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Exhibit 10.15
ZIMMER, INC.
LONG TERM DISABILITY INCOME PLAN
FOR HIGHLY COMPENSATED EMPLOYEES
(EFFECTIVE AUGUST 6, 2001)
TABLE OF CONTENTS
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PAGE
ARTICLE I DEFINITIONS.................................................................1
ARTICLE II ELIGIBILITY.................................................................3
ARTICLE III BENEFITS....................................................................4
ARTICLE IV FUNDING.....................................................................7
ARTICLE V ADMINISTRATION..............................................................7
ARTICLE VI TEMPORARY ABSENCES.........................................................10
ARTICLE VII TEMPORARY ALTERNATIVE WORK DUTY............................................10
ARTICLE VIII CLAIMS PROCEDURE...........................................................11
ARTICLE IX CIRCUMSTANCES WHICH MAY RESULT IN DISQUALIFICATION,
DENIAL OR LOSS OF BENEFITS.................................................13
ARTICLE X GENERAL PROVISIONS.........................................................14
ARTICLE XI AMENDMENT AND TERMINATION OF THE PLAN......................................16
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ZIMMER, INC.
LONG TERM DISABILITY INCOME PLAN
FOR HIGHLY COMPENSATED EMPLOYEES
(EFFECTIVE AUGUST 6, 2001)
The Zimmer, Inc. (the "Company") Long Term Disability Plan for Highly
Compensated Employees (the "Plan) effective August 6, 2001 is supplemental to
the long term disability income program adopted by Zimmer, Inc. for the benefit
of eligible employees of Zimmer, Inc. and its participating subsidiaries.
This Plan is effective August 6, 2001, unless noted otherwise herein.
The Plan is an unfunded employee welfare benefit plan, as defined in section
3(1) of ERISA, for the purpose of providing income protection for eligible
highly compensated employees for an Employee's Total Disability that extends
beyond the 26-week period during which benefits are provided under the Zimmer,
Inc. Short Term Disability Plan and after such Employees have received the
maximum annual payments under the Zimmer, Inc. Long Term Disability Income Plan,
effective August 6, 2001.
ARTICLE I
DEFINITIONS
Whenever used in this Plan, the following terms shall have the
meanings hereinafter set forth unless a different meaning is plainly required by
the context:
1.1 "BENEFIT WAITING PERIOD" means the 26-week period commencing on
the date the Employee becomes Totally Disabled. The Benefit Waiting Period shall
be applied to each period of Total Disability. Successive periods of Total
Disability shall be considered as one period of Total Disability unless the
subsequent Total Disability is separated from the previous period of Total
Disability by six months or more of full-time employment or is due to a cause or
causes entirely unrelated to the previous Total Disability.
1.2 "BENEFITS" means the disability benefits paid each month to an
Employee under the Plan who is Totally Disabled.
1.3 "CLAIMS ADMINISTRATOR" means the individual or entity that the
Plan Administrator has designated as the Claims Administrator for the initial
processing and determination of claims under the Plan.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended.
1.5 "COMPANY" means Zimmer, Inc. , a Delaware corporation.
1.6 "TOTAL DISABILITY" OR "TOTALLY DISABLED" means
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1.6.1 during the first year of an Employee's disability (which
shall include 26 weeks of "Disability" pursuant to the Short Term Disability
Plan, as defined therein, and the first 26 weeks of Total Disability pursuant to
this Plan) an Employee is absent from work because of the presence of an
impairment for which there is material objective medical evidence that prevents
the Employee from performing the essential functions of his own occupation or
any other job that the Company offers him, with or without any reasonable
accommodations that the Employee requests, other than a Temporary Alternative
Work Duty assignment, for which he is reasonably qualified by reason of his
education, training, or experience; and
1.6.2 after the Employee's first year of disability, as defined
in Section 1.6.1. an Employee is absent from work because of the presence of an
impairment for which there is material objective medical evidence that prevents
the Employee from engaging in any occupation, with or without reasonable
accommodations, for which he is reasonably qualified by education, training or
experience.
1.7 "DOCTOR" means a person who maintains a license in good standing
by the state in which he practices to practice medicine and/or surgery as a
doctor of medicine, osteopathy, chiropractic medicine, dentistry, podiatry, or
psychology, as long as such person is acting within the scope of his license and
providing treatment, care, or diagnosis that is appropriate and necessary to
treat the disabling condition. In no event shall Doctor include the Employee or
his dependents or any person who is the spouse, parent, child, brother, sister,
uncle, aunt, cousin, nephew, niece, grandparent or grandchild of such Employee,
his spouse or his dependents or any other person who is related to the Employee
by blood or marriage.
1.8 "EMPLOYEE" means a regular, full-time employee of the Employer
actively working a regularly scheduled workweek of at least 25 hours immediately
prior to becoming "Disabled" under the Short Term Disability Plan, as defined
therein, and whose Monthly Base Earnings exceed 1/12 of the $170,000
compensation limit under section 505(b)(7) of the Code, as automatically
adjusted to reflect any change made to this amount by the Secretary of the
Treasury.
