Merged Plan Participant if he had
continued to live.
(iii) In determining (for the purposes of
Section 15.04) the Actuarial Equivalent of a Merged
Plan Benefit, the period certain death benefit provided
for in this paragraph (2) shall be taken into account.
425
15.05 SPECIAL PROVISIONS RELATING TO PHOENIX PLAN. The
following shall apply with respect to Merged Plan Participants who
participated in the Phoenix Plan on or before the Plan Merger Date:
(a) Benefit accruals under the Phoenix Plan were
permanently discontinued, and all benefits accrued thereunder by
Merged Plan Participants became nonforfeitable, effective as of
the Benefit Accrual Date. As of the Benefit Accrual Date,
Participants (as defined in the Phoenix Plan, for purposes of
this Section 15.05) became eligible to participate in this Plan
in accordance with the terms of this Plan. For purposes of
determining the Accrued Benefit earned from and after the Benefit
Accrual Date by Merged Plan Participants who were Participants
under the Phoenix Plan on the Benefit Accrual Date, and who
thereafter are employed by an Employer, such Merged Plan
Participants shall receive credit for periods of employment with
all Employers from and after the Benefit Accrual Date, and not
for periods of employment with any Employer or any other entity
prior to the Benefit Accrual Date. For purposes of determining
such Merged Plan Participants' nonforfeitable interest in their
Accrued Benefits, and their eligibility to participate in this
Plan, such Merged Plan Participants shall receive credit (1) for
periods of employment with an Affiliated Company (as defined in
Article II of this Plan) from and after the Benefit Accrual Date,
and (2) for periods of employment only with Anchor Hocking
Corporation and its affiliates, and not for periods of employment
with any entity that was not an Affiliated Company, prior to the
Benefit Accrual Date.
(b) A Merged Plan Benefit shall be payable to a Merged Plan
Participant (in addition to his benefit set forth in Article IV
of this Plan) at the times set forth in Article IV of this Plan.
Notwithstanding the preceding sentence, if the Merged Plan
Participant has satisfied all eligibility requirements contained
in the Phoenix Plan necessary to entitle him to receive payment
of his Merged Plan Benefit commencing at a date earlier than the
date applicable under the terms of this Plan, such Participant
shall be entitled, subject to the terms and conditions applicable
under the Phoenix Plan, to have payment of his Merged Plan
Benefit commence as follows:
(i) If a Merged Plan Participant's employment with all
Employers and Affiliated Companies terminates before he
attains age sixty-five (65), and if at the time of such
termination (A) he has attained age sixty-two (62) and has
completed at least thirty (30) years of Vesting Service (as
defined in the Phoenix Plan for purposes of this Section
15.05), or (B) he has attained age sixty (60) and has
completed at least ten (10) years of Vesting Service, such
Merged Plan Participant shall be entitled to commence
receipt (in accordance with the terms of this Plan) of his
Merged Plan Benefit on the later to occur of the Plan Merger
Date and the Merged Plan Participant's Normal Retirement
Date (as defined in the Phoenix Plan for purposes of this
Section 15.05). However, a Merged Plan Participant may
426
elect an earlier commencement of his Merged Plan Benefit
beginning on the first day of any month designated by him
which day is within the five-year period prior to his Normal
Retirement Date and subsequent to both his termination of
employment and the filing with Pension Administrative
Committee of the proper election forms. If the Merged Plan
Participant is eligible for a Merged Plan Benefit and meets
the criteria described in clause (A) above, the amount of
his Merged Plan Benefit shall not be reduced for benefits
commencing prior to age sixty-five (65). If a Merged Plan
Participant is eligible for a Merged Plan Benefit and meets
the criteria described in clause (B) above, but not the
criteria described in clause (A), the amount of his Merged
Plan Benefit shall be reduced by .6% for each month it is
paid prior to age sixty-five (65).
(ii) If a Merged Plan Participant's employment with all
Employers and Affiliated Companies terminates before he has
attained age sixty-five (65) and before he has met the
criteria described in paragraph (i) above, such Merged Plan
Participant shall be entitled to commence receipt (in
accordance with the terms of this Plan) of his Merged Plan
Benefit on the Merged Plan Participant's Normal Retirement
Date, unless a Merged Plan Participant who has completed at
least ten (10) years of Vesting Service requests to have it
begin on or after age sixty (60). If the Merged Plan
Participant elects to have such benefit begin earlier than
his Normal Retirement Date, his Merged Plan Benefit shall be
reduced by .6% for each calendar month it is paid prior to
age sixty-five (65).
(c) If a Merged Plan Participant's employment with all
Employers and Affiliated Companies terminates (A) due to a Merged
Plan Participant becoming Totally and Permanently Disabled under
the terms and conditions, and as defined, in the Phoenix Plan
(for purposes of this Section 15.05), (B) whose Total and
Permanent Disability has persisted at least six (6) consecutive
months since the date on which it commenced, (C) before he
attains age sixty-five (65), and (D) after completing at least
ten (10) years of Vesting Service, such Merged Plan Participant
shall be entitled to commence receipt (in accordance with the
terms of this Plan) of his Merged Plan Benefit on his Normal
Retirement Date unless such Merged Plan Participant elects to
have it begin on the first day of the later of the month in which
he becomes eligible for such benefit or the month following the
month satisfactory proof of a Total and Permanent Disability is
received by the Pension Administrative Committee. Such Merged
Plan Benefit shall not be reduced for payments commencing prior
to age sixty-five (65), shall be payable monthly thereafter to
the Merged Plan Participant until he attains age sixty-five (65)
or dies, whichever occurs first, and thereafter shall continue
unchanged without respect to the continuance of Total and
Permanent Disability.
427
(d) If a Merged Plan Participant dies before his Merged
Plan Benefit commences, his Surviving Spouse shall be entitled to
commence receipt (in accordance with the terms of this Plan) of
his Merged Plan Benefit as follows:
(i) In the case of the Surviving Spouse of a Merged
Plan Participant who dies prior to the date his Merged Plan
Benefit is to commence, the Merged Plan Benefit to which she
is entitled under the Phoenix Plan (1) shall be a monthly
pension payable for her remaining lifetime in the amount
specified in the subsequent sentences of this paragraph, (2)
shall begin on the first day of the month following the
month in which the Merged Plan Participant would have
attained age sixty-five (65), or, if the Surviving Spouse
requests earlier commencement thereof, on the later of the
first day of the month following the month in which the
Merged Plan Participant would have attained his Early
Retirement Age (as defined in the Phoenix Plan for purposes
of this Section 15.05), or the first day of the month
following the Merged Plan Participant's death, (3) shall be
payable monthly thereafter during her remaining lifetime,
and (4) shall cease with the payment that is made on the
first day of the month in which the Surviving Spouse dies.
If such Merged Plan Participant dies on or after age sixty
(60) with at least ten (10) years of Vesting Service, the
monthly amount of such Merged Plan Benefit shall be equal to
50% of the reduced monthly amount that would have been
payable to the Merged Plan Participant had he retired on the
day before his death and elected a 50% Joint and Survivor
Annuity (as defined under the Phoenix Plan for purposes of
this Section 15.05). If such Merged Plan Participant dies
before both attaining age sixty (60) and completing at least
ten (10) years of Vesting Service, the monthly amount of
such Merged Plan Benefit shall be equal to 50% of the
reduced monthly amount that would have been payable to the
Merged Plan Participant had he separated from service on the
date of his death and survived to the earliest possible date
at which benefits could become payable to him and retired
with a 50% Joint and Survivor Annuity at such date, dying
the day thereafter.
(ii) If the Merged Plan Participant met the criteria
described in clause (A) of subparagraph 15.05(b)(i) above at
the date of his death, the Merged Plan Benefit to which his
Surviving Spouse is entitled shall not be reduced for
benefits commencing prior to the date the Merged Plan
Participant would have attained age sixty-five (65). If the
Merged Plan Participant met the criteria described in clause
(B) of subparagraph 15.05(b)(i) above, but not the criteria
described in clause (A) of that subparagraph, the amount of
the Merged Plan Benefit to which his Surviving Spouse is
entitled shall be reduced by .6% for each month it is paid
prior to the date the Merged Plan Participant would have
attained age sixty-five (65).
428
(e) A Merged Plan Participant may elect, pursuant to the
spousal consent provisions of Section 5.01 of this Plan, the
optional form of benefit hereinafter specified in this subsection
with respect to his Merged Plan Benefit. Any optional form of
benefit set forth in Article V of this Plan shall apply only to
the Accrued Benefit earned by the Merged Plan Participant from
and after the Benefit Accrual Date. The optional form of benefit
set forth in this subsection shall be the Actuarial Equivalent of
the Merged Plan Benefit otherwise payable with respect to the
Merged Plan Participant. A Participant who has a Spouse may
elect to receive his Merged Plan Benefit as a reduced benefit
payable to him during his lifetime only, on and after the date on
which his Merged Plan Benefit is to commence, and after his death
to have a benefit payable to his Surviving Spouse at the same
reduced rate as was payable to the Merged Plan Participant during
his lifetime.
(f) A Merged Plan Participant whose employment with the
Company and all Affiliated Companies terminated prior to the Plan
Merger Date is entitled to receive his Merged Plan Benefit
pursuant to an optional form of benefit that was available under
the Phoenix Plan at the date of his termination of employment,
and that was elected by the Merged Plan Participant prior to the
date of his termination of employment pursuant to the terms of
the Phoenix Plan.
(g) If the death of a Retired or terminated Merged Plan
Participant occurs prior to his receipt of sixty (60) monthly
payments if he Retired or terminated employment prior to the
first Monday of September, 1984, or seventy-two (72) monthly
payments if he Retired or terminated employment on or after the
first Monday of September, 1984, such monthly payments shall be
continued to his Spouse or Beneficiary until an aggregate of
sixty (60) or seventy-two (72) such monthly payments, depending
upon which is applicable, have been made. Merged Plan
Participants who are eligible for a Merged Plan Benefit pursuant
to paragraph (ii) of subsection (b) of this Section 15.05 above,
but who die prior to the commencement of such Merged Plan
Benefit, shall have no guaranteed number of monthly payments
under this subsection (f). If the Merged Plan Participant or his
Surviving Spouse is receiving a Merged Plan Benefit under the
provisions of the 50% or 100% Joint and Survivor Annuity (as
defined in the Phoenix Plan for purposes of this Section 15.05)
and if the deaths of both the Merged Plan Participant and his
Surviving Spouse occur prior to the receipt of sixty (60) or
seventy-two (72) monthly payments, depending upon which is
applicable, the amount of the last monthly payment made to either
the Merged Plan Participant or his Surviving Spouse, whichever
one was the last to receive a payment, shall be the amount that
shall continue to be paid to the Merged Plan Participant's
Beneficiary until an aggregate of sixty (60) or seventy-two (72)
monthly payments, depending upon which is applicable, have been
made to the Merged Plan Participant, his Surviving Spouse and his
Beneficiary. In the event the Beneficiary designated by the
Merged Plan Participant dies prior to receiving the remainder of
429
the sixty (60) or seventy-two (72) monthly payments, depending
upon which is applicable, the present value of such remaining
payments (as determined by the Actuary using assumptions as are
in effect for an 'Actuarial Equivalent Benefit') (as defined in
the Phoenix Plan for purposes of this Section 15.05) shall be
paid to such Beneficiary's estate and shall represent the total
obligation of payment of the Merged Plan Benefit.
15.06 SPECIAL PROVISIONS RELATING TO THE NEWELL PLAN. The
following shall apply with respect to Merged Plan Participants who
participated in the Newell Plan on or before the Plan Merger Date:
(a) As of the Benefit Accrual Date, Employees (as defined
in the Newell Plan for purposes of this Section 15.06) who were
eligible to participate in the Newell Plan continued to
participate in this Plan in accordance with the terms of this
Plan. For purposes of determining the Accrued Benefit of Merged
Plan Participants who were Participants (as defined in the Newell
Plan for purposes of this Section 15.06) under the Newell Plan on
the Benefit Accrual Date, and who thereafter are employed by an
Employer, such Merged Plan Participants shall receive credit for
periods of employment with all Employers before and after the
Benefit Accrual Date. For purposes of determining such Merged
Plan Participants' nonforfeitable interest in their Accrued
Benefits, and their eligibility to participate in this Plan, such
Merged Plan Participants shall receive credit for periods of
employment with all Employers and Affiliated Companies (as
defined in Article II of this Plan) before and after the Benefit
Accrual Date.
(b) A Merged Plan Benefit shall be payable to a Merged Plan
Participant (as part of his benefit set forth under Article IV of
this Plan) at the times and in the manner set forth in Articles
IV and V of this Plan.
15.07 SPECIAL PROVISIONS RELATING TO SHENANGO PLAN. The
following shall apply with respect to Shenango Plan Participants who
participated in the Shenango Plan on or before the Plan Merger Date.
