RETIREMENT PLAN FOR
GREAT DANE TRAILERS, INC.
Effective as of January 1, 1989
TABLE OF CONTENTS
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ARTICLE I - PREAMBLE/EFFECTIVE DATE OF PLAN................................ 1
ARTICLE II - DEFINITIONS AND CONSTRUCTION.................................. 3
2.1 Definitions.................................................... 3
2.2 Service for Predecessor Employer............................... 22
2.3 Word Usage..................................................... 22
2.4 Calculation of Time............................................ 22
2.5 Construction................................................... 22
ARTICLE III - ELIGIBILITY AND PARTICIPATION................................ 23
3.1 Eligibility.................................................... 23
3.2 Years of Eligibility Service................................... 23
3.3 Participation - Re-Employed Employees.......................... 24
3.4 Re-employment and Service Crediting Rules for Disabled
Participants................................................... 24
3.5 Enrollment..................................................... 25
ARTICLE IV - CONTRIBUTIONS................................................. 26
4.1 Employer Contributions......................................... 26
4.2 Forfeitures.................................................... 26
4.3 Return of Employer Contributions............................... 26
4.4 Participant Contributions...................................... 26
ARTICLE V - REQUIREMENTS FOR RETIREMENT BENEFITS........................... 27
5.1 Normal Retirement.............................................. 27
5.2 Early Retirement............................................... 27
5.3 Late Retirement................................................ 27
5.4 Termination of Service Prior to Normal Retirement Age.......... 28
5.5 Vesting Service................................................ 28
5.6 Included Years of Vesting Service - Certain Terminated
Employees...................................................... 29
5.7 Forfeiture Occurs.............................................. 29
5.8 Limitation on Time of Payment.................................. 29
ARTICLE VI - AMOUNT OF RETIREMENT BENEFIT.................................. 32
6.1 Normal Retirement Pension...................................... 32
6.2 Early Retirement Pension....................................... 35
6.3 Late Retirement Pension........................................ 36
6.4 Disability Pension............................................. 36
6.5 Deferred Vested Pension........................................ 37
6.6 Adjustment of Pension to Reflect Benefits Accrued under the
Prior Plan..................................................... 37
6.7 Maximum Annual Benefit......................................... 38
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6.8 Suspension of Benefits Upon Re-Employment of
Retired Participants........................................... 40
ARTICLE VII - METHOD OF PAYMENT OF PENSION................................. 42
7.1 Normal Form of Pension......................................... 42
7.2 Optional Pension Forms......................................... 43
7.3 Participant Pension Payment Elections.......................... 45
7.4 Qualified Pre-Retirement Survivor Annuity...................... 47
7.5 Methods of Benefit Payment..................................... 48
7.6 Distributions on Termination of Employment for Reasons Other
than Retirement................................................ 49
7.7 Qualified Domestic Relations Orders............................ 50
7.8 Determination of Benefit of Transferred Employees.............. 50
7.9 Cash Withdrawal Benefit........................................ 52
ARTICLE VIII - DEATH BENEFITS.............................................. 53
8.1 Benefit for Pre-Retirement Death............................... 53
8.2 Benefit for Post-Retirement Death.............................. 53
8.3 Pre-1992 Lump Sum Death Benefit................................ 53
8.4 Designation of Beneficiaries................................... 53
8.5 Contingent Beneficiaries....................................... 54
ARTICLE IX - EMPLOYER ADMINISTRATIVE PROVISIONS............................ 56
9.1 Information.................................................... 56
9.2 No Liability................................................... 56
9.3 Employer Action................................................ 56
9.4 Indemnity...................................................... 56
9.5 Amendment to Vesting Schedule.................................. 56
ARTICLE X - ADMINISTRATION AND INVESTMENT PROVISIONS....................... 58
10.1 Appointment of Administration Committee Members................ 58
10.2 Term........................................................... 58
10.3 Compensation................................................... 58
10.4 Powers of the Administration Committee......................... 58
10.5 Manner of Action............................................... 60
10.6 Authorized Representative...................................... 60
10.7 Nondiscrimination.............................................. 60
10.8 Interested Member.............................................. 60
10.9 Funding Policy................................................. 60
10.10 Books and Records.............................................. 61
ARTICLE XI - PARTICIPANT ADMINISTRATIVE PROVISIONS......................... 62
11.1 Personal Data to Administration Committee...................... 62
11.2 Address for Notification....................................... 62
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11.3 Assignment or Alienation....................................... 62
11.4 Litigation Against the Trust................................... 62
11.5 Information Available.......................................... 63
11.6 Beneficiary's Right to Information............................. 63
11.7 Claims Procedure............................................... 63
11.8 Appeal Procedure for Denial of Benefits........................ 63
11.9 Place of Payment and Proof of Continued Eligibility............ 65
11.10 No Rights Implied.............................................. 65
ARTICLE XII - FIDUCIARIES DUTIES........................................... 66
12.1 Fiduciaries.................................................... 66
12.2 Allocation of Responsibilities................................. 66
12.3 Procedures for Delegation and Allocation of Responsibilities... 67
12.4 General Fiduciary Standards.................................... 68
12.5 Liability Among Co-Fiduciaries................................. 68
ARTICLE XIII - DISCONTINUANCE, AMENDMENT, AND TERMINATION.................. 70
13.1 Discontinuance................................................. 70
13.2 Amendment...................................................... 70
13.3 Merger, Consolidation, or Transfer of Assets................... 70
13.4 Termination.................................................... 71
13.5 Vesting on Termination......................................... 71
13.6 Procedure on Termination....................................... 72
13.7 Partial Termination............................................ 72
13.8 Liquidation of Trust Fund and Insurance Contracts.............. 72
13.9 Successor Employer............................................. 74
13.10 Manner of Distribution......................................... 74
13.11 Residual Amounts............................................... 74
13.12 Transfer of Assets and Liabilities from ICC Plan and
Wescar Plan.................................................... 74
ARTICLE XIV - PLAN TERMINATION............................................. 75
ARTICLE XV - ADOPTION OF PLAN BY AFFILIATE................................. 76
15.1 Adoption by Affiliates......................................... 76
15.2 Withdrawal by Employer......................................... 76
15.3 Adoption Contingent Upon Initial and Continued Qualification... 77
15.4 No Joint Venture Implied....................................... 77
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ARTICLE XVI - THE TRUST AND INSURANCE CONTRACTS............................ 78
16.1 Purpose of the Trust Fund and Insurance Contracts.............. 78
16.2 Appointment of Trustee......................................... 78
16.3 Exclusive Benefit of Participants.............................. 78
16.4 Benefits Supported Only By the Trust Fund and Insurance
Contracts...................................................... 78
16.5 Rights to Assets of Trust and Proceeds of Insurance Contracts.. 78
ARTICLE XVII - TOP HEAVY PLAN PROVISIONS................................... 80
17.1 Top Heavy Rules Applied........................................ 80
17.2 Additional Definitions......................................... 80
17.3 Additional Limitation - Defined Benefit Plan................... 83
17.4 Termination of Service Prior to Normal Retirement Age.......... 84
17.5 Minimum Benefits............................................... 85
ARTICLE XVIII - MISCELLANEOUS.............................................. 88
18.1 Payment in the Event of Legal Disability....................... 88
18.2 Payments Only from Trust Fund or Insurance Contracts........... 88
18.3 Unclaimed Account Procedure.................................... 88
18.4 Execution of Receipts and Releases............................. 89
18.5 No Guarantee of Interests...................................... 89
18.6 Payment of Expenses............................................ 89
18.7 Employer Records............................................... 90
18.8 Interpretations and Adjustments................................ 90
18.9 Uniform Rules.................................................. 90
18.10 Evidence....................................................... 90
18.11 Severability................................................... 90
18.12 Notice......................................................... 90
18.13 Waiver of Notice............................................... 90
18.14 Successors..................................................... 90
18.15 Headings....................................................... 90
18.16 Governing Law.................................................. 91
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RETIREMENT PLAN FOR
GREAT DANE TRAILERS, INC.
EFFECTIVE AS OF JANUARY 1, 1989
ARTICLE I
PREAMBLE/EFFECTIVE DATE OF PLAN
WHEREAS, effective January 1, 1985, Great Dane Trailers, Inc. (the
"Company") amended and continued the Great Dane Trailers, Inc. Retirement Plan
(the "Prior Plan") which it had previously established to provide retirement
benefits for certain of its employees and their beneficiaries; and
WHEREAS, the Prior Plan was terminated on December 31, 1985; and
WHEREAS, effective January 1, 1986, the Company adopted the Retirement
Plan for Great Dane Trailers, Inc. (the "Plan") to provide retirement benefits
for certain of its employees and their beneficiaries; and
WHEREAS, effective July 1, 1988, the Company accepted the transfer of the
assets and liabilities attributable to active and former employees under the
Amended and Restated International Controls Corp. Pension Plan (other than those
individuals actively employed by International Controls Corp. on January 1,
1988, and who were subject to the provisions of the Stock Purchase Agreement
between International Controls Corp. and Datron Inc. dated May 6, 1988) as of
June 30, 1988, to the Plan and approved the adoption of the Plan by
International Controls Corp. pursuant to Section 15.1 of the Plan; and
WHEREAS, effective July 1, 1988, the Company accepted the transfer of all
of the assets and liabilities attributable to active and former employees under
the Retirement Plan for Wescar Freight System, Inc. as of June 30, 1988, to the
Plan and to approve the adoption of the Plan by Wescar Freight Systems, Inc. and
Transway Intermodal System, Inc. pursuant to Section 15.1 of the Plan; and
WHEREAS, effective January 1, 1986, the Company restated the entry date
requirements of the Plan to ensure that they reflect the intent underlying the
Plan which was covered by the favorable determination letter issued by the
Internal Revenue Service; and
WHEREAS, effective July 1, 1988, the Company adopted an amendment and
restatement of the Plan, the provisions of which applied to all Employees whose
Service with the Employer terminated on or after July 1, 1988. Benefits earned
under the ICC Plan by employees who terminated active service prior to July 1,
1988, will be payable from this Plan but shall be payable only in accordance
with the terms of the ICC Plan and benefits earned under the Wescar Plan by
employees who terminated active service prior to July 1, 1988, will be payable
from this Plan but shall be payable only in accordance with the terms of the
Wescar Plan; and
1
WHEREAS, effective January 1, 1989, the Company amended and restated the
Plan to comply with the Tax Reform Act of 1986 and related legislation and the
regulations promulgated by the Internal Revenue Service with respect thereto;
and
WHEREAS, effective January 1, 1993, the Company amended the Plan to (i)
clarify certain cross-references in the definition of "Accrued Benefit," (ii)
modify the applicable interest rate for determining the actuarial equivalent of
a Participant's Pension under the Plan, (iii) clarify the Benefit Service of
certain bargaining unit employees who are transferred into or out of an
employment classification that is eligible for participation in the Plan, (iv)
clarify the disability benefits payable under the Plan, and (v) comply with the
withholding and direct transfer requirements enacted by the Unemployment
Compensation Amendments of 1992;
WHEREAS, the Company desires to amend and restate the Plan to incorporate
the prior amendment and to incorporate the limitation on compensation enacted by
the Omnibus Budget Reconciliation Act of 1993;
NOW, THEREFORE, effective January 1, 1989, the Company hereby amends and
restates the Plan, to comply with the Tax Reform Act of 1986 and related
legislation and the regulations promulgated by the Internal Revenue Service with
respect thereto. Except as otherwise provided herein, the provisions of this
Plan as hereby amended and restated shall apply to all Employees whose Service
with the Employer terminates on or after January 1, 1989; provided, however,
that the provisions hereof shall not reduce the Accrued Benefit of any
Participant as of December 31, 1988.
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End of Article I
2
ARTICLE II
DEFINITIONS AND CONSTRUCTION
2.1 DEFINITIONS. For purposes of this Plan, the following definitions
shall apply, unless the context clearly indicates otherwise:
(a) "ACCRUED BENEFIT" means an amount, determined as of any
specified date on or before a Participant's Normal Retirement Date, which is
equal to:
(i) His annual Normal Retirement Pension, as computed under
Section 6.1(a) of the Plan, but calculated without adjustment for benefits
accrued under the Prior Plan under Section 6.6 of the Plan and on the
assumption that the Participant continued as an Employee until his Normal
Retirement Date, earning the same rate of Compensation that he is earning
on the specified date, multiplied by a fraction, the numerator of which is
the Participant's years of Benefit Service with the Employer as of the
specified date (up to a maximum of thirty (30)), and the denominator of
which is the years of Benefit Service with the Employer the Participant
would have had had he continued in the employment of the Employer until
his Normal Retirement Date (up to a maximum of thirty (30)), except that
the amount determined under clause (B) of the second paragraph of Section
6.1(a) shall not be multiplied by such fraction, minus
(ii) The amount of the Participant's accrued benefit under
the Prior Plan as determined under Section 6.6;
provided, however, that except as provided in Section 6.1(c), regarding
transfers involving collective bargaining employees, no Participant shall have
an Accrued Benefit until he has completed at least two (2) years of Benefit
Service, at which time all years of Benefit Service with the Employer shall be
counted in computing the Participant's Accrued Benefit. In addition, except to
the extent otherwise provided in regulations promulgated by the Secretary of the
Treasury, the term "Accrued Benefit" shall, with respect to benefits
attributable to Service before any amendment of this Plan, include any early
retirement benefit, retirement-type subsidy (as defined in regulations
promulgated by the Secretary of the Treasury), or optional form of benefit. In
the case of a retirement-type subsidy, the preceding sentence shall apply only
with respect to a Participant who satisfies (either before or after the
amendment) the pre-amendment conditions for the subsidy.
Notwithstanding any other provision of the Plan, in no event shall the Accrued
Benefit of an ICC Plan Participant be less than the Accrued Benefit of such ICC
Plan Participant as of June 30, 1988, under the ICC Plan and in no event shall
the Accrued Benefit of a Wescar Plan Participant be less than the Accrued
Benefit of such Wescar Plan Participant as of June 30, 1988, under the Wescar
Plan.
(b) "ACT" means the Employee Retirement Income Security Act of
1974, as amended, and any regulations or rulings issued thereunder.
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(c) "ACTUARIAL EQUIVALENCY" or "ACTUARIALLY EQUIVALENT" means
equality in value of the aggregate amounts expected to be received as a benefit
from the Plan under different forms of payment, as determined by the Actuary
based on an interest assumption of:
(i) For purposes of Section 6.7, regarding limitations on
benefits, five percent (5%) interest compounded annually and the UP-1984
Mortality Table; and
(ii) For all other purposes of the Plan, seven percent (7%)
interest compounded annually and the UP-1984 Mortality Table with the age
of the Beneficiary, if applicable, set back five (5) years.
(d) "ACTUARY" means an enrolled actuary, within the meaning of
section 7701(a)(35) of the Code, or a firm of actuaries with which an enrolled
actuary is associated, selected by the Administration Committee to provide
actuarial services in connection with the administration of the Plan.
(e) "ADMINISTRATION COMMITTEE" means the Plan Administration
Committee as from time to time constituted under Article X hereof.
(f) "ALTERNATE PAYEE" means any spouse, former spouse, child, or
other dependent of a Participant who is recognized by a Domestic Relations Order
as having a right to receive all, or a portion of, the benefits payable under
the Plan with respect to such Participant.
(g) "ANNIVERSARY DATE" means January 1st of each year.
(h) "ANNUITY CONTRACT" means the annuity contract or contracts
purchased to provide the Accrued Benefits under the Prior Plan or the Transway
International Corporation Pension Plan as of the date of its termination.
(i) "ANNUITY STARTING DATE" means the first day of the first
month for which an amount is payable to a Participant as an annuity. In the
event that an amount is not payable in the form of an annuity, the Annuity
Starting Date shall mean the first day on which all events (including the
passing of the day on which benefits are scheduled to commence) have occurred
which entitle the Participant to his first benefit payment from the Plan.
(j) "AUTHORIZED LEAVE OF ABSENCE" means any absence authorized
by an Employer. An Authorized Leave of Absence shall be granted by an Employer
for mandatory service in the Armed Forces of the United States and jury duty.
An Authorized Leave of Absence may be granted by an Employer for sickness,
accident, vacation, or Disability, or to comply with the Family and Medical
Leave Act of 1993, or for other reasons under rules established by the Employer
and uniformly applied to all individuals similarly situated.
(k) "AVERAGE MONTHLY COMPENSATION" means the Compensation of an
Employee from the Employer during the five (5) consecutive calendar years within
his last ten (10) calendar years of Service with the Employer that yields the
highest average; provided, however, that if a Participant received Compensation
for a period of less than five (5) calendar years, Average
4
Monthly Compensation shall be equal to the Average Monthly Compensation received
in the full consecutive calendar years included in the Participant's period of
Service with the Employer in which Compensation was received; and provided
further that, with respect to an ICC Plan Participant, Compensation prior to
1984 shall be disregarded in determining Average Monthly Compensation.
In calculating the Average Monthly Compensation of a Participant who is employed
by a Related Employer that ceases to maintain this Plan, Average Monthly
Compensation shall equal the GREATER of:
(i) Average Monthly Compensation as calculated above using
Compensation as defined in Section 2.1(r) as of the last day that such
Related Employer maintained this Plan; or
(ii) Average Monthly Compensation as calculated above using
Compensation as defined in Section 2.1(r), but assuming that remuneration
paid to the Participant by such Related Employer after the date such
Related Employer ceased to maintain the Plan is Compensation as defined in
Section 2.1(r) that shall be used for purposes of calculating such
Participant's Average Monthly Compensation.
Notwithstanding the foregoing provisions of this Section 2.1(k), in the event
that a Participant participated in the Plan prior to the Effective Date and
pursuant to the provisions of the Plan in effect during such period such
Participant's Average Monthly Compensation would be greater than his Average
Monthly Compensation calculated pursuant to this Section 2.1(k), such Average
Monthly Compensation shall be used in lieu of the Participant's Average Monthly
Compensation with respect to benefits accrued prior to the Effective Date.
(l) "BENEFICIARY" means any person or fiduciary designated
pursuant to Section 8.4 by a Participant or a Former Participant who is or may
become entitled to receive benefits hereunder following the death of such
Participant or Former Participant.
(m) "BENEFIT SERVICE" means the years of Service included in the
determination of the amount of a Participant's Accrued Benefit, determined in
accordance with Section 6.1(b).
(n) "BOARD OF DIRECTORS" means the Board of Directors of the
Company, or any committee appointed by the Board of Directors and serving at the
pleasure of such Board of Directors which is given authority to exercise some or
all of the powers of such Board of Directors with respect to the Plan and the
Trust.
(o) "BREAK IN SERVICE" means, with respect to periods of time
prior to January 1, 1986, for Participants other than ICC Plan Participants, any
One Year Period of Severance (within the meaning of the Prior Plan or the Wescar
Plan, whichever is applicable) and, with respect to periods of time on and after
January 1, 1986, and with respect to all periods of time for ICC Plan
Participants, any Plan Year during which an Employee or Participant does not
complete more than five hundred (500) Hours of Service.
5
(p) "CODE" means the Internal Revenue Code of 1986, as amended,
and any regulations or rulings issued thereunder.
(q) "COMPANY" means Great Dane Trailers, Inc., a Georgia
corporation.
(r) "COMPENSATION" means, for purposes of determining a
Participant's Monthly Compensation under Section 2.1(ss):
(i) With respect to each eligible exempt salaried Employee
except salesmen, the monthly salary rate in effect at the end of a Plan
Year times twelve (12) plus any bonus, incentive compensation, or overtime
earned during the Plan Year;
(ii) Except as provided in Section 2.1(r)(iv), with respect
to each non-exempt hourly Employee, the hourly service rate in effect at
the end of a Plan Year times two thousand eighty (2,080) plus any overtime
earned during the Plan Year;
(iii) With respect to each salesman, basic cash compensation
including commissions, overtime, bonus or any special commission paid to
each such salesman during the Plan Year; or
(iv) With respect to Employees who are not Highly Compensated
Employees and whose primary compensation is based on mileage driven, wages
reported on Form W-2, Wage and Tax Statement, for the Plan Year.