1.9 "EMPLOYER" means the Company and its United States subsidiaries
and affiliates that are participating in the Plan.
1.10 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
1.11 "MONTHLY BASE EARNINGS" means, as determined by the Employer,
the Employee's basic monthly wages or salary plus 1/12 of any sales commissions
paid to the Employee in the previous calendar year, but shall not include
bonuses, overtime, or any other additional remuneration. Monthly Base Earnings
shall be determined as of the day immediately preceding the commencement of the
Employee's Benefit Waiting Period. If on that date the Employee was receiving no
basic wages or salary, his Monthly Base Earnings shall be determined as of the
date on which he last received basic wages or salary. Furthermore, Monthly Base
Earnings will only be taken into account for the purposes of determining
Benefits under this Plan to the extent that they exceed 1/12 of the $170,000
compensation limit under section
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505(b)(7) of the Code, as automatically adjusted to reflect any change made to
this amount by the Secretary of the Treasury.
1.12 "PLAN" means the Zimmer, Inc. Long Term Disability Income Plan
for Highly Compensated Employees, as may be amended from time to time.
1.13 "PLAN ADMINISTRATOR" means the Zimmer, Inc. Benefits Committee,
which is the "named fiduciary" of the Plan, as defined
section 402(a)(2) of ERISA.
1.14 "PLAN YEAR" means the calendar year, on which the Plan's books
and records are maintained.
1.15 "PREEXISTING DISABILITY" means an injury, sickness or other
condition that was reasonably connected to an Employee's Disability under the
Short Term Disability Plan for which an Employee in the 90-day period preceding
the Employee's commencement of employment with his Employer:
1.15.1 received medical treatment, consultation, care,
services, or diagnosis.
1.15.2 took a prescription medication or had prescription
medication prescribed; or
1.15.3 had symptoms or conditions which would cause a
reasonably prudent person to seek diagnosis, care, or treatment.
1.16 "SHORT TERM DISABILITY PLAN" means the Zimmer, Inc. Short Term
Disability Plan, as may be amended from time to time.
1.17 "TEMPORARY ALTERNATIVE WORK DUTY" means a job function for the
Employer that an Employee may fill while he is Totally Disabled, as set forth in
Article VII of the Plan.
ARTICLE II
ELIGIBILITY
2.1 ELIGIBLE EMPLOYEES. All Employees are eligible to participate in
the Plan except for the following Employees and employees who are specifically
excluded from the Plan:
2.1.1 All Employees of the Employer who are working in Puerto
Rico.
2.1.2 All leased employees, as defined in section 414(n) of the
Code, all independent contractors and all other individuals whom the Employer
does not treat as its employees for federal income and employment tax purposes,
even if it is subsequently determined by a court or the Internal Revenue Service
that such individuals should be, or should have been, properly classified as
common law employees of the Employer.
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2.1.3 All temporary employees, as classified by the Company,
regardless of the amount of hours that such employee works per week or year.
2.1.4 Employees whose terms of employment with the Employer are
the subject of a collective bargaining agreement, unless such collective
bargaining agreement specifically provides for the inclusion of such Employees
under the Plan.
2.2 COMMENCEMENT OF PARTICIPATION. Unless excluded above, an
eligible Employee shall commence participation in the Plan on the later of the
date that (a) he commences employment with the Employer or (b) his Employer is
designated to participate in the Plan. Notwithstanding the previous sentence or
Section 2.1 to the contrary, to the extent that the Company determines to
satisfy its obligations under state disability laws, as applicable, by providing
such state-mandated disability benefits from the Plan, other employees or former
employees may be eligible to receive payment from the Plan solely for that
purpose and such employees shall have no right to receive any Benefits from the
Plan beyond the amount of the state-mandated disability amount. In such cases,
the determination of eligibility for and the amount of such payments shall be
made by the Claims Administrator in accordance with the provisions of the
applicable state law.
2.3 PREEXISTING DISABILITY. An Employee who became "Disabled" under
the Short Term Disability Plan, as defined therein, within the first 12 months
of his employment with the Employer as a result of a Preexisting Disability
shall not be eligible to receive Benefits under this Plan at the end of the
Benefit Waiting Period for the Preexisting Disability.
ARTICLE III
BENEFITS
Subject to the requirements contained throughout the Plan, the
following sets forth the Benefits payable under the Plan:
3.1 DETERMINATION OF TOTAL DISABILITY. The determination of whether
an Employee is Totally Disabled shall be made in the sole discretion of the Plan
Administrator, or in the sole discretion of the Claims Administrator if the Plan
Administrator has delegated his power to make such determination to the Claims
Administrator, based upon the material objective medical evidence that the Plan
Administrator or Claims Administrator determines to be relevant to the
Employee's claim. As often as they determine necessary, the Plan Administrator
or Claims Administrator shall have the authority to require an Employee to
submit to an independent medical examination by a Doctor selected by the Plan
Administrator or Claims Administrator, without any input in such selection by
the Employee, or any other testing related to the Employee's claim for Benefits,
if the Plan Administrator or Claims Administrator deems such examination or
testing necessary and useful in determining whether an Employee is Totally
Disabled. Where not prohibited by law, the Plan Administrator or Claims
Administrator may reasonably require an autopsy in case of death if the results
are reasonably expected to help with the determination of whether the Employee
was entitled to Benefits under the Plan.
