EXHIBIT 10.14
RETIREMENT PLAN FOR EMPLOYEES OF
MELAMINE CHEMICALS, INC.
As Amended and Restated Effective
July 1, 1989
TABLE OF CONTENTS
SECTION PAGE
DEFINITIONS: PARTICIPATION
1.1 - Definitions...............................................1-1
1.2 - Participation............................................1-16
1.3 - Leave of Absence and Termination of Service..............1-18
1.4 - Reemployment.............................................1-20
1.5 - Transfer to or From Status as an Eligible Employee.......1-27
1.6 - Participation and Benefits for Former Leased Employees...1-30
1.7 - Rights of Other Employers to Participate.................1-31
NORMAL AMOUNT AND PAYMENT OF RETIREMENT INCOME
2.1 - Normal Retirement and Retirement Income...................2-1
2.2 - Early Retirement and Retirement Income....................2-4
2.3 - Disability Retirement and Retirement Income...............2-6
2.4 - Benefits Other Than on Retirement.........................2-9
SPECIAL PROVISIONS REGARDING PAYMENT OF BENEFITS
3.1 - Optional Forms of Retirement Income.......................3-1
3.2 - Lump-Sum Payment of Small Retirement Income...............3-6
3.3 - Benefits Applicable to Participant Who Has
Been or Is Employed by Two or More Employers..............3-6
3.4 - No Duplication of Benefits................................3-7
3.5 - Funding of Benefits Through Purchase of
Life Insurance Contract or Contracts......................3-7
GOVERNMENTAL REQUIREMENTS AFFECTING BENEFITS
4.1 - Special Provisions Regarding Amount
and Payment of Retirement Income..........................4-1
4.2 - Limitations on Benefits Required by the Internal Revenue
Service................................................. 4-15
4.3 - Benefits Nonforfeitable if Plan Is Terminated............4-16
4.4 - Merger of Plan...........................................4-16
4.5 - Termination of Plan and Distribution of Trust Fund.......4-17
4.6 - Special Provisions that Apply if Plan is Top-Heavy.......4-19
MISCELLANEOUS PROVISIONS REGARDING PARTICIPANTS
5.1 - Participants to Furnish Required Information..............5-1
5.2 - Beneficiaries.............................................5-2
5.3 - Contingent Beneficiaries..................................5-3
5.4 - Participants' Rights in Trust Fund........................5-3
5.5 - Benefits Not Assignable...................................5-4
5.6 - Benefits Payable to Minors and Incompetents...............5-4
5.7 - Conditions of Employment Not Affected by Plan.............5-4
5.8 - Notification of Mailing Address...........................5-5
5.9 - Written Communications Required...........................5-6
5.10 - Benefits Payable at Office of Trustee.....................5-6
5.11 - Appeal to Committee.......................................5-6
MISCELLANEOUS PROVISIONS REGARDING THE EMPLOYER
6.1 - Contributions.............................................6-1
6.2 - Employer's Contributions Irrevocable......................6-1
6.3 - Forfeitures...............................................6-2
6.4 - Amendment of Plan.........................................6-2
6.5 - Termination of Plan.......................................6-4
6.6 - Expenses of Administration................................6-5
6.7 - Formal Action by Employer.................................6-5
ADMINISTRATION
7.1 - Administration by Committee...............................7-1
7.2 - Officers and Employees of Committee.......................7-1
7.3 - Action by Committee.......................................7-2
7.4 - Rules and Regulations of Committee........................7-3
7.5 - Powers of Committee.......................................7-3
7.6 - Duties of Committee.......................................7-3
7.7 - Indemnification of Members of Committee...................7-5
7.8 - Actuary...................................................7-5
7.9 - Fiduciaries...............................................7-5
7.10 - Applicable Law............................................7-7
TRUST FUND
8.1 - Purpose of Trust Fund.....................................8-1
8.2 - Benefits Supported Only by Trust Fund.....................8-1
8.3 - Trust Fund Applicable Only to Payment of Benefits.........8-1
EXHIBIT A
RETIREMENT PLAN FOR EMPLOYEES OF
MELAMINE CHEMICALS, INC.
As Amended and Restated Effective July 1, 1989
INTRODUCTION
The Retirement Plan for Employees of Melamine Chemicals, Inc. and
the Retirement Trust for Employees of Melamine Chemicals, Inc. were adopted
by Melamine Chemicals, Inc. effective as of July 1, 1985, as an amendment
and complete restatement of the retirement plan and trust originally adopted
by Melamine Chemicals, Inc. effective as of January 1, 1972, and as
subsequently amended and in effect on June 30, 1985.
The said Retirement Plan for Employees of Melamine Chemicals, Inc.
has subsequently been amended from time to time, and said retirement plan is
being further amended and is being restated in its entirety effective as of
July 1, 1989 (with an earlier effective date with respect to certain
provisions as described in Section 1.2 hereof) as set forth in this
instrument. This instrument shall be attached to and form a part of the
said Retirement Trust for Employees of Melamine Chemicals, Inc. as in effect
on and after July 1, 1985.
Subject to the provisions of Section 1.4, a Participant's benefits
under this Plan will be determined by the provisions of the Plan that are in
effect on the date that his employment with the Employer terminates.
Subject to receipt by Melamine Chemicals, Inc. of a favorable
ruling that the qualified status of the Retirement Plan for Employees of
Melamine Chemicals, Inc. and the Retirement Trust for Employees of Melamine
Chemicals, Inc. under Sections 401(a) and 501(a) of the Code is not
adversely affected by such amendment and restatement, each person who
becomes a participant hereunder shall be entitled upon his retirement or
termination of service to such benefits as are specified in the provisions
which follow.
SECTION 1
DEFINITIONS: PARTICIPATION
1.1 - DEFINITIONS
(A) The following terms as used herein shall have the meanings stated
below unless a different meaning is plainly required by the context:
(1) "Accrued Benefit" shall mean the monthly retirement income,
payable in the manner described in Section 2.1(C) hereof
commencing at the Participant's Normal Retirement Date, which he
has accrued as of a given date and shall be equal to the monthly
retirement income to which the Participant would have been
entitled on his Normal Retirement Date in accordance with the
provisions of Section 2.1(B) hereof using his rate of Final
Average Monthly Compensation and Credited Service determined as of
such given date in lieu of the corresponding amounts determined as
of his Normal Retirement Date.
The Accrued Benefit which a Participant has accrued as of a given
date shall not exceed an amount that is actuarially equivalent as
of such given date to that amount which would cause the monthly
retirement income payable to or on behalf of the Participant under
the Plan to be in excess of the maximum amount of retirement
income permitted under Section 415 of the Code; and provided
further, however, that the provisions of Section 4.6 hereof shall
apply in determining the Accrued Benefit of a Participant who has
accrued Vesting Service during any Plan Year that the Plan is
top-heavy.
(2) "Annuity Starting Date" shall have the meaning assigned in Section
417(f) of the Code and regulations issued with respect thereto and
shall be the first day of the first period for which an amount is
payable (not the actual date of payment) as an annuity or any
other form. Any auxiliary disability benefits shall be
disregarded in determining the Annuity Starting Date.
Unless otherwise qualified by the context, the Annuity Starting
Date of a Participant shall be:
(a) in the case of the benefit payable under Section 2.1 or 2.2
in the event of his normal or early retirement, the first day
of the month coincident with or next following the date of
his retirement;
(b) in the case of the benefit payable under Section 2.3 in the
event of his disability retirement, the date as of which his
disability retirement income payments are scheduled to start
under Section 2.3(F); and
(c) in the case of the benefit payable under
Section 2.4(A) in the event of termination of service with a
vested benefit, the Participant's Normal Retirement Date or,
if applicable, the first day of the month prior to his Normal
Retirement Date that the Participant has elected in
accordance with the provisions of Section 2.4(A) to start
receiving the benefits to which he is entitled under such
section;
provided, however, if the Participant elects pursuant to the
provisions of Section 3.1 hereof a later commencement date, his
Annuity Starting Date shall be such later date of commencement
specified in his election, or, if the Participant continues in the
service of the Employer beyond his Required Beginning Date, his
Annuity Starting Date shall be his Required Beginning Date.
(3) "Beneficiary" shall mean the person or persons on whose behalf
benefits may be payable under the Plan after a Participant's death
in accordance with the provisions hereof.
(4) "Break in Service" shall mean a period of severance of 12
consecutive months or longer that immediately follows an
employee's date of termination of service and immediately precedes
the date, if any, on which he next performs an Hour of Service.
(5) "Change in Control" shall mean:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")) (a Person) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (A) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock")
or (B) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally
in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that the following
acquisitions shall not constitute a Change of Control: (1)
any acquisition directly from the Company, (2) any
acquisition by the Company, (3) any acquisition by any
employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by
the Company or (4) any acquisition by any corporation
pursuant to a transaction which complies with clauses (A),
(B) and (C) of paragraph (iii) of this paragraph (5); or
(ii) Any change in the composition of the Board of Directors of
the Company such that individuals who, as of April 9, 1991,
constitute the Board of Directors (the "Incumbent Board")
cease for any reason the constitute at least a majority of
the Board of Directors; provided, however, that any
individual becoming a director subsequent to April 9, 1991
whose election, or nomination for election b the Company's
shareholders, was approved by a vote of at least a majority
of the directors then comprising the Incumbent Board shall be
considered as though such individual were a Member of the
Incumbent Board, but excluding. for this purpose, any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with
respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board of Directors;
or
(iii) Approval by the shareholders of the Company of a
reorganization, merger or consolidation (a "Business
Combination"), unless, in each case, following such Business
Combination, (A) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more
than 60% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then
outstanding voting securities entitled to vote generally i
the election of directors, as the case may be, of the
corporation resulting from such Business Combination
(including, without limitation, a corporation which as a
result of such transaction owns the Company through one or
more subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Business
Combination, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(B) no Person (excluding any employee benefit plan (or
related trust) of the Company or such corporation resulting
from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership
existed prior to the Business Combination and (C) at least a
majority of the members of the board of directors of the
corporation resulting from such Business Combination were
members of the Incumbent Board at the time of execution of
the initial agreement, or of the action of the Board of
Directors, providing for such Business Combination; or
(iv) Approval by the shareholders of the Company of (A) a complete
liquidation or dissolution of the Company or (B) the sale or
other disposition of all or substantially all of the assets
of the Company, other than to a corporation, with respect to
which following such sale or other disposition, (1) more than
60% of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of
the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and the entities who
were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or other
disposition in substantially the same proportion as their
ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(2) less than 20% of, respectively, the then outstanding
shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election
of directors is then beneficially owned, directly or
indirectly, to any Person (excluding any employee benefit
plan (or related trust) of the Company or such corporation),
except to the extent that such Person owned 20% or more of
the Outstanding Company Common Stock and Outstanding Company
Voting Securities prior to such sale or disposition and (3)
at least a majority of the members of the board of directors
of such corporation were members of the Incumbent Board at
the time of the execution of the initial agreement, or of the
action of the Board of Directors, providing for such sale or
other disposition of assets of the Company or were elected,
appointed or nominated by the Board of Directors.
(6) "Committee" shall mean the Retirement Committee appointed from
time to time to administer the Plan pursuant to the provisions of
Section 7.1 hereof.
(7) "Company" shall mean Melamine Chemicals, Inc., a Louisiana
corporation, and its successor or successors.
(8) "Compensation" shall mean the Participant's rate of monthly wages
from the Employer on each July 1 excluding any overtime pay,
expense allowances, commissions, bonus payments, shift
differential, relief pay and any other additions to or deduction
from regular compensation, but shall include amounts, if any,
which would have been includable in the employee's Compensation if
they have not received special tax treatment because they were
deferred by the employee through a plan of deferred compensation
under Section 401(k) of the Internal Revenue Code or under a
salary reduction agreement pursuant to Section 125 of the Code.
The annual Compensation of a Participant for any given plan year
which is taken into account with respect to contributions to the
Plan and to benefits accruing under the Plan on and after July 1,
1989, shall not exceed the maximum annual compensation that may be
taken into account under Section 401(a)(17) of the Code and
regulations issued with respect thereto (the "IRC Section
401(a)(17) Annual Compensation Limit").
The IRC Section 401(a)(17) Annual Compensation Limit shall be
equal to:
(a) with respect to any given plan year beginning in 1989 or
earlier, $200,000;
and
(b) with respect to any given plan year beginning after 1989, the
sum of $200,000 plus the accumulated increments, determined
as of the January 1 coincident with or immediately preceding
the beginning of such given plan year that have been added to
such figure after January 1, 1989 for increases in cost of
living pursuant to the provisions of 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 July 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.
For plan years beginning on or after July 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 July 1, 1994, the OBRA '93
annual compensation limit is $150,000.
In the event that Compensation under the Plan is determined based
on a period of time that contains fewer than 12 calendar months,
the IRC Section 401(a)(17) Annual Compensation Limit for that
period of time shall be equal to the IRC Section 401(a)(17) Annual
Compensation Limit for the calendar year during which such period
of time begins multiplied by the fraction in which the numerator
is the number of full months in such period of time and the
denominator is 12.
In determining the IRC Section 401(a)(17) Annual Compensation
Limit of an individual who is a member of the family of a
5-percent owner or of a Highly Compensated Employee who is in the
group consisting of the 10 Highly Compensated Employees paid the
greatest compensation during the year, the rules of Section
414(q)(6) of the Code shall apply, except that in applying such
rules for the purposes of this section, the term "family" shall
include only the spouse of the employee and any lineal descendants
who have not attained the age of 19 years before the close of such
year.
Any provisions herein to the contrary notwithstanding, any
benefits that a Participant has accrued as of June 30, 1989 shall
not be reduced due to the IRC Section 401(a)(17) Annual
Compensation Limit imposed effective as of July 1, 1989 on the
amount of his Compensation.
(9) "Controlled Group Member" shall mean:
(a) the Employer;
(b) any corporation or association that is a member of a con-
trolled group of corporations (within the meaning of Section
1563(a) of the Code, determined without regard to Section
1563(a)(4) and Section 1563(e)(3)(C) of said Code, except
that, for the purposes of applying the limitations on
benefits and contributions that are required under Section
415 of the Code and are described in Section 4.1(A) hereof,
such meaning shall be determined by substituting the phrase
"more than 50%" for the phrase "at least 80%" each place that
it appears in Section 1563(a)(1) of said Code) with respect
to which the Employer is a member;
(c) any trade or business (whether or not incorporated) that is
under common control with the Employer as determined in
accordance with Section 414(c) of the Code and regulations
issued thereunder;
(d) any service organization that is a member of an affiliated
service group (within the meaning of Section 414(m) of the
Code) with respect to which the Employer is a member; and
(e) any other entity required to be aggregated with the Employer
pursuant to regulations under Section 414(o) of the Code.
(10) "Credited Service" shall mean the total period of an employee's
service with the Employer, computed in completed months, during
the period beginning on his Last Date of Commencement of Service
and ending on the date of his retirement or termination of service
or, where applicable, ending on such other date as is specified
hereunder; provided, however, that the following provisions shall
apply with respect to any period of such an employee's service
that would be included in his Credited Service in accordance with
the provisions above:
(a) any complete calendar month that the employee is absent from
the service of the Employer will be excluded from his
Credited Service unless he receives regular Compensation from
the Employer for all or any portion of such calendar month
and except as otherwise provided below; and
(b) any absence due to the employee's engagement in military
service will, except as provided below, be included in his
Credited Service if such absence is covered by a leave of
absence granted by the Employer or is by reason of compulsory
military service and provided that such employee returns from
such absence within the period of time prescribed in Section
1.3 hereof.
However, the provisions of Section 1.4 hereof shall apply in the
case of an employee who is reemployed with a reinstatement of
Credited Service accrued prior to his Last Date of Commencement of
Service and the provisions of Section 1.5 hereof shall apply in
the case of an employee who is transferred to or from his status
as an eligible Employee.
Any period of an employee's service prior to the Effective Date of
the Plan that was either included with or excluded from the
service used to determine his accrued retirement income under the
Superseded Plan for any reason specified under the terms of the
Superseded Plan as in effect on the day immediately preceding the
Effective Date of the Plan shall be included with or excluded
from, as the case may be, his Credited Service under the
provisions of the Plan, except that any such period of service
shall not be excluded on or after July 1, 1988 from a
Participant's Credited Service solely because of the fact that it
was accrued after his Normal Retirement Date.
Prior to July 1, 1994, Credited Service shall be determined
according to the terms of the Superseded Plan. On or after July
1, 1994 a Participant's Credited Service shall not be less than
the Credited Service as of June 30, 1994 determined in accordance
with the Superseded Plan.
(11) "Designated Nonparticipating Employer" shall mean:
(a) any Controlled Group Member that is not an Employer as
defined herein; and
(b) any other corporation, association, proprietorship, part-
nership or other business organization that (i) is not an
Employer as defined herein and (ii) the Company, by formal
action on its part in the manner described in Section 6.7
hereof, designates on the basis of a uniform policy applied
without discrimination as a "Designated Nonparticipating
Employer" for the purposes of the Plan.
(12) "Earliest Annuity Commencement Date" is:
(a) the first day of the month coincident with or next following
the date of termination of the Participant's service if he
has satisfied the age and service requirements to be eligible
for a normal or early retirement benefit under the provisions
hereof as of such termination date; or
(b) the earliest date as of which the Participant could elect to
start receiving retirement income payments under the
provisions of Section 2.4(A) hereof if his service were
terminated and he had not satisfied the age and service
requirements to be eligible for a normal or early retirement
benefit under the provisions hereof as of such termination
date.
(13) "Early Retirement Date" shall have the meaning assigned in Section
2.2 hereof.
(14) "Effective Date of the Plan" shall mean July 1, 1989 or such later
date as of which the Plan first became effective with respect to
the particular Employer concerned.
(15) "Eligibility Break in Service" shall mean an Eligibility
Computation Period that consists of a full Plan Year during the
period which immediately follows an employee's date of termination
of service and immediately precedes his date of reemployment
during which he fails to complete an Hour of Service. Solely for
the purpose of determining an Eligibility Break in Service, if the
employee is absent from the service of the Employer beginning on
or after July 1, 1985 due to (a) the pregnancy of the employee,
(b) the birth of a child of the employee, (c) the placement of a
child with the employee in connection with the adoption of such
child by such employee or (d) caring for such child described in
(b) or (c) above for a period beginning immediately following such
birth or placement, the employee shall be credited during such
absence with no less than the number of Hours of Service required
to avoid incurring an Eligibility Break in Service either (i)
during the Plan Year in which the absence began if the employee
would otherwise have incurred an Eligibility Break in Service in
such Plan Year or (ii) in the Plan Year next following the Plan
Year in which the absence began in all other cases.
(16) "Eligibility Computation Period" shall mean the
12-consecutive-month period that is used for the purpose of
determining a year of service for eligibility to participate in
the Plan. Initially, the Eligibility Computation Period shall be
the 12-consecutive-month period beginning on the Employee's Last
Date of Commencement of Service and ending with the first
anniversary of his Last Date of Commencement of Service; provided,
however, if the Employee fails to complete 1,000 Hours of Service
in such initial Eligibility Computation Period, the Eligibility
Computation Period shall mean the Plan Year, and the first of such
Plan Year Eligibility Computation Periods shall be the Plan Year
that overlaps the first anniversary of the Employee's Last Date of
Commencement of Service.
(17) "Employee" shall mean any person on the payroll of the Employer or
any other entity required to be aggregated with such Employer
under Sections 414 (b), (c), (m) or (o) of the Code, whose wages
from the Employer are subject to withholding for the purposes of
Federal income taxes and for the purposes of the Federal Insurance
Contributions Act; provided, however, that such term shall not
include:
(a) any such person who is employed at any division or branch of
any Employer that is acquired by or merged into the Employer
after the Effective Date of the Plan unless the Employer, by
formal action on its part in the manner described in Section
6.7 hereof, provides that such persons who are employed at
such division or branch shall, subject to the provisions of
(b), (c) and (d) below, be eligible for participation in the
Plan in accordance with the provisions hereof;
(b) any such person who is a participant and is accruing benefits
(or who, upon his satisfaction of any age and service
requirements specified thereunder as a condition of
participation, will be eligible to become a participant and
accrue benefits) under any other qualified defined benefit
pension plan maintained by the Employer or to which the
Employer makes contributions on his behalf based upon his
employment with the Employer;
(c) any such person who is included in a unit of persons employed
by the Employer who are covered by an agreement which the
Secretary of Labor finds to be a collective bargaining
agreement between employee representatives and the Employer
if retirement benefits were the subject of good faith
bargaining between such employee representatives and the
Employer and such persons are not required by that agreement
to be covered in the Plan;
(d) any such person who is a nonresident alien and who receives
no earned income (within the meaning of Section 911(b) of the
Code) from the Employer which constitutes income from sources
within the United States (within the meaning of Section
861(a)(3) of the Code).
(18) "Employer" shall mean, collectively or distributively as the
context may indicate, the Company and any other corporations,
associations, joint ventures, proprietorships, partnerships or
other business organizations that have adopted and are
participating in the Plan in accordance with the provisions of
Section 1.7 hereof.
(19) "Final Average Monthly Compensation" shall mean the Participant's
average monthly rate of Compensation from the Employer for the
five successive Plan Years immediately preceding the first day of
the month coincident with or next following the date on which his
service terminates for any reason (or, where applicable,
immediately preceding such other date as is specified hereunder),
that give the highest average monthly rate of Compensation for the
Participant.
The Participant's average monthly rate of Compensation will be
determined by dividing the total Compensation received by him
during such five Plan Year period by the number of months for
which he received Compensation from the Employer in such five Plan
Years period. The number of months for which he received
Compensation from the Employer may be computed, to the extent he
was paid on other than a monthly basis, by determining the number
of pay periods ending within such five Plan Year period for which
he received Compensation from the Employer and converting such pay
periods into months by dividing the number thereof, if weekly, by
4-1/3, if biweekly, by 2-1/6, and, if semi-monthly, by 2.
In computing Final Average Monthly Compensation for a Participant
who has returned to the active service of the Employer following a
full Plan Year or Years during which he did not receive any
regular Compensation from the Employer because of a leave of
absence granted by the Employer or because of his reemployment
with a reinstatement of his prior Vesting Service and Credited
Service as described in Section 1.4 hereof, such full Plan Year or
Years during which he did not receive any regular Compensation
from the Employer shall be ignored or excluded in determining the
five successive years to be used in determining the Participant's
Final Average Monthly Compensation at a subsequent date.
Anything above to the contrary notwithstanding, if a Participant's
service is terminated for any reason and he has not received any
Compensation during any preceding Plan Years, his "Final Average
Monthly Compensation" shall mean his average monthly rate of
compensation received from the Employer during the Plan Year in
which his service was terminated. Such average monthly rate of
Compensation will be determined in accordance with the procedure
described above, based upon the total Compensation that he
received and the number of months for which he received
Compensation from the Employer during such Plan Year.
(20) "Highly Compensated Employee" shall mean an employee who is a
"highly compensated employee" within the meaning of Section 414(q)
of the Code and regulations issued with respect thereto.
(21) "Hour of Service" shall mean each hour for which an employee is
directly or indirectly paid, or is entitled to payment, by the
Employer (including any predecessor business of an Employer
conducted as a corporation, partnership or proprietorship) for (a)
the performance of duties or (b) reasons other than the
performance of duties, including but not limited to vacation,
holidays, sickness, disability, paid layoff and similar paid
periods of nonworking time. Such Hours of Service shall be
credited to the employee for the period in which such duties were
performed or in which occurred the period during which no duties
were performed. An Hour of Service also includes each hour, not
credited above, for which backpay, irrespective of mitigation of
damages, has been either awarded or agreed to by the Employer.