However, any deferred compensation, compensation resulting from the exercise of
stock options and amounts contributed by the Employer under its monthly
investment program shall not be included in "Compensation." The term
"Compensation" for purposes of Section 2.1(ss) shall also include any Employer
Contributions made pursuant to Participant elections to cash or deferred
compensation plan described under section 401(k) of the Code and to a cafeteria
plan described under section 125 of the Code.
For purposes of Section 6.7 regarding the limitations on benefits under section
415 of the Code, "Compensation" shall mean a Participant's earned income, wages,
salaries, fees for professional service and other amounts received for personal
services actually rendered in the course of employment with the Employer
(including, if applicable, 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 and reimbursements or
other expenses under a nonaccountable plan (as described in section 1.62-2(c) of
the Code)) and excluding the following:
(i) Employer contributions to a plan of a deferred
compensation to the extent that, before the application of the section 415
limits to that plan, the contributions are not included in gross income of
a Participant for the taxable year in which contributed;
6
(ii) Employer contributions on behalf of the Participant to a
simplified employee pension plan described in section 408(k) of the Code,
to the extent such contributions are not considered as Compensation for
the taxable year in which contributed; and
(iii) Any distributions from a plan of deferred compensation
whether or not includable in the gross income of the Participant when
distributed;
(iv) Amounts realized from the exercise of a non-qualified
stock option;
(v) When restricted stock (or property) held by the
Participant becomes freely transferable or is no longer subject to a
substantial risk of forfeiture;
(vi) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and
(vii) Other amounts that receive special tax benefits, such as
premiums for group-term life insurance (but only to the extent that the
premiums are not includable in the gross income of the Participant) or
contributions made by the Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity contract under
section 403(b) of the Code (whether or not the contributions are
excludable from the gross income of the Participant).
For all purposes under the Plan, "Compensation" shall exclude amounts in excess
of the limitation prescribed in section 401(a)(17) of the Code. In applying
such limitations, the fresh start rules set forth in section 401(a)(4) and
section 401(a)(17) of the Code shall be applied, in the manner prescribed by
such Code sections. Notwithstanding the foregoing, the Accrued Benefit of a
Participant determined in accordance with this paragraph shall not be less than
the Accrued Benefit determined on May 31, 1989, without regard to this
paragraph. In addition, in accordance with Treasury Regulation section
1.401(a)(4)-13(c)(5)(i), the Accrued Benefit of a Participant who is an Employee
of the Employer and, thus, an active Participant shall be increased to reflect
increases in the limitation prescribed by section 415 of the Code and Section
6.7 of the Plan.
"Compensation" for any Limitation Year is the Compensation actually paid or
includable in gross income during such year.
(s) "CREDITED INTEREST" means interest credited on Participant
contributions, compounded annually, from the end of the Plan Year in which the
Participant's contributions were made to the date with respect to which interest
is calculated, determined as follows:
(i) For Plan Years prior to July 1, 1976, at the rate of
three and one-half percent (3-1/2%) per annum;
7
(ii) For Plan Years beginning on or after July 1, 1976, at
the rate of five percent (5%) per annum or such other rate as shall be
required by section 411(c)(2) of the Code.
(t) "DEFERRED VESTED PENSION" means a Pension payable to a
Participant who satisfies the requirements of Section 5.4.
(u) "DISABILITY" means a physical or mental condition that
totally and presumably permanently prevents an individual from engaging
thereafter in any occupation or employment (except rehabilitation employment
approved by the Administration Committee) for which he is reasonably fitted by
training, education or experience. The Administration Committee shall have the
sole responsibility and right to determine whether Disability exists, and for
such purpose may appoint a physician or clinic to render a medical examination
and report to the Administration Committee.
(v) "DOMESTIC RELATIONS ORDER" means any judgment, decree, or
order (including one that approves a property settlement agreement) that relates
to the provision of child support, alimony payments, or marital property rights
to a spouse, former spouse, child, or other dependent of a Participant and is
rendered under a state (within the meaning of section 7701(a)(10) of the Code)
domestic relations law (including a community property law).
(w) "EARLY RETIREMENT DATE" means, in the case of a Participant
who has satisfied the requirements for an Early Retirement Pension and whose
Retirement occurs prior to his Normal Retirement Date and in accordance with
Section 5.2, the date the Participant's Retirement commences in accordance with
Sections 2.1(mmm) and 5.2.
(x) "EARLY RETIREMENT PENSION" means a Pension payable to a
Participant who satisfies the requirements of Section 5.2.
(y) "EFFECTIVE DATE" means January 1, 1989.
(z) "ELIGIBLE EMPLOYEE" means an Employee who is not included in
a unit of Employees covered by an agreement that the Secretary of Labor finds to
be a collective bargaining agreement between employee representatives and the
Employer, if there is evidence that retirement benefits were the subject of good
faith bargaining between such employee representatives and the Employer, unless
the Employees of such units are eligible to participate in the Plan pursuant to
their respective collective bargaining agreements. Notwithstanding the
preceding, a leased employee described in Section 2.1(bb) of the Plan shall not
be treated as an Eligible Employee.
(aa) "ELIGIBLE SPOUSE" means a Participant's spouse to whom the
Participant has been married throughout the one (1) year period ending on the
earlier of (1) the Participant's Annuity Starting Date or (2) the date of the
Participant's death; provided, however, that if a Participant marries within one
(1) year before the Annuity Starting Date and the Participant and the
Participant's spouse in such marriage have been married for at least one (1)
year period ending on or before the date of the Participant's death, such
Participant and such spouse shall be
8
treated as having been married throughout the one (1) year period ending on the
Participant's Annuity Starting Date.
(bb) "ELIGIBILITY SERVICE" means the years of Service that are
included in the determination of an Employee's eligibility and continued
eligibility to participate herein, determined in accordance with the provisions
of Section 3.2.
(cc) "EMPLOYEE" means any person on the payroll of the Company
and any person on the payroll of the Employer who is an ICC Plan Participant or
a Wescar Plan Participant whose wages from the Employer are subject to
withholding for purposes of Federal income taxes. In addition, the term
"Employee" shall mean any leased employee (within the meaning of section
414(n)(2) of the Code) that section 414(n)(2) of the Code requires the Employer
to treat as an employee.
(dd) "EMPLOYEE ACCRUED BENEFIT" means that portion of an ICC
Plan Participant's Accrued Benefit that is derived from his Participant
Contributions, which contributions ceased with respect to all ICC Plan
Participants with the last paycheck received prior to September 1, 1984. The
Employee Accrued Benefit of an ICC Plan Participant as of any applicable date is
an annual benefit, in the form of a single life annuity (without ancillary
benefits) commencing at Normal Retirement Age equal to the product of:
(i) The Participant's total Participant Contributions made
by such Participant as of the applicable date plus Credited Interest from
the end of the Plan Year when paid to the date on which the Participant
would attain Normal Retirement Age, multiplied by
(ii) The appropriate conversion factor determined pursuant to
rules and regulations promulgated under section 411(c)(2)(b)(ii) of the
Code.
Notwithstanding any of the foregoing, the Participant's Employee Accrued Benefit
shall not exceed the greater of:
(i) The Participant's Accrued Benefit under the Plan, or
(ii) The amount determined above, excluding from such
determination all Credited Interest.
Furthermore, if a Participant's benefit hereunder is payable in any form other
than a single life annuity (without ancillary benefits) commencing at Normal
Retirement Age, such Participant's Employee Accrued Benefit shall be the
Actuarial Equivalent of an annual benefit payable in such form and commencing at
such time. A Participant shall always be one hundred percent (100%) Vested in
his Employee Accrued Benefit.
(ee) "EMPLOYER" means the Company and any Related Employer that
duly joins in the Plan with the approval of the Company as provided in Article
XVI hereof.
9
(ff) "EMPLOYER ACCRUED BENEFIT" means that portion of a
Participant's Accrued Benefit that is derived from Employer contributions. The
Employer Accrued Benefit of a Participant is equal to the excess of the
Participant's Accrued Benefit over his Employee Accrued Benefit.
(gg) "EMPLOYMENT COMMENCEMENT DATE" means the date on which an
Employee first performs an Hour of Service for the Employer, a Related Employer,
or a controlled group member. In the case of an Employee who has terminated
Service and subsequently resumed Service, but not as a Re-Employed Employee,
"Employment Commencement Date" shall mean the date he first performs an Hour of
Service following his termination of Service.
(hh) "FISCAL YEAR" means the Employer's taxable year for Federal
income tax purposes.
(ii) "FORFEITURE" means the portion of a Participant's Accrued
Benefit that does not become a part of the Participant's Vested Accrued Benefit
when his Service with the Employer terminates and the Participant incurs an
aggregate of five (5) or more consecutive Breaks in Service and can no longer
return to Service as a Re-Employed Employee for Vesting purposes.
(jj) "FORMER PARTICIPANT" means any individual, other than a
Re-Employed Employee, who has been a Participant hereunder, but whose Service
with the Employer has been terminated and who has not received the entire
benefit to which he is entitled under the Plan.
(kk) "HIGHLY COMPENSATED EMPLOYEE" means an Employee, a former
Employee who separated from service prior to the beginning of the Plan Year and
who was a Highly Compensated Employee for either (i) the Employee's year of
separation from service or (ii) any Plan Year ending on or after the Employee's
fifty-fifth (55th) birthday, or an Employee of a Related Company, who during the
current Plan Year or the preceding Plan Year:
(i) Was at any time a five percent (5%) owner of the Company
or a Related Company (as defined in section 416(i)(1) of the Code);
(ii) Received "compensation" from the Company or a Related
Company in excess of Seventy-five Thousand Dollars ($75,000) (as adjusted
pursuant to rulings or regulations issued by the Secretary of the
Treasury);
(iii) Received "compensation" from the Company or a Related
Company in excess of Fifty Thousand Dollars ($50,000) (as adjusted
pursuant to rulings or regulations issued by the Secretary of the
Treasury) and was in the top twenty percent (20%) of Employees of the
Company and all Related Companies when ranked on the basis of
"compensation" paid during such Plan Year; or
(iv) Was at any time an officer of the Company or a Related
Company and received "compensation" greater than fifty percent (50%) of
the amount in effect under section 415(b)(1)(A) of the Code.
10
However, notwithstanding the above, an Employee described in paragraphs (ii),
(iii), or (iv) of this Section 2.1(kk) shall not be treated as a Highly
Compensated Employee for the current Plan Year unless such Employee is a member
of the group consisting of the one hundred (100) Employees of the Company and
all Related Companies paid the greatest "compensation" during the current Plan
Year (the "Top Paid Group").
For purposes of determining the number of Employees in the Top Paid Group for a
Plan Year, the following Employees, as described in sections 414(q)(8) and (11)
of the Code, shall be excluded:
(i) Those who have not completed six (6) months of service;
(ii) Those who normally work less than seventeen and one-half
(17-1/2) hours per week;
(iii) Those who normally work during not more than six (6)
months during any year;
(iv) Those who have not attained age twenty-one (21);
(v) Those subject to a collective bargaining agreement; and
(vi) Nonresident aliens who receive no earned income from
sources within the United States.
The Administration Committee shall determine whether an Employee is an officer
for purposes of this Section 2.1(kk) based on the responsibilities of the
Employee with the Company or a Related Company. Of those Employees determined
to be officers, no more than fifty (50) Employees (or, if less, the greater of
three (3) Employees or ten percent (10%) of the Employees, excluding all
Employees described in section 414(q)(8) and (11)) of the Code shall be treated
as officers for purposes of this Section 2.1(kk). Further, if no officer
receives the level of "compensation" described in paragraph (iv) of this Section
2.1(kk), the highest paid officer of the Company and all Related Companies
shall be treated as a Highly Compensated Employee described in paragraph (iv)
of this Section 2.1(kk).
If any individual is a member of the family of a five percent (5%) owner or of a
Highly Compensated Employee in the group consisting of the ten (10) Highly
Compensated Employees paid the greatest "compensation" during the Plan Year,
then:
(i) Such individual shall not be considered a separate
Employee; and
(ii) Any "compensation" paid to such individual and the
Employer or Employee contributions made on behalf of such individual shall
be treated as if it were paid to or on behalf of the five percent (5%)
owner or Highly Compensated Employee.
11
For purposes of the immediately preceding sentence, the term "family" means,
with respect to any Employee, such Employee's spouse and lineal descendants and
the spouses of such lineal descendants.
The term "compensation" for purposes of this Section 2.1(kk) shall mean
compensation as defined for purposes of Section 6.7 of the Plan, determined
without regard to section 125 of the Code (regarding contributions to a
cafeteria plan), section 402(a)(8) of the Code (regarding contributions to a
section 401(k) plan) and 402(h)(1)(b) of the Code (regarding contributions to a
simplified employee pension plan), and in the case of employer contributions
made pursuant to a salary reduction agreement, without regard to section 403(b)
(regarding annuity contracts).
(ll) "HOUR OF SERVICE" means each hour for which an Employee or
Participant is either directly or indirectly paid or entitled to payment by the
Employer for the performance of duties or for reasons (such as vacation,
holiday, sickness, incapacity, layoff, jury duty, military duty, or leave of
absence) other than for the performance of duties (irrespective of whether the
employment relationship has terminated), and each hour for which back pay,
irrespective of mitigation of damages, has been awarded to the Employee or
Participant or agreed to by the Employer. An Employee or Participant shall be
credited with ten (10) Hours of Service per day, if compensated on a daily
basis, forty-five (45) Hours of Service per week, if compensated on a weekly
basis, ninety-five (95) Hours of Service per semi-monthly period, if compensated
on a semi-monthly basis, or one hundred and ninety (190) Hours of Service per
month, if compensated on a monthly basis, if during any of such periods the
Employee or Participant is entitled to be credited with one Hour of Service
pursuant to the preceding sentence.
The number of Hours of Service to be credited to an Employee or Participant
because of his being entitled to payment for reasons other than for the
performance of duties shall be determined in accordance with section
2530.200b-2(b) of the Department of Labor Regulations. Notwithstanding the
preceding sentence and subject to the following sentence, not more than five
hundred and one (501) Hours of Service shall be credited to any Employee or
Participant for any single, continuous period during which the Employee or
Participant performs no duties. In addition, an hour of service performed for a
Related Employer that if performed for the Employer would be an Hour of Service
and any hour with respect to a Related Employer that would be an Hour of Service
if it were creditable pursuant to this Section 2.1(ll) with respect to the
Employer shall be considered an Hour of Service performed for the Employer.
The Administration Committee shall credit Hours of Service with respect to
any Employee or Participant in the following manner:
(i) Hours of Service for which an Employee or Participant is
either directly or indirectly paid or entitled to payment by the Employer
for the performance of duties shall be credited to the applicable
computation period in which the Employee performs the duties.
(ii) Hours of Service for which an Employee or Participant is
either directly or indirectly paid or entitled to payment by the Employer
for reasons (such as
12
vacation, holiday, sickness, incapacity, layoff, jury duty, military duty,
or leave of absence) other than for the performance of duties shall be
credited as follows:
(A) If payment for such Hours of Service is calculated
on the basis of units of time (such as hours, days, weeks, or
months), such Hours of Service shall be credited to the applicable
computation period or periods in which the period during which no
duties are performed occurs, beginning with the first unit of time
to which the payment relates.
(B) If payment for such Hours of Service is not
calculated on the basis of units of time, such Hours of Service
shall be credited to the applicable computation period in which the
period during which no duties are performed occurs, or, if the
period during which no duties are performed extends beyond one
computation period, such Hours of Service shall be allocated between
not more than the first two computation periods on any reasonable
basis which is consistently applied.
(iii) Hours of Service for which back pay has been awarded to
an Employee or Participant or agreed to by the Employer shall be credited
to the computation period in which the award or the agreement pertains
rather than to the computation period in which the award, agreement, or
payment is made.
The Administration Committee shall credit Hours of Service under only one (1) of
the immediately preceding paragraphs (i), (ii) and (iii).
Solely for purposes of: (i) computing a Participant's Vesting Service under
Section 5.4, and (ii) determining whether an Employee or Participant has
incurred a Break in Service, an Employee or Participant shall be credited with
eight (8) hours for each day to a maximum of forty (40) hours per week that the
Employee or Participant is on any unpaid Authorized Leave of Absence. In no
event shall hours credited under the preceding sentence be counted as Hours of
Service for purposes of computing a Participant's Accrued Benefit. In addition,
an Employee or Participant who incurs a Parental Absence commencing on or after
the first day of the first Plan Year beginning after December 31, 1984, shall be
treated as an Employee or Participant on an Authorized Leave of Absence for
purposes of the first sentence of this paragraph; provided, however, that Hours
of Service credited to an Employee or Participant as a result of a Parental
Absence shall be credited only in the year in which such Parental Absence
commences unless such Employee or Participant would not have incurred a Break in
Service during such year without being credited with Hours of Service for such
Parental Absence, in which case, such Hours of Service shall be credited for the
year immediately following the year in which the Parental Absence commences.
For purposes of the immediately preceding sentence, the term "year" shall mean
the periods of computation used hereunder to determine an Employee's or
Participant's years of Service for purposes of eligibility and vesting. The
Hours of Service to
13
be credited in connection with such Parental Absence shall be the Hours of
Service that otherwise would normally have been credited to the Employee or
Participant but for such absence, or in any case in which the Administration
Committee is unable to determine the number of Hours of Service that would
otherwise normally have been credited to such Employee or Participant, eight (8)
Hours of Service per day of absence, provided that the total number of hours so
treated as Hours of Service for any period of Parental Absence shall not exceed
five hundred and one (501) Hours of Service.
The Administration Committee shall resolve any ambiguity with respect to the
crediting of Hours of Service in favor of the affected Employee.
(mm) "ICC PLAN" means the Amended and Restated International
Controls Corp. Pension Plan as in effect on June 30, 1988.
(nn) "ICC PLAN PARTICIPANT" means a Participant who was a
participant under the Amended and Restated International Controls Corp. Pension
Plan as of June 30, 1988, and who performed services for, or was otherwise
actively employed by International Controls Corp. on such date. Effective
January 1, 1992, an ICC Plan Participant who is not an Employee of the Company
shall not be credited with any additional Years of Benefit Service as defined in
section 6.1(b).
(oo) "INVESTMENT MANAGER" means a person:
(i) Who has the power to manage, acquire, or dispose of any
asset of the Trust;
(ii) Who is a registered investment advisor under the
Investment Advisors Act of 1940, a bank as defined in the Investment
Advisors Act of 1940, or an insurance company qualified to perform
services described in subsection (i) of this Section 2.1(oo) under the
laws of more than one state; and
(iii) Has acknowledged in writing that it is a fiduciary with
respect to the Plan.
(pp) "LATE RETIREMENT DATE" means, in the case of a Participant
whose Retirement occurs after his Normal Retirement Date, the date the
Participant's Retirement commences as provided in Section 2.1(mmm).
(qq) "LATE RETIREMENT PENSION" means a Pension payable to a
Participant who is eligible for a Pension and whose Retirement is on his Late
Retirement Date.
(rr) "LIMITATION YEAR" means the Plan Year or such other
consecutive twelve (12) month period designated by the Board of Directors of the
Company.
(ss) "MONTHLY COMPENSATION" means the total Compensation paid to
the Participant by the Employer during the month, excluding amounts contributed
by the Employer
14
under its monthly investment plan program, if any. In determining Monthly
Compensation, the amount of decreases in base salary (I.E., salary exclusive
of bonuses, overtime pay, incentive compensation, commissions, and any other
special or supplemental remuneration) after the attainment of age sixty (60)
shall be disregarded and shall be treated as if actually paid for purposes of
determining the benefit payable to a Participant, other than an ICC Plan
Participant. The amount of decreases in Monthly Salary after attainment of age
sixty (60) shall be taken into account, without regard to when such decrease
occurred, in determining Monthly Compensation for ICC Plan Participants. For
purposes of this Section 2.1(ss), a bonus paid after the end of the calendar
year to which it relates shall be considered paid in December of that year. For
purposes of service in the Armed Forces credited as Benefit Service under
Section 6.1(b), "Monthly Compensation" means an amount equal to the Monthly
Compensation paid to the Participant by the Employer for the last month
preceding his entry into the Armed Forces.