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3.2 DURATION OF PAYMENTS. At the end of the Benefit Waiting Period,
the Employee shall, unless the claim has been denied as provided in Article IX,
be paid during the period he is Totally Disabled the applicable Benefits as
provided in Section 3.3, commencing with the day next following expiration of
the Benefit Waiting Period (the "Benefit Commencement Date") and ceasing on the
earliest of the following dates:
3.2.1 the date the Employee ceases to be Totally Disabled,
3.2.2 the date of failure to submit evidence of continuing
Total Disability,
3.2.3 the date the Employee accepts or refuses a job offered to
him by an Employer at a salary at least equal to that which he was earning
immediately prior to his becoming Totally Disabled, provided for purposes of
this Section 3.2.3 that (i) he is qualified for such job by reason of education
or experience, (ii) he is, or becomes, qualified by reason of training, and
(iii) he does not have an impairment which prevents him from performing the
essential duties of that job, or
3.2.4 the first day of the month next following the Employee's
65th birthday if an Employee's Benefit Commencement Date occurs before attaining
age 63 and 6 months, (ii) the last day of the 18th calendar month after the
Employee's Benefit Commencement Date if an Employee's Benefit Commencement Date
occurs after attaining age 63 and 6 months but before attaining age 70, (iii)
the last day of the 12th calendar month after the Employee's Benefit
Commencement Date if an Employee's Benefit Commencement Date occurs after
attaining age 70 but before attaining age 74, or (iv) the last day of the sixth
calendar month after the Employee's Benefit Commencement Date if an Employee's
Benefit Commencement Date occurs after attaining age 74.
Notwithstanding anything to the contrary in this Section 3.2, an
Employee who is receiving Benefits under the Plan may elect under Section 7.4 of
the Zimmer, Inc. Retirement Income Plan (the "Retirement Income Plan") to have
such Benefit payments cease for the purposes of retirement or early retirement
under the Retirement Income Plan, and the Employee shall no longer be eligible
to participate under this Plan.
3.3 AMOUNT OF BENEFITS. The Monthly Benefit shall be an amount equal
to 70% of the Employee's Monthly Base Earnings, reduced by the total monthly
amount of disability income or other amounts which are or should be payable or
have been paid to the Employee from all the sources listed under Section 3.4 and
Section 3.8 for the period he is receiving or is entitled to receive Monthly
Benefits under the Plan.
3.4 BENEFIT OFFSETS. Benefits under this Plan shall be offset fully
by any income benefits, including lump sums, the employee receives or is
entitled to receive from the following sources by virtue of his Total
Disability:
3.4.1 The disability or retirement provisions of the Social
Security Act and the Railroad Retirement Act, and the applicable Unemployment
Compensation, Workers' Compensation and Occupational Diseases Acts. Periodic
cost-of-living increases in Social Security or Railroad Retirement benefits
occurring after the individual becomes Disabled will
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not be offset against the individual's Benefit under this Plan. If the
individual is eligible for but has waived participation in the Social Security
or Railroad Retirement program, or has failed to apply for benefits available
under those programs, or has declined coverage or failed to apply for benefits
available under the applicable Unemployment Compensation, Workers' Compensation
or Occupational Diseases Acts, his or her cash benefits under this Plan will be
reduced by the amounts that would normally have been awarded under any of those
programs.
3.4.2 Disability benefits payable under any federal, state or
local worker's compensation law or any employer liability law including any
state disability program.
3.4.3 Disability benefits payable under any federal, state or
local governmental plan with respect to which the Company has made
contributions.
Disability benefits payable under any income replacement plan
maintained by an Employer providing disability benefits, including retirement
plans (but excluding savings plans maintained by the Company), salary
continuance plans, severance pay plans or arrangements and disability income
plans other than this Plan. Benefits under this Plan will also be offset by any
settlement or damage award paid by the Employer to a recipient of Benefits under
this Plan, to the extent that such settlement or award is attributable to lost
earnings on account of disability.
3.5 DUTY TO NOTIFY CLAIMS ADMINISTRATOR. The Employee must inform
the Claims Administrator of any disability income under 3.4.1 through 3.4.4
above that is paid to such Employee immediately upon receiving such payment. The
failure to notify the Claims Administrator shall constitute grounds for the
immediate termination of Benefits hereunder to that Employee.
3.6 DUTY TO APPLY FOR BENEFITS. It shall be the responsibility of
the Employee to apply for all benefits under 3.4.1 through 3.4.4 above to which
he may be entitled and it shall be the further responsibility of the Employee to
file an appeal following a denial of any such benefits. If within a reasonable
period of time as determined in the sole discretion of the Plan Administrator or
the Claims Administrator, the Employee fails to apply for such benefits or fails
to file an appeal of a denial of such benefits, the Employee's Benefits under
the Plan shall be offset by the Claims Administrator's reasonable estimate of
the amount of such benefits to which the Employee would have been entitled had
proper application or appeal been made, assuming that such application or appeal
would have been successful.