These Hours of Service shall be credited to the employee for the
period to which the award or agreement pertains. The number of
Hours of Service to be credited to an employee for any period
shall be governed by Sections 2530.200b-2(b) and 2530.200b-2(c) of
Part 2530 of Subchapter C of Chapter XXV of Title 29 of the Code
of Federal Regulations (Department of Labor regulations relating
to minimum standards for employee pension benefit plans).
Any employee, who has been or is absent from the service of the
Employer on or after January 1, 1985 due to (a) the pregnancy of
the employee, (b) the birth of a child of the employee, (c) the
placement of a child with the employee in connection with the
adoption of such child by such employee or (d) caring for such
child described in (b) or (c) above for a period beginning
immediately following such birth or placement, shall be credited,
solely for the purpose of determining whether or not he has
incurred a Break in Service, with an Hour of Service during both
the computation period in which his absence began and the
computation period next following the computation period in which
his absence began.
(22) "Initial Vesting Date" shall mean the earlier to occur of the
following dates:
(a) the date on which the Participant has completed five years of
Vesting Service;
or
(b) the date on which the Participant attains his Normal
Retirement Age;
provided, however, that the provisions of Section 4.6 hereof shall
apply in determining the Initial Vesting Date of a Participant who
has accrued Vesting Service during any Plan Year that the Plan is
top-heavy; and provided further that the Initial Vesting Date of a
Participant shall not be earlier than the Effective Date of the
Plan.
(23) "Internal Revenue Code" or "Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time.
(24) "Last Date of Commencement of Service" shall mean:
(a) if the employee's service has not been previously terminated
in accordance with the provisions hereof, the date on which
he first performs an Hour of Service; or
(b) if the employee's service has been previously terminated in
accordance with the provisions hereof, the first day
following his last termination of service on which he
performs an Hour of Service;
provided, however, that the provisions of Section 1.4(A) hereof
shall apply in determining the Last Date of Commencement of
Service of any employee whose service is terminated and who is
reemployed on or after the Effective Date of the Plan and prior to
his incurring a Break in Service.
An Employer may at the time of its initial adoption of the Plan
provide, with respect to all or any specified classification of
its employees, that the Last Date of Commencement of Service of
such employees shall not be earlier than a specified date, which
is later than the otherwise applicable date described above but is
not later than the date as of which the Plan first became
effective with respect to such Employer, and may provide that such
specified date will be different for the purposes of determining
the eligibility to participate in the Plan, the Credited Service
and the Vesting Service of such employees; provided, however, that
the date or dates established to determine the eligibility to
participate in the Plan and the Vesting Service of such employees
shall not be later than the date or dates established for such
purposes under the Superseded Plan, if any, of the Employer.
The Last Date of Commencement of Service of an employee by a
predecessor or acquired business shall not be earlier than the
date of such merger or acquisition unless the Employer provides
that a uniformly applied earlier date or dates will be used for
the purposes of the Plan.
(25) "Leased Employee" shall mean any person (other than an employee of
the recipient) who, pursuant to an agreement between the recipient
and any other person ("leasing organization"), has performed
services for the recipient (or for the recipient and related
persons determined in accordance with Section 414(n)(6) of the
Code) on a substantially full-time basis for a period of at least
one year, and such services are of a type historically performed
by employees in the business field of the recipient employer.
Contribution or benefits provided a Leased Employee by the leasing
organization which are attributable to services performed for the
recipient employer shall be treated as provided by the leased
employer.
A Leased Employee shall not be considered an employee of the
recipient if:
(a) such employee is covered by a money purchase pension plan
providing:
(1) a nonintegrated employer contribution of at least 10
percent of compensation as defined in Section 415(c)(3)
of the Code but including amounts contributed pursuant
to a salary reduction agreement which are excludable
from the employee's gross income under Section 125,
402(a)(8), 402(h) or 403(b) of the Code,
(2) immediate participation, and
(3) full and immediate vesting;
and
(b) leased employees do not constitute more than 20 percent of
the recipient's nonhighly compensated workforce.
(26) "Normal Retirement Age" shall mean the age of 65 years.
(27) "Normal Retirement Date" shall have the meaning assigned in
Section 2.1 hereof.
(28) "Participant" shall mean:
(a) any active Employee who has satisfied the requirements of
Section 1.2 hereof;
(b) any former Employee who has satisfied the requirements of
Section 1.2 hereof, whose service has not been terminated but
who has subsequently been transferred from his status as an
eligible Employee as described in Section 1.5 hereof; and
(c) any retired or terminated Employee who has vested rights to
benefits under the provisions of the Plan.
(29) "Plan" shall mean the Retirement Plan for Employees of Melamine
Chemicals, Inc., as amended and restated effective as of July,
1989, as set forth in this document and as it may hereafter be
amended from time to time.
(30) "Plan Year" shall mean the calendar, policy or fiscal year on
which the records of the Plan are kept as reported from time to
time by the plan administrator to the Internal Revenue Service.
The Plan Year, unless subsequently changed in accordance with
rules or regulations issued by the Internal Revenue Service or
Department of Labor, shall be the 12-month period beginning July 1
of each calendar year.
(31) "Post Payment Recalculation Date" shall have the meaning assigned
in Section 2.1(D) hereof.
(32) "Qualified Joint and Survivor Annuity" means an annuity that (a)
commences immediately, (b) is payable for the life of the
Participant with a survivor annuity payable for the life of his
spouse which is not less than 50% and is not greater than 100% of
the amount of the annuity which is payable during the joint lives
of the Participant and his spouse and (c) is the actuarial
equivalent of the monthly retirement income payable to the
Participant for life under the provisions of the Plan.
(33) "Qualified Joint and 50% Survivor Annuity Option" shall have the
meaning assigned in Section 3.1 hereof.
(34) "Qualified Preretirement Survivor Annuity" shall mean the minimum
death benefit, if any, described in Section 4.1(D) hereof that may
be payable to the spouse of a Participant who dies prior to his
Annuity Starting Date.
(35) "Required Beginning Date" shall have the meaning assigned in
Section 401(a)(9) of the Code and shall mean:
(a) if the date of birth of the Participant is on or after
July 1, 1917, (i) April 1 of the calendar year that next
follows the calendar year in which he attains or will attain
the age of 70-1/2 years or (ii) April 1, 1990, whichever is
later;
and
(b) if the date of birth of the Participant is prior to July 1,
1917, April 1 of the calendar year that next follows the
calendar year in which he retires or his service is
terminated;
provided, however, that the Required Beginning Date of any
Participant who is a 5-percent owner (within the meaning of
Section 416 of the Code) and of any Participant who had retired or
whose service had been terminated prior to January 1, 1989 shall
not be later than his required beginning date as determined under
the provisions of Section 401(a)(9) of the Code as such section
applied with respect to tax years beginning before January 1,
1989.
(36) "Superseded Plan" shall mean, collectively or distributively, as
the context may indicate, the qualified retirement plan, if any,
that was maintained by an Employer for its eligible employees
prior to the Effective Date of the Plan and that the Plan
represents an amendment and restatement thereof. References to
the Superseded Plan as of any given date shall refer to the
provisions as set forth under the terms of the applicable document
describing such qualified retirement plan as amended and in effect
on such given date prior to the Effective Date of the Plan.
(37) "Supplement" shall mean any supplement that is attached to and
made a part of the Plan and that describes provisions of the Plan
that apply only to employees of an Employer or Employers specified
in such Supplement. The term "Supplement" shall include, but
shall not be limited to, the First Supplement to Retirement Plan
for Employees of Melamine Chemicals, Inc. as amended and restated
effective July 1, 1985, which was attached to and made a part of
the Superseded Plan and which, on and after the Effective Date of
the Plan, shall also be attached to and made a part of the Plan;
provided, however, that, unless in the opinion of the Committee
such a change would be inappropriate due to the context thereof,
any references in said Supplement to sections of the Superseded
Plan shall refer to the corresponding sections of the Plan (even
though the corresponding section in the Plan may not have the same
section number that is specified in the Supplement), and said
Supplement shall be deemed to have been amended effective as of
the Effective Date of the Plan to reflect all applicable changes
in section number references.
(38) "Trust" and "Trust Fund" shall mean the trust fund established
pursuant to the terms of the Trust Agreement.
(39) "Trust Agreement" shall mean the Retirement Trust for Employees of
Melamine Chemicals, Inc., as amended and restated effective as of
July 1, 1985, as set forth in the trust agreement of that title,
and as such trust agreement may be amended from time to time.
This Plan shall be attached to such Trust Agreement as Exhibit A
(in lieu of the Retirement Plan for Employees of Melamine
Chemicals, Inc. as amended and restated effective July 1, 1985).
(40) "Trustee" shall mean the corporate trustee or trustees or the
individual trustee or trustees, as the case may be, appointed from
time to time pursuant to the provisions of the Trust Agreement to
administer the Trust Fund maintained for the purposes of the Plan.
(41) "Vested Percentage" shall mean the percentage specified in the
schedule below in which the Participant has a nonforfeitable right
to his Accrued Benefit, based upon his number of years (ignoring
fractions) of Vesting Service as of the date that such percentage
is being determined.
Years of
Vesting Service Vested Percentage
less than 5 years 0%
5 or more years 100%
In the event of a Change of Control, each Participant's Vested
Percentage shall be 100%, regardless of the number of the
Participant's years of Vesting Service.
The Vested Percentage of a Participant who has accrued Vesting
Service during any Plan Year in which the Plan is "a top-heavy
plan" shall be subject to the provisions of Section 4.6 hereof.
If a Participant has attained his Normal retirement Age, his
vested Percentage shall be 100% regardless of his years of Vesting
Service.
(42) "Vesting Service" shall mean the total period of elapsed time,
computed in years and days, during the period beginning on the
employee's Last Date of Commencement of Service and ending on his
date of retirement or termination of service, or, where
applicable, ending on such other date as is specified hereunder;
provided, however, that:
(a) the first 12 months of any continuous absence during such
period will be included in the employee's Vesting Service but
the portion, if any, of such absence that is in excess of 12
months will be excluded from his Vesting Service, except that
any period of such absence that is included in his Credited
Service will also be included in his Vesting Service;
(b) the provisions of Section 1.4 hereof shall apply in the case
of an employee who is reemployed with a reinstatement of
Vesting Service accrued prior to his Last Date of
Commencement of Service, the provisions of Section 1.5 hereof
shall apply in the case of an employee who is transferred to
or from his status as an eligible Employee and the provisions
of Section 1.6 hereof shall apply in the case of an employee
who has previously been employed as a leased employee;
and
(c) with respect to any Participant in the Plan whose Last Date
of Commencement of Service is prior to the Effective Date of
the Plan and who was a participant in the Superseded Plan as
in effect on the day immediately preceding the Effective Date
of the Plan, the Vesting Service that he has accrued under
the Plan as of the Effective Date of the Plan shall not be
less than the service that he had accrued for the purposes of
determining his nonforfeitable right as of such date to the
portion of his accrued benefit attributable to employer
contributions under the terms of the Superseded Plan as in
effect on the day immediately preceding the Effective Date of
the Plan.
Prior to July 1, 1994, Vesting Service shall be determined
according to the terms of the Superseded Plan. On or after July
1, 1994 a Participant's Vesting Service shall not be less than the
Vesting Service as of June 30, 1994 determined in accordance with
the Superseded Plan.
(B) The terms "actuarially equivalent," "equivalent actuarial value,"
"actuarial equivalent" and similar terms as used herein mean equality in
value of the aggregate amounts expected to be received under different forms
of payment based upon the same mortality and interest rate assumptions,
which shall be determined as follows.
(1) Unless specifically provided otherwise under the provisions
hereof, the mortality and interest rate assumptions used in
computing benefits payable on behalf of a Participant upon his
retirement or termination of employment and upon the exercise of
optional forms of retirement income under the Plan shall be as
follows:
(a) the mortality assumptions shall be based upon the "Unisex
Pension Mortality Table Projected to 1984" (UP-1984 Mortality
Table); and
(b) the interest rate assumption shall be 6%;
provided, however, that for the purposes of determining the
maximum retirement income permitted under the provisions of
Section 415 of the Code, the mortality and interest rate
assumptions used to determine actuarial equivalence for early
retirement shall be the assumptions that would produce the early
retirement adjustment factors that apply under the provisions
hereof in the event of early retirement.
(2) Any provisions of Subsection (1) above to the contrary not-
withstanding, if payment to any Participant (or his Beneficiary)
is an actuarially equivalent lump-sum distribution, the amount of
payment shall be equal to the actuarial equivalent of the Partic-
ipant's "accrued benefit" (within the meaning of Section 411(a)(7)
of the Code and regulations issued with respect thereto)
commencing at his Normal Retirement Age or the date of termination
of his service, whichever is later. Such actuarially equivalent
distribution determined under this Subsection (2) shall be
determined using the mortality assumptions specified in Subsection
(1)(a) above and the interest rate that was being used by the
Pension Benefit Guaranty Corporation for purposes of determining
the present value of a lump-sum distribution on plan termination
(as determined under Sections 411(a)(11) and 417 of the Code and
regulations issued pursuant thereto) as of the first day of the
Plan Year during which the distribution is made or commences.
(C) The term "single-sum value" as used herein shall mean the actu-
arially computed present value, as of a given date, of the retirement income
payments for which it is determined based upon the interest and mortality
assumptions specified in the provisions of the Plan. Unless specifically
provided otherwise under the provisions hereof, the single-sum value as of a
given date of a Participant's accrued benefit that is scheduled to commence
at a later date shall be discounted for both interest and mortality from
such scheduled commencement date to such given date.
(D) The terms "herein", "hereof", "hereunder" and similar terms refer
to this document, including the Trust Agreement of which this document is a
part, unless otherwise qualified by the context.
(E) The pronouns "he", "him" and "his" used in the Plan shall also
refer to similar pronouns of the feminine gender unless otherwise qualified
by the context.
1.2 - PARTICIPATION
(A) Continuation of Participation of Superseded Plan Participants and
Retroactive Amendments to Superseded Plan: Each person who was a
participant in the Superseded Plan, if any, of the Employer as of the day
immediately preceding the Effective Date of the Plan will become a
Participant in the Plan on the Effective Date of the Plan; provided,
however, that any such Participant who had retired or whose service had been
terminated prior to the Effective Date of the Plan and who is not an active
employee of an Employer or in the employment of a Designated
Nonparticipating Employer or on a leave of absence granted by an Employer or
Designated Nonparticipating Employer as of the Effective Date of the Plan
shall be entitled on and after the Effective Date of the Plan to only those
benefits, if any, to which he is entitled on and after the Effective Date of
the Plan under the provisions of the Superseded Plan, and he and his
Beneficiaries shall not be entitled to any additional benefits under the
Plan as set forth herein unless he reenters the service of an Employer after
the Effective Date of the Plan or unless the Plan is amended on or after the
Effective Date of the Plan specifically to provide otherwise; provided
further, however, that:
(1) the provisions of the Plan governing the availability and payment
of optional forms of settlement shall be applied with respect to
such persons in the same manner as though the Superseded Plan had
been amended to incorporate similar provisions, and those forms of
payment that are available under the provisions of the Plan shall
be the only forms of payment that are available on and after July
1, 1989 to such persons and their beneficiaries, except, with
respect to such benefits accrued prior to the Effective Date of
the Plan, (i) if a form of payment could be elected under the
provisions of the Superseded Plan at the sole discretion of the
participant or his beneficiary, such form of payment shall be
available to him on and after the Effective Date of the Plan and
(ii) if a form of payment had been duly elected and duly approved
and is in effect on June 30, 1989 under the provisions of the
Superseded Plan, such elected form of payment will continue in
effect unless it is subsequently revoked or changed on or after
July 1, 1989 (a change of beneficiaries under the election will
not be considered to be a revocation or change in such election so
long as the change in beneficiaries does not alter, directly or
indirectly, the period over which distributions are to be made
under such elected form of payment) and provided that such form of
payment complies with the provisions of Section 401(a)(9) of the
Code and regulations and rulings issued with respect thereto;
(2) in determining the benefits accrued by and payable to a person who
was a participant in the Superseded Plan prior to July 1, 1989,
the provisions of the Plan that apply to the maximum retirement
income permitted under Section 415 of the Code shall be applied
retroactively to the first day of the limitation year beginning in
1987, and the Superseded Plan is amended effective as of the first
day of the limitation year beginning in 1987 to incorporate provi-
sions that will produce the same result;
(3) in determining the eligibility of an employee to participate in
the Superseded Plan on or after July 1, 1988 and prior to July 1,
1989, the provisions of the Plan that apply to the eligibility of
employees hired on or after age 60 years to participate in the
Plan shall be applied retroactively to July 1, 1988, with respect
to employees who have completed at least one Hour of Service with
the Employer after such date, and the Superseded Plan is amended
effective as of July 1, 1988 to incorporate provisions that will
produce the same result;
(4) in determining the benefit accrued after his Normal Retirement
Date and prior to July 1, 1989 by a participant in the Superseded
Plan who completed at least one Hour of Service with the Employer
which was after both July 1, 1988 and his Normal Retirement Date,
the provisions of the Plan that take into account, in the
calculation of the accrued benefit of a Participant who continues
in the employment of the Employer after his Normal Retirement
Date, his Compensation received and his Credited Service accrued
after his Normal Retirement Date shall be applied retroactively to
July 1, 1988, and the Superseded Plan is amended effective as of
July 1, 1988 to incorporate provisions that will recognize
compensation received and service accrued after the participant's
Normal Retirement Date in a similar manner to determine the
"Credited Service," and "Final Average Monthly Compensation" that
are applied in determining his benefit accrued prior to July 1,
1989 under the benefit formulas of the Superseded Plan, but the
benefit formulas of the Superseded Plan, including any
restrictions or maximums on his Final Average Monthly Compensation
and Credited Service (or their corresponding terms under the
Superseded Plan) that were imposed under the Superseded Plan for a
reason other than the attainment of his Normal Retirement Date,
shall apply in determining such benefit accrued prior to
January 1, 1989;
and
(5) if the benefits that are payable on behalf of any such Participant
under the provisions of the Superseded Plan require modification
to permit benefits to be paid to specified individuals other than
the Participant in order to comply with any qualified domestic
relations order under Section 414(p) of the Code, or to comply
with any other provisions of said Code, the terms and benefits of
the Superseded Plan will be considered to have been modified with
respect to the Participant affected to the extent necessary to
comply with such provisions of said Code.
(B) Participation of Other Employees: Each Employee who does not
become a Participant in accordance with the provisions of Section 1.2(A)
above and who is in the service of the Employer on or after the Effective
Date of the Plan will become a Participant in the Plan on the completion of
both six months of employment and at least 1,000 hours of service during an
eligibility computation period.
(C) Participation Following Reemployment: The above provisions of
this Section 1.2 describe the date on which an eligible Employee will
initially become a Participant in the Plan. In the event that an Employee's
service is terminated and he subsequently reenters the service of the
Employer, the date on or after the date of his reentry as of which he will
become a Participant in the Plan is subject to the provisions of Section 1.4
hereof.
1.3 - LEAVE OF ABSENCE AND TERMINATION OF SERVICE
Any absence from the active service of the Employer by reason of an
approved absence granted by the Employer because of accident, illness,
layoff with the right of recall or military service, or for any other reason
on the basis of a uniform policy applied by the Employer without
discrimination, will be considered a leave of absence for the purposes of
the Plan and will not terminate an employee's service provided he returns to
the active service of the Employer at or prior to the expiration of his
leave or, if not specified therein, within the period of time which accords
with the Employer's policy with respect to permitted absences.
Absence from the active service of the Employer because of compulsory
engagement in military service will be considered a leave of absence granted
by the Employer and will not terminate the service of an employee if he
returns to the active service of the Employer within the period of time
during which he has reemployment rights under any applicable Federal law or
within 60 days from and after discharge or separation from such compulsory
engagement if no Federal law is applicable. No provision of this section or
in the Plan shall require reemployment of any employee whose active service
with the Employer was terminated by reason of military service.
If the employee does not return to the active service of the Employer at
or prior to the expiration of his leave of absence as above defined, his
service will be considered terminated as of the earliest to occur of (i) the
date on which his leave of absence expired, (ii) the first anniversary of
the date on which his leave of absence began or (iii) the date of his
resignation, quit, discharge or death; provided, however, that if any such
employee, who is on a leave of absence and who was a Participant in the Plan
or Superseded Plan on the date on which his leave began, is prevented from
his timely return to the active service of the Employer because of his total
and permanent disability prior to his Normal Retirement Date or his death,
he shall, nevertheless, be entitled, if he meets the requirements necessary
to qualify therefor, to any disability benefit as provided in Section 2.3
hereof or to any death benefit as provided in Section 2.4 hereof, whichever
is applicable, as though he returned to active service immediately preceding
the date of his total and permanent disability or his death.
If an employee has an absence from the service of the Employer which
begins on or after July 1, 1985 and is due to the pregnancy of the employee,
the birth of a child of the employee or the placement of a child with the
employee in connection with the adoption of such child by such employee or
is for the purpose of caring for such child for a period beginning
immediately following such birth or placement, the rights of such employee
under the Plan shall not be less favorable to the employee than those rights
that he would have had if he had been granted a one-year leave of absence
beginning on the date on which his absence began. If the service of such
employee is terminated during such absence, the date of termination of such
employee for purposes of determining his accrued Vesting Service shall be
deemed to be the first anniversary of the date on which such absence began
and the rights of such employee under Section 1.4 hereof to resume
participation in the Plan and to a reinstatement of his previous Credited
Service and Vesting Service upon his reemployment shall not be less
favorable to the employee than those corresponding rights that he would have
under such section if the date of termination of his service had been the
second anniversary of the date on which his absence began and if the length
of such employee's Break in Service were based on that termination date.
In the event that an employee's service with the Employer is interrupted
because of any absence from the active service of the Employer which is not
deemed a leave of absence as defined above, his service will be considered
terminated as of the date of his retirement, quit, discharge, resignation or
death or, if earlier, as of the first anniversary of the date of such inter-
ruption for any other reason.
Transfers of an employee's service among the Employers and Designated
Nonparticipating Employers shall not be deemed interruptions of his service
and shall not constitute a termination of service for the purposes of the
Plan.
1.4 - REEMPLOYMENT
(A) Reemployment Prior to Incurring a Break in Service: If any
employee, whose service is terminated on or after the Effective Date of the
Plan, reenters the active service of the Employer and performs an Hour of
Service within the 12-month period immediately following the date of
termination of his service, he shall not incur a Break in Service, and his
Last Date of Commencement of Service shall be determined as though his
service had not previously been terminated. On and after such reentry, any
such employee shall be treated under the Plan as though he had been on a
leave of absence granted by the Employer during the period between such date
that his service was previously terminated and such date of reentry.
However, if any such employee was entitled to a benefit under Section 2.1,
2.2, 2.3 or 2.4(A) hereof prior to his reentry, his rights under the Plan on
and after his date of reentry shall be determined under Section 1.4(B),
1.4(C), 1.4(D) or 1.4(E) below, whichever is applicable, except that his
reinstated Vesting Service shall not be less than that determined under the
above provisions of this Section 1.4(A).
(B) Reemployment of Vested Terminated Participant Prior to
Commencement of Payments: If a Participant's service is terminated on or
after his Initial Vesting Date for a reason other than his normal
retirement, early retirement or disability retirement as described in
Sections 2.1, 2.2 and 2.3 hereof, respectively, and he subsequently reenters
the active service of the Employer prior to his Annuity Starting Date, he
will become a Participant upon the date of such reentry and will be entitled
to a reinstatement of the Vesting Service and Credited Service that he had
accrued on the date of termination of his service in lieu of the benefits to
which he was entitled under the Plan prior to his reentry.
(C) Reemployment of Retired or Vested Terminated
Participant After Commencement of Payments:
(1) If a Participant, whose service is terminated on or after the
Effective Date of the Plan and who has received a portion but not
all of the retirement income to which he is entitled under the
provisions of Section 2.1, 2.2 or 2.4(A)(1) hereof, subsequently
reenters the active service of the Employer, he shall become a
Participant upon the date of such reentry and the following
provisions shall apply.