(a) Benefit accruals under the Shenango Plan were
permanently discontinued, and all benefits accrued thereunder by
Shenango Plan Participants became nonforfeitable, effective as of
January 31, 1988. No Shenango Plan Participant participated in
this Plan or earned an Accrued Benefit hereunder from and after
January 31, 1988.
(b) A Shenango Plan Benefit shall be payable to a Shenango
Plan Participant at the times set forth in Article IV of this
Plan. Notwithstanding the preceding sentence, if the Shenango
Plan Participant has satisfied all eligibility requirements
contained in the Shenango Plan prior to the Benefit Accrual Date
necessary to entitle him to receive payment of his Shenango Plan
Benefit commencing at a date earlier than the date applicable
under the terms of this Plan, such Participant shall be entitled,
subject to the terms and conditions applicable under the Shenango
430
Plan in existence prior to the Benefit Accrual Date, to have
payment of his Shenango Plan Benefit commence as follows:
(i) If a Shenango Plan Participant's employment with
all Employers and Affiliated Companies terminates before he
attains age sixty-five (65), and if at the time of such
termination he has attained age sixty (60) and completed
fifteen (15) years of Vesting Service (as defined in the
Shenango Plan for purposes of this Section 15.07), such
Shenango Plan Participant shall be entitled to commence
receipt (in accordance with the terms of this Plan) of his
Shenango Plan Benefit on the first day of any calendar month
selected by the Shenango Plan Participant on or after the
later to occur of the Plan Merger Date and the date of
termination of employment with all Employers and Affiliated
Companies. The amount of a Shenango Plan Benefit payable
pursuant to this paragraph (i), commencing on the first day
of any month coincident with or following the date the
Shenango Plan Participant attains age sixty (60) and
completes at least fifteen (15) years of Vesting Service,
shall equal the product of his Shenango Plan Benefit times
the applicable percentage according to his age at the time
his Shenango Plan Benefit is to commence determined from the
following table:
Age When
Shenango Plan
Benefit Commences Percentage
----------------- ----------
60 67.18%
61 72.36%
62 78.14%
63 84.60%
64 91.84%
65 100.00%
(ii) If the employment of a Shenango Plan Participant
not described in paragraph (i) above with all Employers and
Affiliated Companies terminates before he attains age sixty-
five (65), and if as of the date of his termination of
employment he has completed at least fifteen (15) years of
Vesting Service (as defined in the Shenango Plan for
purposes of this Section 15.07), such Shenango Plan
Participant shall be entitled to commence receipt (in
accordance with the terms of this Plan) of his Shenango Plan
Benefit on the first day of any calendar month selected by
the Shenango Plan Participant on or after the later to occur
of the Plan Merger Date and the date on which he attains age
sixty (60). The amount of a Shenango Plan Benefit payable
pursuant to this paragraph (ii) shall equal the product of
the Shenango Plan Benefit times the applicable percentage
according to the age of the Shenango Plan Participant at the
431
time his Shenango Plan Benefit is to commence, determined
from the table set forth in paragraph (i) above.
(c) If a Shenango Plan Participant's employment with all
Employers and Affiliated Companies terminates (A) due to the
Shenango Plan Participant becoming Totally and Permanently
Disabled (as defined in the Shenango Plan for purposes of this
Section 15.07) and (B) after completing fifteen (15) or more
years of Vesting Service, such Shenango Plan Participant shall be
entitled to commence receipt (in accordance with the terms of
this Plan) of his Shenango Plan Benefit on the first day of the
month following the later of (1) the date the Shenango Plan
Participant files an application for a Shenango Plan Benefit
pursuant to this subsection (c), or (2) the date when six (6)
months have elapsed since the commencement of his Total and
Permanent Disability.
(d) If a Shenango Plan Participant has at least one Hour of
Service (as defined in the Shenango Plan for purposes of this
Section 15.07) on or after August 23, 1984, and dies before
payment of his Shenango Plan Benefit commences, his Surviving
Spouse shall be entitled to commence receipt (in accordance with
the terms of this Plan) of his Shenango Plan Benefit in an amount
equal to the payments that would have been payable to such
Surviving Spouse under the Qualified Joint and Survivor Annuity
(as defined in the Shenango Plan for purposes of this Section
15.07) (based on the Shenango Plan Participant's actual Benefit
Service (as defined in the Shenango Plan for purposes of this
Section 15.07) to a maximum of thirty-five (35) years) if --
(i) In the case of the Surviving Spouse of a Shenango
Plan Participant who dies after attaining age sixty (60) and
completing at least fifteen (15) years of Vesting Service
(the "Qualified Earliest Retirement Age"), such Shenango
Plan Participant had Retired with an immediate Qualified
Joint and Survivor Annuity on the day before his death, or
(ii) In the case of a Shenango Plan Participant who
dies on or before the date on which he would have attained
his Qualified Earliest Retirement Age, such Shenango Plan
Participant had (A) terminated his employment with all
Employers and Affiliated Companies on the date of his death,
(B) survived to his Qualified Earliest Retirement Age, (C)
retired with an immediate Qualified Joint and Survivor
Annuity at his Qualified Earliest Retirement Age, and (D)
died on the day after the day on which he would have
attained his Qualified Earliest Retirement Age.
The Shenango Plan Benefit to which the Surviving Spouse of a
Shenango Plan Participant is entitled pursuant to this subsection
(d) shall commence to be paid to such Surviving Spouse as of the
first day of the month after the Shenango Plan Participant would
have attained age sixty-five (65) had he not died, or if the
Surviving Spouse requests earlier commencement thereof, as of the
first day of any month after the later of the Shenango Plan
432
Participant's death or the date on which the Shenango Plan
Participant would have attained his Qualified Earliest Retirement
Age, but in any case only if the Surviving Spouse is living on
such day and is otherwise eligible to receive such payments under
this subsection (d). Payments shall continue during the
Surviving Spouse's remaining lifetime, with the last monthly
payment being payable on the first day of the month in which the
Surviving Spouse dies. If a Shenango Plan Participant had
completed fifteen (15) years of Vesting Service (as defined in
the Shenango Plan for purposes of this Section 15.07) at the date
of his death, the amount of the Shenango Plan Benefit payable to
his Surviving Spouse shall equal the product of the Shenango Plan
Benefit times the applicable percentage according to the age the
Shenango Plan Participant would have attained at the time his
Shenango Plan Benefit is to commence, determined from the table
set forth in subparagraph (i) of paragraph (b) of this Section
15.07.
(e) A Shenango Plan Participant who has a Spouse on the
date payment of his Shenango Plan Benefit is to commence, and who
does not elect the optional form described in subsection (f)
below, shall receive his Shenango Plan Benefit in equal monthly
installments for his life with a survivor annuity (commencing on
the first day of the month following his death) for the life of
his Surviving Spouse in equal monthly installments of the same
amount.
(f) A Shenango Plan Participant may elect, pursuant to the
spousal consent provisions of Section 5.01 of this Plan, the
optional form of benefit hereinafter specified in this subsection
with respect to his Shenango Plan Benefit. The optional form of
benefit set forth in this subsection shall be the Actuarial
Equivalent of the Shenango Plan Benefit otherwise payable with
respect to the Shenango Plan Participant. A Shenango Plan
Participant may elect to receive his Shenango Plan Benefit in
equal monthly installments for his life, with a survivor annuity
(commencing on the first day of the month following his death)
for the life of a Beneficiary designated by the Shenango Plan
Participant in equal monthly installments of the same amount. A
Shenango Plan Participant's election of payment pursuant to this
subsection shall be deemed void if (i) the present value of the
payments expected to be made to him hereunder is not more than
50% of the present value of the total of the payments expected to
be made hereunder to him and his Beneficiary (unless his
Beneficiary is his Spouse), or (ii) his Beneficiary dies before
payment of his Shenango Plan Benefit commences.
(g) A Merged Plan Participant whose employment with the
Company and all Affiliated Companies terminated prior to the Plan
Merger Date is entitled to receive his Merged Plan Benefit
pursuant to an optional form of benefit that was available under
the Shenango Plan at the date of his termination of employment,
and that was elected by the Merged Plan Participant prior to the
date of his termination of employment pursuant to the terms of
the Shenango Plan.
433
(h) Each Shenango Plan Participant employed by an Employer
on January 21, 1988, shall be entitled to postpone the date for
commencement of payment of his Shenango Plan Benefit to a date
following his date of termination of employment with all
Employers and Affiliated Companies, as designated by the Shenango
Plan Participant, provided that the date designated for
commencement shall not be later than the date required for a
distribution pursuant to subsection 4.05(c) of this Plan and
Section 401(a)(9) of the Code and regulations issued thereunder.
Any such election to postpone commencement of a Shenango Plan
Benefit shall be revocable and may be modified by the applicable
Shenango Plan Participant. An election to postpone, or an
election to modify or revoke an election, pursuant to this
subsection, shall be effective on the first day of the month that
is at least thirty (30) days following the date such written
instrument is delivered by the Shenango Plan Participant to the
Pension Administrative Committee.
15.08 SPECIAL PROVISIONS RELATING TO THE STERLING PLAN.
The following shall apply, with respect to Merged Plan Participants
who participated in the Sterling Plan on or before the Plan Merger
Date.
(a) Benefit accruals under the Sterling Plan were
permanently discontinued, and all benefits accrued thereunder
became nonforfeitable, effective as of the Plan Merger Date. No
Merged Plan Participant participated in this Plan or earned an
Accrued Benefit hereunder from and after the Plan Merger Date.
(b) Each Merged Plan Participant, with spousal consent
given pursuant to the provisions of Section 5.01 if applicable,
waived payment of his Merged Plan Benefit in the form of an
annuity, and received a lump sum distribution equal to the
Actuarial Equivalent of his Merged Plan Benefit during the month
of December, 1993.
15.09 SPECIAL PROVISIONS RELATING TO THE SANFORD PLAN. The
following provisions shall apply with respect to each Participant who
is employed by Sanford Corporation in Bellwood, Illinois, and who is a
member of Warehouse Mail Order Office, Technical and Professional
Employees Union, Local 743, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America ("Sanford Plan Participant") notwithstanding any provision of
the Plan to the contrary:
A. The following shall apply with respect to Sanford Plan
Participants who were Participants in the Sanford Plan on the
Plan Merger Date:
Benefit accruals under the Sanford Plan were
permanently discontinued, effective as of the Benefit
Accrual Date. As of the Plan Merger Date, Members (as
defined in the Sanford Plan for purposes of this Section
15.09), became eligible to participate in this Plan in
accordance with the terms of this Plan and paragraph (B)
434
below. For purposes of determining the Accrued Benefit
earned from and after the Plan Merger Date by Sanford Plan
Participants who were Members in the Sanford Plan on the
Plan Merger Date, and who are thereafter employed by an
Employer, such Sanford Plan Participants shall receive
credit for periods of employment with all Employers from and
after the Plan Merger Date and for periods of participation
in the Sanford Plan prior to the Plan Merger Date, and not
for any other periods of employment with any Employer or any
other entity prior to the Plan Merger Date. For purposes of
determining such Sanford Plan Participants' nonforfeitable
interest in their Accrued Benefits, and their eligibility to
participate in this Plan, such Sanford Plan Participants
shall receive credit (1) for periods of employment with any
Employer or any other Affiliated Company (as defined in
Article II of this Plan) from and after the Plan Merger
Date, and (2) for periods of employment with Sanford
Corporation and all Employers and Affiliated Companies, and
not for periods of employment with any other entity that was
not an Affiliated Company, prior to the Plan Merger Date.
B. The following shall apply to a Sanford Plan Participant
notwithstanding any provisions of the Plan to the contrary:
(1) Notwithstanding the definition of "Accrued
Benefit" contained in Article II, and the special provisions
of Section 4.01 of this Plan, the Sanford Plan Benefit
payable with respect to a Sanford Plan Participant shall be
computed on the basis of a Normal Retirement Benefit under
which a Sanford Plan Participant who Retires on his Normal
Retirement Date shall be entitled to receive a monthly
pension for the remainder of his life equal to the
following:
a) if the termination of employment of the
Sanford Plan Participant with all Employers occurred on
or after June 14, 1992 and prior to June 14, 1993,
$15.00 multiplied by the Sanford Plan Participant's
years of Credited Service earned from and after the
date his participation in the Sanford Plan commenced;
and
b) if the termination of employment of the
Sanford Plan Participant with all Employers occurs on
or after June 14, 1993, $16.00 multiplied by the
Sanford Plan Participant's years of Credited Service
earned from and after the date his participation in the
Sanford Plan commenced, or in the case of a Sanford
Plan Participant who was not a participant in the
Sanford Plan, earned from and after the date he became
a Participant in this Plan.