(tt) "NORMAL RETIREMENT AGE" means age sixty-five (65).
(uu) "NORMAL RETIREMENT DATE" means, in the case of a Participant
who attains Normal Retirement Age on the first day of a month, the first day of
such month, and in the case of any other Participant, the first day of the first
month following the day the Participant attains Normal Retirement Age.
(vv) "NORMAL RETIREMENT PENSION" means the Pension payable to a
Participant who satisfies the requirements of Section 5.1.
(ww) "PARENTAL ABSENCE" means any period of absence from the
active Service of the Employer:
(i) By reason of the pregnancy of the Employee;
(ii) By reason of the birth of a child of the Employee;
(iii) By reason of the placement of a child with the Employee
in connection with the adoption of such child by the Employee; or
(iv) For purposes of caring for such child for a period
beginning immediately following such birth or placement.
(xx) "PARTICIPANT" means any Employee or former Employee of the
Employer who has satisfied the eligibility requirements for participation and
has an Accrued Benefit under the Plan, including a Former Participant.
(yy) "PARTICIPANT CONTRIBUTIONS" means the contributions, if any,
made by an ICC Plan Participant pursuant to Article II, Section 1, and Article X
of the International Controls Corp. Pension Plan as in effect on June 30, 1984.
15
(zz) "PENSION" means a series of monthly amounts which are
payable to a person who is entitled to receive benefits under the Plan.
(aaa) "PLAN" means the Retirement Plan for Great Dane Trailers,
Inc., as embodied herein and as amended from time to time.
(bbb) "PLAN ENTRY DATE" means the first day of January or July
coincident with or next following the date on which an Eligible Employee
completes requirements of Section 3.1.
(ccc) "PLAN YEAR" means the twelve (12) consecutive month period
beginning each January 1st and ending on the subsequent December 31st.
(ddd) "PRIMARY SOCIAL SECURITY BENEFIT" means the Social Security
benefit payable to a Participant at age sixty-five (65) under the federal Social
Security Act as in effect on the earliest of:
(i) His actual Retirement;
(ii) His Normal Retirement Date;
(iii) His termination of Service;
(iv) His death; or
(v) His date of Disability, as determined by the
Administration Committee without regard for any reduction or loss of
benefits which may result because of other income, delay in making
application, or any other reason.
Notwithstanding the foregoing:
(i) If a Participant terminates Service prior to having
satisfied the eligibility requirements for early retirement, as specified
in Section 5.2, his Primary Social Security Benefit shall be computed
assuming continuation of his Compensation until his Normal Retirement Date
at the rate in effect immediately before such termination;
(ii) If a Participant terminates Service coincident with or
subsequent to having satisfied the eligibility requirements for early
retirement, his Primary Social Security Benefit shall be computed by
assuming that the Participant will not receive any income after such
Retirement which would be treated as wages for purposes of the Social
Security Act; and
(iii) If a Participant terminates Service after his Normal
Retirement Date, his Primary Social Security Benefit shall be the benefit
payable at age sixty-five (65), computed assuming that the Participant
receives no income after his sixty-fifth (65th) birthday.
16
A Participant's Primary Social Security Benefit shall be determined by use of
his actual wage history to the extent readily available. If such history is
incomplete, the missing portion shall be determined by assuming that his wages
increased in accordance with the yearly average percentage increases in average
wages as published by the federal Social Security Administration. Each
Participant for whom any estimated wages are used shall be notified of his right
to supply an actual wage history. Any such actual wage history must be provided
by the Participant within the time and in the manner prescribed by the
Administration Committee. If such actual history is supplied, it shall be used
in lieu of the estimated wages.
(eee) "PRIOR PLAN" means the Great Dane Trailers, Inc. Retirement
Plan as in effect on the date immediately prior to January 1, 1986.
(fff) "QUALIFIED DOMESTIC RELATIONS ORDER" means a Domestic
Relations Order entered on or after January 1, 1985, that:
(i) Creates or recognizes the existence of an Alternate
Payee's right to, or assigns to an Alternate Payee the right to, receive
all or a portion of the benefits payable with respect to a Participant
under the Plan;
(ii) Does not require the Plan to provide any type or form of
benefit, or any option, not otherwise provided under the Plan;
(iii) Does not require the Plan to provide increased benefits
(determined on the basis of actuarial value);
(iv) Does not require the payment of benefits to an Alternate
Payee that are required to be paid to another Alternate Payee under
another order previously determined to be a Qualified Domestic Relations
Order; and
(v) That clearly specifies:
(a) The name and last known mailing address (if any)
of the Participant and the name and mailing address of each
Alternate Payee covered by the order;
(b) The amount or percentage of the Participant's
benefits to be paid by the Plan to each such Alternate Payee, or the
manner in which such amount or percentage is to be determined;
(c) The number of payments or payment period to which
such order applies; and
(d) Specifically specifies that it is applicable with
respect to this Plan.
17
In the case of any payment before a Participant has separated from Service, a
Domestic Relations Order will not be treated as failing to be a Qualified
Domestic Relations Order solely because such order requires the payment of
benefits be made to an Alternate Payee:
(i) On or after the date on which the Participant attains
(or would have attained) earliest retirement age (within the meaning of
section 414(p)(4)(b) of the Code) under the Plan;
(ii) As if the Participant had retired on the date on which
payment is to commence under such order (taking into account only the
present value of benefits actually accrued as of such date and not taking
into account the present value of any Employer subsidy for early
retirement); and
(iii) In any form in which such benefits may be paid under the
Plan to the Participant (other than in the form of a joint and survivor
annuity with respect to the Alternate Payee and his or her subsequent
spouse).
In addition, the Administration Committee shall treat any Domestic Relations
Order entered prior to January 1, 1985, as a Qualified Domestic Relations Order
if the Administration Committee is paying benefits pursuant to such order on
such date and the Administration Committee may treat any other Domestic
Relations Order entered prior to January 1, 1985, as a Qualified Domestic
Relations Order even if such order does not satisfy the requirements of this
Section 2.1(fff).
(ggg) "QUALIFIED JOINT AND SURVIVOR ANNUITY" means a Pension
payable in accordance with the provisions of Section 7.1(b).
(hhh) "QUALIFIED PRE-RETIREMENT SURVIVOR ANNUITY" means a Pension
payable in accordance with the provisions of Section 7.4.
(iii) "RE-EMPLOYED EMPLOYEE" means:
(i) PARTICIPATION: For purposes of determining an
Employee's eligibility to participate under Article III, an Eligible
Employee who previously separated from Service with the Employer or a
Related Employer:
(a) With any vested interest in his Employer Accrued
Benefit; or
(b) Without a vested interest in his Employer Accrued
Benefit, but who resumes Service before his number of consecutive
One Year Periods of Severance (within the meaning of Article I of
the Prior Plan) exceeds five (5), his consecutive Breaks in Service
exceeds five (5) or the sum of his consecutive One Year Periods of
Severance and Breaks in Service exceeds five (5).
18
(ii) VESTING: For purposes of determining a Participant's
Vested Accrued Benefit under Articles V and VI, an Employee who has
previously separated from Service with the Employer or a Related Employer:
(A) With any vested interest in his Employer Accrued
Benefit; or
(B) Without a vested interest in his Employer Accrued
Benefit, but who resumes Service before his number of consecutive
One Year Periods of Severance (within the meaning of Article I of
the Prior Plan) exceeds five (5), his consecutive Breaks in Service
exceeds five (5) or the sum of his consecutive One Year Periods of
Severance and Breaks in Service exceeds five (5).
(iii) BENEFIT SERVICE: For purposes of determining the
amount of a Participant's Normal Retirement Pension under Section 6.1, an
Employee who has previously separated from Service with the Employer or a
Related Employer
(A) With any vested interest in his Accrued Benefit or
an employer accrued benefit under a Related Plan; or
(B) Without a vested interest in his Employer Accrued
Benefit, but who resumes Service before his number of consecutive
One Year Periods of Severance (within the meaning of Article I of
the Prior Plan) exceeds five (5), his consecutive Breaks in Service
exceeds five (5) or the sum of his consecutive One Year Periods of
Severance and Breaks in Service exceeds five (5).
(jjj) "RELATED EMPLOYER" means any business entity that is, along
with the Company:
(i) A member of a controlled group of corporations (as
defined in section 414(b) of the Code, with such section being modified,
for purposes of Section 6.5, in accordance with section 415(h) of the
Code);
(ii) A member of a group of trades or businesses (whether or
not incorporated) that are under common control (within the meaning of
section 414(c) of the Code, with such section being modified, for
purposes of Section 6.5, in accordance with section 415(h) of the Code);
or
(iii) A member of an affiliated service group (within the
meaning of section 414(m) of the Code).
(kkk) "RELATED PLAN" means any other defined benefit plan (as
defined in section 415(k) of the Code) maintained by a Related Employer.
(lll) "REQUIRED COMMENCEMENT DATE" means the April 1st of the
calendar year following the later of:
19
(i) The calendar year in which the Participant attains age
seventy and one-half (70-1/2); or
(ii) The calendar year in which the Participant retires;
provided, however, that if the Participant is a five-percent (5%) owner
(as defined in Section 17.2(f)), clause (ii) of this Section 2.1(lll)
shall not apply.
Further, in the case of a Participant who becomes a five-percent (5%) owner (as
defined in Section 17.2(f)) in a year after the year in which the Participant
attains age seventy and one-half (70-1/2), such Participant's Required
Commencement Date shall be the April 1 of the calendar year following the
calendar year in which the Participant becomes such a five-percent (5%) owner.
(mmm) "RETIREMENT" means the termination of Service for reasons
other than death after a Participant has fulfilled the requirements for a Normal
Retirement Pension or Early Retirement Pension. Retirement shall be considered
as commencing on the day immediately following a Participant's last day of
Service.
(nnn) "SINGLE LIFE ANNUITY" means a Pension payable in accordance
with the provisions of Section 7.1(a).
(ooo) "SERVICE" means, from and after January 1, 1986, any period
of time the Employee is in the employ of the Employer, including any period the
Employee is on Authorized Leave of Absence; provided, however, that an Employee
who is on an Authorized Leave of Absence shall not be credited with Benefit
Service during such leave of absence unless required by law. An Employee's
Service performed prior to January 1, 1986, shall be determined in accordance
with the provisions of the applicable Prior Plan as it existed on the day
immediately preceding January 1, 1986.
(ppp) "SOCIAL SECURITY RETIREMENT AGE" means the age used as the
retirement age under section 216(l) of the Social Security Act, except that such
section shall be applied without regard to the age increase factor, and as if
the early retirement age under section 216(l)(2) of such Act were sixty-two
(62).
(qqq) "TERMINATION DATE" means the date on which a Participant
terminates Service with the Employer, other than by death or Retirement.
(rrr) "TRUST" means the Retirement Trust for Great Dane Trailers,
Inc. established to hold, administer and invest the contributions made under the
Plan, other than contributions invested in or through insurance contracts or
policies (other than life, health or accident, property, casualty, or liability
insurance contracts) issued by an insurance company qualified to do business in
a state (within the meaning of section 7701(a)(10) of the Code).
(sss) "TRUST AGREEMENT" means the agreement between the Company
and the Trustee or any successor Trustee establishing the Trust and specifying
the duties of the Trustee.
20
(ttt) "TRUSTEE" means the persons or entities from time to time
appointed by the Board of Directors to act in the fiduciary capacity of trustee
under the Trust Agreement.
(uuu) "TRUST FUND" means all property of every kind held or
acquired by the Trustee under the Trust Agreement.
(vvv) "VALUATION DATE" means the last day of each Plan Year.
(www) "VESTING" or "VESTED" means the percentage of a Pension
benefit to which a Participant would be entitled at any given time if he, at
that time, were to terminate his Service with the Employer, determined in
accordance with Article V hereof. Any Participant who has completed five (5)
years of Vesting Service (within the meaning of Section 5.4) shall be
one-hundred percent (100%) Vested in his Employer Accrued Benefit.
(xxx) "VESTING SERVICE" means the years of Service included in the
determination of a Participant's Vested Accrued Benefit, determined in
accordance with Sections 5.4 and 5.5.
(yyy) "WESCAR PLAN" means the Retirement Plan for Wescar Freight
System, Inc. as in effect on June 30, 1988.
(zzz) "WESCAR PLAN PARTICIPANT" means a Participant who was a
participant under the Retirement Plan for Wescar Freight System, Inc. as of June
30, 1988, and who performed services for, or was otherwise actively employed by
Wescar Freight System, Inc. or Transway Intermodal System, Inc. on such date.
2.2 SERVICE FOR PREDECESSOR EMPLOYER. If the Employer maintains the
plan of a predecessor employer, the Plan shall treat service of the Employee
with the predecessor employer as Service with the Employer. If the Employer
does not maintain the plan of a predecessor employer, then the Plan shall treat
service of the Employee with the predecessor employer as Service with the
Employer only to the extent prescribed by the Treasury Regulations issued under
section 414(a)(2) of the Code.
2.3 WORD USAGE. Except when otherwise indicated by the context, any
masculine terminology used herein also includes the feminine and neuter, and
vice versa, and the definition of any term herein in the singular shall also
include the plural, and vice versa. The words "hereof", "herein", "hereunder",
and other similar compounds of the word "here" shall mean and refer to the
entire Plan and not to any particular provision or section. All references to
Sections and Articles shall mean and refer to Sections and Articles contained in
this Plan unless otherwise indicated.
2.4 CALCULATION OF TIME. In determining time periods within which an
event or action is to take place for purposes of the Plan, no fraction of a day
shall be considered, and any act, the performance of which would fall on a
Saturday, Sunday, holiday or other non-business day, may be performed on the
next following business day.
21
2.5 CONSTRUCTION. It is the intention of the Employers (a) that the
Plan be qualified under the provisions of sections 401(a) and 501(a) of the Code
and Act and all provisions hereof shall be construed to that result, and (b)
that the provisions of the Plan, as amended and restated hereby, shall apply
only to a Participant who effectively terminates Service on or after the
Effective Date.
- ------------------------
End of Article II
22
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY. Each Eligible Employee who was a Participant in the
Prior Plan on the day immediately preceding the Effective Date shall become a
Participant in this Plan as of the Effective Date. Each other Eligible Employee
who is an Eligible Employee on his Employment Commencement Date shall become a
Participant in the Plan on the Plan Entry Date (if he is employed by an Employer
on that date) that coincides with or immediately follows his completion of one
(1) year of Eligibility Service and the attainment of age twenty-one (21). An
Employee who becomes an Eligible Employee after his Employment Commencement Date
shall become a Participant in the Plan on the LATER of:
(a) The date he performs his first Hour of Service as an Eligible
Employee; or
(b) The date his participation would have commenced if he had been
an Eligible Employee for the entire period commencing on his Employment
Commencement Date and ending on the date he performs his first Hour of Service
as an Eligible Employee.
Notwithstanding the foregoing provisions of this Section 3.1, effective January
1, 1992, an Eligible Employee who is an ICC Plan Participant or a Wescar Plan
Participant shall cease to accrue Benefit Service hereunder for any period of
Service as an Employee of any Employer other than the Company.
3.2 YEARS OF ELIGIBILITY SERVICE. For purposes of determining an
Employee's Employment Commencement Date for purposes of the second to last
sentence of Section 3.1, in the case of an Employee who separates from Service
and who resumes Service, but not as a Re-Employed Employee, such Employee's
Employment Commencement Date shall mean the date on which the Employee first
performs an Hour of Service for the Employer following the close of the period
in which the Employee last incurred a Break in Service. For purposes of
determining when an Employee is a Re-Employed Employee, an Employee whose
Employment Commencement Date is on or after January 1, 1986, shall be credited
with one (1) year of Eligibility Service if he completes not less than one
thousand (1,000) Hours of Service during the twelve (12) consecutive month
period beginning with his Employment Commencement Date and for each Plan Year,
commencing with the Plan Year that includes the first anniversary of his
Employment Commencement Date, during which he completes at least one thousand
(1,000) Hours of Service. Each Employee whose Employment Commencement Date was
prior to the January 1, 1986, shall be credited, with respect to Service prior
to January 1, 1986, with one (1) year of Eligibility Service for each twelve
(12) month Period of Service (within the meaning of Section 1.24 of the Prior
Plan) to which the Employee is or would be entitled to under the terms of the
Prior Plan as in effect immediately prior to the January 1, 1986, with any
fractional part of a twelve (12) month Period of Service to which an Employee is
so entitled being deemed a whole year of Eligibility Service and, with respect
to Service on or after January 1, 1986, with one (1) year of Eligibility Service
for each Plan Year during which he completes not less than
23
one thousand (1,000) Hours of Service. In the case of an Employee who separates
from Service and who resumes Service, but not as a Re-Employed Employee, years
of Eligibility Service credited for Service performed prior to his resumption of
Service shall be disregarded. In addition, Years of Service prior to the
January 1, 1986, that were disregarded under the Prior Plan shall be disregarded
under this Plan.
3.3 PARTICIPATION - RE-EMPLOYED EMPLOYEES. A Re-Employed Employee,
provided he remains an Eligible Employee, shall re-enter the Plan as a
Participant on the LATER of:
(a) The day he performs his first Hour of Service as a result of
his return to Service; or
(b) The date his Participation would have commenced had there been
no separation from Service, unless he separates from Service subsequent to his
return to Service, but before such date.
Any other Eligible Employee whose employment terminates and who is subsequently
reemployed shall commence participation in accordance with the provisions of
Section 3.1.
3.4 RE-EMPLOYMENT AND SERVICE CREDITING RULES FOR DISABLED
PARTICIPANTS. If a Participant's employment terminates by reason of Disability
and such Disability ceases before the Participant attains his Normal Retirement
Date and the Participant returns to active Service within thirty (30) days
following certification to the Administration Committee by a doctor or clinic
appointed by the Administration Committee that based upon a medical examination
the Participant has sufficiently recovered to be able to engage in regular
employment with the Employer, his Plan participation shall be reinstated as of
the date of such return with full credit for all Service he has been credited
with at the inception date of his Disability. The thirty (30) day period
referred to herein may be extended by the Administration Committee when, in its
sole discretion, reasonable cause exists for so doing. For the purpose of (a)
computing the amount of any Pension to which such Participant may subsequently
be entitled, and (b) determining whether any Service requirements for benefits
have been satisfied, the Participant shall be credited with one hundred and
sixty (160) Hours of Service for each month in the period during which he was
(i) receiving a Disability Pension under this Plan for a Disability incurred
before January 1, 1989, or (ii) for a Disability incurred after such date,
receiving Disability benefits under the long-term disability plan maintained by
the Company.
If a Participant who has received any Disability Pension under the Plan, or
disability benefits under the long-term disability plan maintained by the
Company, does not return to active Service with the Employer within the thirty
(30) day period specified in the preceding paragraph following certification
that his Disability has ceased, he shall be treated as though his Service had
terminated as of the date his Disability commenced, and he shall be entitled to
no further benefits under the Plan by reason of his prior participation,
provided, however, that if such Participant would have had a Vested Accrued
Benefit pursuant to Section 5.4 had he terminated Service as of the date his
Disability ceased, he shall be entitled to a Deferred Vested Pension determined
in accordance with the provision of Section 6.5.
24
If Disability continues until a Participant attains Normal Retirement Age, for
the purpose of (a) computing the amount of any Pension to which such Participant
may subsequently be entitled, and (b) determining whether any Service
requirements have been satisfied, the Participant shall be credited with one
hundred and sixty (160) Hours of Service for each month in the period during
which he was (i) receiving a Disability Pension under this Plan for a Disability
incurred before January 1, 1989, or (ii) for a Disability incurred after such
date, receiving Disability benefits under the long-term disability plan
maintained by the Company.
3.5 ENROLLMENT. Every Eligible Employee shall become a Participant
when he has satisfied the requirements of this Article III and has provided the
Administration Committee with such information as the Administration Committee
deems necessary, in its discretion.