(a) If the date of his reentry is prior to his Required Beginning
Date, subject to the provisions of Sections 1.4(C)(2) and
2.1(D) hereof, no retirement income payments shall be made
during the period of such reemployment. Upon the subsequent
retirement or termination of service of such a Participant,
his benefit under the Plan shall be determined in the same
manner as that of a vested terminated Participant whose
retirement income payments have not commenced and who
subsequently reenters the service of the Employer as
described in Section 1.4(B) above, except that the benefit
payable under the Plan to or on behalf of such Participant
upon his subsequent retirement or termination of service
shall be reduced on an actuarially equivalent basis by an
amount equal to the sum of the retirement income and other
benefit payments that he received under the provisions of
Section 2.1, 2.2, 2.4(A) or 3.1 hereof, whichever is
applicable, prior to such reentry into the service of the
Employer; provided, however, that the monthly retirement
income payable to any such Participant on and after the date
of his subsequent retirement shall not be less than the
actuarial equivalent, determined as of the date of his
subsequent retirement, of the retirement income that would
have been payable on and after such date if he had not
reentered the service of the Employer but had continued to
receive his retirement income payments during the period of
his reemployment; and provided further, however, if any such
Participant reenters the active service of the Employer on or
after his Normal Retirement Date, the monthly retirement
income payable on behalf of such Participant in accordance
with the provisions of Section 2.1 upon his subsequent
retirement shall not be less than the amount that can be
provided on an actuarially equivalent basis by the single-sum
value required, as of such date of reentry, to provide the
retirement income that otherwise would have been payable on
his behalf after such date of reentry, accumulated with
interest from such date of reentry to the date of his
subsequent retirement or termination of service.
(b) If the date of his reentry is on or after his Required
Beginning Date, he shall continue to receive the benefits to
which he is entitled on and after such date, and any future
benefits that he accrues after his Required Beginning Date
shall be determined in accordance with the provisions of
Section 411(b)(1)(H) of the Code and regulations issued with
respect thereto in a manner similar to that described in
Section 2.1(D) hereof.
(2) In lieu of having his retirement income payments discontinued and
his benefit payable upon his subsequent retirement or termination
determined in accordance with the provisions of Section 1.4(C)(1)
above, any such Participant, whose Vested Percentage at the date
of his retirement or termination of service was 100%, who is
receiving retirement income payments under the Plan and who
reenters the active service of the Employer on less than a
full-time basis, may upon such reentry elect in writing filed with
the Committee to continue to receive his retirement income
payments after his reemployment in the same manner as though he
had not reentered the service of the Employer. Any such
Participant whose retirement income payments are continued in
accordance with the provisions above shall be treated as if he
then first entered the service of the Employer except that:
(a) upon the date after his reentry that he satisfies the
requirements to become a Participant in the Plan, he shall
become a Participant, retroactively, as of the date of his
reentry; provided, however, if the period of his severance
from service is less than one year, he shall become a
Participant immediately on the date of his reentry;
(b) upon his becoming a Participant, he shall be entitled to a
reinstatement of the Vesting Service that he had accrued as
of the date of his previous retirement or termination of
service; and
(c) he shall not accrue any additional Credited Service during
any "reemployment benefit accrual computation period" that he
is credited with less than 1,000 Hours of Service. The
"reemployment benefit accrual computation period" of any such
Participant shall mean the 12-month period beginning on the
date of his reentry and on each anniversary of such date.
The benefit which any such Participant accrues after the date of his
reentry, which is payable to such Participant or his Beneficiary upon his
subsequent retirement or termination of service, shall be limited to the
amount that can be provided by the monthly retirement income, if any, that
he accrues subsequent to such date of reentry based upon his Credited
Service and Final Average Monthly Compensation determined in the same manner
as though he then first entered the service of the Employer on the date on
or after his reentry that he commences to accrue additional Credited
Service; provided, however, that such income that such a Participant accrues
subsequent to his date of reentry shall not cause the actuarial equivalent
of the total income payable to the Participant or his Beneficiary under the
Plan to exceed the amount that would have been payable if he had not elected
to continue to receive his retirement income after his reemployment. The
retirement income that is continued during the period of reemployment of any
such Participant who is reemployed on less than a full-time basis shall be
discontinued if the Participant is employed on a full-time basis at any time
after his reentry. If the retirement income of any such Participant is
subsequently discontinued, his benefit under the Plan shall be determined
under this Section 1.4(C) (and not under Section 1.4(A) above) as though his
service had been terminated on the date that his retirement income was
discontinued and as though he had reentered the service of the Employer
immediately thereafter.
(D) Reemployment After Disability Retirement: If a Participant, who
has retired on or after the Effective Date of the Plan under the provisions
of Section 2.3 and who has not prior to his reentry received the full
actuarially equivalent value of the disability retirement income to which he
was entitled under Section 2.3 hereof, recovers from disability and reenters
the active service of the Employer within one year after the date of his
recovery from disability by accepting reemployment offered by the Employer
within 30 days after such offer, his service will be deemed to have been
continuous and he will receive Credited Service and Vesting Service under
the Plan for that period during which he was considered totally and
permanently disabled as provided herein.
(E) Reemployment After Full Settlement: If a Participant's service
has been terminated on or after the Effective Date of the Plan for any
reason and he was entitled, upon such termination, to a monthly retirement
income under the provisions of Section 2.1, 2.2, 2.3 or 2.4(A)(1) hereof and
he reenters the active service of the Employer after the full actuarial
equivalent value of such retirement income has been paid on his behalf, he
shall become a Participant on the date of his reentry and shall be entitled
to a reinstatement of the Vesting Service and Credited Service that he had
accrued as of such previous date of termination, but the benefit payable
under the Plan to or on behalf of such Participant upon his subsequent
retirement or termination of service shall be reduced by the actuarially
equivalent value of such retirement income that has been previously paid on
his behalf.
(F) Reemployment of Other Employees: Any other former employee who is
not included under the provisions of Section 1.4(A), 1.4(B), 1.4(C), 1.4(D)
or 1.4(E) above and who subsequently reenters the active service of the
Employer following his termination of service will be treated as though he
then first entered the service of the Employer; provided, however, that:
(1) with respect to any such employee whose service is terminated on
or after the Effective Date of the Plan and who incurred a Break
in Service prior to the date of his reentry, the following special
provisions shall apply:
(a) if the number of years and days included in his Break in
Service is less than either five years or the number of years
and days of Vesting Service that he had accrued as of the
date of termination of his service, such employee shall be
entitled, upon the date as of which he becomes a Participant
in the Plan, to a reinstatement of the Credited Service and
Vesting Service that he had accrued as of such previous date
of termination of service;
(b) if such employee was a Participant in the Plan as of the date
of termination of his service and he is entitled to a
reinstatement of his previous Credited Service and Vesting
Service under (a) above, he shall be eligible to become a
Participant in the Plan as of the date of his reentry; and
(c) if such employee was not a Participant in the Plan as of the
date of termination of his service but he is entitled to a
reinstatement of his previous Credited Service and Vesting
Service under (a) above, the date on which he will be
eligible to become a Participant in the Plan following his
date of reentry shall not be later than the date on which he
would have been eligible to become a Participant if he had
been on a leave of absence during the period between the date
of his previous termination of service and the date of his
reentry; and
(2) for purposes of determining Vesting Service and Credited Service
under the Plan following such date of reemployment, the following
special provisions shall apply:
(a) if the Break in Service of any such employee whose service is
terminated on or after the Effective Date of the Plan is for
a period of less than five years or if the number of years
and days included in the Break in Service is less than the
number of years and days of Vesting Service that he had
accrued as of the date of termination of his service, such
employee shall be entitled, upon the date as of which he
becomes a Participant in the Plan, to a reinstatement of the
Credited Service and Vesting Service that he had accrued as
of such previous date of termination of service; and
(b) with respect to any such employee whose service was ter-
minated prior to the Effective Date of the Plan (while the
Superseded Plan was in effect with respect to the Employer by
which he was employed at the date of termination of his
service) and who had reentered the active service of the
Employer prior to the Effective Date of the Plan or who
reenters the active service of the Employer on or after the
Effective Date of the Plan, his rights under the Plan to
reinstatement of the period of his service prior to such date
of reentry into the service of the Employer for purposes of
determining his Vesting Service and Credited Service shall be
determined under the applicable provisions of the Superseded
Plan as in effect on the date of his prior termination of
service; provided, however, if any such employee, whose ser-
vice was terminated prior to the first day of the 1985 plan
year of the applicable Superseded Plan and whose next
succeeding date of reentry into the service of the Employer
is on or after the Effective Date of the Plan, would have
been entitled to a reinstatement of the service used to
determine his nonforfeitable right to benefits under the
provisions of the Superseded Plan as of his previous
termination of service if he had reentered the service of the
Employer on the first day of such applicable 1985 plan year,
the rights upon such reentry of any such employee shall not
be less favorable to the employee than the corresponding
rights of an employee whose service is terminated on or after
the Effective Date of the Plan as described in (a) above.
(G) Reemployment of Employee Who Does Not Qualify as an "Employee":
The rights of any terminated employee of the Employer who was not an
Employee as defined herein on the date of termination of his service and who
is reemployed in a status in which he qualifies as an Employee as defined
herein shall be determined in accordance with the provisions of the Plan in
the same manner as though such employee had been an Employee as defined
herein on the date of termination of his service (but his benefits, if any,
under the Plan shall be determined ignoring such one day of assumed
employment as an Employee as defined herein). The rights of any terminated
employee of an Employer who is reemployed by the Employer in a status in
which he does not qualify as an Employee as defined herein shall be
determined in accordance with the provisions of the Plan in the same manner
as though such employee had been reemployed by the Employer as an Employee
as defined herein and had immediately thereafter been transferred from his
status as an Employee as defined herein (but his benefits, if any, under the
Plan shall be determined ignoring such one day of assumed employment as an
Employee as defined herein).
(H) Reemployment of Employee of Designated Nonparticipating Employer:
The rights of any terminated employee of a Designated Nonparticipating
Employer who is reemployed by an Employer as an Employee as defined herein
shall be determined in accordance with the provisions of the Plan in the
same manner as though such employee had been an Employee as defined herein
on the date of termination of his service (but his benefits, if any, under
the Plan shall be determined ignoring such one day of assumed employment as
an Employee as defined herein). The rights of any terminated Employee of an
Employer who is reemployed by a Designated Nonparticipating Employer shall
be determined in accordance with the provisions of the Plan in the same
manner as though such Employee had been reemployed by the Employer as an Em-
ployee as defined herein and had immediately thereafter been transferred to
such Designated Nonparticipating Employer (but his benefits, if any, under
the Plan shall be determined ignoring such one day of assumed employment as
an Employee as defined herein).
(I) Employment with Former Employer or Former Designated
Nonparticipating Employer: In determining the rights under the Plan of any
employee who was previously employed (either before, on or after the
Effective Date of the Plan) by an employer, which was formerly an Employer
participating in the Plan or Superseded Plan or was formerly a Designated
Nonparticipating Employer but which is not currently an Employer or
Designated Nonparticipating Employer, the period of such employee's
employment with such employer while it was an Employer or Designated
Nonparticipating Employer, as the case may be, shall be recognized in
determining the Vesting Service of such employee in the same manner as
though such employment during such period had been with a current Employer
or Designated Nonparticipating Employer, but any period of employment with
such employer after the date that it ceased to be an Employer or Designated
Nonparticipating Employer shall not be recognized and his service shall be
deemed to have been terminated during such period that such employer is not
an Employer or Designated Nonparticipating Employer.
1.5 - TRANSFER TO OR FROM STATUS AS AN ELIGIBLE EMPLOYEE
An employee will be deemed to be transferred from his status as an
eligible Employee in the event that he remains in the service of the
Employer but has a change in his employee status so that he no longer quali-
fies as an Employee as defined herein or in the event that he is transferred
to and becomes an employee of a Designated Nonparticipating Employer.
Conversely, an employee of an Employer who is not an Employee as defined
herein will be deemed to be transferred to the status of an eligible
Employee in the event that he remains in the service of the Employers but
has a change in his employee status so that he becomes an Employee as
defined herein or, if he was an employee of a Designated Nonparticipating
Employer, in the event that he is transferred to an Employer from such
Designated Nonparticipating Employer and becomes an Employee as defined
herein. The service of such a person described above shall not be
considered to be interrupted by reason of any such transfer, and service
with the Designated Nonparticipating Employer or with the Employer while not
qualified as an Employee as defined herein shall be determined in the same
manner as service with the Employer while qualified as an Employee as
defined herein. Any provisions of Section 2.1, 2.2, 2.3 or 2.4 hereof to
the contrary notwithstanding, the benefits of any such Participant who has
been transferred to or from the status as an eligible Employee on or after
the date that the Plan or Superseded Plan first became effective with
respect to his Employer shall be determined in accordance with the following
provisions of this Section 1.5. With respect to any employee who had been
transferred to or from the status as an eligible Employee prior to the date
that the Plan or Superseded Plan first became effective with respect to his
Employer, his employee status as of his first day of employment on or after
such date that the Plan or Superseded Plan first became effective with
respect to his Employer shall be deemed for the purposes of the Plan
(subject to the provisions of Section 1.5(C)(1) below) to have been his
employee status during the entire period of his prior service, except that
he shall not accrue any Credited Service under the Plan for any such period
of service that he was in the service of a Designated Nonparticipating
Employer and not in the service of the Employer and he shall not accrue any
Credited Service during such period prior to the Effective Date of the Plan
that would have been excluded from his Credited Service under the provisions
of the Superseded Plan. Upon transfer of employment of a Participant to or
from a Designated Nonparticipating Employer assets shall be transferred in
an amount actuarially equivalent to the Participant's Accrued Benefit on the
date of transfer. If an annuity was purchased for any Participant, the
value of such annuity shall be considered assets of the plan, and any
benefit payable under the Plan shall be reduced by such annuity. If, after
transfer of employment to the Employer from a Designated Nonparticipating
Employer a Participant terminates employment with the Employer resulting in
the forfeiture of any benefits, a credit shall be given to each previous
employer. The amount of such credit shall be a percentage of the forfeiture
determined by dividing the portion of the Participant's Accrued Benefit (as
of the date of termination) that is attributable to employment with each
previous employer by the total Accrued Benefit. The portion of the
Participant's Accrued Benefit attributable to employment with a previous
employer is described in Section 1.5(B) below. In no event shall a
Participant's Vested Percentage as to his Accrued Benefit be decreased by
transferring to or from a Designated Nonparticipating Employer.
(A) Eligibility for Benefits: In determining the eligibility of such
an employee to whom the provisions of this Section 1.5 are applicable for
participation in the Plan and in determining his eligibility for the
benefits provided under the Plan, his Vesting Service and Hours of Service
shall be determined in the same manner as though his service with the
Designated Nonparticipating Employers and with the Employers while not
qualified as an Employee as defined herein had been accrued with the
Employers while qualified as an Employee as defined herein. Any such
employee who is transferred to the status of an Employee as defined herein
shall become a Participant in the Plan on the date that he becomes an
Employee as defined herein if he has otherwise satisfied the requirements to
become a Participant in the Plan as described in Section 1.2 hereof prior to
such date that he becomes an Employee as defined herein.
(B) Computation of Benefits: A Participant to whom the provisions of
this Section 1.5 are applicable shall be entitled upon his retirement or
termination of service (or his Beneficiary shall be entitled in the event
his service is terminated by reason of his death), if he meets all
requirements necessary to qualify for a benefit under the provisions of
Section 2.1, 2.2, 2.3 or 2.4 hereof or under the provisions of any
applicable Supplement hereto, as the case may be, to a benefit payable in
accordance with the provisions of Section 2.1, 2.2, 2.3 or 2.4 hereof or in
accordance with the provisions of any applicable Supplement hereto, as the
case may be, but the amount of the monthly retirement income that is payable
on his behalf under the Plan shall, subject to the provisions of Section
1.5(C) below, be equal to the sum of:
(1) the monthly retirement income payable on behalf of such
Participant under the provisions of Section 2.1, 2.2, 2.3 or 2.4
hereof or under the provisions of any Supplement hereto, as the
case may be, using the Participant's Credited Service which he
accrued while in the service of the Employers hereunder while
qualified as an Employee as defined herein;
plus
(2) the monthly retirement income payable on behalf of such
Participant computed using (i) the Credited Service which he
accrued while in the service of the Designated Nonparticipating
Employer, (ii) the retirement benefit formula of such prior plan
as in effect on the date that the employee's service with the
Designated Nonparticipating Employer terminated and (iii) the
Participant's Final Average Monthly Compensation as determined
under the terms of this plan.
(C) Special Provisions Applicable to Benefits: The monthly income
computed under this Section 1.5 shall be subject to the following:
(1) there shall be no duplication of service in computing benefits
under the Plan and under any other qualified pension or annuity
plan to which any Employer or Designated Nonparticipating Employer
makes contributions on behalf of its employees who are not Em-
ployees as defined herein, and, if service accrued while qualified
as an Employee as defined herein is used in determining the
accrued benefit of the Participant under any such other qualified
pension or annuity plan, then the portion of the benefit payable
under the Plan based on such duplicated service shall be reduced
(but not so as to produce a negative amount) by the actuarially
equivalent amount of the benefit payable under such other
qualified pension or annuity plan based on such duplicated
service;
(2) all compensation that the Participant received from the Designated
Nonparticipating Employers and from the Employers while not
qualified as an Employee as defined herein shall be treated in
determining his Final Average Monthly Compensation in the same
manner as though such compensation had been received from the
Employer while qualified as an Employee as defined herein;
(D) Payments From One Trust Fund: In lieu of the payment of
retirement income or other benefits to such a Participant from the trust
fund of more than one qualified pension plan of the Designated Nonpar-
ticipating Employers and the Employers, the administrators of the pension
plans may, by mutual agreement, provide for payment of the entire monthly
income or other benefit from one trust fund with appropriate reimbursement
to the trustee of the trust fund from which the benefits are to be paid by
transfer of funds equal to the single-sum value of the benefits payable
under the other plan (or plans) to the trust fund from which benefits
actually will be paid.
1.6 - PARTICIPATION AND BENEFITS FOR FORMER LEASED EMPLOYEES
A Leased Employee of an Employer or Designated Nonparticipating Employer
shall not be deemed for any purposes of the Plan to be an Employee of such
Employer or Designated Nonparticipating Employer. However, in the event
that any such former Leased Employee qualifies as an Employee as defined
herein on or after the Effective Date of the Plan, unless the Plan is other-
wise excluded by applicable regulations from the requirements of Section
414(n) of the Code, the total period that he provided services to the
Employer or Designated Nonparticipating Employer as a Leased Employee shall
be treated under the Plan in determining his nonforfeitable right to his
Accrued Benefit and his eligibility to become a Participant in the Plan in
the manner described in Section 1.5(A) hereof as though he had been an
Employee of a Designated Nonparticipating Employer during such period of
service (but such service shall not be included in the service that is used
to calculate any benefits that he accrues under the Plan).
1.7 - RIGHTS OF OTHER EMPLOYERS TO PARTICIPATE
Any corporation, association, joint venture, proprietorship, partnership
or other business organization may, in the future, adopt the Plan on behalf
of all or certain of its Employees by formal action on its part in the man-
ner described in Section 6.7 hereof provided that the Company, by formal
action on its part in the manner described in Section 6.7 hereof, and the
Committee both approve such participation.
The administrative powers and control of the Company, as provided in the
Plan, shall not be deemed diminished under the Plan by reason of the
participation of any other Employers in the Plan, and such administrative
powers and control specifically granted herein to the Company with respect
to the appointment of the Committee, amendment of the Plan and other matters
shall apply only with respect to the Company.
The Plan is a single plan with respect to all Employers unless the
Company, by formal action on its part in the manner described in Section 6.7
hereof, specifically provides that the Plan shall be a separate plan with
respect to any Employer or to any division of any Employer or with respect
to any group of Employers and/or divisions. In the event that the Plan does
not represent a single plan with respect to all divisions of any Employer,
the division or divisions with respect to which the Plan represents a
separate plan shall be considered for the purposes of this section and
treated under the Plan as one Employer and its other division or divisions
shall be considered for the purposes of this section and treated under the
Plan as a separate Employer or, if applicable, as separate Employers.
The contributions of any Employer that is a member of a group of
Employers with respect to which the Plan represents a single plan shall be
available to provide benefits on behalf of any Participants who are em-
ployees of any other Employers that are members of such group but shall not
be available to provide benefits on behalf of any Participants who are
employees of any Employers that are not members of such group. The
contributions of any Employer with respect to which the Plan represents a
single plan for only that Employer shall be available to provide benefits on
behalf of Participants who are its employees but shall not be available to
provide benefits on behalf of Participants who are employees of any other
Employers.
Any Employer may withdraw from the Plan at any time by formal action on
its part, in the manner described in Section 6.7 hereof, specifying its
determination to withdraw. Any such withdrawing Employer shall furnish the
Committee and the Trustee with evidence of the formal action of its determi-
nation to withdraw. Any such withdrawal may be accompanied by such modifi-
cations to the Plan as such Employer shall deem proper to continue a retire-
ment plan for its Employees separate and distinct from the retirement plan
herein set forth. Withdrawal from the Plan by any Employer shall not affect
the continued operation of the Plan with respect to the other Employers;
provided, however, in the event of the withdrawal of an Employer that is a
member of a group of Employers with respect to which the Plan represents a
single plan and in the event that provision is made for the continuation of
a retirement plan for its Employees separate and distinct from the
retirement plan herein set forth, the share, if any, of the assets of the
Trust Fund allocable to such group of Employers that is transferred on
behalf of such withdrawing Employer to such other retirement plan shall be
equal to the assets, if any, that would have been allocated on behalf of
the employees of such withdrawing Employer under the provisions of Section
4.5 hereof if such withdrawing Employer had terminated its participation in
the Plan on the date of such withdrawal; provided, however, that the Company
may, in its absolute discretion, direct that an additional amount of assets
be transferred on behalf of such withdrawing Employer to such other
retirement plan provided that the transfer of such additional amount of
assets would not lower the amount of the distributions that would be made on
behalf of the Participants who are employees of the other Employers that are
members of such group of Employers with respect to which the Plan represents
a single plan if the Plan were terminated as of the effective date of such
transfer with respect to all of the Employers that are members of such group
of Employers.
The Company, by formal action on its part in the manner described in
Section 6.7 hereof, may in its absolute discretion terminate any Employer's
participation in the Plan at any time, and the provisions of the Plan shall
be applied with respect to such Employer in the same manner as though it had
voluntarily withdrawn as a participating Employer.
SECTION 2
NORMAL AMOUNT AND PAYMENT OF RETIREMENT INCOME
2.1 - NORMAL RETIREMENT AND RETIREMENT INCOME
Normal retirement under the Plan is retirement from the service of the
Employer on or after the date that the Participant attains his Normal
Retirement Age. No provision of this section or the Plan shall require the
retirement of a Participant upon his attainment of his Normal Retirement
Age, but actual retirement shall be governed by the policy of the Employer.
In the event of normal retirement, payment of retirement income will be
governed, subject to the provisions of Section 4 hereof, by the following
provisions of this Section 2.1.
(A) Normal Retirement Date: The Normal Retirement Date of each
Participant will be the first day of the month coincident with or next
following (a) the date on which he attains his Normal Retirement Age. Any
Participant who retires after attaining his Normal Retirement Age but prior
to his Normal Retirement Date and who is surviving on his Normal Retirement
Date shall be considered for the purposes of the Plan to have retired on his
Normal Retirement Date.