(2) A Sanford Plan Participant will attain his
Eligibility Commencement Date on the date on which he both
435
completes an Eligibility Year of Service and attains age
twenty-one (21).
(3) If a Sanford Plan Participant's employment with
all Employers and Affiliated Companies terminates before he
attains age sixty-five (65), and if at the time of such
termination he has attained age fifty-five (55) and
completed twenty (20) years of Vesting Service, such Sanford
Plan Participant shall be entitled to commence receipt (in
accordance with the terms of this Plan) of his Sanford Plan
Benefit on the first day of any calendar month selected by
the Sanford Plan Participant on or after the later to occur
of the Plan Merger Date and the date of his termination of
employment with all Employers and Affiliated Companies, but
not later than his Normal Retirement Date. The amount of
his Sanford Plan Benefit shall be reduced by the applicable
percentage set forth in the table attached to the Plan to
reflect the period by which the date of commencement of
payment precedes his Normal Retirement Date.
(4) If a Sanford Plan Participant's employment with
all Employers and Affiliated Companies terminates before he
attains age fifty-five (55), and if at the time of such
termination he has completed twenty (20) years of Vesting
Service, such Sanford Plan Participant shall be entitled to
commence receipt (in accordance with the terms of this Plan)
of his Sanford Plan Benefit on the first day of any calendar
month selected by the Sanford Plan Participant on or after
the later to occur of the Plan Merger Date and the date on
which he attains age fifty-five (55), but not later than his
Normal Retirement Date. The amount of his Sanford Plan
Benefit shall be reduced by the applicable percentage set
forth in the table attached to this Plan to reflect the
period by which the date of commencement of payment precedes
his Normal Retirement Date.
(5) If a Sanford Plan Participant's employment with
all Employers and Affiliated Companies terminates before he
satisfies the criteria set forth in either paragraph (3) or
(4) above, such Sanford Plan Participant shall be entitled
to commence receipt (in accordance with the terms of this
Plan) of his Sanford Plan Benefit on his Normal Retirement
Date.
(6) A Sanford Plan Participant may elect, pursuant to
the spousal consent provisions of Section 5.01 of this Plan,
either of the optional forms of benefits specified in this
subparagraph with respect to his Sanford Plan Benefit. The
optional forms of benefit set forth in Article V of this
Plan shall not apply with respect to the Sanford Plan
Benefit of a Sanford Plan Participant. Any optional form of
benefit, or combination of optional forms of benefits, set
forth in this subparagraph, shall be the Actuarial
Equivalent of the Sanford Plan Benefit otherwise payable
with respect to the Sanford Plan Participant. The optional
436
forms of benefits available pursuant to this subparagraph
are as follows:
a) a monthly benefit payable during the lifetime
of the Sanford Plan Participant only;
b) a reduced benefit payable to the Sanford Plan
Participant during his lifetime and thereafter payments
to his Beneficiary, if then living, for life. The
amount of each payment to the Sanford Plan Participant
will equal a percentage, determined from the table
attached hereto, of the benefit which would have been
payable to the Sanford Plan Participant in the form of
an annuity over his lifetime only. The amount of each
payment to his Beneficiary will equal 50% of the amount
payable to the Sanford Plan Participant. The value of
the single sum Actuarial Equivalent of the benefit
payable to the Sanford Plan Participant pursuant to
this option shall be greater than the value of the
single sum Actuarial Equivalent of the benefit, payable
to his Beneficiary (other than his Spouse) computed at
the date of his Retirement; and
c) a Merged Plan Participant whose employment
with the Company and all Affiliated Companies
terminated prior to the Plan Merger Date is entitled to
receive his Merged Plan Benefit pursuant to an optional
form of benefit that was available under the Sanford
Plan at the date of his termination of employment, and
that was elected by the Merged Plan Participant prior
to the date of his termination of employment pursuant
to the terms of the Sanford Plan.
(7) If a Sanford Plan Participant dies before payment
of his Sanford Plan Benefit commences, his Surviving Spouse
shall be entitled to commence receipt (in accordance with
the terms of this Plan) of his Sanford Plan Benefit as
follows:
(A) If the Sanford Plan Participant dies before
his Normal Retirement Date and after completing at
least five (5) but less than twenty (20) years of
Vesting Service, his Sanford Plan Benefit (i) shall be
payable to his Surviving Spouse as a monthly pension
payable for her remaining lifetime in the amount
specified in the next sentence, (ii) shall begin on the
first day of the month coincident with or next
following the date on which the Sanford Plan
Participant would have attained his Normal Retirement
Date, (iii) shall be payable monthly thereafter during
her remaining lifetime, and (iv) shall cease with the
payment that is made on the first day of the month in
which the Surviving Spouse dies. The monthly amount of
such Sanford Plan Benefit shall be equal to 50% of the
reduced monthly amount that would have been payable to
437
the Sanford Plan Participant if he had terminated
employment on the date of his death, attained his
Normal Retirement Date, commenced receiving his Sanford
Plan Benefit in the form of a Qualified Joint and
Survivor Annuity on the first day of the month after he
attained his Normal Retirement Date, and died on the
next day.
(B) If a Sanford Plan Participant dies before
attaining age fifty-five (55), and after completing
twenty (20) years of Vesting Service, his Sanford Plan
Benefit (i) shall be payable to his Surviving Spouse as
a monthly pension payable for her remaining lifetime in
the amount specified in the next sentence, (ii) shall
begin on the first day of the month coincident with or
next following the date the Sanford Plan Participant
would have attained age fifty-five (55), (iii) shall be
payable monthly thereafter for her remaining lifetime,
and (iv) shall cease with the payment that is made on
the first day of the month in which the Surviving
Spouse dies. The monthly amount of such Sanford Plan
Benefit shall be equal to 50% of the reduced monthly
amount that would have been payable to the Sanford Plan
Participant if he had terminated employment on the date
of his death, survived to age fifty-five (55),
commenced receiving his Sanford Plan Benefit in the
form of a Qualified Joint and Survivor Annuity on the
first day of the month after he attained age fifty-five
(55), and died on the next day.
(C) If a Sanford Plan Participant dies prior to
his Normal Retirement Date, and after attaining age
fifty-five (55) and completing twenty (20) years of
Vesting Service, or dies after attaining his Normal
Retirement Date, his Sanford Plan Benefit (i) shall be
payable to his Surviving Spouse as a monthly pension
payable for her remaining lifetime in the amount
specified in the next sentene, (ii) shall begin on the
first day of the month coincident with or next
following the date of his death, (iii) shall be payable
monthly thereafter for her remaining lifetime, and (iv)
shall cease with the payment that is made on the first
day of the month in which the Surviving Spouse dies.
The monthly amount of such Sanford Plan Benefit shall
be equal to 50% of the reduced monthly amount that
would have been payable to the Sanford Plan Participant
if he had terminated employment on the date of his
death, commenced receiving his Sanford Plan Benefit in
the form of a Qualified Joint and Survivor Annuity on
the first day of the month after the date of his death,
and died on the next day.
(D) If a Sanford Plan Participant met the
criteria described in subparagraph (B) or (C) of this
paragraph at the date of his death, the Sanford Plan
438
Benefit to which his Surviving Spouse is entitled shall
be reduced by the applicable percentage set forth in
the Table attached to the Plan to reflect the period by
which the date of commencement of payment precedes the
date that would have been his Normal Retirement Date.
(8) The Eligibility Year of Service, Vesting Service
and Credited Service of a Sanford Plan Participant shall be
determined pursuant to the following provisions:
(a) Eligibility Year of Service, Vesting Service and
Credited Service will be based upon the Hours of
Service completed by a Sanford Plan Participant.
Hour of Service means (i) each hour for which a
Sanford Plan Participant is paid or entitled to payment
for the performance of duties for an Employer or an
Affiliated Company; and (ii) each hour for which a
Sanford Plan Participant is directly or indirectly paid
by an Employer or an Affiliated Company or is entitled
to payment from an Employer or an Affiliated Company
during which no duties are performed by reason of
vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave
of absence (but not in excess of 501 hours in any
continuous period during which no duties are
performed). Each Hour of Service for which back pay,
irrespective of mitigation of damages, is either
awarded or agreed to by an Employer or an Affiliated
Company shall be included under either (i) or (ii) as
may be appropriate. Hours of Service shall be
credited:
(A) in the case of hours referred to in clause
(i) of the first sentence of this paragraph, for the
computation period in which the duties are performed;
(B) in the case of hours referred to in clause
(ii) of the first sentence of this paragraph, for the
computation period or periods in which the period
during which no duties are performed occurs; and
(C) in the case of hours for which back pay is
awarded or agreed to by an Employer or an Affiliated
Company, for the computation period or periods to which
the award or agreement pertains rather than to the
computation period in which the award, agreement or
payment is made.
In determining Hours of Service a Sanford Plan
Participant who is employed by an Employer or an
Affiliated Company on other than an hourly rated basis
shall be credited with ten Hours of Service per day for
each day a Sanford Plan Participant would, if hourly
rated, be credited with service pursuant to clause (i)
439
of the first sentence of this paragraph. If a Sanford
Plan Participant is paid for reasons other than the
performance of duties pursuant to clause (ii) of the
first sentence of this paragraph:
(i) in the case of a payment made or due that is
calculated on the basis of units of time, a Sanford
Plan Participant shall be credited with the number of
regularly scheduled working hours included in the units
of time on the basis of which the payment is
calculated; and
(ii) a Sanford Plan Participant without a regular
work schedule shall be credited with eight Hours of
Service per day (to a maximum of forty Hours of Service
per week) for each day that the Sanford Plan
Participant is so paid.
Hours of Service shall be calculated in accordance with
Department of Labor Regulations Section 2530.200b-2 or
any future legislation or regulation that amends,
supplements or supersedes that section.
(b) A Sanford Plan Participant shall earn an
Eligibility Year of Service during the 12-month period
beginning on his date of hire by an Employer or an
Affiliated Company, or, if applicable, on the date set
forth in column (1) of Exhibit A, if he completes 1,000
Hours of Service during such 12-month period. If the
Sanford Plan Participant does not complete 1,000 Hours
of Service during such 12-month period, he will earn an
Eligibility Year of Service at the end of any Plan Year
in which he completes 1,000 Hours of Service.
(c) A Sanford Plan Participant will earn a year
of Vesting Service during each 12-month period
beginning on his date of hire by an Employer or an
Affiliated Company, or, if applicable, on the date set
forth in column (1) of Exhibit A, if he completes 1,000
Hours of Service during such 12 month period. Vesting
Service will not include any period of time prior to
the date the Sanford Plan Participant attained age 18.
(d) The Credited Service of a Sanford Plan
Participant shall be based upon his Vesting Service;
provided that Credited Service shall be earned only
pursuant to the provisions of Section 15.09A or only
while the Sanford Plan Participant is a Participant in
the Plan or while working for an Employer during his
Eligibility Year of Service.
(e) If a Sanford Plan Participant has a Break in
Service and is reemployed by an Employer, his
Eligibility Year of Service, Vesting Service and
Credited Service shall not include periods of time
440
completed prior to the Break in Service until the
Sanford Plan Participant completes an Eligibility Year
of Service after his date of reemployment. In
addition, if a Sanford Plan Participant who has a Break
in Service is reemployed by an Employer, and at the
time his Break in Service began he had not completed
five years of Vesting Service, his Eligibility Year of
Service, Vesting Service and Credited Service completed
prior to the Break in Service shall not be included if
the length of his Break in Service equals or exceeds
five years. Break in Service means the termination of
the employment of a Sanford Plan Participant with all
Employers and Affiliated Companies followed by the
expiration of a Plan Year in which such Sanford Plan
Participant accumulates fewer than 501 Hours of
Service. For purposes of this paragraph, a Break in
Service shall not be deemed to have occurred if a
Sanford Plan Participant resumes his employment with an
Employer or an Affiliated Company prior to the
expiration of a Plan Year in which he accumulates fewer
than 501 Hours of Service.
(f) A Sanford Plan Participant who is absent from
work because of (i) the Sanford Plan Participant's
pregnancy, (ii) the birth of the Sanford Plan
Participant's child, (iii) the placement of a child
with the Sanford Plan Participant in connection with
the Sanford Plan Participant's adoption of the child,
or (iv) caring for such child immediately following
such birth or placement, shall receive credit, solely
for purposes of determining whether a Break in Service
has occurred, for the Hours of Service described in the
next sentence of this paragraph; provided that the
total number of hours credited as Hours of Service
under this paragraph shall not exceed 501 Hours of
Service. If a Sanford Plan Participant is absent from
work for any of the reasons set forth in the preceding
sentence, the Hours of Service that the Sanford Plan
Participant will be credited with are (i) the Hours of
Service that otherwise would normally have been
credited to the Sanford Plan Participant but for such
absence, or (ii) eight Hours of Service per day of such
absence if the Pension Administrative Committee is
unable to determine the Hours of Service described in
clause (i). A Sanford Plan Participant who is absent
from work for any of the reasons set forth above shall
be credited with Hours of Service under this paragraph,
(i) only in the Plan Year in which the absence begins,
if the Sanford Plan Participant would be prevented from
incurring a Break in Service in that Year solely
because the period of absence is treated as Hours of
Service, as provided in this paragraph, or (ii) in any
other case, in the immediately following Plan Year. No
credit for Hours of Service will be given pursuant to
this paragraph unless the Sanford Plan Participant
441
furnishes to the Pension Administrative Committee such
timely information that the Pension Administrative
Committee may reasonably require to establish (i) that
the absence from work is for one of the reasons
specified above, and (ii) the number of days for which
there was such an absence. No credit for Hours of
Service will be given pursuant to this paragraph, for
any purpose of the Plan other than the determination of
whether a Sanford Plan Participant has incurred a Break
in Service.