- -------------------------
End of Article III
25
ARTICLE IV
CONTRIBUTIONS
4.1 EMPLOYER CONTRIBUTIONS. Each Employer intends, but does not
guarantee, to make contributions to the Plan in at least the amount required to
satisfy the minimum funding requirements of section 412 of the Code, as
specified in the Actuary's valuation reports for the applicable period of time.
Notwithstanding the foregoing, each Employer reserves the right to reduce,
suspend, or discontinue making contributions to the Plan at any time.
If the contribution is on account of the Employer's preceding Fiscal Year, the
contribution shall be accompanied by the Employer's signed statement to the
Trustee or insurance company in or through the insurance contracts or policies
of which the Employer's contribution is to be invested (as provided in Section
10.4(q)), such statement to recite that payment is on account of such Fiscal
Year. Contributions shall be paid in cash. Each contribution made after the
end of the Fiscal Year on account of the Employer's prior Fiscal Year shall be
deemed to have been paid as of the last day of the Employer's Fiscal Year to
which it relates, if such contribution is made no later than the time prescribed
by law for filing of the Employer's federal income tax return (including
extensions thereof) for such Fiscal Year. An Employer may make a contribution
to the Plan later than the date prescribed by law for filing its federal income
tax return solely for purposes of complying with the minimum funding
requirements of section 412 of the Code.
4.2 FORFEITURES. Forfeitures arising under this Plan, because of a
termination of Service before a Participant becomes eligible to receive a
Pension, or for any other reason, shall not be used to increase the benefits
otherwise payable to Participants, but shall be applied to reduce the cost of
the Plan to the contributing Employers.
4.3 RETURN OF EMPLOYER CONTRIBUTIONS. Notwithstanding any provision
contained herein to the contrary, upon an Employer's request, the Employer's
contribution which was made upon a mistake of fact or conditioned upon
deductibility of the contribution under section 404 of the Code shall be
returned to the Employer within one (1) year after payment of the contribution
or disallowance of the deduction (to the extent disallowed), as the case may be.
4.4 PARTICIPANT CONTRIBUTIONS. Participants shall not be required or
permitted to make contributions under this Plan.
- ------------------------
End of Article IV
26
ARTICLE V
REQUIREMENTS FOR RETIREMENT BENEFITS
5.1 NORMAL RETIREMENT. A Participant shall be eligible for a Normal
Retirement Pension determined in accordance with the provisions of Section 6.1
if his Service is terminated on or after his Normal Retirement Date and prior to
the time he becomes eligible for a Late Retirement Pension. A Participant shall
be entitled to receive his Normal Retirement Pension commencing as of the first
day of the month that coincides with or next follows the Participant's
Retirement date, with payment to commence within ninety (90) days following his
Retirement date. A Participant who attains his Normal Retirement Age shall have
a Vested right to his entire Accrued Benefit.
5.2 EARLY RETIREMENT. A Participant who has attained fifty-five (55)
years of age and completed ten (10) or more years of Vesting Service may elect
early retirement, apply for an Early Retirement Pension in accordance with
Section 11.7(b), and retire on the first day of the month coinciding with or
next following the date on which he satisfies such requirements or on the first
day of any month thereafter, provided such date is prior to his Normal
Retirement Date. Termination of Service at or after the later of age fifty-five
(55) or completion of ten (10) or more years of Vesting Service shall be
considered Retirement. The amount of an Early Retirement Pension shall be
determined in accordance with the provisions of Section 6.2. Payment of an
Early Retirement Pension shall commence as of a Participant's Normal Retirement
Date, except that a Participant who elects early retirement may elect to receive
his Early Retirement Pension prior to his Normal Retirement Date, with payments
under such Pension to begin on the first day of a month that is within ninety
(90) days after the effective date of such election. If a Participant's Early
Retirement Pension commences prior to his Normal Retirement Date the amount
thereof shall be reduced as provided in Section 6.2.
Notwithstanding the foregoing, if a Participant who is eligible for an Early
Retirement Pension under this Section 5.2 is receiving a Disability Pension
under this Plan or is receiving a disability benefit under the Company's
long-term disability Plan, he shall not also be entitled to receive an Early
Retirement Pension under this Plan. The Participant may, however, elect to
receive an Early Retirement Pension under this Section 5.2 in lieu of a
Disability Pension or a disability benefit under the Company's long-term
disability plan, as applicable.
5.3 LATE RETIREMENT. After his Normal Retirement Date an Active
Participant (i) who for the immediately preceding two (2) year period has been
employed by the Company or the Related Employer then employing him in a bona
fide executive or high policy making position and (ii) who would be entitled no
later than sixty (60) days after actual retirement to a vested retirement
benefit from a pension, profit sharing, savings or deferred compensation plan,
or a combination of such plans, of such corporation (excluding amounts
attributable to Social Security, employee contributions, contributions of prior
employers and rollover contributions) which in the aggregate is the equivalent
of a straight life annuity (with no ancillary benefits) of at least Forty-Four
Thousand Dollars ($44,000) annually, may elect to remain employed only with the
consent of such corporation. Any other Participant may postpone his Retirement
date.
27
Any Participant who so remains in the Service of the Employer past his Normal
Retirement Date shall become entitled, on the lapse of one (1) month following
his Normal Retirement Date, to a Late Retirement Pension as of the date of his
Retirement. The amount of such Late Retirement Pension shall be determined in
accordance with Section 6.3. Payment of a Late Retirement Pension payable under
this Section 5.3 shall commence at the Participant's election as of the
Participant's Normal Retirement Date or as of the Participant's Late Retirement
Date; provided however, that in no event may such Participant elect to have his
Pension commence later than the earlier of the first day of the month coinciding
with or immediately following his Retirement or the Participant's Required
Commencement Date.
5.4 TERMINATION OF SERVICE PRIOR TO NORMAL RETIREMENT AGE. If a
Participant terminates Service prior to his attainment of Normal Retirement Age
but after becoming creditable with five (5) or more years of Vesting Service,
the Participant shall have a Vested right to one hundred percent (100%) of his
Accrued Benefit. If a Participant terminates Service prior to his attainment of
Normal Retirement Age and prior to becoming creditable with five (5) or more
years of Vesting Service, and such termination of Service is for any reason
other than death, the Participant's Accrued Benefit shall be subject to becoming
a Forfeiture as provided in Section 5.7.
Except as is provided in Section 7.5, a Participant who terminates Service prior
to his Normal Retirement Date for any reason other than early retirement or
death with a Vested right to his Accrued Benefit shall be entitled to receive a
Deferred Vested Pension, the amount thereof to be determined under the
provisions of Section 6.5. Except as is provided in Section 6.5, payment of a
Participant's Deferred Vested Pension shall commence as of his Normal Retirement
Date.
5.5 VESTING SERVICE. For purposes of determining a Participant's
Vested Accrued Benefit under Section 5.4, a Participant whose Employment
Commencement Date was prior to January 1, 1986, shall be credited, with respect
to Service prior to January 1, 1986, with one (1) year of Vesting Service for
each year of Vesting Service (within the meaning of Section 3.2 of the Prior
Plan) to which the Participant is or would be entitled to under the terms of the
Prior Plan as in effect immediately prior to January 1, 1986, with a fractional
part of a Year of Service to which a Participant is so entitled being deemed a
whole year of Vesting Service, and with respect to Service on or after January
1, 1986, with one (1) year of Vesting Service for each Plan Year during which he
completes not less than one thousand (1,000) Hours of Service. A Participant
whose Employment Commencement Date is on or after January 1, 1986, shall be
credited with one (1) Year of Vesting Service for each Plan Year for which he
completes at least one thousand (1,000) Hours of Service. Years of Vesting
Service credited to an ICC Plan Participant under the ICC Plan and years of
Vesting Service credited to a Wescar Plan Participant under the Wescar Plan
shall be credited as years of Vesting Service under this Plan, and Hours of
Service credited to an ICC Plan Participant or to a Wescar Plan Participant for
the Plan Year of either such Plan commencing January 1, 1988, shall be credited
to such a Participant under this Plan. Notwithstanding the foregoing, years of
Vesting Service (within the meaning of Section 1.24 of the Prior Plan) prior to
January 1, 1986, that were disregarded under the Prior Plan shall be disregarded
under this Plan.
28
5.6 INCLUDED YEARS OF VESTING SERVICE - CERTAIN TERMINATED EMPLOYEES.
Notwithstanding any Plan provision to the contrary, if an Employee separates
from Service and resumes Service with the Employer, but not as a Re-Employed
Employee, years of Vesting Service, as defined in Section 5.5, credited for
Service performed prior to his resumption of Service shall be disregarded, and
his Employment Commencement Date shall be redetermined in accordance with the
provisions of Section 3.2.
5.7 FORFEITURE OCCURS. A Participant's Forfeiture, if any, of his
Accrued Benefit shall occur as of the date on which he receives a deemed
distribution pursuant to Section 7.6(b). The Eligibility Service, Vesting
Service and Benefit Service of a Participant whose Accrued Benefit is forfeited
under this Section 5.7 shall be disregarded for all purposes hereunder;
provided, however, that if such a Participant recommences participation herein
as of a Re-Employed Employee pursuant to the provisions of Section 3.3, such
Participant shall be deemed to have repaid his prior distribution and all
forfeited Service shall be restored as of the date such Participant recommences
participation herein. The Administration Committee shall determine a
Participant's Accrued Benefit Forfeiture, if any, solely by reference to the
provisions of Section 5.4. A Participant shall not forfeit any portion of his
Accrued Benefit for any cause other than that specified herein.
5.8 LIMITATION ON TIME OF PAYMENT. Notwithstanding any provision in
this Article V specifying a date for the commencement of benefit payments from
the Plan, in the case of a Participant who has filed a claim for benefits in
accordance with Section 11.7, unless the Participant otherwise directs,
distribution of the Participant's Vested Accrued Benefit shall commence not
later than sixty (60) days after the Plan Year in which the latest of the
following events occurs:
(a) The date the Participant attains Normal Retirement Age; or
(b) The date the Participant terminates Service with the Employer;
or
(c) The tenth (10th) anniversary of the last day of the Plan Year
in which the Participant commenced participation in the Plan.
A Participant may, at the time and in the manner prescribed by the
Administration Committee, elect to defer the commencement of the payment of his
benefits beyond the dates specified above by submitting a written statement to
the Administration Committee describing his benefits and the date on which the
payment of such benefits shall commence. However, a Participant may not elect
to defer the commencement of the payment of his benefit if the exercise of such
election will cause the benefits payable on his behalf in the event of his death
to be more than incidental within the meaning of regulations issued by the
Internal Revenue Service under section 401(a) of the Code. In addition,
distribution of each Participant's Accrued Benefit shall commence not later than
the Participant's Required Commencement Date and the entire Vested Accrued
Benefit of each Participant shall be distributed in full to such Participant not
later than the Required Commencement Date or shall be distributed, commencing
not later than the Required Commencement Date, in accordance with regulations
over the life of such Participant or over the lives of such Participant and his
Beneficiary (or over a period not extending beyond the life
29
expectancy of such Participant or the life expectancy of such Participant and
his Beneficiary). For purposes of this Section 5.8, except in the case of a
life annuity, the life expectancy of the Participant and his spouse may be
redetermined but not more frequently than annually.
Further, if a Participant has commenced receiving distributions under the Plan
and the Participant dies before his entire interest has been distributed to him,
the remaining portion, if any, of such interest that is distributable under this
Plan shall be distributed to the Participant's Beneficiary at least as rapidly
as such interest would have been distributed to the Participant, commencing not
later than the Participant's Required Commencement Date, under the method of
distribution in effect at the Participant's death. If the Participant dies
before the distribution of his interest has commenced in accordance with Section
5.1, the entire interest of the Participant shall be distributed within five (5)
years after the death of the Participant; provided, however, if any portion of
the Participant's interest is payable to or for the benefit of a Beneficiary and
such portion of the Participant's undistributed interest will be distributed in
accordance with regulations over the life of such Beneficiary or over a period
not extending beyond the life expectancy of such Beneficiary and such
distributions commence not later than one (1) year after the date of the
Participant's death (or such later date as the Secretary of Treasury may by
regulation prescribe), the deceased Participant's interest shall be distributed
in accordance with the method of payment under which the interest will be
distributed over the life of the Beneficiary or over a period not extending
beyond the life expectancy of the Beneficiary.
Notwithstanding the foregoing, if the Beneficiary is the surviving spouse of the
Participant, the deceased Participant's interest shall be distributed to such
surviving spouse on or before the date on which the Participant would have
attained age seventy and one-half (70-1/2); provided, further, that if the
surviving spouse dies before the distributions to such spouse commence, the
distribution of the interest of the deceased Participant shall begin on or
before a date determined as if the surviving spouse were the Participant. For
purposes of this Section 5.8, and pursuant to regulations prescribed by the
Secretary of the Treasury, any amount paid to a child of the Participant shall
be treated as if it had been paid to the surviving spouse of the Participant if
such amount will become payable to the surviving spouse upon such child's
attainment of majority (or other designated event permitted under regulations
prescribed by the Secretary of the Treasury). For the purposes of this
paragraph, the term "Beneficiary" shall include only individuals.
Nothing in this Section 5.8 shall permit any Participant or Beneficiary to elect
any form of distribution not otherwise expressly permitted under this Plan; but
rather, the Administration Committee may at any time modify any form of
distribution elected by a Participant or Beneficiary to ensure compliance with
this paragraph. In addition, all distributions from the Plan shall be made in
accordance with the requirements of section 401(a)(9) of the Code, including any
grandfather or transitional rules issued thereunder. Any distribution provision
contained herein which conflicts with section 401(a)(9) of the Code will be
disregarded and the provisions of section 401(a)(9) will govern.
- ------------------------
End of Article V
30
ARTICLE VI
AMOUNT OF RETIREMENT BENEFIT
6.1 NORMAL RETIREMENT PENSION.
(a) CALCULATION OF NORMAL RETIREMENT PENSION. Subject to the
limitations on annual benefits under Section 6.7, the monthly amount of a Normal
Retirement Pension, expressed in the normal form specified in Section 7.1(a),
payable to a Participant other than an ICC Plan Participant or a Wescar Plan
Participant who retires on or after his Normal Retirement Date and prior to
becoming eligible for a Late Retirement Pension, shall be a monthly amount equal
to two percent (2%) of the Participant's Average Monthly Compensation multiplied
by the Participant's number of years of Benefit Service (but not more than
thirty (30)), minus two and three-sixteenths percent (2-3/16%) of the Primary
Social Security Benefit to which the Participant is entitled, or would be
entitled upon filing an application, multiplied by the Participant's number of
years of Benefit Service (but not more than thirty (30)), as adjusted pursuant
to Section 6.6 hereof.
Subject to the provisions of Section 6.7, the monthly amount of a Normal
Retirement Pension, expressed in the normal form specified in Section 7.1(a),
payable to an ICC Plan Participant who retires on or after his Normal Retirement
Date and prior to becoming eligible for a Late Retirement Pension, shall be the
sum of (A) and (B) where:
(A) Shall be a monthly amount equal to two percent (2%) of the
Participant's Average Monthly Compensation multiplied by the Participant's
number of years of Benefit Service earned after June 30, 1984 (but not
more than thirty (30)), minus two and three-sixteenths percent (2-3/16%)
of the Primary Social Security Benefit to which the Participant is
entitled, or would be entitled upon filing an application, multiplied by
the Participant's number of years of Benefit Service earned after June 30,
1984 (but not more than thirty (30)); and
(B) Is the ICC Plan Participant's accrued benefit payable from the
ICC Plan as of June 30, 1984 (but including Participant Contributions made
during July and August of 1984).
Subject to the provisions of Section 6.7, the monthly amount of a Normal
Retirement Pension, expressed in the normal form specified in Section 7.1(a)
payable to a Wescar Plan Participant who retires on or after his Normal
Retirement Date and prior to becoming eligible for a Late Retirement Pension,
shall be a monthly amount equal to two percent (2%) of the Participant's Average
Monthly Compensation multiplied by the Participant's number of years of Benefit
Service (but not more than thirty (30)), minus two and three-sixteenths percent
(2-3/16%) of the Primary Social Security Benefit to which the Participant is
entitled or would be entitled upon filing an application, multiplied by the
Participant's number of years of Benefit Service (but not more than thirty
(30)), as adjusted pursuant to Section 6.6 hereof.
31
In addition, if a Participant was separated from Service and subsequently
returned to Service, such Participant's Normal Retirement Pension shall not as a
result of any increase in the Primary Social Security Benefit effective after
his initial separation be less than the Normal Retirement Pension to which he
would have been entitled if he had not returned to Service after his separation.
The Normal Retirement Pension payable to a Participant shall in no event be less
than Ten Dollars and Fifty Cents ($10.50) per month multiplied by the
Participant's number of years of Benefit Service up to a maximum of thirty (30)
years, as adjusted pursuant to Section 6.6 hereof. Also for this purpose, if a
Participant was separated from Service and subsequently returned to Service,
such Participant's Normal Retirement Pension shall not as a result of any
increase in the Primary Social Security Benefit effective after his initial
separation be less than the Normal Retirement Pension to which he would have
been entitled if he had not returned to Service after his separation.
(b) YEARS OF BENEFIT SERVICE. Subject to the condition that not
more than one (1) year of Benefit Service will be credited for any twelve (12)
month period, a Participant shall be credited with Benefit Service as follows:
(i) One (1) year of Benefit Service for each year included
in the Period of Service as defined by the Prior Plan and credited
thereunder, based on a Severance from Service Date (as defined by the
Prior Plan) of December 31, 1985, plus any remaining fraction of a year
included in such Period of Service (rounded to one-half (1/2) year if such
fraction is less than one-half (1/2) or to one (1) year if such fraction
is at least one-half (1/2));
(ii) In the case of an ICC Plan Participant, one (1) year of
Benefit Service for each year of Benefit Service under the ICC Plan
(including any such year credited for service from July 1, 1984 through
December 31, 1984);
(iii) In the case of a Wescar Plan Participant, one (1) year
of Benefit Service for each full year of Benefit Service under the Wescar
Plan;
(iv) One (1) year of Benefit Service for each Plan Year
beginning with the Plan Year that begins January 1, 1986, during which the
Participant is a Participant and completes at least one thousand (1,000)
Hours of Service;
(v) One (1) year of Benefit Service for any Plan Year in
which a Participant commences employment with an Employer or terminates
Service for reason of death, Disability, or Retirement, provided that the
Participant completes at least five hundred (500) Hours of Service during
such Plan Year. In addition, a Participant shall receive credit for
one-half (1/2) year of Benefit Service in the Plan Year during which he
commences employment with an Employer or in which he terminates Service by
reason of death, Disability or Retirement if he is credited with at least
one (1) but less than five hundred (500) Hours of Service during such Plan
Year;
32
(vi) One (1) year of Benefit Service for each year that a
Participant with a Disability is credited with one thousand (1,000) Hours
of Service pursuant to Section 3.4 of the Plan; and
(vii) In the case of a Participant who becomes entitled to a
Normal Retirement Pension but who has less than thirty (30) years of
Benefit Service pursuant to the provisions of (i) through (vi) above, who
was employed by the predecessor employer of the Company's Lancaster,
Memphis, Nashville, Tampa, Richmond or Orlando branches, and who was
employed by the Company immediately following the acquisition by the
Company of Participant's predecessor employer, one (1) year of Benefit
Service for each year of service with such predecessor employer; provided,
however, that the number of years of Benefit Service credited pursuant to
this paragraph (vii) shall not exceed the number of years of Benefit
Service earned on account of actual employment of the Participant by the
Company.
For purposes of (iv) and (v) above, Hours of Service earned by an ICC Plan
Participant under the ICC Plan and Hours of Service earned by a Wescar Plan
Participant under the Wescar Plan shall be counted.