(B) Amount of Retirement Income: The monthly retirement income
payable in the manner described in Section 2.1(C) hereof to a Participant
who retires on or after his Normal Retirement Date shall be an amount equal
to his Credited Service multiplied by the sum of (i) 1.4% of that portion of
his Final Average Monthly Compensation which is not in excess of $600 and
(ii) 1.8% of that portion, if any, of his Final Average Monthly Compensation
which is in excess of $600.
Each section 401(a)(17) employee's Accrued Benefit under this plan will
be greater of the Accrued Benefit determined for the employee under 1 or 2
below:
(1) the employee's Accrued Benefit determined with respect to the
benefit formula applicable for the plan year on or after July 1,
1994, as applied to the employee's total years of Credited Ser-
vice, or
(2) the sum of
(a) the employee's accrued benefit as of June 30, 1994, frozen in
accordance with section 1.401(a)(4)-13 of the regulations,
and
(b) The employee's accrued benefit determined under the benefit
formula applicable for the plan year beginning on or after
July 1, 1994, as applied to the employee's years of Credited
Service credited to the employee for plan years beginning on
or after July 1, 1994.
A section 401(a)(17) employee means an employee whose current Accrued
Benefit as of a date on or after July 1, 1994 is based on compensation for a
year beginning prior July 1, 1994 that exceeded $150,000.
The monthly amount of retirement income payable to a Participant who
retires after his Normal Retirement Date, however, shall not be less than
that amount that can be provided on an actuarially equivalent basis by the
sum of (i) the single-sum value as of his Normal Retirement Date of the
normal monthly retirement income that would have been payable to him under
the provisions of the Plan or Superseded Plan, whichever is applicable, as
in effect on his Normal Retirement Date if he had retired on his Normal
Retirement Date (based upon his Credited Service and Final Average Monthly
Compensation determined as though he had actually retired on his Normal
Retirement Date) and (ii) the amount of interest on such single-sum value in
(i) above, where the interest shall be compounded annually from the
Participant's Normal Retirement Date to his actual retirement date. All
computations to determine such minimum monthly retirement income payable to
or on behalf of such a Participant (including any computations to convert
such minimum monthly retirement income to an actuarially equivalent retire-
ment income or other benefit that may be payable on his behalf under Section
2.4(B) or 3.1 hereof) shall be on the basis of the interest and mortality
assumptions that were being used as of his Normal Retirement Date to
determine actuarially equivalent non-decreasing annuities.
(C) Payment of Retirement Income: The monthly retirement income pay-
able in the event of normal retirement will be payable on the first day of
each month. The first payment will be made on the Participant's Normal
Retirement Date, or, if the Participant retires after his Normal Retirement
Date, the first payment will be made on the first day of the month
coincident with or next following the date of his actual retirement. The
last payment will be the payment due immediately preceding the retired
Participant's death; except that, in the event the Participant dies after
his retirement but before he received retirement income payments for a
period of 10 years, the same monthly benefit that was payable to the
Participant will be paid for the remainder of such 10-year period to the
Beneficiary designated by the Participant or, if no designated Beneficiary
is surviving, the same monthly benefit shall be payable for the remainder of
such 10-year period as provided in Sections 5.2 and 5.3 hereof.
(D) Special Provisions Applicable to Participants Who Receive Retire-
ment Income Payments While Continuing in Employment of Employer After
Required Beginning Date: Any of the above provisions of this Section 2.1 to
the contrary notwithstanding, but subject to the provisions of Section 4.1
hereof, a Participant who continues in the employment of the Employer beyond
his Required Beginning Date shall start receiving monthly retirement income
payments commencing as of his Required Beginning Date. Such monthly retire-
ment income payments shall be determined and payable in the same manner as
though the Participant had actually retired on his Required Beginning Date.
The retirement income payable to such a Participant shall thereafter be
subject to adjustment as of the first day of each Plan Year which begins
after his Required Beginning Date and prior to the date of his actual
retirement and shall be subject to adjustment as of the first day of the
month coincident with or next following the date of his actual retirement
(each such adjustment day is herein referred to as a "Post Payment
Recalculation Date") to reflect the additional accruals, if any, that such
Participant is entitled to receive because of his employment after his
Required Beginning Date. The additional retirement income, if any, payable
to any such Participant on and after an applicable Post Payment Recalcula-
tion Date shall be determined in accordance with the provisions of Section
411(b)(1)(H) of the Code and regulations issued with respect thereto, and
the actuarial equivalent of the retirement income payments that the
Participant has received under the provisions of this Section 2.1 on and
after his Required Beginning Date and prior to the applicable Post Payment
Recalculation Date shall be used as an offset in the determination of such
additional income, but such offset shall not result in the retirement income
payable to the Participant being reduced below the amount that was payable
on his behalf immediately prior to such Post Payment Recalculation Date.
The additional amount of monthly retirement income, if any, that a
Participant accrues after his Required Beginning Date shall be converted to
an actuarially equivalent amount of monthly retirement income that is
payable in the same manner and form as the monthly retirement income that is
payable on his behalf immediately prior to the applicable Post Payment
Recalculation Date, and such additional actuarially equivalent income shall
be payable to the Participant commencing as of the applicable Post Payment
Recalculation Date.
2.2 - EARLY RETIREMENT AND RETIREMENT INCOME
Early retirement under the Plan is retirement from the service of the
Employer prior to the Participant's Normal Retirement Date and on or after
the date as of which he has both attained the age of 55 years and completed
10 years of Vesting Service. In order to receive benefits under the
provisions of this Section, the written consent of the Participant must be
filed with the Committee no earlier than 90 days, and no later than 30 days,
prior to the date as of which retirement income payments are to commence.
In the event of early retirement, payment of retirement income will be gov-
erned, subject to the provisions of Section 4 hereof, by the following
provisions of this Section 2.2.
(A) Early Retirement Date: The Early Retirement Date will be the
first day of the month coincident with or next following the date a
Participant retires from the service of the Employer under the provisions of
this Section 2.2 prior to his Normal Retirement Date.
(B) Amount of Retirement Income: The monthly amount of retirement
income payable in the manner described in Section 2.2(C) hereof to a
Participant who retires prior to his Normal Retirement Date under the
provisions of this Section 2.2 shall be equal to the product of:
(1) the Accrued Benefit which the Participant has accrued as of his
Early Retirement Date;
multiplied by
(2) a factor, specified in the schedule below, based upon the number
of years and full months by which the Participant's Early
Retirement Date precedes his Normal Retirement Date:
Early Retirement Reduction Factors By Years and Months
By Which Early Retirement Date Precedes Normal Retirement Date
Months
Years 0 1 2 3 4 5 6 7 8 9 10 11
0 1.000 .994 .989 .983 .978 .972 .967 .961 .956 .950 .944 .939
1 .933 .928 .922 .917 .911 .906 .900 .894 .889 .883 .878 .872
2 .867 .861 .856 .850 .844 .839 .833 .828 .822 .817 .811 .806
3 .800 .794 .789 .783 .778 .772 .767 .761 .756 .750 .744 .739
4 .733 .728 .722 .717 .711 .706 .700 .694 .689 .683 .678 .672
5 .667 .664 .661 .658 .656 .653 .650 .647 .644 .642 .639 .636
6 .633 .631 .628 .625 .622 .619 .617 .614 .611 .608 .606 .603
7 .600 .597 .594 .592 .589 .586 .583 .581 .578 .575 .572 .569
8 .567 .564 .561 .558 .556 .553 .550 .547 .544 .542 .539 .536
9 .533 .531 .528 .525 .522 .519 .517 .514 .511 .508 .506 .503
10 .500
In no event, however, shall such monthly early retirement income be less
than the amount that can be provided on an actuarially equivalent basis by
the single-sum value, determined as of his Early Retirement Date, of the Ac-
crued Benefit that he has accrued as of his Early Retirement Date.
(C) Payment of Retirement Income: The retirement income payable in the
event of early retirement will be payable on the first day of the month.
The first payment will be made on the Participant's Early Retirement Date
and the last payment will be the payment due immediately preceding the
retired Participant's death; except that, in the event the Participant dies
before he has received retirement income payments for a period of 10 years,
the same monthly benefit that was payable to the Participant will be paid
for the remainder of such 10-year period to the Beneficiary designated by
the Participant, or, if no designated Beneficiary is surviving, the same
monthly benefit shall be payable for the remainder of such 10-year period as
provided in Sections 5.2 and 5.3 hereof.
2.3 - DISABILITY RETIREMENT AND RETIREMENT INCOME
A Participant may retire from the service of the Employer under the Plan
if his service is terminated prior to his Normal Retirement Date and on or
after the Effective Date of the Plan by reason of his becoming totally and
permanently disabled as defined in Section 2.3(A) below. Such retirement
from the service of the Employer shall herein be referred to as disability
retirement. In the event of disability retirement, uniformly and
consistently applied rules shall be used with respect to all Participants in
similar circumstances and payment of retirement income will be governed,
subject to the provisions of Section 4 hereof, by the following provisions
of this Section 2.3.
(A) Total and Permanent Disability: A Participant shall be considered
totally and permanently disabled for the purposes of the Plan if, in the
opinion of the Committee, he is wholly prevented, due to sickness or injury,
from engaging in any occupation for wage or profit, and if, in the opinion
of the Committee, such disability is likely to be continuous and permanent
from a cause other than specified in Section 2.3(B) hereof.
(B) Nonadmissible Causes of Disability: A Participant will not be
entitled to receive any disability retirement income if, in the opinion of
the Committee, the disability is a result of:
(1) excessive and habitual use by the Participant of drugs, intox-
icants or narcotics;
(2) injury or disease sustained by the Participant while willfully and
illegally participating in fights, riots, civil insurrections or
while committing a felony;
(3) injury or disease sustained by the Participant while serving in
any armed forces;
(4) injury or disease sustained by the Participant which was diagnosed
or discovered subsequent to the date his employment was
terminated;
(5) injury or disease sustained by the Participant while working for
anyone other than the Employer and arising out of such employment;
or
(6) injury or disease sustained by the Participant as a result of an
act of war, whether or not such act arises from a formally
declared state of war.
(C) Proof of Disability: The Committee, before approving the payment
of any disability retirement income, shall require satisfactory proof (which
may be in the form of a certificate from a duly licensed physician selected
by the Committee) that the Participant has become disabled as provided
herein. Every six months after the commencement of disability retirement
income, or more frequently, the Committee may similarly require proof of the
continued disability of the Participant.
(D) Disability Retirement Income: The monthly amount of retirement
income payable in the manner described in Section 2.3(E) hereof to a
Participant who retires from the service of the Employer under the
provisions of this Section 2.3 due to total and permanent disability shall
be equal to the Accrued Benefit which the Participant has accrued as of the
date of termination of his service due to disability.
(E) Payment of Disability Retirement Income: The monthly retirement
income to which a Participant is entitled in the event of his disability
retirement will be payable on the first day of each month. The first
payment will be made on the first day of the month coincident with or next
following his Normal Retirement Date. The last payment will be the payment
due immediately preceding the date of his death; except that, in the event
the disabled Participant dies before he has received retirement benefits for
a period of 10 years, the same monthly benefit that was payable to the
Participant will be paid for the remainder of such 10-year period to the
Beneficiary designated by the Participant, or, if no designated Beneficiary
is surviving, the same monthly benefit shall be payable for the remainder of
such 10-year period as provided in Sections 5.2 and 5.3 hereof.
(F) Benefit Payable in the Event of Death of Disabled Participant
Prior to Disability Retirement Income Date: In the event that the death of
a disabled Participant occurs after he has been determined to be disabled by
the Committee and prior to his recovery from his total and permanent
disability and prior to the date retirement income payments are to commence
as specified in Section 2.3(E), his Beneficiary will receive, in lieu of all
other benefits payable on behalf of the Participant under the Plan, a death
benefit, payable in the manner described in Section 2.4(B) hereof,
commencing on the first day of the month coincident with or next following
the date of the disabled Participant's death, which can be provided on an
actuarially equivalent basis by an amount equal t o the single-sum value of
the death benefit which would have been payable on behalf of the Participant
under the provisions of such Section 2.4(B) if his service had been
terminated by reason of his death on the date of termination of his service
due to disability.
(G) Recovery from Disability: If the Committee finds that any
Participant who is entitled to receive a disability retirement income under
the provisions of this Section 2.3 has, at any time prior to his Normal
Retirement Date, recovered from his total and permanent disability, such
Participant and his Beneficiary shall not be entitled to any benefits under
this Section 2.3 unless he reenters the service of the Employer and his
service is subsequently terminated by reason of his total and permanent
disability in accordance with the provisions hereof. A Participant shall be
deemed to have recovered from his total and permanent disability for the
purposes of the Plan if, in the opinion of the Committee, he is capable of
engaging in any occupation for wage or profit; provided, however, if the
Participant engages in an occupation which, in the opinion of the
Committee, is for the purpose of rehabilitation and is not incompatible wit
ha finding of total and permanent disability, such Participant will not be
considered to have recovered from his total and permanent disability as a
result of such rehabilitative occupation. Any such Participant who recovers
from his disability and whose retirement is not discontinued by the
Committee shall accrue Vesting Service during the period that he is
considered by the Committee to have been totally and permanently disabled as
provided herein; and, if the date of his recovery from his total and
permanent disability is on or after his Initial vesting Date and he does not
reenter the service of the Employer, he shall be entitled to the vested
retirement income, payable in accordance with the provisions of Section
2.4(A) hereof, computed as though his service had been terminated on the
date of his recovery from his total and permanent disability but based upon
his Credited Service and Final Average Monthly Compensation determined as of
the date of termination of his service due to disability.
2.4 - BENEFITS OTHER THAN ON RETIREMENT
(A) Benefit on Termination of Service and on Death After Termination
of Service:
(1) In the event that a Participant's service is terminated prior to
his Normal Retirement Date and on or after his Initial Vesting
Date for any reason other than his death, early retirement as
described in Section 2.2 hereof or disability retirement as
described in Section 2.3 hereof, he will be entitled to a monthly
retirement income to commence on his Normal Retirement Date or, if
he had completed at least 10 years of Vesting Service and he so
requests in writing filed with the Committee at least 30 but not
more than 90 days prior to the effective date thereof, to commence
on the first day of any month which is prior to his Normal Retire-
ment Date and is on or after the date on which he attained the age
of 55 years. Such monthly retirement income payable in the manner
described in Section 2.4(A)(2) hereof to a Participant under the
provisions of this Section 2.4(A) shall be equal to the product
of:
(a) the Accrued Benefit which he has accrued to the date of
termination of his service;
multiplied by
(b) his Vested Percentage;
with the resulting product multiplied by
(c) an actuarially computed factor that will convert, if
applicable, the amount of monthly retirement income that is
payable to the Participant in the manner described in Section
2.4(A)(2) hereof commencing at his Normal Retirement Date to
an actuarially equivalent amount of monthly retirement income
that is payable to the Participant in the manner described in
Section 2.4(A)(2) hereof commencing on his Annuity Starting
date.
(2) The retirement income payable under Section 2.4(A)(1) above will
be payable on the first day of each month. The first payment will
be made, if the Participant shall then be living, on his Normal
Retirement Date or, if he has elected an earlier commencement date
in accordance with the provisions of Section 2.4(A)(1) above, on
the first day of such earlier month as of which he has elected to
commence receiving his retirement income payments. The last
payment will be the payment due immediately preceding his death;
except that, in the event the Participant dies on or after such
date of commencement of payments but before he has received
retirement income payments for a period of 10 years, the same
monthly benefit that was payable to the Participant will be paid
for the remainder of such 10-year period to the Beneficiary
designated by the Participant, or, if no designated Beneficiary is
surviving, the same monthly benefit shall be payable for the
remainder of such 10-year period as provided in Sections 5.2 and
5.3 hereof.
(3) In the event that the terminated Participant dies prior to his
Annuity Starting Date (without his having waived, in accordance
with the provisions of Section 2.4(A)(4) below, the benefit
provided under this Section 2.4(A)(3) and without his having
received, prior to his death, the actuarially equivalent value of
the benefit provided on his behalf under Section 2.4(A)(1) above),
his Beneficiary will receive the monthly retirement income, begin-
ning on the first day of the month coincident with or next
following the date of the terminated Participant's death, which
can be provided on an actuarially equivalent basis by the single-
sum value of the benefit determined in accordance with Section
2.4(A)(1) above to which the terminated Participant was entitled
as of the date of termination of his service, accumulated with
interest from such date to the date of his death. The monthly
retirement income payments under this Section 2.4(A)(3) shall,
subject to the provisions of Section 2.4(B)(4) hereof, be payable
for the life of the Beneficiary designated or selected under
Section 5.2 hereof to receive such benefit, and, in the event of
such Beneficiary's death within a period of 10 years after the
Participant's death, the same monthly amount that was payable to
the Beneficiary shall be payable for the remainder of such 10-year
period in the manner and subject to the provisions of Section 5.3
hereof; provided, however, in lieu of payment of such benefit in
the form of monthly income described above, the single-sum value
of such benefit may be paid on an actuarially equivalent basis to
the Participant's designated Beneficiary in such other manner and
form permitted under Section 2.4(B) hereof and commencing on such
other date permitted under Section 2.4(B) hereof as the Partici-
pant may elect in writing filed with the Committee or, in the
event that a specific election has not been made by the
Participant and filed with the Committee prior to his death, as
the Beneficiary may elect in writing filed with the Committee.
(4) A terminated Participant may elect, with the consent of his
spouse, if any, at any time prior to his Annuity Starting Date, to
waive the death benefit provided under Section 2.4(A)(3) above
and, in lieu thereof, an increased retirement income, which
reflects on an actuarially equivalent basis the period that the
death benefit coverage under Section 2.4(A)(3) is waived, will be
payable to the Participant under the provisions of Section
2.4(A)(1) if he shall be living on his Annuity Starting Date.
Within one year after the date of termination of service of a
Participant who is entitled to a benefit under the provisions of
this Section 2.4(A), or as soon thereafter as is administratively
practicable, the Committee shall furnish the Participant with
written notification informing him of his right to waive the death
benefit provided under Section 2.4(A)(3) above and the
consequences of such a waiver. Any Participant who has waived the
death benefit provided under Section 2.4(A)(3) may subsequently
revoke such waiver at any time prior to his Annuity Starting Date
by filing written notice of such revocation with the Committee
prior to the date on which such revocation is to become effective.
Any Participant who has waived the death benefit provided under
Section 2.4(A)(3) and who subsequently marries or remarries after
such waiver and prior to his Annuity Starting Date shall auto-
matically be deemed to have revoked his prior waiver of such death
benefit effective as of the first anniversary of the date of such
marriage or remarriage unless his spouse (following such marriage
or remarriage) consents to the waiver of such death benefit.
(5) Any Participant, who is entitled to a benefit under the provisions
of Section 2.4(A)(1) above and who is married on his Annuity
Starting Date or who is married on the date of his death and on
whose behalf a benefit is payable under Section 2.4(A)(3) above,
shall be assumed for the purposes of this Section 2.4(A) to have
been married for the total period of time beginning on the date of
termination of his service and ending on his Annuity Starting Date
or the date of his death, whichever is earlier, except for such
portions, if any, of such period of time for which evidence is
furnished to the Committee which, in the opinion of the Committee,
satisfactorily proves that the Participant was not married.
(6) In the event that the terminated Participant dies subsequent to
his Annuity Starting Date, the only benefit payable shall be that
provided by the form of payment elected by the Participant under
the provisions of Section 3.1
(7) The provisions of Sections 3.1 and 4 hereof are applicable to the
benefits provided under this Section 2.4(A).
(8) Except as specifically provided otherwise in any Supplement hereto
and except as provided in Section 2.3 with respect to disability
retirement and Section 2.4 with respect to death, and unless
specifically provided otherwise in the Plan, the Participant whose
service is terminated prior to his Initial Vesting Date shall not
be entitled to any benefit under the Plan whatever.
(B) Benefit Payable in Event of Death While in Service:
(1) If the service of a Participant is terminated by reason of his
death prior to his Required Beginning Date, there shall be payable
to the Participant's designated Beneficiary the monthly retirement
income, beginning on the first day of the month coincident with or
next following the date of the Participant's death, that can be
provided on an actuarially equivalent basis by an amount equal the
single-sum value, determined as of the date of his death, of the
Accrued Benefit that the Participant has accrued to the date of
his death.
(2) Except as provided in Section 2.4(B)(3) below and subject to the
provisions of Section 2.4(B)(4) below, the monthly retirement
income payments under this Section 2.4(B) shall be payable for the
life of the Beneficiary designated or selected under Section 5.2
hereof to receive such benefit, and, in the event of such
Beneficiary's death within a period of 10 years after the
Participant's death, the same monthly amount that was payable to
the Beneficiary shall be payable for the remainder of such 10-year
period in the manner and subject to the provisions of Section 5.3
hereof.
(3) A Participant may elect, or, in the event that a specific election
has not been made by the Participant and filed with the Committee
prior to his death, his designated Beneficiary may elect, in
writing filed with the Committee, that, in lieu of payment of the
benefit provided under this Section 2.4(B) (or, if applicable,
under Section 2.3(G) or 2.4(A)(3) hereof) in the manner described
above, the actuarial equivalent of such benefit will be paid in a
lump-sum.
Provided, however, that payment of any such benefit shall be
subject to the provisions of Section 2.4(B)(4) below.
(4) Any form of payment applicable to the death benefit provided under
this Section 2.4(B) (or, if applicable, under Section 2.3(G) or
2.4(A)(3) hereof), which has been designated by a Participant
prior to January 1, 1984 under the terms of the Superseded Plan
and which satisfies the transitional rule in Section 242(b)(2) of
the Tax Equity and Fiscal Responsibility Act of 1982 (P.L.
97-248), will continue in effect on and after the Effective Date
of the Plan with respect to the death benefits provided under this
Section 2.4(B) (or, if applicable, under Section 2.3(G) or
2.4(A)(3) hereof) unless such designated form of payment has been
or is subsequently revoked or changed (a change of Beneficiaries
under the designation will not be considered to be a revocation or
change of such form of payment so long as the change in Beneficia-
ries does not alter, directly or indirectly, the period over which
distributions are to be made under such form of payment);
provided, however, if a Participant, whose death occurs on or
after his Initial Vesting Date, had been married to his spouse
throughout the one-year period immediately preceding his death and
he had designated a person other than his spouse as his
Beneficiary and such spouse has not consented to such other person
being designated, the provisions of Section 4.1(D) hereof shall
apply with respect to payments due his surviving spouse, if any.
Subject to the preceding sentence and except to the extent
otherwise permissible under Section 401(a)(9) of the Code and
regulations issued pursuant thereto, the benefit payable under
this Section 2.4(B) (or, if applicable, under Section 2.3(G) or
2.4(A)(3) hereof) on behalf of any Participant must be payable in
a manner that satisfies the restrictions of Section 401(a)(9) of
the Code and must:
(a) commence not later than the Participant's Required Beginning
Date; provided, however, if the Beneficiary is not the
Participant's spouse, distribution must commence not later
than one year after the date of the Participant's death or,
if the Participant's surviving spouse was his Beneficiary and
such surviving spouse dies prior to the commencement of
benefit payments, distribution must commence not later than
one year after the date of such surviving spouse's death;
and
(b) such benefit must be distributed in its entirety to the
Beneficiary not later than the 5th anniversary of (i) the
Participant's death or (ii) the death of the Participant's
spouse, whichever death is later to occur, unless the
Beneficiary is an individual, or the Beneficiary is a trust,
a beneficiary of which can be taken into account under
Section 401(a)(9) of the Code.