IN WITNESS WHEREOF, the Company has caused the Plan to be
executed in its name by its duly authorized officer this 27th day of
December, 1994, effective as of the first day of January, 1989.
NEWELL OPERATING COMPANY
By__________________________________
442
FIRST AMENDMENT TO THE
NEWELL PENSION PLAN FOR FACTORY AND
DISTRIBUTION HOURLY PAID EMPLOYEES
(AS AMENDED AND RESTATED EFFECTIVE AS OF JAN. 1, 1989)
WHEREAS, Newell Operating Company (the "Company") maintains the
Newell Pension Plan for Factory and Distribution Hourly Paid Employees
(As Amended and Restated Effective as of January 1, 1989) (the
"Plan"); and
WHEREAS, the Company has reserved the right to amend the Plan and
now deems it appropriate to do so;
NOW, THEREFORE, the Plan is hereby amended in the following
respects effective as of the dates specified herein and with respect
to each participant who earns an hour of service on or after the
applicable effective date:
1. Subsection 14.02(iii) of the Plan is hereby amended, effective as
of July 1, 1996, to read as follows:
In the case of any such Participant who is
employed by the Thomas Division of the Company at
the date of his termination of employment with all
Employers, (a) $6.50 multiplied by the
Participant s years of Credited Service earned
from and after December 5, 1988 through June 30,
1996; and (b) an amount determined pursuant to
subsection 4.01(c) of the Plan with respect to
years of Credited Service earned from and after
July 1, 1996.
2. Exhibit A to the Plan is hereby amended, effective as of July 1,
1996, to revise the reference to the Thomas Division to read as
follows:
(1) (2) (3)
Beginning Date for
Hours of Service,
Eligibility Year of Beginning Date
Service and Vesting for Credited 30 Year
Service Deter- Service Deter- Credited
mination with mination with Service
Employer Employer Date
-------------------- ---------------- --------
Thomas (EZ Paintr,
Johnson City, TN) Date of Hire* 12-05-88 7-1-96
443
3. Exhibit B to the Plan is hereby amended, effective as of July 1,
1996, to add the following thereto:
Collective Bargaining Unit
or Location Formula Change Date
------------------------- -------------------
Thomas Division, Hourly Paid July 1, 1996**
Nonunion Employees
** $6.50 times years of Credited Serice Formula before Change Date
1.37-1.85 Formula from and after Formula Change Date
4. Exhibit C to the Plan is hereby amended, effective as of July 1,
1996, to add the following thereto:
Collective Bargaining Unit
or Location Formula Change Date
-------------------------- --------------------
Thomas Division, Hourly Paid July 1, 1996**
Nonunion Employees
** $6.50 times years of Credited Service Formula before Change Date
1.37-1.85 Formula from and after Formula Change Date
5. Subsection 14.03(a) of the Plan is hereby amended, effective as
July 1, 1996, to read as follows:
(a) The Early Retirement Date of a Thomas
Participant shall mean the first day of a calendar
month following the month in which the Thomas
Participant completes at least ten (10) years of
Vesting Service, attains age sixty (60) and
elects, by written notice delivered to the Pension
Administrative Committee at least thirty (30) days
in advance of such Date, to Retire prior to his
Normal Retirement Date. Each Thomas Participant
who Retires on his Early Retirement Date shall be
entitled to receive a monthly benefit for the
remainder of his lifetime equal to his Accrued
Benefit upon such Early Retirement Date, reduced
as follows to reflect the period between the date
such benefit payments commence and his Normal
Retirement Date:
444
(i) For the portion of the Accrued Benefit earned
as of June 30, 1996, the reduction shall be as
follows:
Years By Which Early Retirement Date
Precedes Normal Retirement Date Percentage of Benefit
------------------------------------ ---------------------
0 100%
1 88.64%
2 78.79%
3 70.21%
4 62.72%
5 56.15%
(ii) For the portion of the Accrued Benefit earned
on and after July 1, 1996 and prior to January 1,
1998, the reduction shall be equal to one-half of
one percent (0.5%) for each month by which the
date such benefit payments commence precedes his
Normal Retirement Date.
6. The first sentence of subsection 14.03(b) of the Plan is hereby
amended, effective as of July 1, 1996, to read as follows:
The benefit payable to a Thomas Participant pursuant to
Section 4.04 shall be payable on the first day of the
month following his Normal Retirement Date; provided
that if the Thomas Participant has completed ten (10)
years of Vesting Service at his Severance Date he shall
be entitled to receive his benefit on the first day of
any month he selects commencing on or after his Early
Retirement Date and prior to his Normal Retirement
Date, reduced pursuant to paragraph (a) of this Section
to reflect the period between the date payments
commence and his Normal Retirement Date.
7. The last sentence of subsection 14.03(c) of the Plan is hereby,
amended, effective as of July 1, 1996, to read as follows:
Any payment pursuant to this paragraph shall be reduced
pursuant to paragraph (a) of this Section to reflect
the period between the date such payments commence and
the date the Thomas Participant would have attained age
sixty-five (65).
8. Subsection 14.03(f) of the Plan is hereby amended, effective as
of January 1, 1998, to read as follows:
The benefits earned by a Thomas Participant prior to
January 1, 1998 shall be based upon the assumptions and
methods set forth in the attached schedules applicable
to Thomas Participants.
445
9. The introductory clause of Section 14.03 of the Plan is hereby
amended, effective as of January 1, 1998 to read as follows:
Notwithstanding any provision of the Plan to the
contrary, the following provisions shall apply
with respect to the portion of the Accrued Benefit
earned prior to January 1, 1998 by a Participant
who is employed by the Thomas Division of the
Company ( Thomas Participant ); provided, however,
that subsection 14.03(d) shall apply only to a
Thomas Participant who is employed by the Thomas
Division prior to January 1, 1998:
IN WITNESS WHEREOF, the Company has caused this First Amendment
to be executed on its behalf, by its officer duly authorized, this
17th day of April, 1997.
NEWELL OPERATING COMPANY
By:________________________________
446
SECOND AMENDMENT TO THE
NEWELL PENSION PLAN FOR FACTORY AND
DISTRIBUTION HOURLY PAID EMPLOYEES
WHEREAS, Newell Operating Company (the "Company") maintains the
Newell Pension Plan for Factory and Distribution Hourly Paid Employees
(the "Plan"); and
WHEREAS, the Home Fashions, Inc. Hourly Employees Retirement Plan
was previously merged into the Plan effective as of December 31, 1995;
and
WHEREAS, the Company has reserved the right to amend the Plan and
now deems it appropriate to do so;
NOW, THEREFORE, the Plan is hereby amended in the following
respects effective as of September 30, 1997:
I. Subsection 4.01 of the Plan is hereby amended to add a new
subsection (g) to read as follows:
(g) Effective as of September 30, 1997,
benefit accruals under the Plan shall be
permanently discontinued with respect to
Participants whose benefits are
determined in accordance with the
formula set forth in the Home Fashions,
Inc. Hourly Employees Retirement Plan.
Such Participants shall continue to be
credited with Vesting Service earned on
and after September 30, 1997 in
accordance with the terms of the Plan.
IN WITNESS WHEREOF, the Company has caused this Second Amendment
to be executed on its behalf, by its officer duly authorized, this
12th day of September, 1997.
NEWELL OPERATING COMPANY
By:_______________________________
447
FIRST AMENDMENT TO THE
NEWELL PENSION PLAN FOR FACTORY AND
DISTRIBUTION HOURLY PAID EMPLOYEES
(As Amended and Restated Effective as of Jan. 1, 1989)
WHEREAS, Newell Operating Company (the "Company") maintains the
Newell Pension Plan for Factory and Distribution Hourly Paid Employees
(As Amended and Restated Effective as of January 1, 1989) (the
"Plan"); and
WHEREAS, the Company has reserved the right to amend the Plan and
now deems it appropriate to do so;
NOW, THEREFORE, the Plan is hereby amended in the following
respects effective as of the dates specified herein and with respect
to each participant who earns an hour of service on or after the
applicable effective date:
1. Subsection 14.02(iii) of the Plan is hereby amended, effective as
of July 1, 1996, to read as follows:
In the case of any such Participant who is
employed by the Thomas Division of the Company at
the date of his termination of employment with all
Employers, (a) $6.50 multiplied by the
Participant's years of Credited Service earned
from and after December 5, 1988 through June 30,
1996; and (b) an amount determined pursuant to
subsection 4.01(c) of the Plan with respect to
years of Credited Service earned from and after
July 1, 1996.
448
2. Exhibit A to the Plan is hereby amended, effective as of July 1,
1996, to revise the reference to the Thomas Division to read as
follows:
(1) (2) (3)
Beginning Date for
Hours of Service,
Eligibility Year of Beginning Date
Service and Vesting for Credited 30 Year
Service Deter- Service Deter- Credited
mination with mination with Service
Employer Employer Date
-------------------- --------------- ---------
Thomas (EZ Paintr,
Johnson City, TN) Date of Hire* 12-05-88 7-1-96
3. Exhibit B to the Plan is hereby amended, effective as of July 1, 1996,
to add the following thereto:
Collective Bargaining Unit
or Location Formula Change Date
--------------------------- -------------------
Thomas Division, Hourly Paid
July 1, 1996**
Nonunion Employees
** $6.50 times years of Credited Service Formula before Change Date
1.37-1.85 Formula from and after Formula Change Date
4. Exhibit C to the Plan is hereby amended, effective as of July 1, 1996,
to add the following thereto:
Collective Bargaining Unit
or Location Formula Change Date
Thomas Division, Hourly Paid
July 1, 1996**
Nonunion Employees
** $6.50 times years of Credited Formula before Change Date
Service 1.37-1.85 Formula from and after
Formula Change Date
449
5. Subsection 14.03(a) of the Plan is hereby amended, effective as July 1,
1996, to read as follows:
(a) The Early Retirement Date of a Thomas Participant
shall mean the first day of a calendar month following the
month in which the Thomas Participant completes at least
ten (10) years of Vesting Service, attains age sixty (60)
and elects, by written notice delivered to the Pension
Administrative Committee at least thirty (30) days in
advance of such Date, to Retire prior to his Normal
Retirement Date. Each Thomas Participant who Retires on
his Early Retirement Date shall be entitled to receive a
monthly benefit for the remainder of his lifetime equal to
his Accrued Benefit upon such Early Retirement Date,
reduced as follows to reflect the period between the date
such benefit payments commence and his Normal Retirement
Date:
(i) For the portion of the Accrued Benefit earned as of
June 30, 1996, the reduction shall be as follows:
Years By Which Early Retirement Date
Precedes Normal Retirement Date Percentage of Benefit
0 100%
1 88.64%
2 78.79%
3 70.21%
4 62.72%
5 56.15%
(ii) For the portion of the Accrued Benefit earned on and
after July 1, 1996 and prior to January 1, 1998, the
reduction shall be equal to one-half of one percent (0.5%)
for each month by which the date such benefit payments
commence precedes his Normal Retirement Date.
6. The first sentence of subsection 14.03(b) of the Plan is hereby amended,
effective as of July 1, 1996, to read as follows:
The benefit payable to a Thomas Participant pursuant to Section
4.04 shall be payable on the first day of the month following
his Normal Retirement Date; provided that if the Thomas
Participant has completed ten (10) years of Vesting Service at
his Severance Date he shall be entitled to receive his benefit
on the first day of any month he selects commencing on or after
his Early Retirement Date and prior to his Normal Retirement
Date, reduced pursuant to paragraph (a) of this Section to
reflect the period between the date payments commence and his
Normal Retirement Date.
7. The last sentence of subsection 14.03(c) of the Plan is hereby, amended,
effective as of July 1, 1996, to read as follows:
Any payment pursuant to this paragraph shall be reduced pursuant
to paragraph (a) of this Section to reflect the period between
450
the date such payments commence and the date the Thomas
Participant would have attained age sixty-five (65).