(c) PARTICIPANTS UNDER A UNION PLAN. Notwithstanding anything
in this Plan to the contrary, the Benefit Service of a Participant who also
participated in a qualified retirement program established and maintained by the
Employer pursuant to a collective bargaining agreement or by any collective
bargaining unit having a collective bargaining agreement with the Employer (a
"Collectively Bargained Plan") shall be determined in accordance with the
following paragraphs (i) and (ii) below:
(i) A Participant's years of Benefit Service accrued prior
to January 1, 1993, shall include all employment with Employer for which
the Participant either accrued Benefit Service under this Plan or received
credit under a Collectively Bargained Plan; provided, however, that any
benefit accrued prior to January 1, 1993, to which a Participant or his
Beneficiary may be entitled under this Plan shall be reduced, dollar for
dollar, by the Actuarial Equivalent of any similar form of benefit such
Participant accrued prior to January 1, 1993, under such Collectively
Bargained Plan attributable to such Participant's employment with the
Employer; and
(ii) A Participant's years of Benefit Service accrued on and
after January 1, 1993, shall be deemed to only include each Plan Year
during which the Participant is a Participant and completes one thousand
(1,000) Hours of Service. If a Participant ceases to be an Eligible
Employee because he becomes employed in an employment classification
covered by a collective bargaining agreement which does not provide for
participation in this Plan then, except as provided in the next paragraph
with respect to the year of transfer, such Participant shall not accrue
Benefit Service under the Plan for the period he is employed in such
collective bargaining employment classification. During such employment
period, the Participant will, however, be eligible to participate in any
Collectively Bargained Plan established or maintained pursuant to such
collective bargaining agreement and, except as provided in the next
paragraph with
33
respect to the year of transfer, any benefit accrued on or after January
1, 1993, under such Collectively Bargained Plan shall not be used to
reduce any Pension he accrues on or after January 1, 1993, under this
Plan.
If a Participant is transferred to an employment classification covered by
a collective bargaining agreement which does not provide for participation
in the Plan, or is transferred from such a collective bargaining
employment classification to an employment classification that is eligible
for participation in the Plan, a Year of Benefit Service for the year of
transfer shall include all employment with the Employer for which the
Participant either accrued Benefit Service under this Plan or received
credit under a Collectively Bargained Plan; provided, however, that any
benefit to which a Participant or his Beneficiary may be entitled to under
this Plan attributable to the year of transfer shall be reduced, dollar
for dollar, by the Actuarial Equivalent of any similar form of benefit
accrued during the year of transfer under such Collectively Bargained Plan
attributable to such Participant's employment with the Employer during
such year of transfer.
6.2 EARLY RETIREMENT PENSION. Subject to the provisions of Section
6.7, the monthly amount of an Early Retirement Pension, expressed in the normal
form specified in Section 7.1(a), payable to a Participant, commencing on the
date specified in Section 5.2 shall be determined in accordance with Section 6.1
but based on the number of years of Benefit Service, Average Monthly
Compensation, and Primary Social Security Benefit determined as of the Early
Retirement Date. If payment of an Early Retirement Pension commences prior to
the Participant's Normal Retirement Date, the monthly amount determined in
accordance with the immediately preceding sentence shall be reduced for each
month by which the commencement date of his Pension precedes his Normal
Retirement Date as follows:
(a) By one-half (1/2) of one percent (1%) for each month between
age sixty (60) and age sixty-five (65); and
(b) By one-fourth (1/4) of one percent (1%) for each month between
age fifty-five (55) and sixty (60).
A Participant who satisfies the requirements for an Early Retirement Pension and
is retired at the request of the Employer, shall receive a monthly amount,
commencing upon his Early Retirement Date, which shall be equal to the Pension
computed in accordance with the first sentence of this Section 6.2, except that
the offset for Primary Social Security Benefit shall not be applied until the
earliest date a Participant can qualify for an unreduced Primary Social Security
Benefit.
For the purpose of determining the amount of an Early Retirement Pension, the
Social Security offset shall in no event exceed the limitations prescribed by
the Internal Revenue Service Regulations as currently in effect or under
subsequent amendments to such Regulations.
If a Participant commences receiving an Early Retirement Pension pursuant to
Section 5.2 and such Participant at any time thereafter again becomes a
Participant, the Pension of such Participant as finally determined shall be
recomputed on the basis of this Section 6.2, but shall
34
be reduced by a monthly amount Actuarially Equivalent to the total of his Early
Retirement Pension previously distributed.
6.3 LATE RETIREMENT PENSION. Subject to the limitations on annual
benefits under Section 6.7, the annual amount of a Late Retirement Pension,
expressed in the normal form specified in Section 7.1(a), payable to a
Participant commencing on the date specified in Section 5.3, shall be an amount
determined in the same manner as the Normal Retirement Pension described in
Section 6.1, but determined based on his Benefit Service and Compensation as of
his Late Retirement Date; provided, however, that the sum of a Participant's
Pension under the Plan and the monthly benefit payable under the Annuity
Contract shall not be less as a result of delayed Retirement than it would have
been had such Participant retired on his Normal Retirement Date.
6.4 DISABILITY PENSION. A Participant who satisfies the requirements
for a Disability Retirement Pension shall, until reaching age sixty-five (65),
receive a monthly amount determined as follows:
(a) Sixty percent (60%) of the Participant's Average Monthly
Compensation reduced by;
(b) Sixty-four percent (64%) of the Primary Social Security
Disability Benefit to which the Participant is entitled or would be entitled on
filing an application at the time benefit payments begin;
(c) Any public disability benefits to which the disabled
Participant may be entitled; and
(d) When payable any early retirement benefit attributable to the
Prior Plan, whether or not actually paid to the Participant when he becomes or
would have become entitled thereto.
Public disability benefits shall include disability payments under state
disability benefits law, Workmen's Compensation or Occupational Disease Law
(except fixed statutory payments for loss of a bodily member), but shall not
include a pension granted for or on account of military service. Public
disability benefits shall include any payments which a pensioner receives or
would be entitled to receive irrespective of any factor by which he may
disqualify himself or diminish such benefits, such as, for example, failure to
make proper application or engaging in employment for compensation or profit.
The disabled Participant's Pension shall be redetermined as of his Normal
Retirement Date and converted to a Normal Retirement Pension, subject to
Articles VII and VIII by computation in accordance with Section 6.1, and in so
computing such Normal Retirement Pension the Participant's Average Monthly
Compensation prior to receipt of the Disability Retirement Pension and years of
Benefit Service, including the period the Disability Retirement Pension was in
effect, shall be used.
35
6.5 DEFERRED VESTED PENSION. Subject to the limitations on annual
benefits under Section 6.7 and unless otherwise provided in Section 7.5, the
monthly amount of a Deferred Vested Pension, expressed in the normal form
specified in Section 7.1(a), payable to a Participant commencing on the date
specified in Section 5.4, shall be based on the Participant's Accrued Benefit,
determined on the basis of the Participant's Accrued Benefit as of the date the
Participant first incurs a Break in Service following his termination of
Service, and in the case of a Participant in the ICC Plan as of June 30, 1988,
adjusted to reflect any receipt of a Cash Withdrawal Benefit as defined in
Section 7.9, taking into account the Participant's Primary Social Security
Benefit determined as of the time of the incurrence of the Break in Service.
Notwithstanding the immediately preceding sentence, a Participant who is
entitled to a Deferred Vested Pension and who has completed at least ten (10)
years of Vesting Service may elect to commence receiving a Deferred Vested
Pension on the first day of any month that is prior to his Normal Retirement
Date and coincident with or following the date such Participant attains age
fifty-five (55), such Deferred Vested Pension to be reduced in accordance with
the provisions of Section 6.2.
6.6 ADJUSTMENT OF PENSION TO REFLECT BENEFITS ACCRUED UNDER THE PRIOR
PLAN. Notwithstanding the foregoing provisions of this Article VI, the Pension
payable to a Participant under this Plan shall be adjusted to reflect benefits
accrued under the Prior Plan as follows:
(a) The Normal Retirement Pension, Late Retirement Pension or
Deferred Vested Pension (if payment commences on or after the Participant's
Normal Retirement Age) payable under this Plan, calculated in the form of a
single life annuity, shall be reduced by the Participant's monthly benefit
payable under the Annuity Contract, calculated in the form of a single life
annuity, commencing on the same date.
(b) The Early Retirement Pension or Deferred Vested Pension (if
payment commences prior to the Participant's Normal Retirement Age) payable
under this Plan, calculated in the form of a single life annuity, shall be
reduced by the Participant's monthly benefit payable under the Annuity Contract,
calculated in the form of a single life annuity commencing as of the earliest
date that benefits are payable under the Annuity Contract;
(c) In the case of a Participant who was receiving a Disability
Retirement Benefit hereunder, or was receiving a disability benefit under the
Company's long-term disability plan, and who did not recover from his Disability
prior to his Normal Retirement Age, the Normal Retirement Pension payable under
this Plan shall be reduced by the monthly amount that would be payable to the
Participant as a single life annuity under the Annuity Contract commencing as of
the earliest date that benefits are payable under the Annuity Contract.
(d) In the event that Vesting Service with a predecessor employer
is treated as Benefit Service under Section 6.1(b)(7)(i) in determining the
Pension payable to a Participant under the Plan pursuant to this Article VI,
such Pension shall be reduced by the pension benefits, if any, to which the
Participant is entitled under any retirement plan of such predecessor employer,
calculated in the form of a single life annuity commencing on the same date that
pension benefits commence hereunder.
36
The provisions of this Section 6.6 shall be effective January 1, 1986.
6.7 MAXIMUM ANNUAL BENEFIT. Notwithstanding any provision contained
herein to the contrary, and consistent with Section 2.1(r) of the Plan, the
amount of annual Pension, determined in accordance with Sections 6.1, 6.2, 6.3,
6.4, and 6.5, attributable to a Participant's Accrued Benefit that is payable to
a Participant under this and any Related Plan (whether or not such plan is
terminated) shall be limited in accordance with the provisions of section 415 of
the Code and shall not exceed the LESSER of:
(a) Ninety Thousand Dollars ($90,000), adjusted for increases in
the cost of living pursuant to section 415(b)(1)(A) of the Code; or
(b) One hundred percent (100%) of the Participant's average
Compensation for the three (3) consecutive Plan Years of participation in which
his Compensation was the highest.
Notwithstanding the provisions of subparagraph (a) of this Section 6.7, if the
amount of annual Pension accrued by a Participant hereunder as of the last day
of the Plan Year commencing prior to January 1, 1983, exceeded Ninety Thousand
Dollars ($90,000), but was no greater than the dollar amount specified in
Article IV, Section 6, of the Prior Plan as of such date, then with respect to
such Participant, such amount shall be substituted for Ninety Thousand Dollars
($90,000) each place it appears herein; provided, however, that the prior
provisions of this sentence shall not apply to the last two paragraphs of this
Section 6.7.
If any Participant begins to receive a Pension under this Plan before such
Participant attains Social Security Retirement Age, the maximum annual Pension
that such Participant may receive hereunder shall be adjusted so that it is the
Actuarial Equivalent of Ninety Thousand Dollars ($90,000) per year beginning at
Social Security Retirement Age. If a Participant begins to receive a Pension
hereunder after he attains Social Security Retirement Age, the maximum annual
Pension permitted hereunder shall be the Actuarial Equivalent of Ninety Thousand
Dollars ($90,000) per year beginning at Social Security Retirement Age. Any
adjustment made pursuant to the foregoing shall be made in accordance with
applicable rules prescribed by the Secretary of the Treasury. In making an
actuarial adjustment to any benefit pursuant to the terms of this paragraph, no
cost of living adjustment to the Ninety Thousand Dollar ($90,000) limitation
under section 415(d)(1) of the Code shall be taken into account before the year
in which such cost of living adjustment is made.
Except as provided in the following, which imposes additional limitations on the
amounts payable to Participants with less than ten (10) years of participation
or years of Service with the Employer, the foregoing limitations shall not be
applicable with respect to any Participant whose annual Pension under this Plan
and any Related Plan is less than Ten Thousand Dollars ($10,000) if such
Participant has not at any time participated in any defined contribution plan
(as defined in section 415(k) of the Code) maintained by the Employer or any
Related Employer. In the event that a Participant has been credited with less
than ten (10) years of participation, the Ninety Thousand Dollars ($90,000)
limit under Section 6.7(a) shall be reduced by multiplying such limit by a
fraction, the numerator of which is the number of such Participant's years of
participation (or part thereof) and the denominator of which is ten (10). In
the event that a Participant has
37
been credited with less than ten (10) years of Service with the Employer (or
part thereof), the Compensation limitation under Section 6.7(b) shall be reduced
by multiplying such limit by a fraction, the numerator of which is the number of
years of Service credited to the Participant, and the denominator of which is
ten (10).
The determination of whether a Participant's Pension payable under the Plan
exceeds the limitations of this Section 6.7 shall be made adjusting such Pension
so that it is the Actuarial Equivalent of a straight life annuity with no
ancillary benefits (such adjustment being made in accordance with Regulations
promulgated by the Secretary of the Treasury or his delegate pursuant to section
415(b)(2)(B) of the Code); provided, however, that any portion of an annuity
that constitutes a Qualified Joint and Survivor Annuity (as described in Section
7.1(b)) shall not be taken into account.
If, in any Limitation Year a Participant also participates in one or more
qualified defined contribution plans (within the meaning of section 414(i) of
the Code) maintained by the Employer or a Related Employer (whether or not
terminated), then for any Limitation Year, the sum of the Defined Benefit Plan
Fraction (herein so-called) for such Limitation Year and the Defined
Contribution Plan Fraction (herein so-called) for such Limitation Year shall not
exceed one (1.0).
For purposes of this Section 6.7, the Defined Benefit Plan Fraction for any
Limitation Year shall be a fraction:
(a) The numerator of which is the projected annual benefit of the
Participant under the Plan (determined as of the close of the Limitation Year);
and
(b) The denominator of which is the LESSER of:
(i) The product of one and one-fourth (1.25) multiplied by
the Ninety Thousand Dollar ($90,000) limitation in effect for the
Limitation Year under section 415(b)(1)(A) of the Code; or
(ii) One and four-tenths (1.4) multiplied by one hundred
percent (100%) of the Participant's average Compensation for his three (3)
high years.
The Defined Contribution Plan Fraction for any Limitation Year shall be a
fraction:
(a) The numerator of which is the sum of the annual additions (as
defined in section 415(c)(2) of the Code) to the Participant's accounts under
all defined contribution plans maintained by the Employer or Related Employer as
of the close of the Limitation Year; and
(b) The denominator of which is the LESSER of:
(i) The product of one and one-fourth (1.25) multiplied by
the Ninety Thousand Dollar ($90,000) limitation in effect for such year
under subsection 415(c)(1)(A) of the Code (determined without regard to
subsection 415(c)(6) of the Code); or
38
(ii) Thirty-five percent (35%) of the Participant's
Compensation for the Limitation Year and all prior years of Service with
the Employer.
If, in any Limitation Year, the sum of the Defined Benefit Plan Fraction and
Defined Contribution Plan Fraction for a Participant would exceed one (1.0)
without adjustment of the amount of the maximum annual Pension that can be paid
to such Participant under the first paragraph of this Section 6.7, then the
amount of the maximum annual Pension that can be paid to such Participant under
the first paragraph of this Section 6.7 shall be reduced to the extent necessary
to reduce the sum of the Defined Benefit Plan Fraction and Defined Contribution
Plan Fraction for such Participant to one (1.0), or the Administration Committee
may take such other action as will cause the sum to equal one (1.0) or less.
6.8 SUSPENSION OF BENEFITS UPON RE-EMPLOYMENT OF RETIRED PARTICIPANTS.
If a retired Participant returns to the Service of an Employer subsequent to the
time that payment of benefits commences or would have commenced if the
Participant had not returned to Service, and following such return to Service
the Participant completes forty (40) or more Hours of Service for an Employer
during a calendar month, the Participant's benefits shall be permanently
suspended for each such month as follows. In the case of benefits payable
periodically on a monthly basis for as long as a life (or lives) continues, such
as a straight life annuity or Qualified Joint and Survivor Annuity, the amount
suspended shall not be greater than the portion of the monthly benefit payment
derived from Employer contributions. In the case of benefits payable on any
other basis, the amount of benefits suspended shall not exceed the LESSER of:
(a) The amount of benefits that would have been payable to the
Participant if he had been receiving monthly benefits under the Plan since
actual Retirement based on a single life annuity commencing at actual Retirement
Age; or
(b) The actual amount paid or scheduled to be paid to the
Participant for such month.
Payments that are scheduled to be paid less frequently than monthly may be
converted to monthly payments for purposes of determining the amount that may be
suspended hereunder. Payments of benefits suspended shall resume no later than
the first day of the third calendar month after the calendar month in which the
Employee again terminates Service. The initial payment upon such resumption
shall include the payment scheduled to occur in the calendar month when payments
resume.
No benefit payments that commence on or after a Participant has attained Normal
Retirement Age shall be withheld unless the Administration Committee notifies
the Participant by personal delivery or first class mail during the first
calendar month or payroll period in which the Plan withholds payments that his
benefits are suspended. Such notification shall contain a description of the
specific reasons why benefit payments are being suspended, a general description
of the Plan provisions relating to the suspension of the payments, a copy of
such provisions, and a statement to the effect that applicable Department of
Labor regulations may be found in section 2530.203-3 of the Code of Federal
Regulations. In addition, the suspension notification shall inform the
Participant of the Plan's procedure for affording a review of the suspension of
39
benefits. If the summary plan description with respect to the Plan contains
information substantially similar to the information required in the two
immediately preceding sentences, the notice may refer the Participant to the
relevant portions of the summary plan description; provided the Participant is
informed how to obtain a copy of the summary plan description or the relevant
pages thereof. Requests for such reviews shall be considered in accordance with
the claims procedure set forth in Section 11.7 of this Plan.
- ------------------------
End of Article VI
40
ARTICLE VII
METHOD OF PAYMENT OF PENSION
7.1 NORMAL FORM OF PENSION.
(a) GENERAL. The normal form of Pension for the calculation of
all Pensions under this Article VII shall be a Single Life Annuity. The Single
Life Annuity shall be a monthly life annuity commencing on the Participant's
Annuity Starting Date, terminating with the last monthly payment due immediately
preceding the date of the Participant's death, and providing that upon the death
of a retired Participant other than an ICC Plan Participant, his Beneficiary
shall be entitled to receive a single lump sum cash payment in an amount equal
to the sum of the monthly Pension benefit payments that have become payable
prior to the Participant's death and have not been paid, and providing that upon
the death of a retired ICC Plan Participant, his Beneficiary shall be entitled
to receive a single sum cash payment in an amount equal to:
(i) The ICC Plan Participant's Contributions (as defined in
the ICC Plan), if any, (that have not been withdrawn) with Credited
Interest to the date his Pension payments actually commence; minus
(ii) The sum of the monthly Pension benefit payments that
have been paid prior to the Participant's death; provided, however, that
any portion of such Participant's monthly retirement benefit payments that
represents his Supplemental Retirement Benefit (as specified in the
International Controls Corp. Pension Plan as in effect on June 30, 1984)
shall be excluded.
If a Participant retires and is not married on his Annuity Starting Date then,
unless the Participant is an ICC Plan Participant and elects otherwise in
accordance with Section 7.2(a), such Participant's Pension shall be paid in the
form of a Single Life Annuity.
(b) MARRIED PARTICIPANT WITH ELIGIBLE SPOUSE. If a Participant
retires for reasons other than Disability, and on his Annuity Starting Date the
Participant has an Eligible Spouse then, unless the Participant elects (and his
Eligible Spouse, if any, also elects) in accordance with Section 7.3(a) not to
receive his Pension in the form specified in this Section 7.1(b), such
Participant's Pension shall be paid in the form of a Qualified Joint and
Survivor Annuity. With respect to Plan Years commencing on or after January 1,
1985, and to the extent provided in a Qualified Domestic Relations Order, a
former spouse of a Participant shall be deemed to be an Eligible Spouse.
Under the Qualified Joint and Survivor Annuity, a reduced amount shall be paid
to the Participant for his lifetime, upon his death, his surviving Eligible
Spouse shall be entitled to receive for her lifetime a survivorship Pension in a
monthly amount equal to fifty percent (50%) of the reduced monthly amount that
had been paid to the Participant. The last monthly payment under the
41
Qualified Joint and Survivor Annuity shall be made as of the first day of the
month in which the death of the last survivor between the Participant and his
Eligible Spouse has occurred.