In the event that the Beneficiary to receive the death benefit
payable under Section 2.3(G), 2.4(A)(3) or 2.4(B) hereof on behalf
of a Participant whose death occurs prior to his Normal Retirement
Date is his surviving spouse, the retirement income payable to
such surviving spouse under Section 2.3(G), 2.4(A)(3) or 2.4(B)
hereof shall be deferred and be payable on an actuarially
equivalent basis to such surviving spouse commencing on the
Participant's Normal Retirement Date, if such surviving spouse is
then living, unless (i) the surviving spouse consents or elects in
writing to receive such benefit commencing as of a date that is
prior to the Participant's Normal Retirement Date and is on or
after the date of the Participant's death, (ii) the date of death
of the Participant is prior to his Initial Vesting Date, (iii) the
Participant had not been married to his surviving spouse
throughout the one-year period immediately preceding his death or
(iv) a lump-sum payment is payable to his surviving spouse under
the provisions of Section 3.2 hereof.
(5) If the service of a Participant is terminated by reason of his
death on or after his Required Beginning Date, no benefit will be
payable to his Beneficiary under the provisions of this Section
2.4(B). Additional retirement income payments may be payable,
however, after the Participant's death to his joint pensioner or
other Beneficiary, depending upon the form of payment of the
retirement income that the Participant was receiving immediately
prior to his death and taking into account the increase, if any,
that would have applied under the provisions of Section 2.1(D)
hereof to the amount of retirement income payable to the
Participant commencing as of the first day of the month coincident
with or next following the date of the Participant's death if the
Participant had retired immediately prior to his death and had
survived to such day.
SECTION 3
SPECIAL PROVISIONS REGARDING PAYMENT OF BENEFITS
3.1 - OPTIONAL FORMS OF RETIREMENT INCOME
In lieu of the amount and form of retirement income commencing on the
Participant's Annuity Starting Date which is payable, subject to the
provisions of Section 4.1 hereof, in the event of his normal retirement,
early retirement, disability retirement or termination of service, as
determined and specified in Section 2.1, 2.2, 2.3 or 2.4(A) hereof, which-
ever is applicable, such Participant, upon written request to the Committee,
may elect to receive a retirement income or benefit of equivalent actuarial
value payable in accordance with one of the options described below
commencing on his Annuity Starting Date or commencing on such later date,
which shall not be later than his Required Beginning Date, as the
Participant may specify in his written request to the Committee.
Option 1: A retirement income of larger monthly amount that is payable
in equal monthly amounts to the Participant for his lifetime
with no survivor benefit.
Option 2: A retirement income of modified monthly amount that is pay-
able in equal monthly amounts to the Participant during the
joint lifetime of the Participant and a joint pensioner
designated by him, and, following the death of either of
them, 2/3 of such modified monthly amount will be payable to
the survivor for the lifetime of the survivor.
Option 3: If the Participant has a spouse on his Annuity Starting Date,
a retirement income of modified monthly amount that is pay-
able in equal monthly amounts to the Participant for his
lifetime, and, in the event that the Participant predeceases
that spouse 50% of such modified monthly amount will be
payable after the death of the Participant to such spouse for
the lifetime of the spouse. This option is also referred to
herein as the "Qualified Joint and 50% Survivor Annuity
Option".
Option 4: A lump-sum payment, but such payment shall be available only
within 90 days following the date of the Participant's
termination of employment.
The amount of retirement income determined under any of the above
optional forms of payment must satisfy the permitted disparity requirements
of Sections 401(a)(4) and 401(l) of the Code and rulings and regulations
issued with respect thereto, and, any provisions hereof to the contrary
notwithstanding, any optional form of payment which would otherwise be
permitted under the provisions of this Section 3.1 shall not be available to
a Participant if the amount of retirement income payable under such option
would result in the amount of retirement income payable on behalf of such
Participant under the Plan being increased by a percentage that would cause
the disparity in the rate of employer-derived benefits under the Plan to
exceed the maximum disparity permitted under Sections 401(a)(4) and 401(l)
of the Code and rulings and regulations issued with respect thereto.
Any optional form of payment designated by a Participant prior to
January 1, 1984, which satisfies the transitional rule in Section 242(b)(2)
of the Tax Equity and Fiscal Responsibility Act of 1982 (P.L. 97-248), will
continue in effect on and after the Effective Date of the Plan unless such
optional form of payment has been or is subsequently revoked or changed (a
change of Beneficiaries under the designation will not be considered to be a
revocation or change of such optional form of payment so long as the change
in Beneficiaries does not alter, directly or indirectly, the period over
which distributions are to be made under such form of payment); provided,
however, that the provisions of Section 4.1(C) hereof shall apply if the
Participant has a spouse at the date on which his initial payment under such
optional form is due and his spouse does not consent to such optional form
of payment. Subject to the preceding sentence but notwithstanding any other
provision of this Section 3.1 to the contrary, any option elected under this
Section 3.1 must provide that the entire interest of the Participant will be
expected to be distributed to the Participant and his Beneficiaries and
joint pensioners, in a manner that satisfies the restrictions of Section
401(a)(9) of the Code, over one or a combination of the following periods:
(1) the life of the Participant;
(2) the lives of the Participant and his designated Beneficiary or
joint pensioner;
(3) a period certain not extending beyond the life expectancy of the
Participant;
or
(4) a period certain not extending beyond the joint life and last
survivor expectancy of the Participant and his designated
Beneficiary or joint pensioner.
Any amount that is payable to the child of a Participant under an
optional form of payment hereunder shall be treated for the purposes of
satisfying the requirements of this paragraph as if it had been payable to
the surviving spouse of the Participant if such amount that is payable to
the child will become payable to such surviving spouse upon such child's
reaching majority (or upon the occurrence of such other designated event
permitted under regulations issued with respect to Section 401(a)(9) of the
Code).
If a Participant's retirement income benefits have commenced in either
the form and amount specified in Section 2 hereof or under an optional form
elected under the provisions of this Section 3.1, upon his written request
to the Committee at least 30 but not more than 90 days prior to the
effective date thereof, he may elect to discontinue receiving his retirement
income under such form and amount of payment and, in lieu thereof, to
receive a retirement income or benefit of equivalent actuarial value that is
payable to him in accordance with one of the options provided above;
provided, however, that only one such change may be made by any Participant
after his retirement income payments have commenced; and provided further,
however, that a change after the Annuity Starting Date will not be permitted
if the retirement income or benefit payments are being made under the terms
of an annuity contract purchased on behalf of the Participant from an insur-
ance company. A Participant who elects to change his form of payment after
his Annuity Starting Date must submit to the Committee such evidence of his
good health as the Committee requires and, if the Participant is receiving
payments in a form in which a joint pensioner is involved, such evidence of
the good health of his joint pensioner as the Committee requires; and any
such change will not be permitted if, in the opinion of the Committee, such
Participant or, if applicable, such joint pensioner is not in good health.
The consent of the Participant's spouse (which shall include, if applicable,
his former spouse to whom he was married on his Annuity Starting Date), if
any, shall be required before any such change in a form of payment that
involves such spouse may become effective, including any change that
represents a change in a form of payment that was previously consented to by
such spouse unless, to the extent permitted by law, the previous consent
acknowledged that the Participant may change the form of payment without the
further consent of said spouse.
The Participant upon electing any option of this section will designate
the joint pensioner or Beneficiary to receive the benefit, if any, payable
under the Plan in the event of his death and will have the power to change
such designation from time to time, subject to the provisions of this
section. Any such designation will name a joint pensioner or one or more
primary Beneficiaries where applicable. If a Participant is receiving
payments under a form in which a joint pensioner or Beneficiary is involved,
he may change his designated joint pensioner or Beneficiary after his
retirement income payments have commenced but, in the case where the
designation to be changed is one involving a joint pensioner, only if the
joint pensioner last previously designated by him is alive when he files
with the Committee his request for such change. Any such change in joint
pensioners will be considered and treated under the Plan in the same manner
as a change in the form of payment. The consent of the Participant's spouse
(which shall include, if applicable, his former spouse to whom he was
married on his Annuity Starting Date), if any, shall be required before any
such change in Beneficiary or joint pensioner under an option in which such
spouse is not the primary Beneficiary or joint pensioner may become
effective, unless, to the extent permitted by law, such spouse has
previously consented to and acknowledged that the Participant may change
Beneficiaries or joint pensioners without the further consent of said
spouse. A Participant who wants to change his joint pensioner after his
retirement income payments have started must submit to the Committee such
evidence of the good health of any joint pensioner that is being removed as
the Committee requires, and any such change shall be denied if, in the
opinion of the Committee, such joint pensioner is not in good health. The
amount of retirement income payable to the Participant upon the designation
of a new joint pensioner shall be actuarially redetermined, taking into
account the age of the former joint pensioner, the new joint pensioner and
the Participant. Each such designation will be made in writing on a form
prepared by the Committee. In the event that no designated Beneficiary sur-
vives the Participant, such benefits as are payable in the event of the
death of the Participant subsequent to his retirement shall be paid as
provided in Section 5.2 hereof.
Retirement income payments will be made under the option elected in
accordance with the provisions of this section and will be subject to the
following limitations:
(1) If a Participant's service is terminated by reason of his death
prior to his Annuity Starting Date, no benefit will be payable
under the option to any person, but a benefit may be payable on
his behalf in accordance with the provisions of Section 2.4(B)
hereof.
(2) If a terminated Participant dies after the date of termination of
his service and prior to his Annuity Starting Date, no benefit
will be payable under the option to any person, but a benefit may
be payable on his behalf under the provisions of Section 2.4(A)(3)
hereof.
(3) In the case of a Participant who is married and who elects an
option under which the commencement of payment of his retirement
income is deferred beyond his Annuity Starting Date, the option
elected by such Participant must provide that a monthly lifetime
income equal to or greater than a qualified preretirement survivor
annuity (within the meaning of Section 417(c) of the Code) will be
payable to his surviving spouse in the event of his death after
such Annuity Starting Date and prior to his elected Annuity
Starting Date unless his spouse consents to the option not
providing such an income.
(4) If the designated Beneficiary or joint pensioner dies before the
Participant's Annuity Starting Date, the option elected will be
canceled automatically and the retirement income payable to the
Participant will be paid in the applicable form described in
Section 2 hereof unless a new election is made in accordance with
the provisions of this section or unless a new Beneficiary or
joint pensioner is designated by the Participant prior to the date
that his retirement income commences under the Plan.
(5) If the Participant and, if applicable, his joint pensioner and his
designated Beneficiary all die after the Participant's Annuity
Starting Date but before the full payment has been effected under
any option providing for payments for a period certain and if the
commuted value of the remaining payments is equal to or less than
the maximum amount that is permissible as an involuntary cashout
of accrued benefits under Sections 411(a)(11) and 417(e) of the
Code and regulations issued with respect thereto, the commuted
value of the remaining payments shall, subject to the provisions
of Section 3.2 hereof, be paid in a lump sum in accordance with
the provisions of Section 5.3 hereof.
(6) If the Participant dies after his Annuity Starting Date, payment
of his remaining interest, if any, shall be distributed, to the
extent required by Section 401(a)(9) of the Code and regulations
issued with respect thereto, at least as rapidly as provided under
the method of payment in effect prior to his death.
3.2 - LUMP-SUM PAYMENT OF SMALL RETIREMENT INCOME
Notwithstanding any provision of the Plan to the contrary, if the
single-sum value of the retirement income or other benefit payable to any
person entitled to any benefit hereunder is equal to or less than the
maximum amount that is permissible as an involuntary cash-out of accrued
benefits under Sections 411(a)(11) and 417(e) of the Code and regulations
issued with respect thereto ($3,500 as of July 1, 1989), the actuarial
equivalent of such retirement income or other benefit shall, subject to the
provisions below, be paid in a lump sum. For the purposes of the Plan, a
payment shall not be considered to occur after the Annuity Starting Date
merely because actual payment is reasonably delayed for calculation of the
benefit amount if all payments due are actually made.
If the present value of the vested accrued benefit that is payable on
behalf of any Participant whose service is terminated (either before, on or
after the Effective Date of the Plan) is zero, the Participant shall be
deemed to have received a distribution of his vested accrued benefit as of
the date of termination of his service.
3.3 - BENEFITS APPLICABLE TO PARTICIPANT WHO HAS
BEEN OR IS EMPLOYED BY TWO OR MORE EMPLOYERS:
In the event that a Participant's service is terminated for any reason
and such Participant has been or is employed by any two or more Employers,
his retirement or termination benefit, if any, shall be computed by applying
the benefit formulas as if all the Employers were a single Employer;
provided, however, if the Plan does not represent a single plan with respect
to all such Employers, there must be a proper allocation (taking into
account the Credited Service and Compensation applicable to each Employer or
group of Employers with respect to which the Plan represents a single plan)
of the costs of the resulting benefits among the Employers (with respect to
which the Plan does not represent a single plan) by which such Participant
has been or is employed.
3.4 - NO DUPLICATION OF BENEFITS
Unless the context clearly provides otherwise, there shall be no dupli-
cation of benefits under the Plan or under any Supplement hereto, and the
benefits payable under any section of the Plan to or on behalf of a Partici-
pant shall be inclusive of the benefits, if any, concurrently payable to or
on behalf of the same Participant under all other sections of the Plan and
under any Supplement hereto.
3.5 - FUNDING OF BENEFITS THROUGH PURCHASE OF
LIFE INSURANCE CONTRACT OR CONTRACTS:
In lieu of paying benefits from the Trust Fund to a Participant or his
Beneficiary, upon direction of the Committee with specific prior
authorization in writing from the Employer, the Trustee shall enter into a
contract or contracts, or an agreement or agreements, with one or more legal
reserve life insurance companies for the purchase, with funds in the Trust,
of a retirement annuity or other form of life insurance contract which, as
far as possible, provides benefits equal to (or actuarially equivalent to)
those provided in the Plan for such Participant or Beneficiary, but provides
no optional form of retirement income or benefit which would not be
permitted under Section 3.1 hereof, whereupon such contract shall thereafter
govern the payment of the amount of benefit, if any, represented by such
contract, which is payable under the Plan upon the Participant's retirement
or termination of service, and the liability of the Trust Fund and of the
Plan will cease and terminate with respect to such benefits that are
purchased and for which the premiums are duly paid.
Any policy or contract issued under this section shall be subject to the
provisions hereof pertaining to the Qualified Joint and 50% Survivor Annuity
Option and to the Qualified Preretirement Survivor Annuity.
In the event of any conflict between the terms of this plan and the
terms of any policy or contract issued hereunder the plan provisions shall
control.
Any payments by the insurer on account of credits such as dividends,
experience rating credits, or surrender or cancellation credits shall be
applied, within the taxable year of the Employer in which received or within
the next succeeding taxable year, toward the next premiums due before any
further employer contributions are so applied.
Any policy or contract issued under this section prior to the termi-
nation of the Plan or prior to the distribution of the policy or contract to
a Participant or Beneficiary hereunder shall provide that the Trustee shall
retain all rights of ownership at all times except the right, unless such
policy or contract provides otherwise, to designate the Beneficiary to
receive any benefits payable upon the death of the Participant and shall
further provide that all dividends or experience rating credits shall be
paid to the Trustee and applied to reduce future Employer contributions to
the Plan.
Any annuity contract distributed by the Trustee to a Participant or
Beneficiary hereunder shall contain a provision to the effect that the con-
tract may not be sold, assigned, discounted or pledged as collateral for a
loan or as security for the performance of an obligation or for any other
purpose, to any person other than the issuer thereof.
SECTION 4
GOVERNMENTAL REQUIREMENTS AFFECTING BENEFITS
4.1 - SPECIAL PROVISIONS REGARDING AMOUNT
AND PAYMENT OF RETIREMENT INCOME
The amount and payment of retirement income determined under Sections
2.1, 2.2, 2.3 and 2.4 hereof shall be subjected to the following provisions
of this Section 4.1.
(A) Limitations Imposed by Section 415 of Code:
(1) Maximum Amount of Retirement Income: Any provisions herein to the
contrary notwithstanding, in no event shall the monthly retirement
income that is payable on or after the first day of the limitation
year beginning in 1987 to a Participant hereunder exceed the
maximum amount of retirement income for defined benefit plans as
specified in Section 415 of the Code and regulations and rulings
issued pursuant thereto; provided, however, that:
(a) the maximum amount of retirement income applicable to a
Participant who was a participant in the Superseded Plan, if
any, before the limitation year beginning in 1983 and whose
Credited Service includes service that was accrued prior to
such limitation year, shall not be less than his current
accrued benefit within the meaning of Section 235(g)(4) of
the Tax Equity and Fiscal Responsibility Act of 1982;
and
(b) such maximum amount of retirement income applicable to a
Participant who was a participant in the Superseded Plan, if
any, before the limitation year beginning in 1987 and whose
Credited Service includes service that was accrued prior to
such limitation year, shall not be less than his current
accrued benefit within the meaning of Section 1106(i)(3)(B)
of the Tax Reform Act of 1986;
and provided further, however, in the event that the sum of the
defined benefit plan fraction and defined contribution plan
fraction of a Participant, who is a participant in both a defined
benefit plan and a defined contribution plan maintained by any
Controlled Group Members, would exceed 1.0, the monthly retirement
income payable on his behalf under the defined benefit plans shall
be reduced to the amount that will result in such sum being equal
to 1.0. In determining the maximum monthly retirement income
payable on behalf of any Participant, all defined benefit plans
(whether or not terminated) of the Controlled Group Members are to
be treated as one defined benefit plan; and all defined
contribution plans (whether or not terminated) of the Controlled
Group Members are to be treated as one defined contribution plan.
The proportion of the maximum monthly retirement income applicable
to all such defined benefit plans of the Controlled Group Members
shall be determined on a pro rata basis depending upon the
actuarially equivalent amount of retirement income otherwise
accrued under each such defined benefit plan.
(2) Actuarial Assumptions: The mortality and interest assumptions
that are used to compute the actuarially equivalent maximum
amounts of retirement income permitted under the provisions of
this Section 4.1(A) shall be the same as those that are used in
computing actuarially equivalent benefits payable on behalf of a
Participant upon his retirement or termination of service and upon
the exercise of optional forms of retirement income under the Plan
except that:
(a) the interest rate assumption shall not be less than 5% for
the purposes of converting the maximum retirement income to a
form other than a straight life annuity (with no ancillary
benefits);
(b) the interest rate assumption shall not be greater than 5% for
the purposes of adjusting the maximum retirement income
payable to a Participant who is over the social security
retirement age within the meaning of Section 415(b)(8) of the
Code (or age 65 in the case of a governmental plan or a plan
maintained by a tax exempt organization) so that it is
actuarially equivalent to such a retirement income commencing
at the social security retirement age (or age 65 in the case
of a governmental plan or a plan maintained by a tax exempt
organization); and
(c) the factor for adjusting the maximum permissible retirement
income to a Participant who is less than age 62 years so that
it is actuarially equivalent to such a retirement income
commencing at age 62 years shall be equal to (i) the factor
for determining actuarial equivalence for early retirement
under the Plan or (ii) an actuarially computed reduction
factor determined using an interest rate assumption of 5% and
the UP-1984 Mortality Table (except that the mortality
decrement shall be ignored if a death benefit at least equal
to the single-sum value of the Participant's Accrued Benefit
would be payable under the Plan on behalf of the Participant
if he remained in the service of the Employer and his service
were to be terminated by reason of his death prior to his
Normal Retirement Date), whichever factor will provide the
greater reduction. The factor for determining actuarial
equivalence for early retirement under the Plan for any given
age below age 62 years shall be determined by dividing (aa)
the product of the early retirement adjustment factor that
applies under the Plan at such given age multiplied by a
factor that will convert, if applicable, the amount of
retirement income payable in the manner described in Section
2.2(C) hereof commencing at such given age to an actuarially
equivalent amount of retirement income payable as straight
life annuity commencing at such given age by (bb) the product
of the early retirement adjustment factor that applies under
the Plan at age 62 years multiplied by a factor that will
convert, if applicable, the amount of retirement income
payable in the manner described in Section 2.2 hereof
commencing at age 62 years to an actuarially equivalent
amount of retirement income payable as a straight life
annuity commencing at age 62 years (where such actuarial
conversion factors used in (aa) and (bb) above shall be
determined in accordance with the provisions of this Section
4.1(A)).
(3) Cost-of-Living Adjustments: In the event that the maximum amount
of retirement income permitted under Section 415 of the Code is
increased after the date of commencement of a Participant's
retirement income and prior to the date of termination of the Plan
due to any cost-of-living adjustment announced by the Internal
Revenue Service pursuant to the provisions of Section 415(d) of
the Code, the amount of monthly retirement income payable under
the Plan to a Participant whose retirement income is restricted
due to the provisions of such section of the Code shall be
increased, effective as of January 1st of the calendar year for
which such increase becomes effective or, if applicable, as of
such other date as the Secretary of the Treasury or his delegate
may prescribe as the date on which such increase shall become
effective, to reflect the increase in the amount of retirement
income that may be payable under the Plan as a result of such
cost-of-living adjustment; provided, however, if the Employer
maintains an "excess benefit plan" (within the meaning of Section
3(36) of the Employee Retirement Income Security Act of 1974) for
the purpose of providing benefits for certain Participants in
excess of the limitations on contributions and benefits imposed by
Section 415 of the Code and if the Participant or his Beneficiary
receives or has received a benefit or benefits under such excess
benefit plan and a portion of such benefit or benefits would be
duplicated by the cost-of-living adjustment provided under this
paragraph, then such cost-of-living adjustment that would
represent a duplication of benefits shall not apply to the
Participant or Beneficiary unless the value of the benefit payable
from the excess benefit plan that would cause such duplication of
benefits under this Plan is returned to the Employer by the
Participant or Beneficiary within 60 days of the effective date of
such cost-of-living adjustment or the date that such
cost-of-living adjustment is announced by the Internal Revenue
Service, whichever date is later; and provided further, however,
that such 60-day period may be extended by the Committee if, in
its opinion, reasonable cause exists for such an extension.
(4) IRC Section 415 Definitions: Following are certain terms that are
used herein for the purposes of the limitations under Section 415
of the Code and that shall have the meanings assigned to them in
Section 415 of said Code and regulations and rulings issued with
respect thereto:
(a) The term "defined benefit plan" shall have the meaning
assigned in Section 414(j) of the Code.
(b) The term "defined benefit plan fraction" is the fraction in
which the numerator is the Participant's projected annual
benefit (determined as of the end of the limitation year)
under all defined benefit plans of the Controlled Group
Members and the denominator is the lesser of (i) 1.25
multiplied by the dollar limitation in effect under Section
415(b)(1)(A) of the Code (as modified by the provisions of
Section 415(d) of said Code) for such limitation year or (ii)
1.4 multiplied by the amount that may be taken into account
under Section 415(b)(1)(B) of the Code for such limitation
year.
(c) The term "defined contribution plan" shall have the meaning
assigned in Section 414(i) of the Code.
(d) The term "defined contribution plan fraction" is, subject to
any transition adjustments allowed by law and adopted by the
Committee, the fraction in which the numerator is the sum of
the actual annual additions (where such annual additions
shall have the meaning assigned in Section 415(c) of the Code
and regulations and rulings issued with respect thereto) to
the Participant's accounts in such limitation year and for
all prior limitation years under all defined contribution
plans of the Controlled Group Members and the denominator is
the sum of the lesser of the following amounts determined for
each limitation year during such Participant's employment
(assuming for this purpose that Sections 415(c) and 415(d) of
the Code had been in effect during all prior limitation years
of such Participant's employment): (i) 1.25 multiplied by
the dollar limitation in effect under Section 415(c) of the
Code (as modified by the provisions of Section 415(d) of said
Code) for the applicable limitation year and (ii) 1.4
multiplied by 25% of the Participant's IRC 415 Compensation
for the applicable limitation year.