8. Subsection 14.03(f) of the Plan is hereby amended, effective as of
January 1, 1998, to read as follows:
The benefits earned by a Thomas Participant prior to January 1,
1998 shall be based upon the assumptions and methods set forth
in the attached schedules applicable to Thomas Participants.
9. The introductory clause of Section 14.03 of the Plan is hereby amended,
effective as of January 1, 1998 to read as follows:
Notwithstanding any provision of the Plan to the contrary,
the following provisions shall apply with respect to the
portion of the Accrued Benefit earned prior to January 1,
1998 by a Participant who is employed by the Thomas
Division of the Company ("Thomas Participant"); provided,
however, that subsection 14.03(d) shall apply only to a
Thomas Participant who is employed by the Thomas Division
prior to January 1, 1998:
IN WITNESS WHEREOF, the Company has caused this First Amendment to be
executed on its behalf, by its officer duly authorized, this 12th day of
September, 1997.
NEWELL OPERATING COMPANY
By:
451
SECOND AMENDMENT TO THE
NEWELL PENSION PLAN FOR FACTORY AND
DISTRIBUTION HOURLY PAID EMPLOYEES
WHEREAS, Newell Operating Company (the "Company") maintains the Newell
Pension Plan for Factory and Distribution Hourly Paid Employees (the "Plan");
and
WHEREAS, the Home Fashions, Inc. Hourly Employees Retirement Plan was
previously merged into the Plan effective as of December 31, 1995; and
WHEREAS, the Company has reserved the right to amend the Plan and now
deems it appropriate to do so;
NOW, THEREFORE, the Plan is hereby amended in the following respects
effective as of September 30, 1997:
I. Subsection 4.01 of the Plan is hereby amended to add a new subsection
(g) to read as follows:
II. (g) Effective as of September 30, 1997, benefit
accruals under the Plan shall be permanently
discontinued with respect to Participants whose
benefits are determined in accordance with the
formula set forth in the Home Fashions, Inc.
Hourly Employees Retirement Plan. Such
Participants shall continue to be credited with
Vesting Service earned on and after September 30,
1997 in accordance with the terms of the Plan.
IN WITNESS WHEREOF, the Company has caused this Second Amendment to be
executed on its behalf, by its officer duly authorized, this 12th day of
September, 1997.
NEWELL OPERATING COMPANY
By:
------------------------------------
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>7
<TEXT>
EXHIBIT 10.8
NEWELL OPERATING COMPANY
SUPPLEMENTAL RETIREMENT PLAN FOR KEY EXECUTIVES
1996 RESTATEMENT
Effective January 1, 1996
ARTICLE I
PURPOSE; EFFECTIVE DATE
--------------------------
The purpose of this Supplemental Retirement Plan for Key Executives
(hereinafter referred to as the "Plan") is to provide supplemental retirement
and death benefits for certain employees of Newell Operating Company
(hereinafter referred to as "Company"). The Plan was originally effective as
of January 1, 1982. This restatement of the Plan shall be effective as of
January 1, 1996.
ARTICLE II
DEFINITIONS
-----------
For the purposes of the Plan, the following terms shall have the
meanings indicated, unless the context clearly indicates otherwise:
2.1 ACTUARIAL EQUIVALENT. "Actuarial Equivalent" means equivalence in
value between two or more forms of payment based on a determination by an
actuary chosen by the Company, using sound actuarial assumptions at the
time of such determination.
2.2 BENEFICIARY. "Beneficiary" means the person, persons or entity
entitled under Article IV to receive any Plan benefits payable after a
Participant's death.
2.3 BOARD. "Board" means the Board of Directors of the Company.
2.4 COMMITTEE. "Committee" means the Compensation and Benefits
Committee of the Board. The Committee will administer the Plan pursuant to
Article VII.
2.5 COMPANY. "Company" means Newell Operating Company, a Delaware
corporation, or any successor to the business thereof, and any affiliated or
subsidiary corporations thereof or of Newell Co.
2.6 COMPENSATION. "Compensation" means the base salary payable to and
bonus earned by a Participant from the Company and considered to be "wages"
for purposes of federal income tax withholding and shall not include
severance pay. Compensation shall be calculated before reduction for any
amounts deferred by he Participant pursuant to the Company's tax qualified
plans which may be maintained under Section 401(k) or Section 125 of the
Internal Revenue Code (the "Code"), or under the Newell Co. Deferred
Compensation Plan. Inclusion of any other forms of compensation is subject
to Committee approval.
453
2.7 CREDITED SERVICE. "Credited Service" means the total period of
elapsed time, computed in years and days, during the period beginning on a
Participant's Credited Service Date and ending on his date of termination of
employment with the Company, or the date designated by the Board as described
in Section 3.2. Credited Service shall include leaves of absence authorized
by the Company but shall not include any period following termination of
employment during which severance pay is received.
2.8 CREDITED SERVICE DATE. "Credited Service Date" means either:
(a) the date on which a Participant commenced employment with
Newell Co. or Newell Operating Company; or (b) the later of
(1) the date a Participant commenced employment with an
affiliate or subsidiary of Newell Co. or of Newell Operating Company,
or
(2) the date such affiliate or subsidiary initially became an
affiliate or a subsidiary of Newell Co. or of Newell Operating
Company.
Credited Service will start to accrue from the applicable Credited Service
Date.
2.9 DEATH BENEFIT OFFSET. "Death Benefit Offset" means the aggregate
monthly death benefit (or Actuarial Equivalent) payable in the same manner
and form described in Section 4.1(b) with respect to a Participant from all
Plan Offsets.
2.10 DEFERRED RETIREMENT DATE. "Deferred Retirement Date" means a date
that occurs after the Participant's Normal Retirement Date.
2.11 DEPENDENT CHILDREN. "Dependent Children" means a Participant's
unmarried children (including posthumous children and adopted children, but
only those adopted at least one (1) year prior to the date of his death)
under the age of eighteen (18) years at the date of his death or, at the date
of his death, under the age of twenty-two (22) years while a full time
student at an elementary or secondary school, a vocational or professional
school, or an accredited college or university as an undergraduate or
graduate student.
2.12 EARLY RETIREMENT DATE. "Early Retirement Date" means the date on
which a Participant both (i) attains age 60 and (ii) completes fifteen (15)
years of Early Retirement Service, but has not reached his Normal Retirement
Date.
2.13 EARLY RETIREMENT SERVICE. "Early Retirement Service" means the
total Vesting Service of a Participant credited under the Plan Offset
described in Section 2.21(a).
454
2.14 ELIGIBLE SPOUSE. "Eligible Spouse" means a person to whom a
Participant is lawfully married for at least the one (1) year period ending
on the Participant's Retirement.
2.15 FINAL AVERAGE COMPENSATION. "Final Average Compensation" means the
sum of a Participant's Compensation from the Company during the five (5)
consecutive calendar years in which the Participant's Compensation was the
highest divided by sixty (60). If a Participant-has not been employed by the
Company for five (5) full calendar years, "Final Average Compensation" shall
mean the sum of the Participant's Compensation during the full months (not
greater than sixty (60)) he was employed by the Company divided by the number
of full months (not greater than sixty (60)) the Participant was employed by
the Company.
2.16 JOINT AND FIFTY PERCENT (50%) SURVIVOR ANNUITY. "Joint and Fifty
Percent (50%) Survivor Annuity" means an annuity payable for a Participant's
life with a survivor annuity payable for the Eligible Spouse's life equal to
fifty percent (50%) of the amount paid or payable to the Participant.
2.17 NORMAL RETIREMENT DATE. "Normal Retirement Date" means a
Participant's sixty-fifth (65th) birthday.
2.18 "PARTICIPANT" means any employee who is eligible, pursuant to
Section 3.1, to participate in the Plan, and who has not yet received full
benefits hereunder.
2.19 PARTICIPATION AGREEMENT. "Participation Agreement" means the
agreement filed by a Participant which acknowledges assent to the terms of
the Plan and approved by the Committee pursuant to Article III.
2.20 PLAN. "Plan" means the Newell Operating Company Supplemental
Retirement Plan for Key Executives, as amended and restated effective as of
January 1, 1996, as herein set forth and as from time to time amended.
2.21 PLAN OFFSET. "Plan Offset" means any plan or plans maintained by
the Company that are used to determine benefits under the Plan. Plan Offsets
shall include:
(a) the Newell Pension Plan for Salaried and Clerical Employees;
and
(b) any other plan, agreement or arrangement (whether tax
qualified or nonqualified) maintained by the Company that provides retirement
benefits for a Participant, other than a plan containing a cash or deferred
arrangement under Section 401(k) of the Code or any successor section.
2.22 PRIMARY SOCIAL SECURITY BENEFIT. "Primary Social Security Benefit"
means the monthly Primary Social Security amount to which a Participant would
be entitled upon proper application therefore, under the Old-Age and Survi-
vors Insurance Benefit provisions of the federal Social Security Act as in
effect at the Retirement of the Participant, payable on the date that the
Supplemental Retirement Benefit begins under Section 5.1, 5.2 or 5.3. If a
Participant is not eligible to begin receiving benefits under the federal
social Security Act on the date that the Supplemental Retirement Benefit
455
begins under Section 5.2, under the terms of the federal Social Security Act
in effect at the Retirement of the Participant, an age sixty-five (65)
benefit (reduced as provided in Section 5.2) shall be substituted,
calculated by assuming that the Participant's Compensation for the last full
calendar year prior to his Retirement will continue to be his Compensation
for calendar years up to the calendar year before his sixty-fifth (65th)
birthday. If a Participant is not entitled to benefits under the federal
Social Security Act but is entitled to equivalent benefits under a similar
national pension program established by a foreign government, "Primary
Social Security Benefit" means such equivalent benefits determined on a
basis consistent with the above.
2.23 RETIREMENT. "Retirement" means a Participant's (i) separation
from employment with the Company on or after the Participant's Early Retire-
ment Date, Normal Retirement Date, or Deferred Retirement Date, and (ii)
commencement of receipt of benefits hereunder.
2.24 RETIREMENT BENEFIT OFFSET. "Retirement Benefit Offset" means the
aggregate monthly retirement benefit payable under the normal form of bene-
fit payments described in Section 5.4(a)(i) to a Participant from all Plan
Offsets.
2.25 SUPPLEMENTAL DEATH BENEFIT. "Supplemental Death Benefit" means
the benefit determined under Article IV of the Plan.
2.26 SUPPLEMENTAL RETIREMENT BENEFIT. "Supplemental Retirement Bene-
fit" means the benefit determined under Article V of the Plan.
2.27 SURVIVING SPOUSE. "Surviving Spouse" means a person to whom a
Participant is lawfully married for at least the one (1) year period ending
on the Participant's date of death.
2.28 TARGET BENEFIT PERCENTAGE. The Target Benefit Percentage shall
equal sixty-seven percent (67%) multiplied by a fraction, the numerator of
which is a Participant's years and fractional years (computed in days) of
Credited Service (not to exceed twenty-five (25)) and the denominator of
which is twenty-five (25).
ARTICLE III
PARTICIPATION AND VESTING
3.1 ELIGIBILITY AND PARTICIPATION.
(a) ELIGIBILITY. Eligibility to participate in the Plan shall be
limited to an employee of the Company who satisfies all of the follow-
ing requirements:
456
(i) is a participant in Bonus categories A or A/B of the
Company's Management Bonus Plan; and
(ii) is an active participant in any Plan Offset described in
Section 2.21; and
(iii) is a vice president or president of the Company or any
affiliated or subsidiary corporation; and
(iv) is a citizen or a resident alien of the United States;
and
(v) is designated for participation by management of the
Company.
(b) PARTICIPATION. An employee's participation in the Plan shall
be effective upon notification to the employee of eligibility to par-
ticipate, completion of a Participation Agreement by the Participant
and acceptance of such Agreement by the Committee. Subject to Sections
3.2 and 3.3, participation in the Plan shall continue until such time
as the Participant terminates employment with the Company and all
affiliated and subsidiary corporations, and as long thereafter as the
Participant (or his Beneficiary, Eligible Spouse or Surviving Spouse)
is eligible to receive benefits under this Plan.
3.2 CHANGE IN STATUS.
(a) If the Board determines that the employment performance of a
Participant who has not then attained age 60 is no longer at a level
that deserves reward through participation in the Plan, but does not
terminate the Participant's employment with the Company, or if such a
Participant no longer satisfies one or more of the requirements of
paragraph (a) of Section 3.1, such Participant's accrued interest in
his benefit hereunder shall be forfeited and neither the Participant
nor any other person shall be entitled to receive any benefit with
respect to such Participant hereunder. Notwithstanding the preceding
sentence, the Board, in its discretion, may determine that a Partic-
ipant described in the preceding sentence shall be entitled to all,
or a designated portion, of his accrued interest in his benefit here-
under, determined as of a date designated by the Board, in which event
such benefit shall be based solely on the Participant's Credited
Service, Early Retirement Service, Final Average Compensation and
Retirement Benefit Offset as of such designated date, and his total
Primary Social Security Benefit.