The reduced amount payable to the Participant shall be determined so that the
discounted present value of the aggregate of the Pension payments expected to be
made to the Participant and his Eligible Spouse shall be the Actuarial
Equivalent of the Pension determined under Section 7.1(a). The Actuarial
Equivalent of the Pension determined under Section 7.1(a) shall be determined as
of the Participant's Annuity Starting Date and by using the interest rate
specified in Section 2.1(c) or, if it would produce a greater benefit, the
interest rate that would be used (determined as of January 1 of the Plan Year in
which such Pension payments commence) by the PBGC for purposes of determining
the present value of a lump sum distribution on plan termination.
(c) MARRIED PARTICIPANT WITHOUT ELIGIBLE SPOUSE. If (i) on the
date a Participant retires for reasons other than Disability the Participant is
married but the Participant's spouse is not an Eligible Spouse, (ii) the
Participant and such spouse were married within one (1) year of the
Participant's Annuity Starting Date and the Participant and such spouse remain
married for one (1) year, such spouse becoming an Eligible Spouse, and (iii) the
Participant and his spouse do not elect in accordance with Section 7.3(a) not to
receive his Pension in the form specified in Section 7.1(b), then the
Participant's Pension shall, upon the date the spouse becomes an Eligible
Spouse, become payable in the form of a Qualified Joint and Survivor Annuity.
The first payment under such Qualified Joint and Survivor Annuity shall be the
payment for the month immediately following the month during which the
Participant's spouse became an Eligible Spouse. The amount of such Pension
shall be calculated pursuant to the provisions of Section 7.1(b) except that the
amount payable to the Participant shall be determined so that the discounted
present value of the aggregate of the Pension payments expected to be received
by the Participant and his Eligible Spouse will be the Actuarial Equivalent of
the Pension provided for in Section 7.1(a) (except to the extent such Pension is
or has been modified by a Qualified Domestic Relations Order) on the basis of
the Participant's life expectancy on the date his spouse becomes an Eligible
Spouse. The Participant's death on or after the date his spouse becomes an
Eligible Spouse and prior to the beginning of the month following such date
shall not deprive the spouse of the survivor annuity that becomes contingently
payable on the date such spouse becomes an Eligible Spouse.
7.2 OPTIONAL PENSION FORMS. By making the election described in
Section 7.3(a) and by giving written notice to the Administration Committee
during the election period specified in Section 7.3(a), a Participant who
retires for reasons other than Disability may elect to receive a Pension payable
in one of the following forms in lieu of the normal form provided for in Section
7.1(a) or the form of Pension provided for in Section 7.1(b) but in an amount
that is Actuarially Equivalent to the normal form of Pension provided for in
Section 7.1(a):
(a) LIFE ANNUITY WITH FIVE (5) YEARS CERTAIN. With respect to
an ICC Plan Participant, a life annuity with sixty (60) monthly Pension benefit
payments guaranteed so that upon the death of the retired Participant on or
after his Annuity Starting Date but before the guaranteed number of monthly
Pension benefit payments has been made, the remainder of such guaranteed number
of monthly Pension benefit payments shall be paid as they become due to the
Beneficiary designated by the retired Participant. In the event of the death of
the Beneficiary
42
after the Retired Participant's death but before such guaranteed number of
monthly Pension benefit payments have been made, the remainder of such
guaranteed number of monthly pension benefit payments shall be commuted into one
sum and paid to such Beneficiary's executors or administrators. If there is no
Beneficiary living at the date of such Retired Participant's death, the
remainder of the guaranteed number of monthly Pension benefit payments shall be
commuted into one lump sum and paid to the Retired Participant's executors or
administrators.
(b) CONTINGENT ANNUITY. A reduced Pension for the life of the
Participant and an amount equal to one hundred percent (100%), seventy-five
percent (75%) or fifty percent (50%) at the Participant's election, of his
reduced monthly Pension benefit to be paid to his designated Beneficiary, who
shall be the Participant's contingent annuitant, provided such Beneficiary is
living at the retired Participant's death.
If the Beneficiary is the spouse of the retired Participant, the benefit payable
under this option is payable without restriction. If, however, the Beneficiary
is any person other than the spouse of the retired Participant, the benefit
payable under this option shall be limited to the extent that the present value
of the payments to be made to the Participant during his lifetime shall be more
than fifty percent (50%) of the present value of the total payments to be made
to the Participant and the Beneficiary under this option.
Monthly payments to the annuitant shall commence on the first day of the month
next following the month in which the death of the retired Participant occurs,
provided the Beneficiary is then living, and monthly benefit payments shall
continue with the last monthly payment due immediately preceding the death of
the contingent annuitant.
If the death of the Beneficiary or the Participant occurs before the
Participant's Annuity Starting Date, any election of this option shall be deemed
null and void and the normal form of pension shall again become operative as
though this contingent annuitant had not been elected. If the Beneficiary
predeceases the retired Participant after the Participant's Annuity Starting
Date, retirement benefit payments shall terminate with the monthly payment due
immediately preceding the retired Participant's death.
(c) LIFE ANNUITY WITH TEN (10) YEARS CERTAIN. In the case of an
ICC Plan Participant whose Employment Commencement Date is prior to January 1,
1985, or in the case of a Wescar Plan Participant, a life annuity with one
hundred and twenty (120) monthly Pension benefit payments guaranteed so that
upon the death of the retired Participant on or after his Annuity Starting Date
but before the guaranteed number of monthly Pension benefit payments has been
made, the remainder of such guaranteed number of monthly Pension benefit
payments shall be paid as they become due to the Beneficiary designated by the
retired Participant. In the event of the death of the Beneficiary after the
Retired Participant's death but before such guaranteed number of monthly Pension
benefit payments have been made, the remainder of such guaranteed number of
monthly pension benefit payments shall be commuted into one sum and paid to such
Beneficiary's executors or administrators. If there is no Beneficiary living at
the date of such Retired Participant's death, the remainder of the guaranteed
number of monthly Pension benefit payments shall be commuted into one lump sum
and paid to the Retired Participant's executors or administrators.
43
(d) SOCIAL SECURITY INTEGRATED BENEFIT. In the case of an ICC
Plan Participant whose Employment Commencement Date is prior to January 1, 1985,
a monthly Pension benefit payable in such amounts so that the Participant's
monthly benefit under this Plan prior to his Social Security Commencement Date
will generally equal the sum of his monthly benefit under this Plan and his
monthly Social Security Benefit after his Social Security Commencement Date.
For purposes of this option:
(i) Social Security Commencement Date means the earlier of
the first day of the first month in which the Participant's Social
Security Benefit is to commence, or, the first day of the month next
following his sixty-fifth (65th) birthday.
(ii) Social Security Benefit means the yearly Primary
Insurance Amount, or portion thereof, which the Participant is expected to
receive under Title II of the Federal Social Security Act, calculated on a
monthly basis.
A Participant's Social Security Commencement Date and Social Security Benefit
shall be determined by the Administrative Committee based on the Federal Social
Security Act as it exists on the Participant's Annuity Starting Date. A
Participant may elect this option only if his Annuity Starting Date precedes his
Social Security Commencement Date. Upon the death of a retired Participant, his
designated Beneficiary shall be entitled to receive a single sum cash payment in
an amount equal to:
(i) The Participant's Contributions to this Plan (which have
not been withdrawn) with Credited Interest to the date his pension
payments actually commenced, minus
(ii) The sum of the monthly retirement benefit payments which
shall have become payable prior to the Participant's death; provided,
however, that any portion of such Participant's monthly retirement benefit
payments which represents his Supplemental Retirement Benefit shall be
excluded.
7.3 PARTICIPANT PENSION PAYMENT ELECTIONS.
(a) ELECTION NOT TO TAKE QUALIFIED JOINT AND SURVIVOR ANNUITY OR
SINGLE LIFE ANNUITY. A Participant who qualifies for the Qualified Joint and
Survivor Annuity or Single Life Annuity may elect to receive his Pension in one
of the forms described in Sections 7.1(a) or 7.2, or revoke such an election,
provided that the Participant notifies the Administration Committee in writing
of such election or revocation of election on an appropriate form supplied by
the Administration Committee for this purpose. Notwithstanding the foregoing,
in the case of a Participant who has at least one (1) Hour of Service or one (1)
hour of paid leave on or after August 22, 1984, no election made under this
Section 7.3(a) during any Plan Year commencing after December 31, 1984, shall be
effective unless the Eligible Spouse of the Participant consents in writing to
such election, such election designates a specific nonspouse beneficiary or a
form of benefits which may not be changed without spousal consent (or the
consent of the spouse expressly permits designations by the Participant without
any requirements of further spousal consent), and such consent acknowledges both
the designation, if any, of a specific nonspouse
44
beneficiary and the effect of such election, and is witnessed by a member of the
Administration Committee or a notary public or it is established to the
satisfaction of the Administration Committee that the consent of an Eligible
Spouse cannot be obtained because the Eligible Spouse cannot be located or such
other circumstances as the Secretary of the Treasury may prescribe by regulation
exist.
The Administration Committee shall furnish to each Participant who is eligible
to make an election under this Section 7.3(a) a written explanation in
nontechnical language of:
(i) The terms and conditions of the Qualified Joint and
Survivor Annuity or Single Life Annuity;
(ii) The Participant's right to make, and the effect of, an
election to waive the Qualified Joint and Survivor Annuity or Single Life
Annuity form of benefit;
(iii) The rights of the Participant's Eligible Spouse under
this Section 7.3(a) with respect to such waiver election; and
(iv) The right to make, and the effect of, a revocation of an
election to waive the Qualified Joint and Survivor Annuity or Single Life
Annuity form of benefit.
If such notification is made by mail or personal delivery, it shall be made by
such time as to reasonably assure that it will be received by the Participant at
least thirty (30) days and not more than ninety (90) days before the Annuity
Starting Date. Notice of the election may be given by alternative means, which
must be reasonably calculated to reach the attention of the Participant on or
about the time period specified in the preceding sentence and continue to reach
the attention of the Participant during the period in which he may make the
election (as, for example, by posting or repeated publication). A Participant
may make an election not to take a Qualified Joint and Survivor Annuity or
Single Life Annuity in favor of a Pension payable in a form prescribed by
Sections 7.1(a) or 7.2 hereof at any time during the ninety (90) day period
preceding the Annuity Starting Date. In addition, a Participant who has
separated from Service and who has a spouse who is not an Eligible Spouse may
make the election provided for in the immediately preceding sentence during the
period beginning on the first day of the ninety (90) day period ending on his
Annuity Starting Date and ending with the date his spouse becomes an Eligible
Spouse. Furthermore, a Participant may request additional information regarding
the Qualified Joint and Survivor Annuity or Single Life Annuity during the sixty
(60) day period following the date the above explanation is mailed or personally
delivered or otherwise communicated to such Participant. If the Participant
requests additional information, the Participant may make an election not to
take a Qualified Joint and Survivor Annuity or Single Life Annuity any time
during the sixty (60) day period following the date the original requested
information is mailed or personally delivered to such Participant.
Notwithstanding the preceding provisions, in no event shall the period during
which a Participant may elect not to take a Qualified Joint and Survivor Annuity
or Single Life Annuity in favor of a Pension payable in a form specified in
Section 7.1 or 7.2 hereof or to revoke such election expire earlier than the
Annuity Starting Date.
45
A Participant may revoke an election made pursuant to this Section 7.3(a) during
the ninety (90) day period ending on the Annuity Starting Date (and in the case
of a Participant who separates from Service with a spouse who is not an Eligible
Spouse, ending on the date his spouse becomes an Eligible Spouse), and the
Participant may make a new election thereafter if it otherwise complies with
this Section 7.3(a). A Participant's election not to take a Qualified Joint and
Survivor Annuity or Single Life Annuity, if timely made, is effective on the
date the Participant's payment of benefits is to commence under Article V. A
Participant's revocation of an election not to take a Qualified Joint and
Survivor Annuity or Single Life Annuity is effective on the date the Participant
notifies the Administration Committee thereof in accordance with this Section
7.3(a). Any such new election or revocation of any election previously made
shall be made in accordance with the provisions of this Section 7.3(a).
(b) CONDITIONS OF ELECTION OF OPTIONAL FORM. The Participant
shall not make any election for an optional form of Pension benefit under which
the present value of the Pension payable solely to the Participant will not be
greater than fifty percent (50%) of the present value of the total Pension
payable to the Participant and his Beneficiaries; provided, however, that if the
Participant elects a Qualified Joint and Survivor Annuity described in Section
7.2(b) hereof, and his contingent annuitant is his spouse, the preceding
limitation shall not apply. The Administration Committee shall determine
"present value" as of the date the Trustee is to commence payment of the Pension
to the Participant. If the Administration Committee determines to disallow a
Participant's election, it shall direct the Trustee in writing to commence
payment of the Participant's Pension to him in the normal form specified in
Section 7.1. The Administration Committee shall apply the provisions of this
Section 7.3(b) in a nondiscriminatory and uniform manner.
7.4 QUALIFIED PRE-RETIREMENT SURVIVOR ANNUITY. A Participant who has
at least one (1) Hour of Service or at least one (1) hour of paid leave on or
after August 23, 1984, and has a Vested Accrued Benefit and dies before the
Annuity Starting Date and who has a surviving Eligible Spouse, shall
automatically have provided for such Eligible Spouse a Qualified Pre-Retirement
Survivor Annuity. Except to the extent provided in a Qualified Domestic
Relations Order, the Eligible Spouse of such a Participant shall be the
Participant's sole beneficiary to receive the death benefits which may be
payable on his behalf in the event of his death prior to his Annuity Starting
Date. A Qualified Pre-Retirement Survivor Annuity is a survivor annuity for the
life of the surviving Eligible Spouse of the Participant pursuant to which,
except to the extent modified by a Qualified Domestic Relations Order, payments
to the surviving Eligible Spouse are:
(a) In the case of a Participant who dies on or after the earliest
date on which he could retire under the Plan but before payment of his benefits
has commenced, one-half (1/2) of the annual benefit that would have been payable
to the Participant if he had retired on the first day of the month following his
death and elected that his Pension commence:
(i) At age sixty-five (65); or
(ii) If the Participant had postponed his retirement past his
Normal Retirement Date, at his date of death, as a straight life annuity;
and
46
(b) In the case of a Participant who dies before the date he
becomes eligible for an Early Retirement Pension, equal to the amount that would
be payable as a survivor annuity under the Qualified Joint and Survivor Annuity
provided under this Plan if such Participant had:
(i) Separated from Service on the date of death;
(ii) Survived to the date on which he would have become
eligible for an Early Retirement Pension;
(iii) Retired with an immediate Qualified Joint and Survivor
Annuity on the date he became eligible for an Early Retirement Pension;
and
(iv) Died on the day after the day on which such Participant
would have become eligible for an Early Retirement Pension.
A Participant may not elect to waive payment of the Qualified Pre-Retirement
Survivor Annuity. The earliest period for which a surviving Eligible Spouse may
receive a payment under a Qualified Pre-Retirement Survivor Annuity shall be not
later than the month in which the Participant would have become eligible for an
Early Retirement Pension. There shall be no duplication between the benefits
provided under this Section 7.4 and Sections 7.2 (regarding optional pension
forms) and 8.1 (regarding the pre-retirement death benefit) hereof, (I.E., the
benefits provided under each such Section shall be inclusive of the benefits
provided under the other).
7.5 METHODS OF BENEFIT PAYMENT. Pensions shall in general be payable
by the Trustee directly to the Participant entitled thereto. However, the
Administration Committee, in lieu of instructing the Trustee to pay the Pension
to which a Participant is entitled directly from the funds of the Trust, may
instruct the Trustee to purchase from an insurance company selected by the
Administration Committee a non-transferable annuity contract which will provide
pension and other benefits in an amount identical to that to which the
Participant is entitled under this Plan. If an annuity contract is purchased
for the benefit of a Participant from an insurance company, the contract may
either be assigned to the Participant or held by the Trustee for the benefit of
such Participant pursuant to instructions from the Administration Committee.
7.6 DISTRIBUTIONS ON TERMINATION OF EMPLOYMENT FOR REASONS OTHER THAN
RETIREMENT. If a Participant terminates Service for any reason and he has a
Vested Accrued Benefit not in excess of Three Thousand Five Hundred Dollars
($3,500) or such Participant is not vested, distributions shall be made in
accordance with the following provisions:
(a) LUMP-SUM CASHOUT DISTRIBUTION WHEN VESTED ACCRUED BENEFIT NOT
IN EXCESS OF $3,500. If a Participant terminates Service for any reason with a
Vested right to all or part of his Accrued Benefit and the present value of the
Participant's Vested Accrued Benefit is not in excess of Three Thousand Five
Hundred Dollars ($3,500), unless the Participant elects a direct transfer under
this Section 7.6(a), the Administration Committee shall direct the Trustee to
distribute the present value of the Participant's Vested Accrued Benefit in a
single sum as soon as practicable following the Participant's termination of
employment. Alternatively, the
47
Participant may elect to transfer all or a portion of his Vested Accrued Benefit
to either (i) a plan qualified under section 401(a) of the Code which accepts
direct transfer contributions, (ii) an individual retirement account described
in section 408(a) of the Code, (iii) an individual retirement annuity described
in section 408(b) of the Code (other than an endowment contract), or (iv) an
annuity plan described in section 403(a) of the Code; provided that such payment
exceeds Two Hundred Dollars ($200) and otherwise qualifies for transfer pursuant
to section 401(a)(31) of the Code. If a Participant elects a direct transfer
under this Section 7.6(a) the Administrative Committee will direct the Trustee
to transfer all or a portion of the Participant's Vested Accrued Benefit to the
eligible retirement arrangement specified by the Participant. If a Participant
elects to transfer only a portion of his Pension under this Section 7.6(a), the
remainder of his Pension shall be distributed in a single sum. The
Administration Committee shall prescribe the procedures a Participant must
follow to request a direct transfer of his Pension pursuant to this Section
7.6(a).
Notwithstanding the foregoing, however, no such distribution or transfer may be
made after the Annuity Starting Date unless the Participant and, if the
Participant is married to an Eligible Spouse, such Eligible Spouse (or if the
Participant has died with an Eligible Spouse, such surviving Eligible Spouse)
consents in writing to such distribution.
For purposes of determining the present value of the Participant's Vested
Accrued Benefit, the present value shall be determined as of the date of the
proposed distribution on the basis of the LESSER of (i) an eight and one
quarter percent (8.25%) per annum interest assumption or (ii) the interest rate
which would be used as of January 1 of the Plan Year in which the distribution
occurs by the PBGC for purposes of determining the present value of a lump sum
distribution on plan termination.
A Participant's Vesting Service and Benefit Service under the Plan shall not be
disregarded following the single sum payment of the Participant's Vested Accrued
Benefit under this Section 7.6(a). However, if the Participant subsequently
returns to employment with the Employer any additional Pension payable to the
Participant under the Plan shall be reduced by the Pension that would have been
payable under the Plan if the Participant had not received a distribution and
had not recommenced participation in the Plan, calculated as of the date the
Participant's Pension distributions commence under the Plan.
(b) DEEMED DISTRIBUTION TO NONVESTED PARTICIPANT. If a
Participant terminates Service at a time when such Participant's vested Accrued
Benefit equals Zero Dollars ($0), the Participant shall be deemed to receive a
distribution of his entire vested Accrued Benefit as of the day he terminates
Service.
7.7 QUALIFIED DOMESTIC RELATIONS ORDERS. During any period in which
the issue of whether a Domestic Relations Order is a Qualified Domestic
Relations Order is being determined (by the Administration Committee, by a court
of competent jurisdiction, or otherwise), the Administration Committee shall
direct the Trustee or any insurance company in or through the insurance
contracts or policies of which assets of the Plan have been invested (as
provided in Section 10.4(q)) to segregate in a separate account or in an escrow
account the amount that would
48
have been payable to the Alternate Payee during such period if the Domestic
Relations Order is determined to be a Qualified Domestic Relations Order.