3.7 OVERPAYMENT OF BENEFITS. The Plan shall have the right to
recover any overpayment of Benefits, either directly from the Employee or by
deduction of the full amount of overpayment from any part or all of the
Employee's future Benefits that otherwise would have been payable under the
Plan. Any such amount recovered shall be paid to the Company.
3.8 SUBROGATION. In the event of any payment of Benefits under the
Plan to any Employee, the Plan shall, to the full extent of such Benefit
payments and future Benefit payments, be subrogated fully to any and all of the
rights of recovery of the Employee arising out of any claim or cause of action
which may accrue because of the action or inaction (negligent or otherwise) of a
third party that gave rise to the condition, in whole or in part, which caused
the
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Employee to become Totally Disabled. Any such Employee agrees to reimburse
the Plan for any and all Benefit payments made under the Plan out of any monies
recovered from such third party (or any insurer thereof) as the result of any
judgment, settlement or otherwise, without reduction for any attorney's fees or
other expenses incurred in connection with the recovery of such amounts. The
Employee shall do whatever is necessary to secure the Plan's subrogation rights,
do nothing to prejudice them, and notify the Plan Administrator of any potential
recovery that may become payable as soon as the Employee is aware of such
potential recovery and must notify the Employee immediately of any actual
recovery that is paid or becomes payable to the Employee. Reimbursement is
required at the time the third party's liability is determined and paid to the
Employee or his attorney or other representative whether by settlement, judgment
or otherwise. If the amount actually received by the Employee from the third
party or its insurer exceeds the total amount of Benefits paid up to the date of
recovery by the Employee, the excess shall offset future Benefits until the
amount of such Benefits equals such excess.
3.9 CONDITION TO RECEIVE BENEFITS. As a condition to the receipt of
Benefits, the Employee shall be required to execute all assignments, liens, and
any other documents the Plan Administrator may deem necessary to secure such
rights, including, but not limited to, agreements setting forth the Plan's
overpayment and subrogation recovery rights as set forth in Section 3.7 and 3.8
above. The failure to execute or honor such assignment may result in the
immediate disqualification, denial, or loss of Plan Benefits under Article IX of
the Plan.
3.10 PAYMENT FOR PART OF A MONTH. - In the event that an Employee is
entitled to payment under the Plan for only part of a month, a portion of his
monthly Benefit shall be payable calculated as follows: The amount of his
monthly Benefit shall be divided by 30 to arrive at a daily rate, and such daily
rate shall then be multiplied by the number of calendar days in the month during
which the Employee was eligible for Benefits under the Plan.
ARTICLE IV
FUNDING
The Plan is funded through the general assets of the Company, which
pays the full cost of the Plan. Employees are not required or permitted to
contribute to the Plan.
ARTICLE V
ADMINISTRATION
5.1 PLAN ADMINISTRATOR. In addition to those discretionary authority
and responsibilities provided elsewhere herein, the Plan Administrator shall
have the discretionary authority and responsibility to:
5.1.1 determine whether an Employee is Totally Disabled;
5.1.2 grant or deny an Employee's claim for Benefits under the
Plan;
5.1.3 require any person to furnish such information as the
Plan Administrator may request for the purpose of the proper administration of
the Plan and as a condition to receiving any Benefit under the Plan;
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5.1.4 make and enforce such rules and regulations and prescribe
the use of such forms as he deems necessary for the efficient administration of
the Plan;
5.1.5 decide such questions as may arise in connection with the
Plan including, but not limited to, questions concerning the eligibility of any
Employee to participate in or receive Benefits under the Plan;
5.1.6 determine the amount of Benefits which shall be payable
to an Employee in accordance with the provisions of the Plan and to authorize
payment of such Benefits;
5.1.7 require as a condition of receiving any Benefits payable
under the Plan, the filing of an authorization or release by the spouse of an
Employee divesting such spouse of any rights in the Plan or in any payments
thereunder which such spouse may have by operation of law under the laws of his
matrimonial domicile or otherwise;
5.1.8 comply with all reporting and disclosure requirements
with respect to the Plan;
5.1.9 interpret and construe the provisions of the Plan and
to resolve ambiguities, inconsistencies and omissions therein, and to the extent
the Plan Administrator shall determine to be necessary or appropriate, deviate
from the literal terms of the Plan to operate the Plan in compliance with the
provisions of applicable law;
5.1.10 employ legal counsel who may be counsel to the Company
and such other specialists or persons as he deems necessary or desirable in
connection with the administration of the Plan; and
5.1.11 delegate any of his responsibilities to other persons
designated by him as he may deem necessary or appropriate, including, but not
limited to, the determination of questions concerning the eligibility of any
employee to participate in or receive benefits under the Plan, the
interpretation and construction of the provisions of the Plan and the resolution
of ambiguities, inconsistencies and omissions therein. The delegation of
responsibilities will be effected by written instrument executed by the Plan
Administrator.