(b) If the Board determines that the employment performance of a
Participant who has then attained age 60 is no longer at a level that
deserves reward through participation in the Plan, but does not ter-
minate the Participant's employment with the Company, or if such a Par-
ticipant no longer satisfies one or more of the requirements of para-
graph (a) of Section 3.1, such Participant's accrued interest in his
benefit hereunder, as of a subsequent date designated by the Board,
shall be based solely on such Participant's Credited Service, Early
Retirement Service, Final Average Compensation and Retirement Benefit
Offset, as of such designated date, and his total Primary Social
Security Benefit.
457
(c) If a Participant described in paragraph (a) or paragraph (b)
of this Section again is determined by the Board to be performing at a
level that deserves a reward through participation in the Plan, or
again satisfies all of the requirements of paragraph (a) of Section 3.1,
he shall thereafter again actively participate in the Plan and his
accrued interest in his benefit hereunder shall be based upon his
aggregate Credited Service and Early Retirement Service during his total
period of employment with the Company. In addition, the benefit here-
under of a Participant described in the preceding sentence shall be
based upon his Final Average Compensation and Retirement Benefit Offset
as of the date he ceases termination of employment with the Company, and
his total Primary Social Security Benefit.
(d) If a Participant's employment with the Company terminates
before he attains age 60, and if he is subsequently reemployed by the
Company and satisfies all of the eligibility requirements for active
participation in the Plan set forth in paragraph (a) of Section 3.1,
he shall be treated as a new Participant and his benefit under the
Plan shall be based solely upon his Credited Service, Early Retirement
Service, Final Average Compensation and Retirement Benefit Offset from
and after his date of reemployment, and his total Primary Social
Security Benefit.
(e) If a Participant's employment with the Company terminates on
or after the date he attains age 60, and if he is subsequently reem-
ployed by the Company and he satisfies all of the eligibility require-
ments for active participation in the Plan set forth in paragraph (a)
of Section 3.1, any benefit payments then being made to him under the
Plan shall be suspended during his subsequent period of reemployment.
Upon his subsequent termination of employment with the Company or death,
payment of his benefit hereunder shall resume to him, or to his Eligible
Spouse or Dependent Children, pursuant to the applicable provisions of
the Plan, and shall be based upon his Credited Service, Early Retire-
ment Service, Final Average Compensation and Retirement Benefit Offset
for his total period of employment with the Company, both prior to his
initial termination of employment and subsequent to his date of reem-
ployment, and his total Primary Social Security Benefit.
3.3 FORFEITURES. No benefits will be payable under the Plan to or in
respect of any Participant who:
(a) Terminates employment with the Company for any reason prior
to the first to occur of his attainment of age 60, and the date of his
death;
(b) Engages in competition with, or works for another business
entity in competition with, the Company in the areas that it serves;
458
(c) Makes any unauthorized disclosure of any trade or business
secrets or privileged information acquired during his employment with
the Company;
(d) Is found to have stolen or embezzled funds from the Company;
(e) Fraudulently, dishonestly or willfully causes the Company to
suffer any loss of, or damage to, money or other property belonging to
it or for the care and protection of which it is responsible, or to its
reputation;
(f) Is discharged by the Company for repeated drunkenness on the
job; or
(g) Is convicted of a felony connected with his employment.
In any such event, the participation of such Participant in the Plan
shall automatically terminate and the Company shall have no further
obligation to make payments (including further payment of any benefits then
being paid) to such Participant (or his Beneficiary, Eligible Spouse or
Surviving Spouse) under the Plan.
3.4 SUICIDE OR MISREPRESENTATION. The provisions of Articles IV or V
notwithstanding, no benefit shall be paid to a Beneficiary, Eligible Spouse
or Surviving Spouse if the Participant's death occurs as a result of sui-
cide during the twenty-four (24) successive calendar months beginning with
the calendar month following the commencement of an employee's participation
in the Plan. Similarly, no benefit shall be paid if death occurs within
the twenty-four (24) successive calendar months following commencement of
an employee's participation in the Plan if the Participant has made a
material misrepresentation in any form or document provided by the
Participant to or for the benefit of the Company or any affiliated or
subsidiary corporation.
3.5 VESTING. Except as otherwise provided in Sections 3.3 and 3.4, a
Participant shall become one hundred percent (100%) vested in his Supple-
mental Retirement Benefit and Supplemental Death Benefit accrued under the
Plan, while he was a Participant, upon the first to occur of his attainment
of age 60 and the date of his death.
3.6 CANADIAN PARTICIPANTS. Effective as of January 1, 1996, individ-
uals employed at locations of affiliates and subsidiaries of the Company in
Canada ceased to be Participants in the Plan and became participants in the
Newell Operating Company Supplemental Retirement Plan for Key Canadian
Executives ("Canadian Plan"). The liability for all accrued benefits of
such individuals under the Plan as of January 1, 1996 were transferred as
of such date to the Canadian Plan, and such accrued benefits shall be
payable pursuant to the terms of the Canadian Plan.
459
ARTICLE IV
SUPPLEMENTAL DEATH BENEFIT
4.1 PRE-TERMINATION DEATH BENEFIT. If a Participant dies while
employed by the Company or any affiliated or subsidiary corporation
(subject to Sections 3.2, 3.3 and 3.4), the Company shall pay to the
Participant's Surviving Spouse and/or Dependent Children a monthly Sup-
plemental Death Benefit as follows:
(a) AMOUNT. The amount of the Supplemental Death Benefit shall
be:
(i) One-half (1/2) of sixty-seven percent (67%) of the
Participant's Final Average Compensation, less;
(ii) The Participant's Death Benefit Offset.
The amount payable under paragraph (a) above shall be payable beginning
on the date set forth in paragraph (b) of this Section 4.1.
(b) PAYMENT OF BENEFITS. The Supplemental Death Benefit will be paid
monthly to the Surviving Spouse, if there is a Surviving Spouse on the
Participant's date of death, beginning on the first day of the month next
following the Participant's date of death, and will not be reduced for
commencement prior to the date the Participant would have attained the age
of sixty-five (65) years. The Supplemental Death Benefit shall continue to
the Surviving Spouse until the first day of the month coincident with or
next preceding the earlier of:
(i) The death of the Surviving Spouse;
(ii) The remarriage of the Surviving Spouse, if at the time of
such remarriage, there are one (1) or more Dependent Children; and
(iii) The later of the fifteenth (15th) anniversary of the
Participant's date of death and the date that would have been the
Participant's sixty-fifth (65th) birthday.
The Supplemental Death Benefit will be paid monthly to the Participant's
Dependent Children (payable in equal shares to those persons who then qualify
as "Dependent Children"), if there is not a Surviving Spouse on the
Participant's date of death, beginning on the first day of the month next
following the Participant's date of death, and will not be reduced for
commencement prior to the date the Participant would have attained the age of
sixty-five (65) years. The Supplemental Death Benefit shall continue to the
Dependent Children until the first day of the month coincident with or next
preceding the earlier of:
(i) The date that there are no longer any Dependent Children;
and
460
(ii) The later of the fifteenth (15th) anniversary of the
Participant's date of death and the date that would have been the
Participant's sixty-fifth (65th) birthday.
The Supplemental Death Benefit will also be paid monthly to the
Participant's Dependent Children (payable in equal shares to those persons
who then qualify as "Dependent Children") beginning on the first day of the
month next following the death or remarriage of the Surviving Spouse who had
been receiving the Supplemental Death Benefit as described above. The Sup-
plemental Death Benefit shall continue to the Dependent Children until the
first day of the month coincident with or next preceding the earlier of:
(i) The date that there are no longer any Dependent Children;
and
(ii) The later of the fifteenth (15th) anniversary of the
Participant's date of death and the date that would have been the
Participant's sixty-fifth (65th) birthday.
If there are no Dependent Children on the date of remarriage of a
Surviving Spouse who had been receiving the Supplemental Death Benefit as
described above, or on any date subsequent to the date of remarriage, such
remarried Surviving Spouse will again be paid, or continue to be paid, a
monthly Supplemental Death Benefit beginning on the first day of the month
next following the later of the date of remarriage or the date there are
no longer Dependent Children. The Supplemental Death Benefit shall continue
to the remarried Surviving Spouse until the first day of the month coincident
with or next preceding the earlier of:
(i) The death of the remarried Surviving Spouse; and
(ii) The later of the fifteenth (15th) anniversary of the
Participant's date of death and the date that would have been the
Participant's sixty-fifth (65th) birthday.
If there is not a Surviving Spouse or Dependent Children on the date of
death of the Participant, no Supplemental Death Benefit shall be payable
under this Section 4.1.
4.2 POST-TERMINATION DEATH BENEFIT.
(a) DEATH PRIOR TO COMMENCEMENT OF BENEFITS. If a Participant dies
after his attainment of age 60 and after his termination of employment with
the Company, but before payments have commenced hereunder, a monthly Supple-
mental Death Benefit will be paid with respect to such Participant only if,
and to the extent, provided under Section 5.4. The Supplemental Death Bene-
fit (if any) will begin on the first day of the month next following the
Participant's date of death, will continue for the duration of the payment
period provided under Section 5.4, and will not be reduced for commencement
prior to the date the Participant would have attained the age of sixty-five
(65) years.
461
(b) DEATH AFTER COMMENCEMENT OF BENEFITS. If a Participant dies after
his attainment of age 60 and after payments have commenced hereunder, a
monthly Supplemental Death Benefit will be paid with respect to such Par-
ticipant only if, and to the extent provided under Section 5.4. The Supple-
mental Death Benefit (if any) will begin on the first day of the month next
following the date on which the Participant received his last payment under
Section 5.1, 5.2 or 5.3 (whichever is applicable) and shall continue for
the duration of the payment period provided under Section 5.4.
ARTICLE V
SUPPLEMENTAL RETIREMENT BENEFIT
5.1 NORMAL RETIREMENT BENEFIT. If a Participant's employment with the
Company terminates on his Normal Retirement Date, or if his employment with
the Company terminates after he attains age 60 but before he attains his
Early Retirement Date, the Participant's Retirement shall occur on his Normal
Retirement Date and the Company shall pay to the Participant a monthly
Supplemental Retirement Benefit beginning on the date of payment of the
Retirement Benefit Offset attributable to the Plan Offset described in Sec-
tion 2.21(a). In such event the Supplemental Retirement Benefit shall be
paid in an amount equal to the Participant's Target Benefit Percentage
multiplied by his Final Average Compensation, less:
(a) The Participant's Primary Social Security Benefit; and
(b) The Participant's Retirement Benefit Offset.
The amounts under (a) and (b) above shall be determined in the amount
payable on the date that the Supplemental Retirement Benefit begins under
this Section 5.1 and in the same form that the Supplemental Retirement Bene-
fit is paid under Section 5.4.
5.2 EARLY RETIREMENT BENEFIT. If a Participant's employment with the
Company terminates on an Early Retirement Date, and if he elects payment of
his Retirement Benefit Offset attributable to the Plan Offset described in
Section 2.21(a) on any date during the period commencing on his Early Retire-
ment Date and ending on his Normal Retirement Date, the Participant's Retire-
ment shall occur on such Early Retirement Date and the Company shall pay to
the Participant a monthly Supplemental Retirement Benefit beginning on the
date of payment of such Retirement Offset Benefit; provided that the
Committee approves such date of commencement of payment of the Supplemental
Retirement Benefit. In such event the Supplemental Retirement Benefit shall
be paid in an amount equal to the Participant's Target Benefit Percentage
multiplied by his Final Average Compensation, reduced by one-half of one
percent (0.5%) for each month, if any, by which benefits payable under this
Section 5.2 precede the date that benefits would be payable under Section
5.1, less:
(a) The Participant's Primary Social Security Benefit; and
462
(b) The Participant's Retirement Benefit Offset.
The amounts under (a) and (b) above shall be determined in the amount
payable on the date that the Supplemental Retirement Benefit begins under
this Section 5.2 and in the same form that the Supplemental Retirement Bene-
fit is paid under Section 5.4.
If the amount under (a) above is not payable on the date that the
Supplemental Retirement Benefit begins under this Section 5.2, an amount
payable on the date that benefits would be payable under Section 5.1,
reduced by the one-half of one percent (0.5%) reduction mentioned above
shall be substituted.
5.3 DEFERRED RETIREMENT BENEFIT. If a Participant's employment with
the Company terminates on a Deferred Retirement Date, the Participant's
Retirement shall occur on such Deferred Retirement Date and the Company
shall pay to the Participant a monthly Supplemental Retirement Benefit
beginning on the date of payment of the Retirement Benefit Offset
attributable to the Plan Offset described in Section 2.21(a). In such
event the Supplemental Retirement Benefit shall be paid in an amount equal
to the Participant's Target Benefit Percentage multiplied by his Final
Average Compensation, less:
(a) The Participant's Primary Social Security Benefit; and
(b) The Participant's Retirement Benefit Offset.