If within eighteen (18) months the Domestic Relations Order (or modification
thereof) is determined to be a Qualified Domestic Relations Order, the
Administration Committee shall direct the Trustee or insurance company to pay
the segregated account (and any earnings or interest thereon) or the balance
held in the escrow account, as applicable, to the person or persons entitled
thereto. If within eighteen (18) months it is determined that the order is not
a Qualified Domestic Relations Order or the issue as to whether such Domestic
Relations Order is a Qualified Domestic Relations Order is not resolved, the
Administration Committee shall direct the Trustee or insurance company to pay
the segregated account (and any earnings or interest thereon) or the balance of
the escrow account, as applicable, to the person or persons who would have been
entitled to such amounts if there had been no Domestic Relations Order. Any
determination that a Domestic Relations Order is a Qualified Domestic Relations
Order which is made after the close of the eighteen (18) month period shall be
applied prospectively only.
The Administration Committee shall establish reasonable procedures for
determining whether a Domestic Relations Order is a Qualified Domestic Relations
Order and to administer distributions under Qualified Domestic Relations Orders.
When the Plan receives a Domestic Relations Order, the Administration Committee
shall promptly notify the appropriate Participant and any other Alternate Payee
of the receipt of such order and the Administration Committee's procedures for
determining whether such order is a Qualified Domestic Relations Order. The
Administration Committee shall determine whether a Domestic Relations Order is a
Qualified Domestic Relations Order within a reasonable period after receipt of
such order, and shall within a reasonable time after such determination notify
the Participant and each Alternate Payee of such determination.
7.8 DETERMINATION OF BENEFIT OF TRANSFERRED EMPLOYEES. If a
Participant's Vesting Service after January 1, 1976, includes Vesting Service
with Transway International Corporation or an entity that is or was a wholly
owned subsidiary of Transway International Corporation which has a Requisite
Plan (as hereinafter defined), the following rules shall apply:
(a) Average Monthly Compensation for purposes of this Section 7.8
shall be computed by taking the Compensation of the Participant from any
Employer, Transway International Corporation or any wholly owned subsidiary of
Transway International Corporation which has a Requisite Plan and is not an
Employer hereunder, during the five (5) consecutive calendar years within his
last ten (10) years of Benefit Service which yield the highest average divided
by sixty (60); provided, however, that no year of Benefit Service shall be
counted in which such Participant received compensation which is not taken into
account in determining the amount of benefits under this Plan or the Requisite
Plan.
(b) For purposes of Article VI there shall be included Benefit
Service with Transway International Corporation or any wholly owned subsidiary
of Transway International Corporation which has a Requisite Plan and is not an
Employer hereunder; limited, however, to the period of such Benefit Service for
which the Participant received credit toward his benefit under such Requisite
Plan.
49
(c) The annual benefit to be paid such Participant under this Plan
shall be the amount of the appropriate benefit determined under Article VI using
the foregoing Average Monthly Compensation and Benefit Service determined by
taking into account Section 7.8(b), multiplied by a fraction, the numerator of
which shall be the Participant's years of Benefit Service with the Employer; and
the denominator of which is the years of Benefit Service of such Participant
(taking into account Section 7.8(b)).
(d) If the sum of the number of years (including fractions of
years) used in the numerator of the fraction set forth in Section 7.8(c) and in
the numerators of all the fractions under all the Requisite Plans used in making
the determination of the benefit to be paid such Participant under each of said
Plans exceeds thirty (30), the numerators of this Plan and all the Requisite
Plans shall be reduced so that they aggregate thirty (30). The numerator or
numerators of the said plans that is or are to be reduced to comply will result
in such Participant receiving the maximum aggregate benefit from all such plans.
(e) A corporation shall be considered a wholly owned subsidiary of
Transway International Corporation for purposes of this Section if one hundred
percent (100%) of its outstanding stock is owned by Transway International
Corporation and/or any one or more of the wholly owned subsidiaries of Transway
International Corporation as herein defined.
(f) A "Requisite Plan" shall mean a defined benefit plan (within
the meaning of section 414(j) of the Code) which provides (i) that Benefit
Service under such plan will be granted for Service credited under this Plan and
(ii) that its benefit is to be prorated in the manner substantially the same as
provided in this Section 7.8.
7.9 CASH WITHDRAWAL BENEFIT. An ICC Plan Participant may, at any time
after termination of Service and prior to his attaining age fifty-five (55), if
he has completed ten (10) years of Vesting Service (within the meaning of
Section 5.5), elect to receive a Cash Withdrawal Benefit (herein so called) in
an amount equal to the greater of the present value of his Employee Accrued
Benefit or the aggregate of his Participant Contributions under the
International Controls Corp. Pension Plan as in effect on June 30, 1984, plus
Credited Interest, which benefit shall be paid within ninety (90) days following
the receipt of such election by the Administration Committee. If the present
value of any Qualified Joint and Survivor Annuity or Qualified Pre-Retirement
Survivor Annuity payable with respect to such an ICC Plan Participant
(determined in accordance with Section 7.6) exceeds Three Thousand Five Hundred
Dollars ($3,500), the foregoing election by an ICC Plan Participant shall not be
effective unless the Eligible Spouse, if any, of the ICC Plan Participant
consents in writing to such election and such consent acknowledges the effect of
such election and is witnessed by a member of the Administration Committee or a
notary public. Such spousal consent shall not be necessary if it is established
to the satisfaction of the Administration Committee that the consent of the
Eligible Spouse cannot be obtained because the Eligible Spouse cannot be located
or such other circumstances as the Secretary of the Treasury may prescribe by
regulation exist. The Administration Committee will not be deemed to have
received the ICC Plan Participant's election to receive a Cash Withdrawal
Benefit until it has received, when appropriate, the Eligible Spouse's consent
described in the immediately preceding sentence. A Cash Withdrawal Benefit
shall, in the case of an ICC Plan Participant who does not have a vested right
to his entire Accrued Benefit, be in lieu of all other
50
benefits under the Plan unless the Participant resumes Service with the Employer
as a Re-Employed Employee, in which case such Participant shall have an Accrued
Benefit equal to his Employer Accrued Benefit. A Participant who has a vested
right to his entire Accrued Benefit and who elects to receive a Cash Withdrawal
Benefit shall have an Accrued Benefit equal to his Employer Accrued Benefit. The
amount by which the Participant's Accrued Benefit is reduced under the fourth
sentence of this Section 7.9 shall be restored upon repayment by the Participant
of the full amount of the Cash Withdrawal Benefit paid plus interest compounded
annually at the rate of Credited Interest is being computed on the date of
repayment, provided that such repayment must be made within two (2) years of the
Employee's resumption of employment covered by the Plan.
- -------------------------
End of Article VII
51
ARTICLE VIII
DEATH BENEFITS
8.1 BENEFIT FOR PRE-RETIREMENT DEATH. If a Participant other than an
ICC Plan Participant dies after earning a vested right to a retirement benefit
but before his Annuity Starting Date and a Qualified Pre-Retirement Survivor
Annuity is not payable with respect to such Participant, no death benefit shall
be payable under this Plan with respect to such Participant. If an ICC Plan
Participant dies prior to the first day of the calendar month on which
retirement benefits shall commence (whether or not payment is actually made on
such date), a Qualified Pre-Retirement Survivor Annuity is not payable with
respect to such Participant, and the Participant has not elected to receive a
Cash Withdrawal Benefit in accordance with Section 7.9, his designated
Beneficiary shall be entitled to receive a Contributory Death Benefit (herein so
called) in an amount equal to the aggregate of the Participant's Contributions
to the ICC Plan plus Credited Interest to the first day of the month preceding
his date of death. If a Participant with respect to whom a Qualified
Pre-Retirement Survivor Annuity is payable dies prior to the Annuity Starting
Date, the only death benefit payable under this Plan with respect to such
Participant shall be such Qualified Pre-Retirement Survivor Annuity.
8.2 BENEFIT FOR POST-RETIREMENT DEATH. Upon the death after
Retirement of a single Participant, or a married Participant who has made an
election under Section 7.3(a) not to receive his Pension in the form of a
Qualified Joint and Survivor Annuity and who is eligible for or receiving a
Normal Retirement Pension, Early Retirement Pension or Deferred Vested Pension
in either the form specified in Section 7.1(a) or an elected optional form, no
Death Benefit Pension shall be provided by the Plan, other than as a part of the
benefit payment form elected and which remains effective under Section 7.2. In
the case of the death after Retirement of a Participant who is receiving a
Qualified Joint and Survivor Annuity, the only death benefit payable under this
Plan with respect to such Participant shall be the survivor annuity that is part
of the Qualified Joint and Survivor Annuity.
8.3 PRE-1992 LUMP SUM DEATH BENEFIT. If a Participant or Former
Participant dies before January 1, 1992, and after his Normal Retirement Date
while receiving a Pension (other than a Deferred Vested Pension) hereunder, his
designated Beneficiary shall receive a lump sum death benefit equal to Two
Thousand Five Hundred Dollars ($2,500).
This benefit is in addition to any optional retirement benefit which may be in
effect in accordance with Article VII at the time of the retired Participant's
death. In addition, any individual who was entitled to the above benefit under
the Prior Plan and on whose behalf the above benefit was not paid under the
Prior Plan shall be entitled to receive such benefit under this Plan.
8.4 DESIGNATION OF BENEFICIARIES. Except to the extent Sections
7.1(b), 7.1(c), and 7.4 limit a Participant's right to designate a Beneficiary,
each Participant may from time to time designate, in writing, a Beneficiary to
whom the Trustee shall pay any benefits to which such Beneficiary may be
entitled hereunder in the event of the Participant's death. The Administration
Committee shall prescribe the form for the written designation of Beneficiaries.
A Participant's
52
filing such form with the Administration Committee shall effectively revoke all
Beneficiary designations filed prior to that date by such Participant. Each
such designation may be revoked by the Participant by signing and filing a new
Beneficiary designation form with the Administration Committee.
If a Qualified Joint and Survivor Annuity or Qualified Pre-Retirement Survivor
Annuity is not payable with respect to a deceased Participant and such
Participant has failed to name a Beneficiary in the manner above prescribed, or
if the Beneficiary named by a deceased Participant predeceases the Participant,
the death benefit, if any, which may be payable under this Plan with respect to
such deceased Participant shall be paid, to the first of the following persons
who survive the Participant by at least thirty (30) days:
(i) A person otherwise designated by such Participant as the
beneficiary of such benefits;
(ii) The Participant's spouse;
(iii) Equally among the Participant's descendants;
(iv) The Participant's parents;
(v) Equally among the Participant's heirs at law; or
(vi) The legal representative or representatives of the
Participant's estate.
Any payment made to any person pursuant to the power and discretion conferred
upon the Administration Committee by the preceding sentence shall operate as a
complete discharge of all obligations under this Plan with respect to such
deceased Participant and shall not be subject to review by anyone, but shall be
final, binding, and conclusive on all persons ever interested hereunder.
8.5 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 under Article VII under an annuity form providing for a
refund settlement, a survivorship annuity, or a period certain with respect to
which death benefits are payable under this Plan after the Participant's death,
the amount of such refund or the amount of monthly retirement income that the
Beneficiary was receiving, as applicable, shall be payable to a person
designated by the Participant 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 of the deceased Participant to receive
the remaining death benefits, if any, payable in the event of such contingency.
If no person so designated is living upon the occurrence of such contingency,
then the remaining death benefits, if any, shall be payable for the balance of
such applicable period, to the first of the following persons who survive the
Beneficiary by at least thirty (30) days:
(i) The Participant's spouse;
53
(ii) The Beneficiary's spouse;
(iii) Equally to the Participant's descendants;
(iv) Equally to Beneficiary's descendants;
(v) The Participant's parents;
(vi) The Beneficiary's parents;
(vii) The Participant's heirs at law;
(viii)The Beneficiary's heirs at law; or
(ix) The legal representative or representatives of the
estate of the deceased Beneficiary.
Any payment made to any person pursuant to the power and discretion conferred
upon the Administration Committee by the preceding sentence shall operate as a
complete discharge of all obligations under this Plan with respect to such
deceased Beneficiary, and shall not be subject to any review by anyone, but
shall be final, binding, and conclusive on all persons ever interested
hereunder.
- ---------------------------
End of Article VIII
54
ARTICLE IX
EMPLOYER ADMINISTRATIVE PROVISIONS
9.1 INFORMATION. Each Employer shall, upon request or as may be
specifically required hereunder, furnish or cause to be furnished, all of the
information or documentation which is necessary or required by the
Administration Committee, the Trustee, or any insurance company in or through
the insurance contracts or policies of which assets of the Plan have been
invested (as provided in Section 10.4(q)) to perform their respective duties and
functions under the Plan. For this purpose, the Employer's records shall be
conclusive as to all persons.
9.2 NO LIABILITY. Subject to Article XII, no Employer assumes any
obligation or responsibility to any of the Employees, Participants, or
Beneficiaries for any act of, or failure to act, on the part of the
Administration Committee, the Trustee, or any insurance company in or through
the insurance contracts or policies of which assets of the Plan have been
invested (as provided in Section 10.4(q)).
9.3 EMPLOYER ACTION. Any action required of an Employer shall be
evidenced by resolution of its board of directors or other governing body or by
a person authorized to act by board resolution.
9.4 INDEMNITY. Each Employer by adoption of this Plan agrees to
indemnify and save harmless the Board of Directors, individual Trustee(s), and
the members of the Administration Committee, and each of them, from and against
any and all loss resulting from liability to which the Board of Directors,
individual Trustee(s), and the Administration Committee, or the members of the
Board of Directors and Administration Committee, may be subjected by reason of
any act or conduct (except willful or reckless misconduct) in their official
capacities in the administration of this Plan or Trust, including all expenses
reasonably incurred in their defense. In the event that the Employer fails to
provide such defense, such liability shall be paid from the Trust Fund; provided
that, the indemnification provisions of this Section 9.4 shall not relieve the
Board of Directors, individual Trustee(s), or any members of the Administration
Committee from any liability they may have under the Act for breach of a
fiduciary duty.
9.5 AMENDMENT TO VESTING SCHEDULE. Although the Company reserves the
right to amend the vesting schedule at any time, the Company shall not amend the
vesting schedule (and no amendment shall be effective) if the amendment would
reduce the vested percentage of any Participant's Accrued Benefit (determined as
of the later of the date the Company adopts the amendment, or the date the
amendment becomes effective) to a percentage less than the vested percentage
computed under the Plan without regard to the amendment.
In the event the vesting schedule of the Plan is amended or any other amendment
to the Plan is adopted which directly or indirectly affects the computation of
the vested percentage of a Participant's Employer Accrued Benefit under Section
5.4, the Vested Accrued Benefit of any Participant who has completed at least
five (5) years of Vesting Service, as defined in
55
Section 5.5, shall be computed under the vesting schedule, original or amended,
which will result in the greatest vested percentage being credited to the
affected Participant.
- ---------------------------
End of Article IX
56
ARTICLE X
ADMINISTRATION AND INVESTMENT PROVISIONS
10.1 APPOINTMENT OF ADMINISTRATION COMMITTEE MEMBERS. The Board of
Directors shall appoint an Administration Committee to administer the Plan and
to direct Plan investments, the members of which may or may not be Participants
in the Plan.
10.2 TERM. Each member of the Administration Committee shall serve
until his successor is appointed. Any member of the Administration Committee
may be removed by the Board of Directors, with or without cause, and such Board
shall have the power to fill any Administration Committee vacancy which may
occur. An Administration Committee member may resign upon written notice to the
Board of Directors.
10.3 COMPENSATION. The members of the Administration Committee shall
serve without compensation for services as such, but the Employers shall pay all
expenses of the Administration Committee, including the expenses for any bond
required under section 412 of the Act. To the extent such expenses are not paid
by the Employers, they shall be paid by the Trustee from the Trust Fund.
10.4 POWERS OF THE ADMINISTRATION COMMITTEE. Subject to Article XII,
the Administration Committee shall have the following powers and duties:
(a) To direct the administration of the Plan in accordance with
the provisions herein set forth;
(b) To adopt rules of procedure and regulations necessary for the
administration of the Plan, provided the rules are not inconsistent with the
terms of the Plan;
(c) To determine all questions with regard to rights of Employees,
Participants, and Beneficiaries under the Plan, including but not limited to
rights of eligibility of an Employee to participate in the Plan, the value of a
Participant's Accrued Benefit, and the Vested Accrued Benefit of each
Participant.
(d) To enforce the terms of the Plan and the rules and regulations
adopted by it;
(e) To direct the Trustee with respect to the crediting and
distribution of the Trust, as well as in all other matters within its
discretion, as provided in the Trust Agreement;
(f) To direct the Trustee to transfer assets to another trust
which constitutes a qualified trust under section 401(a) of the Code and to
accept transfers of assets from other trusts which constitute qualified trusts
under sections 401(a) and 501(a) of the Code;
57
(g) To review and render decisions respecting a claim for (or
denial of a claim for) a benefit under the Plan;
(h) To furnish the Employers with information which the Employers
may require for tax or other purposes;
(i) To prescribe procedures to be followed by distributees in
obtaining benefits;
(j) To receive from the Employers and from Employees such
information as shall be necessary for the proper administration of the Plan;
(k) To receive and review reports from the Trustee concerning the
financial condition and receipts and disbursements of the Trust Fund;
(l) To require any reports it deems necessary from any insurance
company in or through the insurance contracts or policies of which assets of the
Plan have been invested pursuant to Section 10.4(q), and to receive and review
such reports;
(m) To maintain, or cause to be maintained, separate accounts in
the name of each Participant to reflect the Participant's Accrued Benefit under
the Plan;
(n) To interpret and construe the Plan; and
(o) To establish and maintain a funding standard account and to
make credits and charges to such account to the extent required by and in
accordance with the provisions of section 412 of the Code;
(p) To direct the Trustee in the investment, reinvestment, and
disposition of the Trust Fund, as provided in the Trust Agreement;
(q) To determine which assets of the Plan are not to be held in
and invested through the Trust Fund and to cause all the assets of the Plan that
are not to be held in and invested through the Trust Fund to be invested in or
through insurance contracts or policies (other than life, health or accident,
property, casualty, or liability insurance contracts) issued by an insurance
company qualified to do business in a state (within the meaning of section
7701(a)(10) of the Code);
(r) To require any insurance company in or through the insurance
contracts or policies of which assets of the Plan have been invested pursuant to
Section 10.4(q) to provide a valuation of such contracts or policies (or, if
appropriate, the assets held thereunder) as of the Valuation Date each Plan
Year;
(s) To engage the services of an investment manager or managers
(as defined in section 3(38) of the Act), each of whom shall have full power and
authority to manage, acquire or dispose (or direct the Trustee with respect to
acquisition or disposition) of any Plan asset under its control;
58
(t) To interpret and construe the Plan with respect to the
investment, reinvestment and disposition of Plan assets;
(u) To engage the service of legal counsel (who may, if
appropriate, be legal counsel for an Employer) and agents whom it may deem
advisable to assist it with the performance of its duties; and
(v) To select a secretary, who need not be a member of the
Administration Committee.
The Administration Committee shall have no power to add to, subtract from, or
modify any of the terms of the Plan, or to change or add to any benefits
provided by the Plan, or to waive or fail to apply any requirements of
eligibility for a Pension under the Plan.
10.5 MANNER OF ACTION. The decision of a majority of the appointed and
qualified members of the Administration Committee shall control. In case of a
vacancy in the membership of the Administration Committee, the remaining members
of the Administration Committee may exercise any and all of the powers,
authorities, duties, and discretions conferred upon such Administration
Committee pending the filling of such vacancy. The Administration Committee
may, but need not, call or hold formal meetings. Any decisions made or action
taken pursuant to written approval of a majority of the then members shall be
sufficient for all purposes. The Administration Committee shall maintain
adequate records of its decisions.
10.6 AUTHORIZED REPRESENTATIVE. The Administration Committee may
authorize any one of its members, or its secretary, to sign on its behalf any
notices, directions, applications, certificates, consents, approvals, waivers,
letters, or other documents. The Administration Committee must evidence this
authority by an instrument signed by all its respective members and filed with
the Trustee.