The above Sections 5.1.1 through 5.1.11 shall not be considered to be an
exhaustive list of the Plan Administrator's powers and the Plan Administrator
shall be determined to have discretionary power to make any interpretations of
the Plan and carry out any actions or in actions that he deems reasonable.
5.2 CLAIMS ADMINISTRATOR. In addition to those discretionary
authority and responsibilities provided elsewhere herein, the Plan Administrator
has delegated to the Claims Administrator the following discretionary
authorities and responsibilities:
5.2. 1 to process the acceptance or denial of an initial claim
for Benefits under the Plan;
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5.2.2 to maintain records necessary for the administration of
the claims review process;
5.2.3 to require any person to furnish such information as it
may request for the purpose of the proper administration of the claims review
process and as a condition to receiving any Benefits under the Plan;
5.2.4 to make and enforce such rules and regulations and
prescribe the use of such forms as it deems necessary for the efficient
administration of the claims review process;
5.2.5 to determine the amount of Benefits which shall be
payable to an Employee in accordance with the provisions of the Plan and to
authorize payment of such Benefits in connection with the claims review process;
5.2.6 to require as a condition of receiving any Benefits
payable under the Plan in connection with the claims review process, the filing
of an authorization or release by the spouse of an Employee divesting such
spouse of any rights in the Plan or in any payments thereunder which such spouse
may have by operation of law under the laws of his matrimonial domicile or
otherwise;
5.2.7 to interpret and construe the provisions of the Plan and
to resolve ambiguities, inconsistencies and omissions therein, and to the extent
the Plan Administrator shall determine to be necessary or appropriate, deviate
from the literal terms of the Plan to operate the Plan in compliance with the
provisions of applicable law;
5.2.8 to decide all levels of appeals as set forth in Section
8.5 of the Plan;
5.2.9 to delegate any of its responsibilities as Claims
Administrator to other persons designated by it as it may deem necessary or
desirable in connection with the claims review process. The delegation of
responsibilities will be effected by written instrument executed by the Claims
Administrator.
The determinations of the Plan Administrator and the Claims Administrator, or
any of their delegates, as to any question involving the administration and
interpretation of the Plan, shall be final, conclusive and binding upon all
persons claiming any interest in or under the Plan except any such decision that
may be appealed under Article VIII of the Plan or as otherwise provided by law.
It is intended that any discretionary actions to be taken under the Plan by the
Plan Administrator or the Claims Administrator, and any such actions taken by
each person to whom the Plan Administrator or the Claims Administrator has
delegated its responsibilities under the Plan, shall not be subject to de novo
review if challenged in court, by arbitration or in any other forum, and shall
be upheld unless found to be an abuse of discretion by the Plan Administrator,
the Claims Administrator, or any of their delegates.
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ARTICLE VI
TEMPORARY ABSENCES
If an Employee who has satisfied the eligibility requirements is
absent from work due to a leave, his eligibility for Benefits, subject to the
completion of the Benefit Waiting Period, will continue in accordance with the
following provisions:
6.1 MILITARY LEAVE. During a military leave of absence, coverage
continues for 30 days or until the Employee enters military service, whichever
is sooner. If an Employee becomes Totally Disabled during the 30 days before
entering military service, Benefits will be paid to him in accordance with the
provisions of the Plan and will continue until recovery or the first day of
military service, whichever is sooner.
6.2 UNPAID LEAVE. During an approved unpaid leave of absence,
including an unpaid leave under the Company's family leave of absence policy or
the federal Family and Medical Leave Act, coverage continues for the full leave
period at no cost to the Employee. If the Employee becomes Totally Disabled
during such leave of absence, and is Totally Disabled on the day he is scheduled
to return to work following such leave of absence, Benefit payments will be paid
to him in accordance with the provisions of the Plan. If the Employee is on an
unpaid leave immediately following a period in which he was Totally Disabled,
any subsequent disability during the unpaid leave will be eligible for benefits
only under this Plan, and not the Short Term Disability Plan, and will be
treated as a continuation of the Employee's claim for which Benefits were paid
immediately preceding the unpaid leave, even if the condition causing the
disability is unrelated to the condition which caused the prior Total
Disability.
6.3 GOVERNMENTAL OR POLITICAL LEAVE. During a leave of absence for
governmental or political service, coverage continues for the full leave period
at no cost to the employee. If the Employee becomes Totally Disabled during such
leave of absence, and is Totally Disabled on the day he is scheduled to return
to work following such leave of absence, Benefit payments will be paid to him in
accordance with the provisions of the Plan.
ARTICLE VII
TEMPORARY ALTERNATIVE WORK DUTY
7.1 TEMPORARY ALTERNATIVE WORK DUTY DEFINED. During an Employee's
first year of absence due to illness or injury (twenty-six weeks of "Disability"
under the Short Term Disability Plan, as defined therein, plus twenty-six weeks
of Total Disability under this Plan), the Claims Administrator may approve an
Employee's return to work on a full-time or part-time basis performing the job
responsibilities of a Temporary Alternative Work Duty assignment. Such an
assignment is intended to promote an Employee's recovery and return to full-time
active duty in his own job following a period of absence due to Total
Disability, and is not to be considered a permanent accommodation. A Temporary
Alternative Work Duty is not limited to the following, but by way of example
could consist of an Employee:
7.1.1 performing his regular duties on a reduced work schedule;
7.1.2 working on a full-time basis, but performing modified job
duties; or
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7.1.3 performing the duties of some other temporary assignment
for which the Employee is qualified by reason of his education, training or
experience on either a full-time, or part-time basis.