(e) The term "IRC 415 Compensation" shall include (i) wages,
salaries, fees for professional services, and other amounts
received (without regard to whether or not an amount is paid
in cash) for personal services actually rendered in the
course of employment with the Employer to the extent that the
amounts are includable in gross income (including, but not
limited to, commissions paid salesmen, compensation for
services on the basis of a percentage of profits, commissions
on insurance premiums, tips, bonuses, fringe benefits,
reimbursements and expense allowances), (ii) earned income
(as described in Section 401(c)(2) of the Code and the
regulations thereunder), (iii) amounts described in Sections
104(a)(3), 105(a) and 105(h) of the Code, but only to the
extent that these amounts are includable in the gross income
of the Participant, (iv) amounts paid or reimbursed by the
Employer for moving expenses incurred by the Participant, but
only to the extent that these amounts are not deductible by
the Participant under Section 217 of the Code, (v) the value
of a non-qualified stock option granted to the Participant by
the Employer, but only to the extent that the value of the
stock option is includable in the gross income of the
Participant for the taxable year in which granted, (vi) the
amount includable in the gross income of the Participant upon
making the election described in Section 83(b) of the Code
and (vii) any amounts received by the Participant pursuant to
an unfunded non-qualified plan in the year such amounts are
includable in the gross income of the Participant. The
amounts described in (i) and (ii) above shall include foreign
earned income as defined in Section 911(b) of the Code,
whether or not excludable from gross income under Section 911
of said Code. Such compensation shall exclude (1)
contributions by the Employer to a plan of deferred
compensation which are not included in the Participant's
gross income for the taxable year in which contributed, (2)
contributions by the Employer under a simplified employee
pension plan to the extent such contributions are deductible
by the Participant, (3) any distribution from a plan of
deferred compensation, (4) amounts realized from the exercise
of a non-qualified stock option, (5) amounts realized when
restricted stock (or property) held by the Participant either
becomes freely transferable or is no longer subject to a
substantial risk of forfeiture, (6) amounts realized from the
sale, exchange or other disposition of stock acquired under a
qualified stock option, (7) other amounts which received
special tax benefits and (8) contributions made by the
Employer (whether or not under a salary reduction agreement)
towards the purchase of an annuity described in Section
403(b) of the Code (whether or not the amounts are actually
excludable from the gross income of the Participant).
(f) The term "limitation year" is the 12-month period which is
used for application of the limitations under Section 415 of
the Code and, unless a different 12-month period has been
elected by the Employer in accordance with rules or
regulations issued by the Internal Revenue Service or the
Department of Labor, shall be the calendar year.
(B) Minimum Benefits on Normal or Early Retirement: Any provisions of
Section 2.1 or 2.2 hereof to the contrary notwithstanding, in the event of
the normal retirement or early retirement of a Participant in accordance
with the provisions of Section 2.1 or 2.2 hereof, his monthly retirement
income determined in accordance with the provisions of Section 2.1(B) or
2.2(B) hereof, whichever is applicable, shall not be less than the monthly
retirement income, if any, determined in accordance with the provisions of
Section 2.1(B) or 2.2(B) hereof that such Participant would have received as
of any earlier date of retirement if he had retired under the provisions of
Section 2.1 or 2.2 at any time prior to his actual date of retirement.
(C) Requirement With Respect to Form of Payment: The Committee shall
provide each Participant, during the period beginning 90 days before his
Annuity Starting Date and ending 30 days before his Annuity Starting Date
(or as soon after the expiration of such period as is administratively
practicable), written notification of the terms and conditions of payment
that is provided under Section 2.1(C), 2.2(C), 2.3(F) or 2.4(A) hereof,
whichever is applicable, commencing as of his Annuity Starting Date, and, if
the Participant is married, the terms and conditions of payment that is
provided under the Qualified Joint and 50% Survivor Annuity Option
commencing as of such date and the relative financial effect on the
Participant's retirement income under such forms of payment. Any provisions
of Section 2.1, 2.2, 2.3, 2.4(A) or 3.1 hereof to the contrary
notwithstanding, if a Participant does not elect, in writing filed with the
Committee during the election period described below, to receive the
retirement income payable on his behalf on and after his Annuity Starting
Date either (i) under the form of payment that is specified in Section
2.1(C), 2.2(C), 2.3(F) or 2.4(A)(2), whichever is applicable, or (ii) under
an optional form of payment described in and subject to the provisions of
Section 3.1 hereof, such Participant shall be deemed to have elected, and
the retirement income payable on and after his Annuity Starting Date shall
automatically be paid in accordance with the provisions of, either:
(1) if he does not have a spouse at his Annuity Starting Date, the
form of payment that is specified in Section 2.1(C), 2.2(C),
2.3(F) or 2.4(A)(2), whichever is applicable; or
(2) if he has a spouse at his Annuity Starting Date, the Qualified
Joint and 50% Survivor Annuity Option; provided, however, if
payment to the Participant in the form of a Qualified Joint and
50% Survivor Annuity would result in the amount of retirement
income payable on behalf of such Participant being increased by a
percentage that would cause the disparity in the rate of his
employer-derived benefits under the Plan to exceed the maximum
disparity permitted under Section 401(l) of the Code and rulings
and regulations issued with respect thereto, the Qualified Joint
and Survivor Annuity of such Participant shall be changed to an
actuarially equivalent Qualified Joint and Survivor Annuity that
provides payments in equal monthly amounts to the Participant for
his lifetime and in the event that he predeceases his spouse, the
percentage of the monthly retirement income payable to such
surviving spouse for life shall be increased (in increments of 5%)
until the permitted disparity provided under Section 401(l) of the
Code is satisfied or until reaching a maximum of 100%, and, if a
joint and 100% survivor annuity will not satisfy the permitted
disparity requirements of said Section 401(l), a period certain
for which payments will be made shall be added to the joint and
100% survivor annuity (in increments of one year) until such
permitted disparity requirements are satisfied.
Any Participant may make an election under this section at any time (and
any number of times) prior to the commencement of his retirement income or
other benefit payments and during the period beginning on the date which is
90 days prior to his Annuity Starting Date and ending on the latest to occur
of (i) his Annuity Starting Date, (ii) the date which is 90 days after the
date on which he was provided with the general written explanation described
above or (iii) the date which is 90 days after the date on which he was
provided with any specific detailed information concerning the payment of
his retirement income that is required to be furnished due to the request of
the Participant. If any such Participant does not file his election with
the Committee prior to the expiration of the election period described
above, the commencement of his retirement income will be delayed until the
end of such election period or until such earlier date as of which he files
his election with the Committee, but he will be entitled to a retroactive
payment with respect to those retirement income payments which were delayed.
If any Participant has elected a form of payment other than the automatic
form provided above and his retirement income or other benefit payments have
not commenced, he may subsequently revoke such election, in writing filed
with the Committee within the election period described above, in order to
receive his retirement income payable in accordance with the automatic form
provided above. Any provisions of Section 3.1 hereof to the contrary
notwithstanding, if any Participant is not provided with the written
notification described in the first sentence of this section at least 30
days before his Annuity Starting Date but he files his election with the
Committee, and his retirement income or other benefit commences, prior to
the date which is 30 days after the date on which he was provided with such
written notification, he may subsequently, in writing filed with the
Committee prior to the expiration of such 30-day period, revoke such
election and elect to receive his retirement income payable under any other
form of payment that was available to him on his Annuity Starting Date;
provided, however, in order for such revocation and new election to become
effective, he shall be required to return to the Trust Fund, prior to the
expiration of such 30-day period, the portion, if any, of the payments that
he has received that is in excess of the payments due under his newly
elected form of payment, or, at the option of the Participant, future
payments due under such newly elected form of payment may be reduced, over a
period not to exceed 12 months (or such longer period as is required to
recover such excess if the Participant's payments are reduced to zero),
until such excess has been recovered. Any provisions herein to the contrary
notwithstanding, the consent of the Participant's spouse during the
applicable election period shall be required in order for the Participant to
receive his retirement income in a form other than that provided under a
Qualified Joint and Survivor Annuity.
(D) Qualified Preretirement Survivor Annuity: If a deceased Partici-
pant, whose death occurs on or after his Initial Vesting Date and prior to
his Annuity Starting Date had been married to his spouse throughout the
one-year period immediately preceding his death and he had designated a
person other than his spouse as his Beneficiary and such spouse has not
consented to such other person being designated as the Beneficiary, the
Participant shall be deemed to have:
(1) revoked his prior designation of Beneficiary;
(2) designated such spouse as his Beneficiary to receive a portion of
the death benefit payable on his behalf under Section 2.3(G),
2.4(A)(3) or 2.4(B), whichever is applicable;
(3) specified that the portion of the benefit provided under Section
2.3(G), 2.4(A)(3) or 2.4(B) that is payable to his surviving
spouse will be payable as an actuarially equivalent monthly income
payable on the first day of each month with the first payment
being due (only if said spouse is then living) on the
Participant's Normal Retirement Date or the first day of the month
coincident with or next following the date of the Participant's
death, whichever is later, and with the last payment being the
payment due immediately preceding such spouse's death;
(4) specified that the portion of the benefit provided under Section
2.3(G), 2.4(A)(3) or 2.4(B) that is payable to the surviving
spouse shall have an actuarially equivalent single-sum value,
determined as of the date of his death, equal to the single-sum
value, determined as of the date of his death, of the monthly
retirement income that would be payable to his surviving spouse,
commencing on the Participant's Earliest Annuity Commencement
Date, under the Qualified Joint and 50% Survivor Annuity Option
if:
(a) the Participant's service terminated by reason of his death
on or after his Earliest Annuity Commencement Date:
(i) the Participant had retired on the day immediately
preceding the date of his death;
(ii) the Participant had elected the Qualified Joint and 50%
Survivor Annuity; and
(iii) the Participant had died immediately after such
commencement of payments (one-half of the initial
payment which would have been due the Participant shall
be included in the determination of such single-sum
value).
(b) the Participant's service terminated by reason of his death
prior to his Earliest Annuity Commencement Date:
(i) the Participant's service had been terminated for a
reason other than his disability retirement or death on
the earlier of the date of his actual separation from
service or the date of his death;
(ii) the Participant had (for the purpose of determining the
amount of such monthly retirement income commencing at
his Earliest Annuity Commencement Date) waived the death
benefit coverage under Section 2.4(A)(3), if applicable,
during the period beginning on the date of his death and
ending on his Earliest Annuity Commencement Date;
(iii) the Participant had elected the Qualified Joint and 50%
Survivor Annuity; and
(iv) the Participant had died immediately after such
commencement of payments (one-half of the initial
payment which would have been due the Participant on his
earliest Annuity Commencement Date shall be included in
the determination of such single-sum value).
(5) designated such other person (or persons) that was named as his
Beneficiary under such revoked designation as the Beneficiary to
receive the remaining portion of such benefit payable on his
behalf under and in accordance with the provisions of Section
2.3(G), 2.4(A)(3) or 2.4(B) hereof.
In lieu of the payment of such benefit to the surviving spouse of a
Participant in the form of monthly income described in Section 4.1(D)(3)
above commencing at the Participant's Normal Retirement Date, such benefit
may be paid on an actuarially equivalent basis to the Participant's spouse
in such other manner and form permitted under Section 2.4(B) hereof and
commencing on such other date permitted under Section 2.4(B) hereof as the
surviving spouse may elect in writing filed with the Committee. For the
purposes of Sections 4.1(D)(3) and 4.1(D)(4) above, the Earliest Annuity
Commencement Date of a deceased disabled Participant on whose behalf a death
benefit is payable under Section 2.3(G) hereof and the monthly retirement
income that would be payable to his surviving spouse, commencing on his
Earliest Annuity Commencement Date, under the Qualified Joint and 50%
Survivor Annuity Option, shall be determined as though such Participant had
recovered from his total and permanent disability and had reentered the
service of the Employer immediately prior to his death.
If a deceased Participant, whose death occurs on or after his Initial
Vesting Date and prior to his Annuity Starting Date, had been married to his
spouse throughout the one-year period immediately preceding his death and he
had designated a person other than his spouse as his Beneficiary and such
spouse has consented prior to the Participant's attainment of the age of 35
years to such other person being designated as the Beneficiary but has not
consented to such designation on or after either the Participant's
attainment of such age or his separation from service, unless it is
otherwise permissible under the provisions of Section 417 (or any other
applicable section) of the Code or regulations or rulings issued pursuant
thereto for such a spouse to elect to waive his or her right to the
qualified preretirement survivor annuity, such consent of such spouse shall
be invalid and the benefit payable on behalf of such Participant shall be
determined and payable in the manner described above as though the
Participant's spouse had not consented to such other person being designated
as the Beneficiary of the Participant.
The Committee shall provide each Employee, who is a Participant in the
Plan, within the one-year period immediately following the date on which he
attains the age of 32 years or on which he becomes a Participant in the
Plan, whichever is later, or, if his service is terminated on or after his
Initial Vesting Date and prior to his attaining the age of 32 years, the
date of termination of his service, or as soon thereafter as is
administratively practicable, with written notification of (i) the terms and
conditions upon which the Qualified Preretirement Survivor Annuity described
above will be payable to his surviving spouse, (ii) the Participant's right
to designate at any time prior to his death a person other than his spouse
as his Beneficiary and the effect that such a designation will have on the
Qualified Preretirement Survivor Annuity, (iii) the rights of the
Participant's spouse in the event that the spouse does not consent to such
designation and (iv) the right of the Participant to change his Beneficiary
designation in accordance with the provisions of Section 5.2 hereof at any
time prior to his death and the effect that such a change will have upon the
Qualified Preretirement Survivor Annuity.
If the Beneficiary of a Participant is his spouse but the Participant
elects, pursuant to the provisions of Section 2.4(A)(3) or 2.4(B) hereof,
whichever is applicable, an actuarially equivalent form of payment of the
benefit provided under such applicable section that does not provide for
monthly payments during the lifetime of his spouse in an amount at least as
great as the actuarially equivalent income, if any, that would have been
payable to such spouse under the provisions of the Qualified Joint and 50%
Survivor Annuity Option if the Participant had retired under the provisions
of Section 2.1 or 2.2 hereof or his retirement income payments due under
Section 2.4(A) hereof had commenced, whichever is applicable, on the day
before his death while said option was in effect and he had died immediately
thereafter, the Committee shall inform such Participant that such election
will constitute an election not to receive a benefit which has the effect of
a Qualified Preretirement Survivor Annuity provided under a qualified joint
and survivor annuity as described in Section 417 of the Code, and the con-
sent of the Participant's spouse shall be required in order for such an
election to become effective.
There shall be no duplication between the benefits provided under
Sections 2.3(G), 2.4(A)(3) and 2.4(B) and under the Qualified Preretirement
Survivor Annuity described in this Section 4.1(D), but the benefits under
each shall be inclusive of the benefits under the other.
(E) Spousal Consent Requirement and Waiver: Any provisions herein to
the contrary notwithstanding, if the consent of the spouse of the
Participant is required for any reason under the provisions hereof, such
consent in order to be effective must be in writing and witnessed by a Plan
representative or a notary public. In the event that such consent is with
respect to the election of a form of payment other than a Qualified Joint
and Survivor Annuity or the designation of a person other than the spouse as
the Participant's Beneficiary, such consent must acknowledge the specific
form of payment that has been elected or the person who has been designated
as Beneficiary, as the case may be, and must acknowledge the effect of such
consent. Any of the above to the contrary notwithstanding, such spousal
consent for any reason hereunder shall, unless otherwise required by the
Committee or by applicable law, be waived for the purposes of the Plan if:
(1) the spouse has previously consented to such specified action in
accordance with the provisions above and such previous consent (a)
permits changes with respect to such specified action without any
requirement of further consent by such spouse and (b) acknowledges
the effect of such consent by the spouse;
or
(2) it is established to the satisfaction of the Committee that such
consent may not be obtained because there is no spouse, because
the spouse cannot be located or because of such other
circumstances as the Secretary of the Treasury or his delegate may
prescribe by regulations as reasons for waiving the spousal
consent requirement.
(F) Latest Date of Commencement of Payments: Except to the extent
otherwise permissible under rules or regulations issued by the Internal
Revenue Service, distribution of the accrued benefit to which a Participant
has a nonforfeitable interest must commence on a date not later than the
earlier to occur of:
(1) his Required Beginning Date, regardless of whether or not his
service has been terminated;
or
(2) the later of:
(a) the date that is no later than the 60th day after the close
of the Plan Year during which (i) his service is terminated
for any reason, (ii) he attains the age of 65 years or (iii)
the tenth anniversary of the date on which he initially
commenced participation in the Plan or Superseded Plan,
whichever is latest, occurs; or
(b) the date that the Participant elects in accordance with the
provisions of Section 3.1 hereof as the date of commencement
of his retirement income;
provided, however, if an election of a form of payment has been made by a
Participant prior to January 1, 1984 that provides for the commencement of
his benefit at a date later than the date applicable under (1) or (2) above
and such election both (i) satisfies the transitional rule in Section
242(b)(2) of the Tax Equity and Fiscal Responsibility Act of 1982 (P.L.
97-248) and (ii) has not been subsequently revoked or changed (a change of
Beneficiaries under the designation will not be considered to be a
revocation or change of such form of payment so long as the change in
Beneficiaries does not alter, directly or indirectly, the period over which
distributions are to be made under such form of payment), distribution of
the Participant's accrued benefit shall not be required to commence prior to
the date of commencement specified in such election.
(G) No Benefit Reduction Due to Post Termination Social Security
Changes: Benefits under the Plan shall not be decreased by reason of any
increase in the benefit levels payable under Title II of the Social Security
Act or by reason of any increase in the wage base under such Title II, if
such increase takes place after September 2, 1974 or (if later) the earlier
of the date of first receipt of such benefits or the date of the
Participant's separation from service, as the case may be.
(H) Minimum Preserved Benefit Due to Certain Amendments: In the event
that the Plan or Superseded Plan has been or is amended effective as of a
date on or after July 1, 1989 to eliminate or reduce a subsidy or an early
retirement benefit or to change the actuarial assumptions used to determine
actuarially equivalent benefits payable thereunder, the monthly retirement
income or other benefit, if any, payable under the provisions of Section
2.1, 2.2, 2.3 or 2.4 (and Section 3.1 if an optional form of payment is
applicable) to a Participant, who was a participant in the Plan or
Superseded Plan as of the day immediately preceding the date that the
elimination, reduction or change becomes effective (herein referred to as
the "Preservation Date") and who retires or whose service is terminated
after the Preservation Date, shall be at least equal to the corresponding
amount of the monthly retirement income or other benefit, if any, payable to
him under the provisions of such applicable section of the Plan (or, if
applicable, the section of the Superseded Plan that corresponds to such
applicable section of the Plan) as in effect on the Preservation Date
computed using his Credited Service and Final Average Monthly Compensation
(or, if applicable, their corresponding terms under the Superseded Plan)
determined as of the Preservation Date under the provisions of the Plan (or,
if applicable, the Superseded Plan) as in effect on such date and using, if
applicable, the mortality table and interest rate assumptions that applied
under the provisions of the Plan (or, if applicable, the Superseded Plan) as
in effect on the Preservation Date to compute actuarially equivalent
benefits payable to a Participant who retired or whose service was
terminated on the Preservation Date.
(I) Direct Rollover Options for Eligible Rollover Distributions: This
section applies to distributions made 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 section, a distributee
may elect, at the time and in the manner prescribed by the plan
administrator, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a
direct rollover. The following definitions apply to this section:
(1) Eligible rollover distribution: An eligible rollover distribution
is any distribution of all or any portion of the balance of the
credit of the distributee, except that an eligible rollover
distribution does not include:
(a) 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 10 years or more;
(b) any distribution to the extent such distribution is required
under Section 401(a)(9) of the Code; and
(c) 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).
(2) Eligible retirement plan: An 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 the surviving spouse, an eligible retirement plan
is an individual retirement account or individual retirement
annuity.
(3) Distributee: A 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 spouse
or former spouse.
(4) Direct rollover: A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
Any options set forth in this section shall automatically become inoperative
and of no effect upon a ruling by the Treasury Department that such options
set forth herein are no longer required.
4.2 - LIMITATIONS ON BENEFITS REQUIRED
BY THE INTERNAL REVENUE SERVICE
(A) Limitation in the Event of Plan Termination: In the event that
the Plan is terminated, the benefit of any Participant who is a Highly
Compensated Employee (or a highly compensated former employee) shall be
limited to a benefit that is nondiscriminatory under Section 401(a)(4) of
the Code and regulations issued with respect thereto.
(B) Limitation on Annual Payments:
(1) The provisions of this Section (B) shall apply during each Plan
Year to those Participants who during such Plan Year (a) are among
the 25 highest-paid Participants (including former Participants)
in the Plan (determined with respect to each Employer or group of
Employers with respect to which the Plan represents a separate
single plan) and (b) are Highly Compensated Employees (or highly
compensated former employees) and whose annual payments under the
Plan must be restricted due to the provisions of Section 401(a)(4)
of the Code and regulations issued with respect thereto.
(2) To the extent required by Section 401(a)(4) of the Code and
regulations issued with respect thereto, the annual benefit
payable under the Plan to any such Participant to whom the
provisions of this Section (B) are applicable shall not exceed an
amount equal to the payments that would be made on his behalf
under a single life annuity that is the actuarial equivalent of
the sum of his accrued benefit and his other benefits under the
Plan; provided, however, that such restriction shall not apply if:
(a) after payment of the "benefits" (as defined below) to the
Participants to whom the provisions of this Section (B) are
applicable, the remaining value of Plan assets equals or
exceeds 110% of the value of current liabilities within the
meaning of Section 412(l)(7) of the Code and regulations
issued with respect thereto;
or
(b) the value of the "benefits" (as defined below) for such
Participant is less than 1% of the value of current lia-
bilities within the meaning of Section 412(l)(7) of the Code
and regulations issued with respect thereto.
(3) For the purposes of this Section (B), the term "benefit" shall
have the meaning assigned in Treasury Regulation 1.401(a)(4)-5(c)
and shall include 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, and any death
benefits not provided for by insurance on the employee's life.
4.3 - BENEFITS NONFORFEITABLE IF PLAN IS TERMINATED
In the event of the termination or partial termination of the Plan, the
rights of each affected Participant in the Plan to benefits accrued to such
date of termination, to the extent then funded, shall be nonforfeitable,
where such benefits shall be determined and distributed as provided in
Section 4.5 hereof; provided, however, if the participation in the Plan of
one or more but not all Employers that are members of a group of Employers
with respect to which the Plan represents a single plan is terminated, the
Plan shall not be considered to have been terminated for the purposes of
this Section 4.3 (although a partial termination of the Plan may result
because of such termination of participation). Unless specifically required
otherwise by law or by rules or regulations of the Internal Revenue Service,
the nonforfeitable rights granted to Participants under the provisions of
this section shall not apply with respect to (i) any benefits (or portions
thereof) that have been cashed out, whether voluntarily or involuntarily,
under the provisions hereof and that have not been reinstated (by repayment
or by the reinstatement of Credited Service accrued prior to the date of
such cashout) in accordance with the provisions hereof prior to the date of
the termination or partial termination of the Plan or (ii) any nonvested
benefits at the date of termination of service of a terminated or retired
Participant whose service was terminated prior to the date of termination or
partial termination of the Plan.
4.4 - MERGER OF PLAN
In the case of the merger or consolidation of the Plan with, or the
transfer of assets or liabilities to, another qualified retirement plan,
each Participant must be entitled to receive a benefit, upon termination of
such other retirement plan after such merger, consolidation or transfer,
which is at least equal to the benefit which he would have been entitled to
receive immediately before the merger, consolidation or transfer if the Plan
had been terminated at that time.
4.5 - TERMINATION OF PLAN AND DISTRIBUTION OF TRUST FUND
Upon termination of the Plan in accordance with the provisions hereof,
the share of the assets of the Trust Fund available for distribution to the
affected Participants and Beneficiaries shall be allocated and distributed
in accordance with the following procedure.
(A) The Committee shall determine the date of distribution and the
share in the value of the assets of the Trust Fund that is attributable to
each Employer or group of Employers with respect to which the Plan
represents a single plan.