The amounts under (a) and (b) above shall be determined in the amount
payable on the date that the Supplemental Retirement Benefit
begins under this Section 5.3 and in the same form that the Supplemental
Retirement Benefit is paid under Section 5.4.
5.4 PAYMENT OF BENEFITS.
(a) FORM OF BENEFIT PAYMENTS. The Supplemental Retirement Bene-
fit shall be paid monthly in the normal form provided below, unless the
Participant requests an alternative form as described in paragraph (b)
next below. Any alternative form shall be the Actuarial Equivalent of
the normal form of benefit payments. The normal forms of payment are as
follows:
(i) If the Participant has an Eligible Spouse at Retirement,
the normal form is a Joint and Fifty Percent (50%) Survivor
Annuity.
(ii) If the Participant does not have an Eligible Spouse at
Retirement, the normal form is a life annuity payable only for the
Participant's life.
(b) If a Participant elects an alternative form of payment of his
Retirement Benefit Offset attributable to the Plan Offset described in
Section 2.21(a), then his Supplemental Retirement Benefit shall be pay-
able to him in the same alternative form, provided that the Committee
approves such alternative form of payment of the Supplemental Retirement
Benefit.
463
(c) COMMENCEMENT OF BENEFIT PAYMENTS. Payment of the Supple-
mental Retirement Benefit to a Participant under the Normal, Deferred,
or Early Retirement provisions of this Article shall commence on the
date on which payment of his Retirement Benefit Offset attributable
to the Plan Offset described in Section 2.21(a) commences.
5.5 SMALL BENEFIT. If the Actuarial Equivalent of a Supplemental
Retirement Benefit or a Supplemental Death Benefit payable to or with respect
to a Participant does not exceed $3,500 on the date for commencement of pay-
ment thereof, such Supplemental Retirement Benefit or Supplemental Death
Benefit shall be payable to the Participant, or to his Eligible Spouse or
Dependent Children as applicable, in a lump sum, on or as soon as practicable
after the date that payment thereof would otherwise commence.
5.6 ACTUARIAL EQUIVALENT. If a Supplemental Retirement Benefit is
payable in an alternative form pursuant to paragraph (b) of Section 5.4,
such alternative form of payment, including the Target Benefit Percentage,
shall be determined by the same actuarial adjustments as those specified
in the Plan Offset described in Section 2.21(a) with respect to determination
of the amount of payment of the Retirement Benefit Offset attributable to
such Plan Offset. The actuarial adjustments specified in the Plan Offset
described in Section 2.21(a) shall also be used to convert the amount of the
Primary Social Security Benefit, the Retirement Benefit Offset, and the
Death Benefit Offset specified in Sections 5.1, 5.2, 5.3 and 2.9 to the same
form in which the Supplemental Retirement Benefit is paid under Section 5.4,
or in which the Supplemental Death Benefit is paid under Article IV.
5.7 WITHHOLDING; PAYROLL TAXES. The Company shall withhold from pay-
ments made hereunder any taxes required to be withheld from such payments
under federal, state or local law. However, a Beneficiary may elect not
to have withholding of federal income tax pursuant to Section 3405(a)(2)
of the Code, or any successor provision.
5.8 PAYMENT TO GUARDIAN. If a Plan benefit is payable to a minor
or a person declared incompetent or to a person incapable of handling
the disposition of property, the Committee may direct payment of such
Plan benefit to the guardian, legal representative or person having
the care and custody of such minor, incompetent or person. The Commit-
tee may require proof of incompetency, minority, incapacity or guardian-
ship as it may deem appropriate prior to distribution of the Plan benefit.
Such distribution shall completely discharge the Committee and the Company
from all liability with respect to such benefit.
ARTICLE VI
BENEFICIARY DESIGNATION
6.1 BENEFICIARY DESIGNATION. Each Participant shall have the right,
at any time, to designate any person, persons or entity as Beneficiary or
Beneficiaries (both primary as well as secondary) to whom benefits under
the Plan shall be paid in the event of a Participant's death prior to
complete distribution to the Participant of the Supplemental Retirement
Benefit due
464
under the Plan. Each Beneficiary designation shall be in a written form
prescribed by the Committee, and will be effective only when filed with
the Committee during the Participant's lifetime.
6.2 CHANGING BENEFICIARY. Any Beneficiary designation may be changed
by a Participant without the consent of the previously designated Beneficiary
by the filing of a new Beneficiary designation with the Committee. The
filing of a new designation shall cancel all designations previously filed.
If a Participant's Compensation is community property, any Beneficiary
Designation shall be valid or effective only as permitted under applicable
law.
6.3 NO BENEFICIARY DESIGNATION. If any Participant fails to designate
a Beneficiary in the manner provided above, if the designation is void, or
if all designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's Supplemental Retirement Benefits,
then the Participant's designated Beneficiary shall be deemed to be the
person or persons surviving the Participant in the first of the following
classes in which there is a survivor, share and share alike;
(a) The Participant's Surviving Spouse;
(b) Tho Participant's children, except that if any of the
children predecease the Participant but leave issue surviving,
then such issue shall take by right of representation the share
their parent would have taken if living;
(c) The Participant's estate.
6.4 EFFECT OF PAYMENT. The payment to the deemed Beneficiary shall
completely discharge the Company's obligations under the Plan.
ARTICLE VII
ADMINISTRATION
7.1 COMMITTEE; DUTIES. The Committee shall have the authority to make,
amend, interpret, and enforce all appropriate rules and regulations for the
administration of the Plan and decide or resolve any and all questions
including interpretations of the Plan, as may arise in connection with the
Plan. A majority vote of the Committee members shall control any decision.
Members of the Committee may be Participants under the Plan.
7.2 AGENTS. The Committee may, from time to time, employ other agents
and delegate to them such administrative duties as it sees fit, and may from
time to time consult with counsel who may be counsel to the Company.
7.3 BINDING EFFECT OF DECISIONS. The decision or action of the Commit-
tee in respect of any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules and
regulations promulgated hereunder shall be final and conclusive and binding
upon all persons having any interest in the Plan.
465
7.4 INDEMNITY OF COMMITTEE. The Company shall indemnify and hold
harmless the members of the Committee against any and all claims, loss,
damage, expense or liability arising from any action or failure to act
with respect to the Plan on account of such member's service on the
Committee except in the case of gross negligence or willful misconduct.
ARTICLE VIII
CLAIMS PROCEDURE
8.1 CLAIM. Any person or entity claiming a benefit, requesting an
interpretation or ruling under the Plan, or requesting information under
the Plan (hereinafter referred to as "claimant") shall present the request
in writing to the Committee which shall respond in writing within ninety
(90) days.
8.2 DENIAL OF CLAIM. If the claim or request is denied, the written
notice of denial shall state:
(a) The reason for denial, with specific reference to the Plan
provisions on which the denial is based;
(b) A description of any additional material or information
required and an explanation of why it is necessary; and
(c) An explanation of the Plan's claim review procedure.
8.3 REVIEW OF CLAIM. Any claimant whose claim or request is denied or
who has not received a response within ninety (90) days may request review
by notice given in writing to the Committee. Such request must be made
within ninety (90) days after receipt by the claimant of the written notice
of denial, or in the event the claimant has not received a response within
one hundred eighty (180) days after receipt by the Committee of claimant's
claim or request. The claim or request shall be reviewed by the Committee
which may, but shall not be required to, grant the claimant a hearing.
On review, the claimant may have representation, examine pertinent docu-
ments, and submit issues and comments in writing.
8.4 FINAL DECISION. The decision on review shall be made within sixty
(60) days after the Committee's receipt of the claimant's claim or request.
If an extension of time is required for a hearing or other special circum-
stances, the claimant shall be notified and the time limit shall be one
hundred twenty (120) days. The decision shall be in writing and shall state
the reason and the relevant Plan provisions. All decisions on review shall
be final and bind all parties concerned.
ARTICLE IX
TERMINATION, SUSPENSION OR AMENDMENT
9.1 TERMINATION, SUSPENSION OR AMENDMENT OF PLAN. The Board may, in
its sole discretion, terminate or suspend the Plan at any time or from time
466
to time, in whole or in part. The Board may amend the Plan at any time.
Any amendment may provide different benefits or amounts of benefits from
those herein set forth. However, no such termination, suspension or
amendment shall adversely affect the benefits of Participants which have
accrued and vested prior to such action, the benefits of any Participant
who has previously retired, except as otherwise determined by the Board
under Section 10.1 with respect to any Participant, or the benefits of
any Beneficiary, Eligible Spouse or Surviving Spouse of a Participant
who has previously died.
ARTICLE X
MISCELLANEOUS
10.1 UNFUNDED PLAN. The Plan is an unfunded plan maintained primarily
to provide deferred compensation benefits for a select group of "management
OR highly compensated employees" within the meaning of Sections 201, 301,
and 401 of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and therefore is exempt from the provisions of Parts 2, 3 and 4
of Title I of ERISA. Accordingly, the Board may terminate the Plan and make
no further benefit payments, or remove certain employees as Participants if
it is determined by the United States Department of Labor, a court of com-
petent jurisdiction, or an opinion of counsel that the Plan constitutes an
employee pension benefit plan within the meaning of Section 3(2) of ERISA
(as currently in effect or hereafter amended) which is not so exempt.
10.2 COMPANY OBLIGATION. The obligation to make benefit payments to any
Participant under the Plan shall be an obligation solely of the Company with
respect to the deferred Compensation receivable from, and contributions by
the Company, and shall not be an obligation of another company.
10.3 UNSECURED GENERAL CREDITOR. Except as provided in Section 10.4,
Participants and their Beneficiaries, Eligible Spouses, Surviving Spouses,
heirs, successors and assigns shall have no legal or equitable rights,
interest or claims in any property or assets of the Company, nor shall they
be beneficiaries of, or have any rights, claims or interests in, any life
insurance policies, annuity contracts or the proceeds therefrom owned or
which may be acquired by the Company. Except as provided in Section 10.4,
such policies or other assets of the Company shall not be held under any
trust for the benefit of Participants, their Beneficiaries, Eligible Spouses,
Surviving Spouses, heirs, successors or assigns, or held in any way as
collateral security for the fulfilling of the obligations of the Company
under the Plan. Any and all of the Company's assets shall be, and remain,
the general, unpledged, unrestricted assets of the Company. The Company's
obligation under the Plan shall be that of an unfunded and unsecured promise
of the Company to pay money in the future.
10.4 TRUST FUND. The Company shall be responsible for the payment of
all benefits provided under the Plan. At its discretion, the Company may
establish one (1) or more trusts, with such trustees as the Board may
approve, for the purpose of providing for the payment of such benefits.
Such trust or trusts may be irrevocable, but the assets thereof shall be
subject to the claims of the Company's creditors. To the extent any bene-
fits provided under the Plan are actually paid from any such trust, the
467
Company shall have no further obligation with respect thereto, but to the
extent not so paid, such benefits shall remain the obligation of, and
hall be paid by, the Company.
10.5 NONASSIGNABILITY. Neither a Participant nor any other person
shall have any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate or convey in advance
of actual receipt the amounts, if any, payable hereunder, or any part
thereof, which are, and all rights to which are, expressly declared to
be unassignable and nontransferable. No part of the amounts payable shall,
prior to actual payment, be subject to seizure or sequestration for the
payment of any debts, judgments, alimony or separate maintenance owed by
a Participant or any other person, nor be transferable by operation of
law in the event of a Participant's or any other person's bankruptcy
or insolvency.
10.6 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of the
Plan shall not be deemed to constitute a contract of employment between the
Company and any Participant, and neither the Participant (nor his Benefici-
ary, Eligible Spouse or Surviving Spouse) shall have any rights against the
Company except as may otherwise be specifically provided herein. Moreover,
nothing in the Plan shall be deemed to give a Participant the right to be
retained in the service of the Company or to interfere with the right of
the Company to discipline or discharge him at any time.
10.7 PROTECTIVE PROVISIONS. A Participant will cooperate with the
Company by furnishing any and all information requested by the Company,
in order to facilitate the payment of benefits hereunder and by taking
such physical examinations as the Company may deem necessary and taking
such other action as may be requested by the Company.
10.8 GENDER AND NUMBER. Whenever any words are used herein in the
masculine, they shall be construed as though they were used in the feminine
and the neuter in all cases where they would so apply; and wherever any
words are used herein in the singular or in the plural, they shall be
construed as though they were used in the plural or the singular, as the
case may be, in all cases where they would so apply.