7.2 STATUS OF EMPLOYEE AS TOTALLY DISABLED. An Employee will be
considered Totally Disabled during a Temporary Alternative Work Duty assignment
for as long as he (i) continues to be Totally Disabled, disregarding his ability
to perform a Temporary Alternative Work Duty, (ii) satisfies the conditions of
the Temporary Alternative Work Duty assignment and such assignment continues to
be available through his Employer, and (iii) complies with all of the terms and
conditions of the Plan. In no event shall a Temporary Alternative Work Duty
assignment be considered as a return to work for purposes of Section 3.2.3.
7.3 DURATION. An initial Temporary Alternative Work Duty assignment
shall extend for a period of up to twelve weeks. Such twelve-week period may be
extended by the Claims Administrator from time to time for an additional period
that is no longer than four weeks, but in no event shall the duration of a
Temporary Alternative Work Duty assignment extend beyond the first year of
absence due to illness or injury (twenty-six weeks of "Disability" under the
Short Term Disability Plan, as defined therein, plus twenty-six weeks of Total
Disability under this Plan). Each Temporary Alternative Work Duty assignment
will be reviewed by the Claims Administrator periodically, but not less than
once every four weeks.
7.4 BENEFITS. During a Temporary Alternative Work Duty assignment,
an Employee will be paid for the hours that he works at a rate equal to 100% of
his normal salary and wages as in effect on the day he became Totally Disabled.
Benefits from the Plan will be paid for the hours that an Employee does not work
during such assignment at 70% of Monthly Base Earnings, minus any offsets
required under the Plan. In no event shall payments for hours worked plus any
Plan Benefit paid during a Temporary Alternative Work Duty assignment exceed, in
the aggregate, 100% of an employee's normal salary and wages as of the date his
Total Disability began.
7.5 COMPLETION OF TEMPORARY ALTERNATIVE WORK DUTY. If the Claims
Administrator determines that an Employee is unable to resume the normal
responsibilities and work schedule of his regular position at the end of a
Temporary Alternative Work Duty assignment period, he may be eligible to
continue to receive Benefits pursuant to the terms of the Plan as long as he
remains Totally Disabled. In that case, an Employee's continued absence from
work following a Temporary Alternative Work Duty assignment shall be considered
a continuation of the original period of Total Disability.
ARTICLE VIII
CLAIMS PROCEDURE
8.1 FILING A CLAIM WITH THE CLAIMS ADMINISTRATOR. During the Benefit
Waiting Period, the Claims Administrator will provide the Employee with the
necessary forms and documents to complete to enable the Employee to make a claim
for Benefits under this Plan.
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8.2 NECESSARY INFORMATION. To the extent that the Claims
Administrator does not already have such information, the Employee will be
required to provide information to the Claims Administrator including, but not
limited to, the following:
8.2.1 his name and Social Security number;
8.2.2 his supervisor's name and daytime telephone number;
8.2.3 the date he last worked;
8.2.4 the division/location where he works;
8.2.5 his job title and a brief description of his job duties;
8.2.6 his home address and telephone number; and
8.2.7 his doctor's name, address and telephone number.
8.3 PREREQUISITE TO RECEIVING BENEFITS. The Claims Administrator
shall inform the Employee that no Benefits under the Plan will be paid until the
Employee executes and submits an authorization for the release of medical
information, an overpayment recovery agreement, a subrogation agreement, and any
other forms that the Claims Administrator deems necessary to administer the
Employee's claim for Benefits.
8.4 CONTACT WITH DOCTOR. The Claims Administrator shall contact the
Employee's Doctor to obtain information concerning the exact diagnosis, expected
return to work date, subjective symptoms, objective findings and the extent to
which the Employee's condition prevents him from performing the essential duties
of his usual occupation with the Company. Updated information concerning the
Employee's condition shall be required from the Employee's Doctor at reasonable
intervals determined by the Claims Administrator based on the extent and
severity of the Employee's injury or illness. While the Claims Administrator may
request additional information when it is necessary, it is the responsibility of
the Employee to insure the cooperation of his medical providers in responding to
such requests.
8.5 CLAIMS PROCEDURE FOR CLAIMS DENIED.
8.5.1 DENIAL OF CLAIM FOR BENEFITS. If an Employee's claim is
denied in full or in part, within 90 days (or, under certain conditions, 180
days) after the claim is received, the Employee will receive written notice from
the Claims Administrator setting out in detail (i) the specific reasons for the
denial, (ii) specific reference to the pertinent Plan provisions on which the
denial is based, (iii) a description of any additional material or information
necessary for resubmission of the claim and an explanation of why such material
or information is necessary, and (iv) an explanation of the Plan's appeal
procedure.