(B) The distribution of the asset value will, subject to the provi-
sions of Section 417(e)(1) of the Code, be provided by the purchase of
insured annuities from a company or companies selected by the Committee for
each class of Participants and other persons entitled to benefits under the
Plan, as specified in (C) below, except that, in lieu of the purchase of an
annuity, a lump-sum distribution shall be made to or on behalf of a
Participant if (i) the actuarially equivalent single-sum value of the
benefit (payable as a lump-sum settlement) to be distributed to him or on
his behalf under the provisions of this Section 4.5 is equal to or less than
$3,500, or is equal to or less than such larger amount that is permitted as
an involuntary cashout of benefits under rules and regulations of the
Internal Revenue Service and Pension Benefit Guaranty Corporation, and (ii)
such distribution may be made without the necessity of having the consent of
the recipient under any applicable rules or regulations of the Internal
Revenue Service or Pension Benefit Guaranty Corporation. Any annuities
purchased pursuant to the provisions of this Section 4.5 will be subject to
the provisions hereof pertaining to the Qualified Joint and 50% Survivor
Annuity Option and to the Qualified Preretirement Survivor Annuity.
(C) The Committee shall determine the asset value available for
distribution on behalf of each Employer or group of Employers with respect
to which the Plan represents a single plan after taking into account the
expenses of such distribution. After having determined such asset value
available for distribution to each such Employer or group of Employers, as
the case may be, and subject to the applicable provisions of any Supplement
hereto pertaining to the distribution of assets upon the termination of the
Plan, the Committee shall allocate such asset value (allocated to the
particular Employer or group of Employers) as of the date of termination of
the Plan in accordance with Section 4044 of the Employee Retirement Income
Security Act of 1974, as amended. For the purposes of determining the
amount of the allocation to which a disabled Participant, who is entitled to
a benefit under the provisions of Section 2.3 hereof but whose Annuity
Starting Date is after the date of termination of the Plan, is entitled
under this Section 4.5, his accrued benefit as of the date of termination of
the Plan shall be computed as though he had recovered from his total and
permanent disability, reentered the service of the Employer on the date of
termination of the Plan and his service had been terminated immediately
after his reentry and prior to the termination of the Plan.
(D) In the event that there be asset value remaining after the satis-
faction of all liabilities of the Plan to Participants and the
Beneficiaries, such residual assets shall be distributed to the Employer,
except that, in the case of a group of Employers with respect to which the
Plan represents a single plan, such residual assets shall remain in the
Trust Fund if the Plan is not being terminated with respect to all of such
Employers.
(E) The order of priorities for, and the amounts and methods of, the
distributions set forth in (C) above and the rights of Participants and
Beneficiaries to benefits under the Plan shall be subject (i) to the
distribution rules set forth in the Plan, (ii) to the limitations provided
by Section 4.2 of the Plan, (iii) to any changes, including the recapture of
any prior distributions to Participants, as may be ordered by the Pension
Benefit Guaranty Corporation and (iv) to any changes required by the
Internal Revenue Service as a condition for issuing a favorable
determination letter stating that the distribution of assets will not
adversely affect the continued qualified status of the Plan under Section
401(a) of the Code.
(F) As soon as practicable after both (a) the date that the assets may
be distributed under the rules and regulations of the Pension Benefit
Guaranty Corporation and (b) the date that a favorable determination letter
is received from the Internal Revenue Service stating that in its opinion
the method of distribution will not adversely affect the continued qualified
status of the Plan under Section 401(a) of the Code, the Committee shall
direct the Trustee to distribute the assets to the affected parties in
accordance with such method.
4.6 SPECIAL PROVISIONS THAT APPLY IF PLAN IS TOP-HEAVY
The provisions of this Section 4.6 shall apply if the Superseded Plan
was or the Plan is a "top-heavy plan" within the meaning of Section 416(g)
of the Code with respect to any Plan Year beginning after December 31, 1983.
(A) Determination of Plan Years in Which Plan Is Top-Heavy: The Plan
shall be top-heavy with respect to an applicable Plan Year if:
(1) either:
(a) any Participant, former Participant or Beneficiary in the
Plan is a "key employee" within the meanings of Sections
416(i)(1) and 416(i)(5) of the Code (hereinafter referred to
in this Section 4.6 as "Key-Employees"); or
(b) the Plan is required to be combined with any other plan,
which is included in the Aggregation Group (as defined below)
and which has a participant who is a Key Employee, in order
to enable such other plan to meet the requirements of Section
401(a)(4) or Section 410 of the Code;
and
(2) the ratio (determined in accordance with Section 416 of the Code)
as of the last day of the preceding Plan Year or, in the case of
the first Plan Year, the last day of such first Plan Year (such
day, whether applicable to the first Plan Year or to subsequent
Plan Years, is hereinafter referred to in this Section 4.6 as the
"Determination Date") of:
(a) the sum of (i) the present value of the cumulative accrued
benefits for all Key Employees under all defined benefit
plans included in the Aggregation Group plus (ii) the
aggregate of the individual accounts of all Key Employees
under all defined contribution plans included in such
Aggregation Group;
to
(b) a similar sum determined for all Participants, former
Participants and Beneficiaries - excluding any such
Participant or former Participant (or his Beneficiary) who
was a Key Employee for any prior Plan Year but who is not
currently a Key Employee and also excluding, for Plan Years
beginning after December 31, 1984, any Participant or former
Participant (or his Beneficiary) who has not at any time
during the five-year period ending on the Determination Date
performed services for any employer maintaining a plan
included in the Aggregation Group - under all defined benefit
plans and defined contribution plans included in such
Aggregation Group;
is greater than 60%.
For the purposes of this Section 4.6, the Aggregation Group shall mean
the Plan plus all other defined benefit plans and defined contribution plans
(including any such plans that terminated during the five-year period ending
on the Determination Date), if any, maintained by the Controlled Group
Members; provided, however, that any defined benefit plan or defined
contribution plan of any Controlled Group Member that (i) does not have any
participant who is a Key Employee and (ii) is not required to be combined
with any other plan, which is included in the Aggregation Group and which
has a participant who is a Key Employee, in order to enable such other plan
to meet the requirements of Section 401(a)(4) or Section 410 of the Code,
shall be included in the Aggregation Group only if such defined benefit plan
or defined contribution plan, together with the other plans that are
included in the Aggregation Group, as a combined group satisfy the
requirements of Sections 401(a)(4) and 410 of the Code.
The present value of an accrued benefit under the Plan shall, for the
purposes of this Section 4.6, be determined as of the most recent valuation
date that (i) is used for the Plan Year for computing Plan costs for minimum
funding purposes (regardless of whether a valuation is actually performed
for that year) and (ii) is within the 12-month period ending on the
applicable Determination Date (such valuation date is herein referred to in
this Section 4.6 as the "Valuation Date"). Such present value of accrued
benefits under the Plan shall be computed using 5% interest and the
mortality table used for such Plan Year for computing Plan costs for minimum
funding purposes.
The present value of the cumulative accrued benefits under the other
defined benefit plans included in the Aggregation Group and the aggregate of
the individual accounts under the defined contribution plans included in
such Aggregation Group shall be determined separately for each such plan in
accordance with Section 416 of the Code and regulations issued with respect
thereto as of the "determination date" that is applicable to each such
separate plan and that falls within the same calendar year that the
Determination Date applicable to the Plan falls.
Unless required otherwise under Section 416 of the Code and regulations
issued thereunder, a Participant's (or Beneficiary's) accrued benefit under
the Plan shall be equal to the sum of:
(1) an amount equal to either:
(a) if his service has not been terminated and he has not reached
his Normal Retirement Date as of the Valuation Date, the
Accrued Benefit that he has accrued as of the Valuation Date;
(b) if his service has not been terminated and he has reached his
Normal Retirement Date as of the Valuation Date, the monthly
retirement income to which he would have been entitled under
the normal retirement provisions of the Plan if he had
retired on the Valuation Date;
or
(c) if his service has been terminated as of the Valuation Date,
the amount of retirement income or other benefit that is
payable on his behalf under the Plan on and after the
Valuation Date;
plus
(2) the aggregate distributions made on his behalf during the
five-year period ending on the Determination Date;
provided, however, that his estimated accrued benefit between the Valuation
Date and Determination Date applicable to the first Plan Year shall be
included as part of his accrued benefit with respect to the first Plan Year
only. Any provisions hereof to the contrary notwithstanding and solely for
the purpose of determining if the Plan is top-heavy with respect to an
applicable Plan Year beginning after December 31, 1986, the accrued benefit
of any employee who is not a Key Employee shall be determined under the
method which is used for accrual purposes for all defined benefit plans
included in the Aggregation Group or, if a single method is not used for all
such defined benefit plans, the accrued benefit of such employee shall be
determined as though it accrued not more rapidly than the slowest accrual
rate permitted under the fractional accrual rule of Section 411(b)(1)(C) of
the Code.
(B) Minimum Vesting Provisions if Plan Becomes Top-Heavy: Any other
provision of the Plan to the contrary notwithstanding, the Initial Vesting
Date of a Participant in the Plan, who has accrued an Hour of Service during
any Plan Year that is subsequent to the last Plan Year that the Plan was not
top-heavy, for the purpose of determining his eligibility for the benefit
provided under Section 2.4(A) hereof during any Plan Year that is subsequent
to the last Plan Year that the Plan was not top-heavy, shall not be later
than (i) the date as of which he completes two years of Vesting Service or
(ii) the first day of the Plan Year immediately following the last Plan Year
that the Plan was not top-heavy, whichever is later, but the Vested
Percentage of the Participant for the purposes of Section 2.4(A)(1) shall
not be less than the percentage specified in the schedule below, based upon
the Participant's number of years (ignoring fractions) of Vesting Service as
of the date of termination of his service, with respect to the portion of
his Accrued Benefit that is attributable to employer contributions:
Years of Vesting Vested
Service Percentage
Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or More 100%
In the event of a Change of Control, however, each Participant's Vested
Percentage shall be 100%, regardless of the number of the Participant's
years of vested Service.
In the event that the Plan ceases to be top-heavy with respect to any
subsequent Plan Year, the following provisions will apply with respect to
the minimum benefits to which such a Participant is entitled under Section
2.4(A) hereof during such subsequent Plan Years that the Plan is not
top-heavy:
(1) if the Participant had not completed at least two years of Vesting
Service as of the last day of the last Plan Year during which the
Plan was top-heavy, his nonforfeitable right to the benefits to
which he is entitled under Section 2.4(A) hereof shall be
determined as though the Plan had never been top-heavy;
(2) if the Participant had completed at least two but had not
completed at least three years of Vesting Service as of the last
day of the last Plan Year during which the Plan was top-heavy, he
shall be eligible for a minimum benefit payable under Section
2.4(A) hereof; such minimum benefit provided under Section
2.4(A)(1) shall be based upon the product of (i) the portion of
the Accrued Benefit that he had accrued as of the date of
termination of his service multiplied by (ii) his Vested
Percentage determined as of the last day of the last Plan Year
during which the Plan was top-heavy;
(3) if the Participant had completed at least three years of Vesting
Service as of the last day of the last Plan Year during which the
Plan was top-heavy, he shall be eligible for the benefit provided
under Section 2.4(A) hereof, but the Participant's Vested
Percentage shall be determined in the same manner as though the
Plan had remained top-heavy; and
(4) the Accrued Benefit that a Participant, whose Vesting Service
includes service that was accrued on or prior to the last day of
the last Plan Year that the Plan was top-heavy, has accrued as of
any given date shall not be less than the actuarial equivalent of
(a) the benefit provided on his behalf under Section 4.6(C)(1)
below as of such given date plus (b) the benefit provided on his
behalf under Section 4.6(C)(2)(a) below as of the last day of the
last Plan Year during which the Plan was top-heavy less (c) the
amount of the benefit provided on his behalf under Section
4.6(C)(2)(b) below as of such given date.
(C) Minimum Benefit If Plan Becomes Top-Heavy: In the event that the
service of a Participant is terminated on or after his Initial Vesting Date
for any reason, the retirement income payable to the Participant under the
provisions of Section 2.1, 2.2, 2.3 or 2.4(A) hereof or, if the service of
the Participant is terminated by reason of his death, the retirement income
which he has accrued as of the date of his death that is used to determine
the benefit payable on his behalf under the provisions of Section 2.4(B)
hereof, whichever is applicable, shall not be less than that amount of
retirement income which is actuarially equivalent (based upon the interest
and mortality assumptions that are being used under the Plan as of the date
of his retirement or termination of service to determine actuarially
equivalent non-decreasing annuities) to an amount equal to the excess, if
any, of:
(1) a monthly retirement income payable to the Participant for
life (with no ancillary benefits) commencing at his Normal
Retirement Date in an amount equal to (i) 2% of his "IRC 416
Final Average Monthly Compensation" multiplied by (ii) his
number of years of Vesting Service, not in excess of 10
years, that were accrued during those Plan Years in which the
Plan was top-heavy, with the resulting product of (i) and
(ii) multiplied by (iii) his Vested Percentage at the date of
his retirement or termination of service; provided, however,
if the Participant retires after his Normal Retirement Date,
the amount of the monthly retirement income determined under
this Subparagraph (a) shall not be less than the actuarial
equivalent of the monthly retirement income determined in
accordance with this subparagraph that would have been
payable to the Participant if he had retired on his Normal
Retirement Date;
over
(2) the monthly retirement income payable to the Participant for
life (with no ancillary benefits) commencing at his Normal
Retirement Date in an amount equal to the sum of:
(a) such amount of income, if any, that he has a
nonforfeitable right to receive and that is attributable
to employer contributions and is payable to the
Participant under the other defined benefit plans, if
any, which are included in the Aggregation Group;
plus
(b) such amount of income that can be provided on an
actuarially equivalent basis (based upon the interest
and mortality assumptions that are being used under the
Plan as of the date of his retirement or termination of
service to determine actuarially equivalent
non-decreasing annuities) by the amounts, if any, that
he has a nonforfeitable right to receive and that are
attributable to employer contributions and forfeitures
that are credited to his account under the defined
contribution plans, if any, included in the Aggregation
Group;
provided, however, if the Aggregation Group includes one or more defined
contribution plans and if, with respect to each Plan Year that the Plan is
top-heavy, the Participant has received an allocation of employer
contributions and forfeitures to his account under such defined contribution
plan or plans which is equal to or greater than 5% of the IRC 415
Compensation that he received during such Plan Year from the employers
maintaining plans included in the Aggregation Group, the minimum benefit
described above in this Section 4.6(C) shall not apply to such Participant.
For the purposes of this Section 4.6(C), a Participant's "IRC 416 Final
Average Monthly Compensation" shall be equal to his average monthly rate of
IRC 415 Compensation for the five consecutive calendar years, which are
prior to the January 1st immediately following (i) the date of the Partici-
pant's retirement or termination of service or (ii) the close of the last
Plan Year in which the Plan is top-heavy, whichever is earlier, during which
he received the highest aggregate IRC 415 Compensation. Such average
monthly rate will be determined by dividing the total of such IRC 415
Compensation that he received during such five-consecutive-calendar year
period from the employers maintaining plans included in the Aggregation
Group by the product equal to 12 times the number of years of Vesting
Service which he accrued during such five-calendar-year period. In the
event that the Participant does not receive both IRC 415 Compensation and
Vesting Service during a calendar year or calendar years, such calendar year
or calendar years during which he did not receive both IRC 415 Compensation
and Vesting Service shall be ignored and excluded in determining the five
consecutive calendar years during which he received the highest aggregate
IRC 415 Compensation.
(D) Maximum Amount of Retirement Income Due to Restrictions of Section
416(h) of the Code if Plan Is Top-Heavy: Any provision of Section 4.1(A)
hereof to the contrary notwithstanding, the monthly retirement income
payable during any Plan Year that the Plan is top-heavy to a Participant
hereunder who is a participant in both a defined contribution plan and a
defined benefit plan, which are either maintained by the Employer or
included in the Aggregation Group, shall not exceed the maximum amount
permitted under Section 416(h) of the Code. The benefits payable under the
defined benefit plans shall be reduced, if necessary, so that such maximum
is not exceeded.
SECTION 5
MISCELLANEOUS PROVISIONS REGARDING PARTICIPANTS
5.1 - PARTICIPANTS TO FURNISH REQUIRED INFORMATION
Each Participant, his spouse and his Beneficiaries and joint pensioners
will furnish to the Committee such information as the Committee considers
necessary or desirable for purposes of administering the Plan, and the
provisions of the Plan respecting any payments thereunder are conditional
upon the Participant's, Beneficiary's or joint pensioner's furnishing
promptly such true, full and complete information as the Committee may
request.
Each Participant will submit proof of his age and marital status and
proof of the age and continued life of each Beneficiary and joint pensioner
designated or selected by him to the Committee at such time as required by
the Committee. The Committee will, if such proof of age, marital status or
continued life is not submitted as required, use as conclusive evidence
thereof, such information as is deemed by it to be reliable, regardless of
the source of such information. Any adjustment required by reason of lack
of proof or the misstatement of the age of persons entitled to benefits
hereunder, by the Participant or otherwise, will be in such manner as the
Committee deems equitable.
Any notice or information which, according to the terms of the Plan or
the rules of the Committee, must be filed with the Committee, shall be
deemed so filed at the time that it is actually received by the Committee.
The Employer, the Committee, and any person or persons involved in the
administration of the Plan shall be entitled to rely upon any certification,
statement, or representation made or evidence furnished by an employee,
Participant, Beneficiary or joint pensioner with respect to his age or other
facts required to be determined under any of the provisions of the Plan and
shall not be liable on account of the payment of any monies or the doing of
any act or failure to act in reliance thereon. Any such certification,
statement, representation or evidence, upon being duly made or furnished,
shall be conclusively binding upon the person furnishing same; but it shall
not be binding upon the Employer, the Committee, or any other person or
persons involved in the administration of the Plan, and nothing herein
contained shall be construed to prevent any of such parties from contesting
any such certification, statement, representation or evidence or to relieve
the Employee, Participant, Beneficiary or joint pensioner from the duty of
submitting satisfactory proof of any such fact.
5.2 - BENEFICIARIES
Subject to the provisions of the following paragraphs of this section,
each Participant may, on a form provided for that purpose, signed and filed
with the Committee, designate a Beneficiary to receive the benefit, if any,
which may be payable under the Plan in the event of his death, and each
designation may be revoked by such Participant by signing and filing with
the Committee a new designation of Beneficiary form.
If a deceased Participant, who has been married to his spouse throughout
the one-year period immediately preceding his death, has designated a person
other than his spouse as his Beneficiary and such spouse has not consented
in accordance with the provisions of Section 4.1(E) hereof, either after the
date of the Participant's separation from service or on or after the date
that the Participant attained the age of 35 years, to such other person
being designated as the Beneficiary, the provisions of Section 4.1(D)
hereof, relating to the qualified preretirement survivor annuity payable to
his surviving spouse, will apply in the event of his death on or after his
Initial Vesting Date, and the Participant will automatically be deemed to
have changed his designation of Beneficiary to the extent necessary to
comply with the provisions of Section 4.1(D).
If a deceased Participant who had a spouse at the date of his death
failed to designate a Beneficiary in accordance with the provisions of this
section, he shall be deemed to have designated his spouse as his
Beneficiary. If a deceased Participant who had no spouse at the date of his
death failed to designate a Beneficiary in accordance with the provisions of
this section or if a deceased Participant (whether or not he has a surviving
spouse at the date of his death) had previously designated a Beneficiary but
no designated Beneficiary is surviving at the date of his death, the death
benefit, if any, that may be payable under the Plan with respect to such
deceased Participant shall be paid to the estate of such deceased
Participant.
5.3 - CONTINGENT BENEFICIARIES
In the event of the death of a Beneficiary who survives the Participant
and who, at the Beneficiary's death, is receiving benefits pursuant to the
provisions of the Plan within any certain period specified under the Plan
with respect to which death benefits are payable under the Plan after the
Participant's death, the same amount of monthly retirement income that the
Beneficiary was receiving shall be payable for the remainder of such
specified certain period to a person designated by the Participant (in the
manner provided in Section 5.2) to receive the remaining death benefits, if
any, payable in the event of such contingency or, if no person was so named,
then to a person designated by the Beneficiary (in the manner provided in
Section 5.2) of the deceased Participant to receive the remaining death
benefits, if any, payable in the event of such contingency; provided,
however, that if no person so designated be living upon the occurrence of
such contingency, then the remaining death benefits, if any, shall be
payable for the remainder of such specified certain period, to the estate of
such deceased Beneficiary.
5.4 - PARTICIPANTS' RIGHTS IN TRUST FUND
No Participant or other person shall have any interest in or any right
in, to or under the Trust Fund, or any part of the assets held thereunder,
except as to the extent expressly provided in the Plan.
5.5 - BENEFITS NOT ASSIGNABLE
Except to the extent required to comply with a qualified domestic rela-
tions order as described in Sections 401(a)(13) and 414(p) of the Code, no
benefits, rights or accounts shall exist under the Plan which are subject in
any manner to voluntary or involuntary anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt so to
anticipate, alienate, transfer, assign, pledge, encumber or charge the same
shall be null and void; nor shall any such benefit, right or account under
the Plan be in any manner liable for or subject to the debts, contracts,
liabilities, engagements, torts or other obligations of the person entitled
to such benefit, right or account; nor shall any benefit, right or account
under the Plan constitute an asset in case of the bankruptcy, receivership
or divorce of any person entitled under the Plan; and any such benefit,
right or account under the Plan shall be payable only directly to the
Participant or Beneficiary, as the case may be. Where a qualified domestic
relations order has been received by the Committee, the terms and benefits
of the Plan will be considered to have been modified with respect to the
Participant affected to the extent that such order requires benefits to be
paid to specified individuals other than the Participant.
5.6 - BENEFITS PAYABLE TO MINORS AND INCOMPETENTS
In the event that a benefit is payable to a person who is a minor or
incompetent, the Committee may direct that such benefit be paid to such
person's legal representative, or in the case of a minor for whom no legal
representative has been appointed, to a parent of such minor or incompetent,
or to the custodian for such minor under the Uniform Gift to Minors Act or
Uniform Transfers to Minors Act, if such is permitted by the laws of the
state in which the minor resides.
5.7 - CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN
The establishment and maintenance of the Plan will not be construed as
conferring any legal rights upon any Participant to the continuation of his
employment with the Employer, nor will the Plan interfere with the right of
the Employer to discipline, lay off or discharge any Participant. The
adoption and maintenance of the Plan shall not be deemed to constitute a
contract between the Employer and any employee or to be a consideration for,
inducement to, or condition of employment of any person.
5.8 - NOTIFICATION OF MAILING ADDRESS
Each Participant and other person entitled to benefits hereunder shall
file with the Committee from time to time, in writing, his post office
address and each change of post office address, and any check representing
payment hereunder and any communication addressed to a Participant, a former
Participant, a Beneficiary or a pensioner hereunder at his last address
filed with the Committee (or, if no such address has been filed, then at his
last address as indicated on the records of the Employer) shall be binding
on such person for all purposes of the Plan, and neither the Committee nor
the Trustee shall be obliged to search for or ascertain the location of any
such person.
If the Committee, for any reason, is in doubt as to whether retirement
income payments are being received by the person entitled thereto, it may,
by registered mail addressed to such person and to such person's designated
Beneficiary, if any, at their address last known to the Committee, notify
such person and his Beneficiary that all unmailed and future retirement
income payments shall be henceforth withheld until the Committee is provided
with evidence of such person's continued life and his proper mailing address
or with evidence of such person's death. In the event that (i) such
notification is mailed to such person and his designated Beneficiary, (ii)
the Committee is not furnished with evidence of such person's continued life
and proper mailing address or with evidence of his death within three years
of the date such notification was mailed and (iii) the Committee is unable
to find any person to whom payment is due under the provisions of the Plan
within three years of the date such notification was mailed, all retirement
income and other benefit payments due shall be forfeited at the end of such
three-year period following the date such notification was mailed; provided,
however, if claim for any forfeited benefit is subsequently made by any such
person to whom payment is due under the Plan, such forfeited benefits due
such person shall be reinstated.