10.9 CAPTIONS. The captions of the articles, sections and paragraphs
of the Plan are for convenience only and shall not control or affect the
meaning or construction of any of its provisions.
10.10 GOVERNING LAW. The provisions of the Plan shall be construed
and interpreted according to the laws of the State of Illinois except to
the extent preempted by ERISA.
10.11 VALIDITY. In case any provision of the Plan shall be held
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining parts hereof, but the Plan shall be construed and
enforced as if such illegal and invalid provision had never been inserted
herein.
10.12 NOTICE. Any notice or filing required or permitted to be given
to the Committee under the Plan shall be sufficient if in writing and hand
468
delivered, or sent by registered or certified mail to any member of the
Committee or the Secretary of the Company. Such notice shall be deemed
given as of the date of delivery or, if delivery is made by mail, as of
the date shown on the postmark on the receipt for registration or cer-
tification. Mailed notice to the Committee shall be directed to the
Company's address. Mailed notice to a Participant, Eligible Spouse,
Surviving Spouse or Beneficiary shall be directed to the individual's
last known address in the Company's records.
10.13 SUCCESSORS. The provisions of the Plan shall bind and inure
to the benefit of the Company and its successors and assigns. The term
successors as used herein shall include any corporate or other business
entity which shall, whether by merger, consolidation, purchase or otherwise,
acquire all or substantially all of the business and assets of the Company,
and successors of any such corporation or other business entity.
IN WITNESS WHEREOF, Newell Operating Company has caused this instrument
to be executed by its duly authorized officer effective as of January 1,
1996.
NEWELL OPERATING COMPANY
By:
Dated: February 11, 1997
469
FIRST AMENDMENT TO NEWELL OPERATING COMPANY
SUPPLEMENTAL RETIREMENT PLAN FOR KEY EXECUTIVES
WHEREAS, Newell Operating Company ("Company") adopted the Newell
Operating Company Supplemental Retirement Plan for Key Executives, as
restated effective January 1, 1996 ("Plan"); and
WHEREAS, the Company wishes to amend the Plan in certain respects;
NOW, THEREFORE, the Plan is amended, effective May 13, 1998, as fol-
lows:
1. Section 2.23 is amended to read as follows:
2.23 RETIREMENT. "Retirement" means a Participant's (i) separation
from employment with the Company, and (ii) commencement of receipt of
benefits hereunder.
2. Section 3.2 is amended to read as follows:
3.2 CHANGE IN STATUS.
(a) If the Board determines that the employment performance of a
Participant who has not then either attained age 60, or completed
fifteen (15) years of Early Retirement Service, is no longer at a level
that deserves reward through participation in the Plan, but does not
terminate the Participant's employment with the Company, or if such a
Participant no longer satisfies one or more of the requirements of
paragraph (a) of Section 3.1, such Participant's accrued interest in
his benefit hereunder shall be forfeited and neither the Participant nor
any other person shall be entitled to receive any benefit with respect
to such Participant hereunder. Notwithstanding the preceding sentence,
the Board, in its discretion, may determine that a Participant described
in the preceding sentence shall be entitled to all, or a designated
portion, of his accrued interest in his benefit hereunder, determined
as of a date designated by the Board, in which event such benefit shall
be based solely on the Participant's Credited Service, Early Retirement
Service, Final Average Compensation and Retirement Benefit Offset as of
such designated date, and his total Primary Social Security Benefit.
(b) If the Board determines that the employment performance of a
Participant who has then attained age 60 and/or completed fifteen (15)
years of Early Retirement Service is no longer at a level that deserves
reward through participation in the Plan, but does not terminate the
Participant's employment with the Company, or if such a Participant no
longer satisfies one or more of the requirements of paragraph (a) of
Section 3.1, such Participant's accrued interest in his benefit here-
under, as of a subsequent date designated by the Board, shall be based
solely on such Participant's Credited Service, Early Retirement
Service, Final Average Compensation and Retirement Benefit Offset,
as of such designated date, and his total Primary Social Security
Benefit.
470
(c) If a Participant described in paragraph (a) or paragraph (b)
of this Section again is determined by the Board to be performing at a
level that deserves a reward through participation in the Plan, or
again satisfies all of the requirements of paragraph (a) of Section 3.1,
he shall thereafter again actively participate in the Plan and his
accrued interest in his benefit hereunder shall be based upon his aggre-
gate Credited Service and Early Retirement Service during his total
period of employment with the Company. In addition, the benefit
hereunder of a Participant described in the preceding sentence shall be
based upon his Final Average Compensation and Retirement Benefit Offset
as of the date he ceases termination of employment with the Company, and
his total Primary Social Security Benefit.
(d) If a Participant's employment with the Company terminates
before he either attains age 60, or completes fifteen (15) years of
Early Retirement Service, and if he is subsequently reemployed by the
Company and satisfies all of the eligibility requirements for active
participation in the Plan set forth in paragraph (a) of Section 3.1,
he shall be treated as a new Participant and his benefit under the
Plan shall be based solely upon his Credited Service, Early Retire-
ment Service, Final Average Compensation and Retirement Benefit Offset
from and after his date of reemployment, and his total Primary Social
Security Benefit.
(e) If a Participant's employment with the Company terminates on
or after the date he either attains age 60, or completes fifteen (15)
years of Early Retirement Service, and if he is subsequently reemployed
by the Company and he satisfies all of the eligibility requirements for
active participation in the Plan set forth in paragraph (a) of Section
3.1, any benefit payments then being made to him under the Plan shall
be suspended during his subsequent period of reemployment. Upon his
subsequent termination of employment with the Company or death, payment
of his benefit hereunder shall resume to him, or to his Eligible Spouse
or Dependent Children, pursuant to the applicable provisions of the
Plan, and shall be based upon his Credited Service, Early Retirement
Service, Final Average Compensation and Retirement Benefit Offset for
his total period of employment with the Company, both prior to his
initial termination of employment and subsequent to his date of
reemployment, and his total Primary Social Security Benefit.
3. Section 3.3 is amended to read as follows:
3.3 FORFEITURES. No benefits will be payable under the Plan to or
in respect of any Participant who:
(a) voluntarily terminates employment with the Company for
any reason at any time prior to the first to occur of his attainment of age
60, and the date of his death;
(b) has his employment with the Company terminated
involuntarily for any reason by the Company at any time prior to the date
he completes fifteen (15) years of Early Retirement Service;
471
(c) has his employment with the Company terminated at any
time by the Company because of any act or failure to act on the part of the
Participant which constitutes fraud, misappropriation, theft or embezzlement
of Company funds or intentional breach of fiduciary duty, including a
breach of the Company's Code of Business Conduct involving the Company or
any of its affiliates.
(d) at any time engages in competition with, or works for
another business entity in competition with, the Company in the areas that
it serves;
(e) at any time makes any unauthorized disclosure of any
trade or business secrets or privileged information acquired during his
employment with the Company;
(f) at any time is found to have misappropriated, stolen or
embezzled funds from the Company;
(g) at any time fraudulently, dishonestly or willfully
causes the Company to suffer any loss of, or damage to, money or other
property belonging to it or for the care and protection of which it is
responsible or to its reputation;
(h) at any time is discharged by the Company for repeated
drunkenness on the job; or
(i) at any time is convicted of a felony connected with his
employment by the Company.
In any such event, participation of such Participant in the Plan shall
automatically terminate and the Company shall have no further obligation to
make payments (including further payments of any benefits then being paid)
to such Participant (or to his Beneficiary, Eligible Spouse, or Surviving
Spouse) under the Plan.
4. Section 3.5 is amended to read as follows:
VESTING. Except as otherwise provided in Sections 3.2, 3.3 and
3.4, a Participant shall become one hundred percent (100%) vested in
his Supplemental Retirement Benefit and Supplemental Death Benefit
accrued under the Plan, while he was a Participant, upon the first to
occur of his completion of fifteen (15) years of Early Retirement
Service, his attainment of age 60, and the date of his death.
5. Section 3.7 is added to read as follows:
3.7 SALE OF AFFILIATE. Notwithstanding any other provisions of
the Plan, the following provisions shall apply in the event of a "Sale"
of an affiliated or subsidiary corporation or division of the Company
that employs a Participant on the date of consummation of such Sale:
472
1. If the Participant has attained age 60, and/or completed
15 years of Early Retirement Service, at the date of consummation
of such Sale, the Supplemental Retirement Benefit and Supplemental
Death Benefit earned by such Participant as of the date of
consummation shall be payable to, or with respect to, such
Participant, or his Surviving Spouse or Dependent Children,
pursuant to the terms of the Plan.
2. If the Participant has neither attained age 60 nor
completed 15 years of Early Retirement Service at the date of
consummation of such Sale, no benefit shall be payable under
the Plan to, or in respect of, such Participant.
For purposes of this Section, the term Sale shall include the following:
1. The acquisition of more than 50% of the equity interest in any
subsidiary or affiliated corporation of the Company by persons or
entities that are not affiliated with the Company;
2. A sale of substantially all of the assets of an affiliated or
subsidiary corporation or division of the Company to persons or entities
that are not affiliated with the Company; or
3. The effective time of a merger or consolidation of a subsidi-
ary or affiliated corporation of the Company with one or more other
entities as a result of which the surviving entity is not affiliated
with the Company.
6. Section 4.2 is amended to read as follows:
4.2 POST-TERMINATION DEATH BENEFIT.
(a) DEATH PRIOR TO COMMENCEMENT OF BENEFITS. If a Partici-
pant dies after either his attainment of age 60 or his completion
of fifteen (15) years of Early Retirement Service and after his
termination of employment with the Company, but before payments
have commenced hereunder, a monthly Supplemental Death Benefit
will be paid with respect to such Participant only if, and to
the extent, provided under Section 5.4. The Supplemental Death
Benefit (if any) will begin on the first day of the month next
following the Participant's date of death, will continue for the
duration of the payment period provided under Section 5.4, and
will not be reduced for commencement prior to the date the
Participant would have attained the age of sixty-five (65) years.
(b) DEATH AFTER COMMENCEMENT OF BENEFITS. If a Participant
dies after either his attainment of age 60, or his completion of
fifteen (15) years of Early Retirement Service, and after payments
have commenced hereunder, a monthly Supplemental Death Benefit
will be paid with respect to such Participant only if, and to the
extent provided under Section 5.4. The Supplemental Death Benefit
(if any) will begin on the first day of the month next following
the date on which the Participant received his last payment under
473
which the Participant received his last payment under Section 5.1,
5.2 or 5.3 (whichever is applicable) and shall continue for the
duration of the payment period provided under Section 5.4.
7. The first sentence of Section 5.2 is amended to read as follows:
If a Participant's employment with the Company terminates on or
before an Early Retirement Date, and if he elects payment of his
Retirement Benefit Offset attributable to the Plan Offset described in
Section 2.21(a) on any date during the period commencing on his Early
Retirement Date and ending on his Normal Retirement Date, the
Participant's Retirement shall occur on such Early Retirement Date and
the Company shall pay to the Participant a monthly Supplemental
Retirement Benefit beginning on the date of payment of such Retirement
Offset Benefit; provided that the Committee approves such date of
commencement of payment of the Supplemental Retirement Benefit.
Except as otherwise set forth above, the Plan shall continue in full
force and effect.
IN WITNESS WHEREOF, Newell Operating Company has caused this First
Amendment to the Newell Operating Company Supplemental Retirement Plan for
Key Executives to be executed by its duly authorized officer effective as
of May 13, 1998.
NEWELL OPERATING COMPANY, INC.
By:
---------------------------------------------
Dated: August 24, 1998
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-11
<SEQUENCE>8
<TEXT>
EXHIBIT 11
COMPUTATION OF EARNINGS PER SHARE OF COMMON STOCK
-------------------------------------------------
Year Ended December 31,
-----------------------
1998 1997* 1996*
---- ---- ----
(In thousands, except per share data)
Basic earnings per share:
Net income $396,156 $293,147 $259,042
Weighted average shares outstanding 162,544 162,173 161,858
Basic earnings per share: $2.44 $1.81 $1.60
Diluted earnings per share:
Net income $396,156 $293,147 $259,042
Minority interest in income of subsidiary trust, net of tax 16,122 923 0
-------- -------- --------
Net income, assuming conversion of all
applicable securities $412,278 $294,070 $259,042
Weighted average shares outstanding 162,544 162,173 161,858
Incremental common shares applicable to common stock
options based on the average market price during the period 632 622 423
Average common shares issuable assuming conversion of the
Company-Obligated Mandatorily Redeemable Convertible
Preferred Securities of a Subsidiary Trust 9,865 514 0
-------- -------- --------
Weighted average shares outstanding assuming full dilution 173,041 163,309 162,281
Diluted earnings per share, assuming conversion of all
applicable securities $2.38 $1.80 $1.60
* Restated for the May 1998 merger with Calphalon Corporation, which was
accounted for as a pooling of interests.