8.5.2 PROCEDURE FOR LEVEL I APPEAL. If the Employee is not
satisfied with the reasons for the denial of the claim, he (or his duly
authorized representative) may appeal the decision to the Claims Administrator.
The appeal must be in writing and must be made within 60 days of the Employee's
receipt of the notice denying the claim. The appeal must state the
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Employee's reason for the appeal. Any evidence or documentation to support the
Employee's position must be included. Upon request, the Employee may review Plan
documents that pertain to the claim and its denial.
8.5.3 DECISION ON LEVEL I APPEAL. The Claims Administrator will
designate an employee or representative who was not involved in the original
claim denial to review the appeal promptly and will advise the Employee of its
decision in writing, setting out specific reasons for the decision with specific
reference to pertinent Plan provisions on which the decision is based. This
written decision will be sent not later than 30 days after receipt of the
Employee's written appeal, unless special circumstances require an extension of
time for processing the appeal or obtaining additional information, but in no
event shall such decision be made more than 90 days after receipt of the
Employee's written appeal. If the decision on the Level I Appeal is to uphold
the initial denial, the written decision will include a description of any
additional material or information necessary for resubmission of the claim and
an explanation of why such material or information is necessary, together with
an explanation of the Plan's Level II Appeal procedure.
8.5.4 PROCEDURE FOR LEVEL II APPEAL. If the Employee is not
satisfied with the decision on the Level I Appeal, he (or his duly authorized
representative) may file a Level II Appeal with the ERISA Appeal Board, which
shall be comprised of employees and/or representatives of the Claims
Administrator who were not involved with the original claim denial or the
decision on the Level I Appeal. The Level II Appeal to the ERISA Appeal Board
must be in writing and must be made within 60 days of the Employee's receipt of
the decision on the Level I Appeal. The Level II Appeal must state the
Employee's reason for the appeal. Any evidence or documentation to support the
Employee's position must be included. Upon request, the Employee may review Plan
documents that pertain to the claim and its denial.
8.5.5 DECISION ON LEVEL II APPEAL. The ERISA Appeal Board will
review the Level II Appeal promptly and will advise the Employee of its decision
in writing, setting out specific reasons for the decision with specific
reference to pertinent Plan provisions on which the decision is based. This
written decision will be sent not later than 60 days after receipt of the
Employee's written appeal, unless special circumstances require an extension of
time for processing the appeal or obtaining additional information, but in no
event shall such decision be made more than 120 days after receipt of the
Employee's written Level II Appeal.
ARTICLE IX
CIRCUMSTANCES WHICH MAY RESULT
IN DISQUALIFICATION, DENIAL OR LOSS OF BENEFITS
The Employee's rights to receive and to continue receiving Benefits
under this Plan may be denied by the Claims Administrator or Plan Administrator,
in their discretion, for any of the following reasons:
9.1 INELIGIBILITY. The Employee does not meet the eligibility
requirements as set forth in Article II of the Plan.
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9.2 FAILURE TO PROVIDE REQUIRED INFORMATION. The Employee fails to
submit evidence of Total Disability or such forms, assignment, liens, agreements
or other documents that the Plan Administrator or Claims Administrator deems
necessary to administer the Plan.
9.3 FAILURE TO SUBMIT EVIDENCE OR REFUSAL OF EXAMINATION. The
Employee or the Employee's Doctor or other healthcare provider does not submit
evidence of continuing Total Disability that has been requested or the Employee
refuses an independent medical examination or other examinations or tests
requested by the Company or the Claims Administrator to determine whether the
Employee is Totally Disabled.
9.4 LACK OF TOTAL DISABILITY. The Employee is not, or ceases to be,
Totally Disabled.
9.5 OTHER OCCUPATION. The Employee is engaged in any other
occupation or earns any self-employment income in excess of a
de minimis amount.
9.6 TERMINATION OF EMPLOYMENT. The Employee has been terminated or
voluntarily terminates employment with his Employer.
9.7 FAILURE TO COMPLY WITH DOCTOR'S REQUIREMENTS. The Employee is
not under the regular care of a Doctor as required by his condition or the
Employee is not following the Doctor's treatment plan.
9.8 SPECIFIC CAUSES OF TOTAL DISABILITY. The Total Disability
results from (i) an intentionally self-inflicted injury; (ii) participating in
an illegal act, or (iii) war or any act of war, declared or undeclared.
9.9 PARTICIPATION IN A FELONY. The Employee participates in and is
convicted of a felony offense. In this case, the Employee's Total Disability
shall be determined to have ceased as of the date that the Employee first
participated in such felony offense.
9.10 FRAUD. The Employee commits or partakes in any actions of fraud
against the Plan or the Company.
ARTICLE X
GENERAL PROVISIONS
10.1 LIMITED PURPOSE OF PLAN. The Plan shall not be deemed to
constitute a contract between an Employee and any Employer nor shall anything
herein contained be deemed to give an Employee any right to be retained in the
employ of any Employer or to interfere with the rights of the Employer to
discharge any Employee at any time and to treat him without regard to the effect
which such treatment might have upon him with respect to his participation in
the Plan. In addition, no provision of the Plan is intended to guarantee that
Benefit levels stated in the Plan will remain unchanged in the future.