5.9 - WRITTEN COMMUNICATIONS REQUIRED
Any notice, request, instruction, or other communication to be given or
made hereunder shall be in writing and may be delivered to the addressee
personally, may be delivered to the addressee by a commercial delivery
service at the last address for notice shown on the Committee's records, or
may be deposited in the United States mail fully postpaid and properly
addressed to such addressee at the last address for notice shown on the
Committee's records.
5.10 - BENEFITS PAYABLE AT OFFICE OF TRUSTEE
All benefits hereunder, and installments thereof, shall be payable at
the office of the Trustee.
5.11 - APPEAL TO COMMITTEE
A Participant or Beneficiary who feels he is being denied any benefit or
right provided under the Plan must file a written claim with the Committee.
All such claims shall be considered filed on the date the claim is received
by the Committee.
Upon the receipt of such a claim and in the event the claim is denied,
the Committee shall, within 90 days after its receipt of such claim, provide
such claimant a written statement which shall be delivered or mailed to the
claimant by certified or registered mail to his last known address, which
statement shall contain the following:
(A) the specific reason or reasons for the denial of benefits;
(B) a specific reference to the pertinent provisions of the Plan upon
which the denial is based;
(C) a description of any additional material or information that is
necessary; and
(D) an explanation of the review procedure provided below;
provided, however, in the event that special circumstances require an exten-
sion of time for processing the claim, the Committee shall provide such
claimant with such written statement described above not later than 180 days
after receipt of the claimant's claim, but, in such event, the Committee
shall furnish the claimant, within 90 days after its receipt of such claim,
written notification of the extension explaining the circumstances requiring
such extension and the date that it is anticipated that such written
statement will be furnished.
Within 60 days after receipt of a notice of a denial of benefits as
provided above, if the claimant disagrees with the denial of benefits, the
claimant or his authorized representative must request, in writing, that the
Committee review his claim and may request to appear before the Committee
for such review. In conducting its review, the Committee shall consider any
written statement or other evidence presented by the claimant or his autho-
rized representative in support of his claim. The Committee shall give the
claimant and his authorized representative reasonable access to all
pertinent documents which the Committee deems pertinent and necessary for
the preparation of his claim.
Within 60 days after receipt by the Committee of a written application
for review of his claim, the Committee shall notify the claimant of its
decision by delivery or by certified or registered mail to his last known
address; provided, however, in the event that special circumstances require
an extension of time for processing such application, the Committee shall so
notify the claimant of its decision not later than 120 days after receipt of
such application, but, in such event, the Committee shall furnish the
claimant, within 60 days after its receipt of such application, written
notification of the extension explaining the circumstances requiring such
extension and the date that it is anticipated that its decision will be
furnished. The decision of the Committee shall be in writing and shall
include the specific reasons for the decision presented in a manner
calculated to be understood by the claimant and shall contain reference to
all relevant Plan provisions on which the decision was based. The decision
of the Committee shall be final and conclusive.
SECTION 6
MISCELLANEOUS PROVISIONS REGARDING THE EMPLOYER
6.1 - CONTRIBUTIONS
No contributions shall be required of or permitted to be made by any
Participant. The Employer intends, but does not guarantee, to make annual
contributions in amounts at least equal to the amounts, if any, required to
meet the minimum funding requirements of Section 412 of the Code, as
specified in the actuary's valuation reports for the applicable periods of
time. Subject to applicable provisions of law, neither the Employer nor any
of its officers, agents or employees, nor any member of its board of
directors, nor any partner or sole proprietor, guarantees, in any manner the
payment of benefits under the Plan.
6.2 - EMPLOYER'S CONTRIBUTIONS IRREVOCABLE
The Employer shall have no right, title or interest in the Trust Fund or
in any part thereof, and no contributions made thereto shall revert to the
Employer except such part of the Trust Fund, if any, that remains therein
after the satisfaction of all liabilities to persons entitled to benefits
under the Plan and except as provided in the following paragraph.
All contributions to the Plan are made subject to the qualification of
the Plan under Section 401 of the Code and to their deductibility under
Section 404 of said Code. In the event that the Plan represents a newly
established retirement plan (and not an amendment of an existing retirement
plan) with respect to an Employer and such qualification of the Plan is
denied, the total contributions of the Employer, adjusted for any earnings
or losses of the Trust Fund attributable thereto, shall be returned to the
Employer within one year of the date of denial of qualification. In the
event that a contribution either is made by a good faith mistake of fact or
is disallowed as a tax deductible expense under Section 404 of the Code, the
excess of the amount contributed over either the amount that would have been
contributed if there had not been such a mistake or the amount that is
allowed as a tax deductible expense, as the case may be, with such excess
reduced by the net losses, if any, of the Trust Fund attributable thereto
(but without any increase due to the net earnings, if any, of the Trust Fund
attributable thereto), shall be returned to the Employer within one year of
the date of the mistaken payment or the disallowance of the deduction, as
the case may be.
6.3 - FORFEITURES
Forfeitures shall not be used to increase the benefits that any Partici-
pant would otherwise receive under the Plan at any time prior to the termi-
nation of the Plan but shall be anticipated in determining the costs under
the Plan.
6.4 - AMENDMENT OF PLAN
The Plan may be amended from time to time in any respect whatever by
formal action on the part of the Company in the manner described in Section
6.7 hereof specifying such amendment, subject only to the following
imitations:
(A) Under no condition shall such amendment result in or permit the
return or repayment to any Employer of any property held or acquired by the
Trustee hereunder or the proceeds thereof or result in or permit the
distribution of any such property for the benefit of anyone other than the
Participants and their Beneficiaries or joint pensioners, except to the
extent provided by Section 4.5 and Section 6.6 hereof with respect to
termination of the Plan and expenses of administration, respectively.
(B) Under no condition shall such amendment change the duties or
responsibilities of the Trustee hereunder without its written consent.
Except to the extent permissible to comply with any laws or regulations
of the United States or of any state to qualify this as a tax-exempt plan
and trust, no amendment may be made that would result in a slower rate of
vesting under the Plan for any Participant who has completed at least three
years of Vesting Service as of the effective date of such amendment or, if
later, as of the date such amendment is adopted, unless such amendment
provides that each such Participant may elect, during the period described
below, to retain the rate of vesting in effect under the Plan prior to such
amendment in lieu of the new rate of vesting. The period during which the
election described in the preceding sentence may be made shall begin no
later than the date the Plan amendment is adopted and shall end no earlier
than 60 days after (i) the date the amendment is adopted, (ii) the effective
date of such amendment or (iii) the date the Participant is notified in
writing of the amendment by the Committee, whichever is the latest date to
occur.
Subject to the foregoing limitations, any amendment may be made retro-
actively which, in the judgment of the Committee, is necessary or advisable
provided that such retroactive amendment does not deprive a Participant,
without his consent, of a right to receive benefits hereunder which have
already vested and matured in such Participant, except such modification or
amendment as shall be necessary to comply with any laws or regulations of
the United States or of any state to qualify this as a tax-exempt plan and
trust.
The participation in the Plan of Employers other than the Company shall
not limit the power of the Company under the foregoing provisions, and all
amendments by the Company to the Plan shall be binding upon all other
Employers. Each Employer may, with the consent of the Company, modify the
provisions of the Plan as it pertains only to its own employees by the
adoption, by formal action on its part in the manner described in Section
6.7 hereof, of a Supplement to the Plan specifying such modifications that
shall pertain only to its employees.
Any Supplement to the Plan adopted by an Employer or Employers shall
apply only to the employees of the Employer or Employers adopting such
supplement and shall not affect the continued operation of the Plan with
respect to any other Employers.
6.5 - TERMINATION OF PLAN
The Plan may be terminated by the Employers at any time by formal
action, in the manner described in Section 6.7 hereof, on the part of each
Employer then a party to the Plan specifying (a) that the Plan is being
terminated and (b) the date as of which the termination is to be effective.
In the event the Plan is to be terminated, the Employer shall notify the
Committee and the Trustee of such termination.
The Plan or participation in the Plan may be terminated in the manner
described above with respect to one, but less than all, of the Employers
theretofore parties hereto and the Plan continued for the remaining Employer
or Employers. The Plan or participation in the Plan shall automatically
terminate as to a particular Employer only upon adjudication by a court of
competent jurisdiction that such Employer is bankrupt or insolvent (whether
such proceedings be voluntary or involuntary), upon dissolution of such
Employer or upon its liquidation, merger or consolidation without provisions
being made by its successor, if any, for the continuation of the Plan.
In the event of the liquidation, dissolution, merger or consolidation of
the Employer under such circumstances that there shall be a successor
person, firm or corporation continuing and carrying on all or a substantial
part of its business, such successor may be substituted for the Employer
under the terms of the Plan by formal action on the part of such successor
in the manner described in Section 6.7 hereof specifying its election to
continue the Plan.
Any provisions herein to the contrary notwithstanding, in the event of
termination of the Plan the following will apply:
(1) a disability retirement benefit shall not be payable on behalf of
any Participant whose service is terminated on or after the date
of termination of the Plan by reason of his total and permanent
disability; and
(2) the death benefits provided under Sections 2.3(G), 2.4(A)(3) and
2.4(B) (or under any Supplements hereto) shall not be payable on
behalf of any Participant whose death occurs on or after the date
of termination of the Plan, but the Qualified Preretirement
Survivor Annuity may be payable on behalf of any such Participant
whose death occurs prior to his Annuity Starting Date based upon
the amount of retirement income, if any, that is payable on his
behalf under the Plan as of the date of his death.
6.6 - EXPENSES OF ADMINISTRATION
The Employer may pay all expenses incurred in the establishment and
administration of the Plan, including expenses and fees of the Trustee, but
it shall not be obligated to do so, and any such expenses not so paid by the
Employer shall be paid from the Trust Fund.
6.7 - FORMAL ACTION BY EMPLOYER
Any formal action herein permitted or required to be taken by an
Employer shall be:
(1) if and when a partnership, by written instrument executed by one
or more of its general partners or by written instrument executed
by a person or group of persons who has been authorized by written
instrument executed by one or more general partners as having
authority to take such action;
(2) if and when a proprietorship, by written instrument executed by
the proprietor or by written instrument executed by a person or
group of persons who has been authorized by written instrument
executed by the proprietor as having authority to take such
action;
(3) if and when a corporation, by resolution of its board of directors
or other governing board, or by written instrument executed by a
person or group of persons who has been authorized by resolution
of its board of directors or other governing board as having
authority to take such action; or
(4) if and when a joint venture, by formal action on the part of the
joint venturers in the manner described above.
SECTION 7
ADMINISTRATION
7.1 - ADMINISTRATION BY COMMITTEE
The Plan will be administered by the Retirement Committee appointed by
the Company by formal action on its part in the manner described in Section
6.7 hereof. Such Committee will consist of (a) a chairman and at least two
additional members or (b) a single individual. Each member may, but need
not, be a director, proprietor, partner, officer or employee of any
Employer, and each such member shall be appointed by the Company to serve
until his successor shall be appointed in like manner. Any member of the
Committee may resign by delivering his written resignation to the Company
and to the other members, if any, of the Committee. The Company by formal
action on its part in the manner described in Section 6.7 hereof may remove
any member of the Committee by so notifying the member and other Committee
members, if any, in writing. Vacancies on the Committee shall be filled by
formal action on the part of the Company in the manner described in Section
6.7 hereof.
The Committee, in its discretion, may delegate all or any part of its
responsibilities of administering the provisions of the Plan with respect to
any Employer or group of Employers to an administrative committee which will
be appointed by such Employer or group of Employers by formal action on its
or their part in the manner described in Section 6.7 hereof. In such event,
references to the "Committee" in any provisions hereof which apply with
respect to such delegated responsibilities shall refer to such
administrative committee instead of the Retirement Committee.
7.2 - OFFICERS AND EMPLOYEES OF COMMITTEE
The Committee may appoint a secretary who may, but need not, be a member
of the Committee and may employ such agents, clerical and other services,
legal counsel, accountants and actuaries as may be required for the purpose
of administering the Plan. Any person or firm so employed may be a person
or firm then, theretofore or thereafter serving the Employer in any
capacity. The Committee and any individual member of the Committee and any
agent thereof shall be fully protected when acting in a prudent manner and
relying in good faith upon the advice of the following professional
consultants or advisors employed by the Employer or the Committee: any
attorney insofar as legal matters are concerned, any certified public
accountant insofar as accounting matters are concerned and any enrolled
actuary insofar as actuarial matters are concerned.
7.3 - ACTION BY COMMITTEE
A majority of the members of the Committee shall constitute a quorum for
the transaction of business and shall have full power to act hereunder. The
Committee may act either at a meeting at which a quorum is present or by a
writing subscribed by at least a majority of the members of the Committee
then serving. Any written memorandum signed by the secretary or any member
of the Committee who has been authorized to act on behalf of the Committee
shall have the same force and effect as a formal resolution adopted in open
meeting. Minutes of all meetings of the Committee and a record of any
action taken by the Committee shall be kept in written form by the secretary
appointed by the Committee or, if no secretary has been appointed by the
Committee, by an individual member of the Committee. The Committee shall
give to the Trustee any order, direction, consent or advice required under
the terms of the Trust Agreement, and the Trustee shall be entitled to rely
on any instrument delivered to it and signed by the secretary or any
authorized member of the Committee as evidencing the action of the
Committee.
A member of the Committee may not vote or decide upon any matter
relating solely to himself or vote in any case in which his individual right
or claim to any benefit under the Plan is particularly involved. If, in any
case in which any Committee member is so disqualified to act, the remaining
members cannot agree or if there is only one individual member of the
Committee, the Company, by formal action on its part in the manner described
in Section 6.7 hereof, will appoint a temporary substitute member to
exercise all of the powers of a qualified member concerning the matter in
which the disqualified member is not qualified to act.
7.4 - RULES AND REGULATIONS OF COMMITTEE
The Committee shall have the authority to make such rules and regula-
tions and to take such action as may be necessary to carry out the
provisions of the Plan and will, subject to the provisions of the Plan,
decide any questions arising in the administration, interpretation and
application of the Plan, which decisions shall be conclusive and binding on
all parties. The Committee may allocate or delegate any part of its
authority and duties as it deems expedient.
7.5 - POWERS OF COMMITTEE
In order to effectuate the purposes of the Plan, the Committee shall
have the power to construe the Plan and to make equitable adjustments for
any mistakes or errors made in the administration of the Plan, and all such
actions or determinations made by the Committee in good faith shall not be
subject to review by anyone. The Committee is given the power to appoint,
in its discretion, one or more Investment Managers to manage, including the
power to acquire or dispose of, all or any portion of the assets of the Plan
and Trust Fund. The Committee is also given the power to serve as paying
agent for the Trust Fund, if it so desires, or to appoint, in its
discretion, a paying agent or agents to disburse the benefits payable from
the Trust Fund and to authorize and direct the Trustee to make distribution
to the Committee as paying agent or to such other paying agent as the
Committee shall direct in writing.
7.6 - DUTIES OF COMMITTEE
The Committee shall, as a part of its general duty to supervise and
administer the Plan:
(1) determine all facts and maintain records with respect to any
Employee's age, amount of Compensation, length of service, Hours
of Service, Vesting Service, Credited Service and date of initial
coverage under the Plan, and by application of the facts so deter-
mined and any other facts deemed material, determine the amount,
if any, of benefit payable under the Plan on behalf of a
Participant;
(2) establish, carry out and periodically review a funding policy and
method consistent with the objectives of the Plan and the appli-
cable lawful requirements of Title I of the Employee Retirement
Income Security Act of 1974; provided, however, that any decisions
pertaining to the amount and timing of contributions by the
Employer to the Trust Fund are delegated to the Employer;
(3) give the Trustee specific directions in writing with respect to:
(a) the making of distribution payments, giving the names of the
payees, the amounts to be paid and the time or times when
payments shall be made; and
(b) the making of any other payments which the Trustee is not by
the terms of the Trust Agreement authorized to make without a
direction in writing of the Committee;
(4) furnish the Trustee with such information (including information
relative to the liquidity needs of the Plan) as is deemed
necessary for the Trustee to carry out the purposes of the Trust
Agreement;
(5) comply with all applicable lawful reporting and disclosure
requirements of the Employee Retirement Income Security Act of
1974;
(6) comply (or transfer responsibility for compliance to the Trustee)
with all applicable Federal income tax withholding requirements
for distribution payments imposed by the Tax Equity and Fiscal
Responsibility Act of 1982;
(7) engage on behalf of all Plan Participants an independent qualified
public accountant to examine the financial statements and other
records of the Plan for the purposes of an annual audit and
opinion as to whether the financial statements and schedules in
the annual report of the Plan are presented fairly in conformity
with generally accepted accounting principles, unless such audit
is waived by the Secretary of Labor or his delegate or unless such
audit is otherwise not required; and
(8) engage on behalf of all Plan Participants an enrolled actuary to
prepare required actuarial statements, unless this requirement is
waived by the Secretary of Labor or his delegate or unless such
actuarial statements are otherwise not required.
The foregoing list of express duties is not intended to be either
complete or conclusive, and the Committee shall, in addition, exercise such
other powers and perform such other duties as it may deem necessary,
desirable, advisable or proper for the supervision and administration of the
Plan.
7.7 - INDEMNIFICATION OF MEMBERS OF COMMITTEE
To the extent not covered by insurance or if there is a failure to
provide full insurance coverage for any reason and to the extent permissible
under corporate by-laws and other applicable laws and regulations, the
Employers agree to hold harmless and indemnify the members of the Committee
against any and all claims and causes of action by or on behalf of any and
all parties whomsoever, and all losses therefrom, including, without
limitation, costs of defense and attorneys' fees, based upon or arising out
of any act or omission relating to or in connection with the Plan and Trust
Agreement other than losses resulting from any such person's fraud or
willful misconduct.
7.8 - ACTUARY
The actuary will do such technical and advisory work as the Committee or
the Employer may request, including analysis of the experience of the Plan
from time to time, the preparation of actuarial tables for the making of
computations thereunder, and the submission of actuarial reports to Company,
which reports shall contain an actuarial valuation showing the financial
condition of the Plan, a statement of the contributions to be made by the
Employers and such other information as may be required by the Committee.
The actuary shall be appointed by the Committee with the approval of the
Company to serve as long as it is agreeable to the Committee, the Company
and the actuary.
7.9 - FIDUCIARIES
The Trustee is the named fiduciary hereunder with respect to the powers,
duties and responsibilities of investment of the Trust Fund, and the
Committee is the plan administrator and is the named fiduciary hereunder
with respect to the other powers, duties and responsibilities of the
administration of the Plan; provided, however, that certain powers, duties
and responsibilities of each of said named fiduciaries are specifically
delegated to others under the provisions of the Plan and Trust Agreement,
and other powers, duties and responsibilities of any fiduciaries may be
delegated by written agreement to others to the extent permitted under the
provisions of the Plan and Trust Agreement.
The powers and duties of each fiduciary hereunder, whether or not a
named fiduciary, shall be limited to those specifically delegated to each of
them under the terms of the Plan and Trust Agreement. It is intended that
the provisions of the Plan and Trust Agreement allocate to each fiduciary
the individual responsibilities for the prudent execution of the functions
assigned to each fiduciary. None of the allocated responsibilities or any
other responsibilities shall be shared by two or more fiduciaries unless
such sharing shall be provided by a specific provision in the Plan or the
Trust Agreement. If any of the enumerated responsibilities of a fiduciary
are specifically waived by the Secretary of Labor, then such enumerated
responsibilities shall also be deemed to be waived for the purposes of the
Plan and Trust Agreement. Whenever one fiduciary is required by the Plan or
the Trust Agreement to follow the directions of another fiduciary, the two
fiduciaries shall not be deemed to have been assigned a share of any
responsibility, but the responsibility of the fiduciary giving the
directions shall be deemed to be his sole responsibility and the
responsibility of the fiduciary receiving those directions shall be to
follow same insofar as such instructions on their face are proper under
applicable law. Any fiduciary may employ one or more persons to render
advice with respect to any responsibility such fiduciary has under the Plan
or Trust Agreement.
Each fiduciary may, but need not, be a director, proprietor, partner,
officer or employee of the Employer. Nothing in the Plan shall be construed
to prohibit any fiduciary from:
(1) serving in more than one fiduciary capacity with respect to the
Plan and Trust Agreement;
(2) receiving any benefit to which he may be entitled as a Participant
or Beneficiary in the Plan, so long as the benefit is computed and
paid on a basis that is consistent with the terms of the Plan as
applied to all other Participants and Beneficiaries; or
(3) receiving any reasonable compensation for services rendered, or
for the reimbursement of expenses properly and actually incurred
in the performance of his duties with respect to the Plan, except
that no person so serving who already receives full-time pay from
an Employer shall receive compensation from the Plan, except for
reimbursement of expenses properly and actually incurred.
Each fiduciary shall be bonded as required by applicable law or statute
of the United States, or of any state having appropriate jurisdiction,
unless such bond may under such law or statute be waived by the parties to
the Trust Agreement. The Employer shall pay the cost of bonding any
fiduciary who is an employee of the Employer.
7.10 - APPLICABLE LAW
The Plan will, unless superseded by federal law, be construed and
enforced according to the laws of the State of Louisiana, and all provisions
of the Plan will, unless superseded by federal law, be administered
according to the laws of the said state.
SECTION 8
TRUST FUND
8.1 - PURPOSE OF TRUST FUND
The Trust Fund has been created and will be maintained for the purposes
of the Plan, and the moneys thereof will be invested in accordance with the
terms of the agreement and declaration of trust which forms a part of the
Plan. All contributions will be paid into the Trust Fund, and all benefits
under the Plan will be paid from the Trust Fund, except to the extent
provided by Section 3.5 hereof.
8.2 - BENEFITS SUPPORTED ONLY BY TRUST FUND
Subject to applicable provisions of law, any person having any claim
under the Plan will look solely to the assets of the Trust Fund for satis-
faction.
8.3 - TRUST FUND APPLICABLE ONLY TO PAYMENT OF BENEFITS
The Trust Fund will be used and applied only in accordance with the
provisions of the Plan, to provide the benefits thereof, and no part of the
corpus or income of the Trust Fund will be used for, or diverted to,
purposes other than for the exclusive benefit of Participants and other
persons thereunder entitled to benefits, except to the extent provided in
Section 4.5 and Section 6.6 hereof with respect to termination of the Plan
and expenses of administration, respectively.
IN WITNESS WHEREOF, MELAMINE CHEMICALS, INC. has caused this instrument
to be executed by its duly authorized officers on this 9th day of
September, 1996, effective as of July 1, 1989.
(CORPORATE SEAL)
WITNESSES: MELAMINE CHEMICALS, INC.
/s/ Nila Jordan BY /s/ Frederic R. Huber
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/s/ Keely Landry TITLE: PRESIDENT AND CEO
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ACKNOWLEDGEMENT
STATE OF LOUISIANA
PARISH OF ASCENSION
BEFORE ME, the undersigned Notary Public, personally came and appeared
FREDERIC R. HUBER, President and CEO, of Melamine Chemicals, Inc., who being
by me sworn did depose and state that he signed the foregoing restated
Retirement Plan for Employees of Melamine Chemicals, Inc. as his free act and
deed on behalf of Melamine Chemicals, Inc. for the purposes therein set forth.
/s/ Frederic R. Huber
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SWORN TO AND SUBSCRIBED BEFORE ME
THIS 9TH DAY OF SEPTEMBER, 1996.
/s/ Notary Public
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NOTARY PUBLIC