10.2 NON-ALIENATION OF BENEFITS. Except as may be prohibited by law,
no right or interest of any Employee in the Plan and no payment of any Benefits
under the Plan to any Employee shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment,
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pledge, encumbrance or charge, whether voluntary or involuntary, and any attempt
to so anticipate, alienate, sell, transfer, assign, pledge, encumber or charge
the same shall be void. Nor shall any such right, interest, benefit,
distribution or payment be in any way liable for or subject to the debts,
contracts, liabilities, engagements or torts of any person entitled to such
right, interest, benefit, distribution or payment. If any Employee is
adjudicated bankrupt or purports to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge any such right, interest, benefit,
distribution or payment, voluntarily or involuntarily, the Plan Administrator,
in his discretion, may hold or apply or cause to be held or applied such right,
interest, benefit, distribution or payment or any part thereof to or for the
benefit of such Employee in such manner as the Plan Administrator shall direct.
10.3 FACILITY OF PAYMENT. If the Plan Administrator determines that
any person entitled to Benefits under the Plan is incompetent or is unable to
care for his affairs by reason of physical or mental disability, the Plan
Administrator may cause all payments thereafter becoming due to such person to
be made to any other person for his benefit, without responsibility to follow
the application of amounts so paid. Benefit payments made pursuant to this
provision shall completely discharge Zimmer, Inc., its subsidiaries and
affiliates, the Plan Administrator and the Claims Administrator with respect to
such Benefit payments.
10.4 FIDUCIARY RESPONSIBILITY. It is intended that, to the maximum
extent permitted by ERISA, each person who is a "fiduciary" with respect to the
Plan (as that term is defined in section 3(21) of ERISA) shall be responsible
for the proper exercise of his own powers, duties, responsibilities and
obligations under the Plan, as shall be each person designated by any fiduciary
to carry out any fiduciary responsibility with respect to the Plan, and no
fiduciary or other person to whom fiduciary responsibilities are allocated shall
be liable for any act or omission of any other fiduciary or of any other person
designated to carry out any fiduciary or other responsibility under the Plan.
Any fiduciary under the Plan, and any person to whom any such fiduciary may have
delegated any duty or power in connection with the administration of the Plan,
the Company, and the officers and directors thereof, shall be entitled to rely
conclusively upon and shall be fully protected in any action omitted, taken or
suffered by them in good faith in reliance upon any actuary, accountant, counsel
or other specialist or person selected in accordance with the provisions of the
Plan or in reliance upon any tables, evaluations, certificates, opinions or
reports which shall be furnished by any of them or any insurance company.
10.5 EXCLUSIVE BENEFIT RULE. The Plan Administrator and the Claims
Administrator shall administer the Plan for the exclusive benefit of the
Employees.
10.6 GOVERNING LAW. The provisions of the Plan shall be construed,
administered and governed under the laws of the State of Indiana to the extent
such laws have not been superseded by ERISA.
10.7 COMPENSATION AND EXPENSES. All ordinary and necessary expenses
of the administration of the Plan shall be paid by the Company.
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10.8 CONSTRUCTION. For purposes of interpretation of the Plan, the
masculine pronoun includes the feminine, and the singular includes the plural,
wherever appropriate. In addition, the headings for each Article and Section are
intended for reference only, and if there is any conflict between such headings
and the text of this Plan, the text shall control.
ARTICLE XI
AMENDMENT AND TERMINATION OF THE PLAN
11.1 AMENDMENT. The Company may amend the Plan at any time and from
time to time, provided that no amendment shall be effective unless the Plan
shall continue to be for the exclusive benefit of Employees. Any amendment,
modification, suspension or termination of any part or all of the Plan may be
made by the Plan Administrator, except that amendments causing an additional
material expense to the Company will require the approval of the Zimmer, Inc.
Benefits Committee.
11.2 TERMINATION. While the Company and each Employer intends to
continue the Plan indefinitely, the Company reserves the right to terminate the
Plan at any time through action taken by its Board of Directors and each
Employer reserves the right to terminate its participation in the Plan at any
time.
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CERTIFICATION
I, [__________________], Plan Administrator of the Zimmer, Inc. Long
Term Disability Income Plan for Highly Compensated Employees (the "Plan"),
pursuant to Section 6.1 of the Plan DO HEREBY DELEGATE to [_________________],
Manager of Disability Programs, my discretionary authority and responsibilities
under the Plan effective [______________] as follows:
1. The discretionary authority and responsibility to determine
questions concerning the eligibility of my employee to participate in or receive
benefits under the Plan;
2. The discretionary authority and responsibility to interpret and
construe the provisions of the Plan and resolve ambiguities, inconsistencies and
omissions therein; and
3. The discretionary authority and responsibility to resolve and
determine any appeal of the denial of a claim for benefits under the Plan
Furthermore, effective [_________________], I hereby REVOKE any
discretionary authority and responsibilities under the Plan that have been
previously granted to any other parties.
EXECUTED THIS ____ DAY OF [_______________]
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[--------------]
Plan Administrator