10.7 NONDISCRIMINATION. The Administration Committee shall administer
the Plan in a uniform, nondiscriminatory manner for the exclusive benefit of the
Participants and their Beneficiaries.
10.8 INTERESTED MEMBER. No member of the Administration Committee may
decide or determine any matter concerning the distribution, nature, or method of
settlement of his own benefits under the Plan unless he is the sole member of
the Administration Committee.
10.9 FUNDING POLICY. The Administration Committee shall review, not
less often than annually, all pertinent Employee information and Plan data in
order to establish the funding policy of the Plan and determine the appropriate
methods for carrying out the Plan's objectives. The Administration Committee
shall communicate annually to the Employers, the Trustee, the Investment
Manager, if any, and any insurance company in or through the insurance contracts
or policies of which assets of the Plan have been invested (as provided in
Section 10.4(q)) the Plan's short-term and long-term financial needs so
investment policy can be coordinated with Plan financial requirements.
59
10.10 BOOKS AND RECORDS. The Administration Committee shall maintain,
or cause to be maintained, records which will adequately disclose at all times
the state of the Trust Fund and of each separate interest therein. The books,
forms, and methods of accounting shall be the responsibility of the
Administration Committee.
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End of Article X
60
ARTICLE XI
PARTICIPANT ADMINISTRATIVE PROVISIONS
11.1 PERSONAL DATA TO ADMINISTRATION COMMITTEE. Each Participant and
Beneficiary shall furnish to the Administration Committee evidence, data, or
information as the Administration Committee considers necessary or desirable for
the purpose of administering the Plan. The provisions of this Plan are
effective for the benefit of each Participant upon the condition precedent that
each Participant will promptly furnish full, true, and complete evidence, data,
and information when requested to do so by the Administration Committee,
provided the Administration Committee shall advise each Participant of the
effect of his failure to comply with its request.
11.2 ADDRESS FOR NOTIFICATION. Each Participant and each Beneficiary
of a deceased Participant shall file with the Administration Committee, in
writing, his post office address, and each subsequent change of such post office
address. Any payment or distribution made hereunder, and any communication
addressed to a Participant or his Beneficiary, at the last address filed with
the Administration Committee, or if no such address has been filed, then at the
last address shown by the records of the Employer, shall be deemed to have been
delivered to the Participant or his Beneficiary on the date that such
distribution or communication is deposited in the United States Mail, postage
prepaid, to be forwarded to such address.
11.3 ASSIGNMENT OR ALIENATION. No benefit payable under the Plan shall
be subject in any manner to alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution, or levy of any kind, either
voluntary or involuntary, except to the extent provided under a Qualified
Domestic Relations Order, prior to actually being received by the person
entitled to the benefit under the terms of the Plan. Neither the Trust Fund nor
the proceeds of any insurance contract or policy in or through which assets of
the Plan have been invested (as provided in Section 10.4(q)) shall in any manner
be liable for, or subject to, the debts, contracts, liabilities, engagements, or
torts of any person entitled to benefits hereunder, except to the extent that
under a Qualified Domestic Relations Order the Trustee or an insurance company
in or through the insurance contracts or policies of which the assets of the
Plan have been invested (as provided in Section 10.4(q)) is required to pay over
a Participant's Accrued Benefit hereunder to an Alternate Payee. In the event
an Employer, the Trustee, or an insurance company in or through the insurance
contracts or policies of which the assets of the Plan have been invested (as
provided in Section 10.4(q)) receives written notice of an adverse claim to a
benefit distributable or being paid to a Participant, Former Participant or
Beneficiary, the Trustee or such insurance company may suspend payment(s) of
such benefit until such matter is resolved to the satisfaction of such party.
11.4 LITIGATION AGAINST THE TRUST. If any legal action filed against
the Trustee, Board of Directors, or the Administration Committee, or against any
member or members of the Administration Committee or Board of Directors, by or
on behalf of any Participant or Beneficiary, results adversely to the
Participant or to the Beneficiary, the Trustee shall reimburse itself, the Board
of Directors, the Administration Committee, and any member or members of the
61
Administration Committee or Board of Directors, for all costs and fees expended
by it or them by surcharging all costs and fees against the sums payable under
the Plan to the Participant or to the Beneficiary, but only to the extent a
court of competent jurisdiction specifically authorizes and directs any such
surcharges and then only to the extent permitted under section 401(a)(13) of the
Code.
11.5 INFORMATION AVAILABLE. Any Participant in the Plan or any
Beneficiary may examine copies of the Plan's latest annual report, this Plan and
Trust, and any contract, or other instrument under which the Plan was
established or is operated. The Administration Committee will maintain all of
the items listed in this Section 11.5 for examination during reasonable business
hours in its office, or in such other place or places as it may designate from
time to time in order to comply with the regulations issued under the Act. Upon
the written request of a Participant or Beneficiary, the Administration
Committee shall furnish him with a copy of any item listed in this Section 11.5.
The Administration Committee may make a reasonable charge to the person
requesting the copy so furnished.
11.6 BENEFICIARY'S RIGHT TO INFORMATION. A Beneficiary's right to (and
the Administration Committees', or a Trustee's duty to provide to the
Beneficiary) information or data concerning the Plan shall not arise until he
first becomes entitled to receive a benefit under the Plan.
11.7 CLAIMS PROCEDURE.
(a) GENERAL. Upon termination of Service (except in the case of
early retirement), prior to or upon becoming entitled to receive a benefit
hereunder, a Participant or Beneficiary shall file a claim for such benefit with
the Administration Committee at the time and in the manner prescribed by such
Administration Committee. Notwithstanding the immediately preceding sentence,
the Administration Committee may direct the Trustee to commence payment of a
Participant's or Beneficiary's benefits hereunder without requiring the filing
of a claim therefore if the Administration Committee has knowledge of such
Participant's or Beneficiary's whereabouts and sufficient facts to substantiate
his entitlement to a benefit.
(b) EARLY RETIREMENT BENEFITS. A Participant who is eligible to
apply for an Early Retirement Pension under Section 6.2 and elects to do so
shall file an application therefore with the Administration Committee at the
time and in the manner prescribed by the Administration Committee.
11.8 APPEAL PROCEDURE FOR DENIAL OF BENEFITS. The Administration
Committee shall provide adequate notice in writing to any Participant or to any
Beneficiary ("Claimant") whose claim for benefits under the Plan has been denied
by the Administration Committee. Such notice must be sent within ninety (90)
days of the date the claim is received by the Administration Committee unless
special circumstances require an extension of time for processing the claim.
Such extension shall not exceed ninety (90) days and no extension shall be
allowed unless, within the initial ninety (90) day period, an extension notice
is forwarded to the Claimant indicating the special circumstances requiring the
extension and specifying a date by which the Administration
62
Committee expects to render its final decision. The Administration Committee's
notice of denial to the Claimant shall set forth:
(a) The specific reason or reasons for the denial;
(b) Specific references to pertinent Plan provisions on which the
Administration Committee based its denial;
(c) A description of any additional material and information
needed for the Claimant to perfect his claim, along with an explanation of why
the material or information is needed;
(d) A statement that the Claimant may:
(i) Request a review upon written application to the
Administration Committee;
(ii) Review pertinent Plan documents; and
(iii) Submit issues and comments in writing; and
(e) A statement that if the Claimant wishes to appeal the adverse
determination by the Administration Committee, such appeal must be made in
writing to the Administration Committee within sixty (60) days after receipt of
the Administration Committee's notice of denial of benefits. The Administration
Committee's notice must further advise the Claimant that his failure to appeal
the action to the Administration Committee in writing within the sixty (60) day
period will render the Administration Committee's determination final, binding,
and conclusive.
If the Claimant appeals an adverse determination to the Administration
Committee, he, or his duly authorized representative, may submit, in writing,
whatever issues and comments he, or his duly authorized representative, feels
are pertinent. The Administration Committee shall re-examine all facts related
to the appeal and make a final determination as to whether the denial of
benefits is justified under the circumstances. The Administration Committee
shall advise the Claimant in writing of its decision on his appeal, the specific
reasons for the decision, and the specific Plan provisions on which the decision
is based. Notice of a decision on appeal shall be given within sixty (60) days
of the Claimant's written request for review, unless special circumstances (such
as a hearing) would make the rendering of a decision within the sixty (60) day
period impracticable, but in no event shall the Administration Committee render
a decision regarding the denial of a claim for benefits later than one hundred
and twenty (120) days after its receipt of a request for review. If an
extension of time for review is required because of special circumstances,
written notice of the extension shall be furnished to the Claimant prior to the
date the extension period commences.
The Administration Committee's notice of a denial of benefits shall identify the
name of each member of the Administration Committee and the name and address of
the Administration Committee member to whom the Claimant may forward his appeal.
63
11.9 PLACE OF PAYMENT AND PROOF OF CONTINUED ELIGIBILITY. As required
by Section 11.2, each Employee and Beneficiary shall file with the
Administration Committee from time to time in writing his post office address
and each change of post office address. Any check representing payment
hereunder and any communication addressed to an Employee, a former Employee, a
retired Employee, or Beneficiary at his last address filed with the
Administration Committee, or if no such address has been filed, then at his last
address as shown by the records of the Employer, shall be deemed to have been
delivered to such person on the date on which such check or communication is
deposited in the United States mail.
If the Administration Committee, for any reason, is in doubt as to whether
Pension payments are being received by the person entitled thereto, it shall, by
registered mail addressed to the person concerned, at his address last known to
the Administration Committee, notify such person that all unmailed and future
retirement income payments shall be henceforth withheld until he provides the
Administration Committee with evidence of his entitlement to such benefit and
his proper mailing address.
11.10 NO RIGHTS IMPLIED. Nothing contained in this Plan, or with
respect to the establishment of the Trust, or any modification or amendment to
the Plan or Trust, or in the creation of any account, or the payment of any
benefit, shall give any Employee, Participant, or Beneficiary any right to
continue employment with an Employer or any legal or equitable right against an
Employer or any officer, director, or Employee of an Employer, or against the
Trustee, or its agents or employees, except as expressly provided by the Plan,
the Trust or the Act.
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End of Article XI
64
ARTICLE XII
FIDUCIARIES DUTIES
12.1 FIDUCIARIES. The "Fiduciaries" (herein so called) of the Plan
shall be the following:
(a) The Board of Directors;
(b) The Employers;
(c) The Administration Committee;
(d) The Trustee; and
(e) Such other person or persons that are designated to carry out
fiduciary responsibilities under the Plan in accordance with Section 12.3(c)
hereof.
Any person or group of persons may serve in more than one fiduciary capacity
with respect to the Plan. A Fiduciary may employ one or more persons to render
advice with regard to any responsibility such Fiduciary has under the Plan.
12.2 ALLOCATION OF RESPONSIBILITIES. The powers and responsibilities
of the Fiduciaries are hereby allocated as indicated below:
(a) BOARD OF DIRECTORS. The Board of Directors shall be
responsible for all functions assigned or reserved to it under the Plan and
Trust Agreement. Any authority assigned or reserved to the Board of Directors
under the Plan and Trust Agreement shall be exercised by resolution of the
members of the Board of Directors.
(b) EMPLOYER. The Employer shall be responsible for all
functions assigned or reserved to it under the Plan and Trust Agreement. Any
authority assigned or reserved to the Employer under the Plan and Trust
Agreement shall be exercised by resolution of the Employer's board of directors.
(c) ADMINISTRATION COMMITTEE. The Administration Committee
shall have the responsibility and authority to control the operation and
administration of the Plan in accordance with the terms of the Plan and Trust
Agreement, except with respect to duties and responsibilities specifically
allocated to other fiduciaries. The Administration Committee shall have the
authority to issue written directions to the Trustee to the extent provided in
the Trust Agreement. The Trustee shall follow the Administration Committee's
directions unless it is clear that the actions to be taken under those
directions would be violations of applicable fiduciary standards or would be
contrary to the terms of the Plan or Trust Agreement. The Administration
Committee shall also have the responsibility and authority to control the
investment of the Trust Fund in accordance with the terms of the Plan and Trust
Agreement, except with respect to duties and responsibilities specifically
allocated to other fiduciaries. The Administration Committee shall
65
have the authority to issue written directions to the Trustee to the extent
provided in the Trust Agreement. The Trustee shall follow the Administration
Committee's directions, unless it is clear that the actions to be taken under
those directions would be violations of applicable fiduciary standards or would
be contrary to the terms of the Plan or Trust Agreement.
(d) TRUSTEE. The Trustee shall have the duties and
responsibilities set out in the Trust Agreement, subject, however, to direction
by the Administration Committee as set out in the Trust Agreement.
(e) ALLOCATIONS. Powers and responsibilities may be allocated
to other Fiduciaries in accordance with Section 12.3 hereof, or as otherwise
provided herein or in the Trust Agreement.
This Article XII is intended to allocate to each Fiduciary the individual
responsibility for the prudent execution of the functions assigned to it, and
none of such responsibilities or any other responsibility shall be shared by two
or more of such Fiduciaries unless such sharing shall be provided for by a
specified provision of the Plan or Trust Agreement.
12.3 PROCEDURES FOR DELEGATION AND ALLOCATION OF RESPONSIBILITIES.
Fiduciary responsibilities may be allocated as follows:
(a) The Administration Committee may specifically allocate
responsibilities to a specified member or members of the Administration
Committee.
(b) The Administration Committee may designate a person or persons
other than a Fiduciary to carry out fiduciary responsibilities under the Plan,
provided that the authority granted the Administration Committees under this
subparagraph (b) shall not cause any person or persons employed to perform
ministerial acts and services for the Plan to be deemed Fiduciaries of the Plan.
(c) The Administration Committee may appoint an Investment Manager
or managers to manage (including the power to acquire and dispose of) the assets
of the Plan (or a portion thereof).
(d) If at any time there be more than one Trustee serving under
the Trust Agreement, such Trustees may allocate specific responsibilities,
obligations, or duties among themselves in such manner as they shall agree.
Any allocation of responsibilities pursuant to this Section 12.3 shall be made
by filing a written notice thereof with the Administration Committee
specifically designating the person or persons to whom such responsibilities or
duties are allocated and specifically setting out the particular duties and
responsibilities with respect to which the allocation or designation is made.
12.4 GENERAL FIDUCIARY STANDARDS. A Fiduciary shall discharge his
duties with respect to the Plan solely in the interest of the Participants and
their Beneficiaries and
66
(a) For the exclusive purpose of providing benefits to
Participants and their Beneficiaries and defraying reasonable expenses of
administering the Plan;
(b) With the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims;
(c) By diversifying the investments of the Plan so as to minimize
the risk of large losses, unless under the circumstances it is clearly prudent
not to do so; and
(d) In accordance with the documents and instruments governing the
Plan, insofar as such documents and instruments are consistent with the
provisions of Title I of the Act.
12.5 LIABILITY AMONG CO-FIDUCIARIES.
(a) GENERAL. Except for any liability which a Fiduciary may
have under the Act, a Fiduciary shall not be liable for the breach of a
fiduciary duty or responsibility by another Fiduciary of the Plan except in the
following circumstances:
(i) He participates knowingly in, or knowingly undertakes to
conceal, an act or omission of such other Fiduciary, knowing such act or
omission is a breach;
(ii) His failure to comply with the general fiduciary
standards set out in Section 12.4 in the administration of his specific
responsibilities which give rise to his status as a Fiduciary has enabled
such other Fiduciary to commit a breach; or
(iii) He has knowledge of a breach by such other Fiduciary and
he does not undertake reasonable efforts under the circumstances to remedy
the breach.
(b) CO-TRUSTEES. In the event that there are two or more
Trustees serving under the Trust Agreement, each should use reasonable care to
prevent a co-Trustee from committing a breach of fiduciary responsibility and
they shall jointly manage and control assets of the Plan, except that in the
event of an allocation of responsibilities, obligations, or duties among
Trustees, a Trustee to whom such responsibilities, obligations, or duties have
not been allocated shall not be liable to any person by reason of this Section
12.5, either individually or as a Trustee, for any loss resulting to the Plan
arising from the acts or omissions on the part of the Trustee to whom such
responsibilities, obligations, or duties have been allocated.
(c) LIABILITY WHERE ALLOCATION IS IN EFFECT. To the extent that
fiduciary responsibilities are specifically allocated either by a Fiduciary or
pursuant to the express terms hereof to any person or persons, then such
Fiduciary shall not be liable for any act or omission of such person in carrying
out such responsibility except to the extent that the Fiduciary violated Section
12.4: (i) with respect to such allocation or designation, (ii) with respect to
the establishment or implementation of the procedure for making such an
allocation or designation, (iii) in continuing the allocation or designation, or
if the Fiduciary would otherwise be liable in accordance with this Section 12.5.
67
(d) LIABILITY OF TRUSTEE FOLLOWING ADMINISTRATION COMMITTEE
DIRECTIONS. No Trustee shall be liable for following instructions of the
Administration Committee given pursuant to Section 12.2(c) and (d).
(e) NO RESPONSIBILITY FOR EMPLOYER ACTION. Neither the Trustee,
nor the Administration Committee, shall have any obligation nor responsibility
with respect to any action required by the Plan to be taken by an Employer, any
Participant or eligible Employee, nor for the failure of any of the above
persons to act or make any payment or contribution, or to otherwise provide any
benefit contemplated under this Plan, nor shall the Trustee or the
Administration Committee be required to collect any contribution required under
the Plan, or determine the correctness of the amount of any Employer
contribution.
(f) NO DUTY TO INQUIRE. Neither the Trustee nor the
Administration Committee shall have any obligation to inquire into or be
responsible for any action or failure to act on the part of the others.
(g) LIABILITY OF TRUSTEE WHERE INVESTMENT MANAGER APPOINTED. If
an Investment Manager has been appointed pursuant to Section 12.3(c), then
neither the Trustee nor the Administration Committee shall be liable for the
acts or omissions of such Investment Manager, or be under any obligation to
invest or otherwise manage any assets of the Plan which are subject to the
management of such Investment Manager.
(h) SUCCESSOR FIDUCIARY. No Fiduciary shall be liable with
respect to any breach of fiduciary duty if such breach was committed before he
became a Fiduciary or after he ceased to be a Fiduciary.
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End of Article XII
68
ARTICLE XIII
DISCONTINUANCE, AMENDMENT, AND TERMINATION
13.1 DISCONTINUANCE. Each Employer shall have the right, at any time,
to suspend or discontinue its participation in the Plan, subject to its
obligation to make any contribution called for under the Plan with respect to
its past participation, as determined by the Actuary.
13.2 AMENDMENT. The Board of Directors shall have the right at any
time and from time to time to amend the Plan in any manner it deems necessary
or advisable in order to qualify (or maintain qualification of) the Plan, the
Trust, or any insurance contract or policy in or through which assets of the
Plan have been invested (as provided in Section 10.4(q)) under the provisions of
section 401(a) of the Code and to amend the Plan in any other manner, provided
no amendment shall:
(a) Except as provided for in Sections 4.4 and 13.11, authorize or
permit any of the Trust Fund or assets attributable to any insurance contract or
policy in or through which Plan assets have been invested (as provided in
Section 10.4(q)), other than such amounts that are required to pay taxes and
administration expenses, to be used for or diverted to purposes other than
exclusively benefitting the Participants or their Beneficiaries;
(b) Except as provided for in Sections 4.4 and 13.11, cause or
permit any portion of the Trust Fund or assets attributable to any insurance
contract or policy in or through which Plan assets have been invested (as
provided in Section 10.4(q)) to revert to or become the property of an Employer;
(c) Increase the duties or responsibilities of the Trustee or the
Administration Committees without the written consent of the affected Trustee or
the affected members of the Administration Committees; or
(d) Decrease a Participant's Accrued Benefit.
The Board of Directors shall make all amendments in writing. Each amendment
shall state the date to which it is either retroactively or prospectively
effective. The Board of Directors shall transmit any such amendment to the
Administration Committee which shall in turn distribute it to any parties
entitled to review the same.
13.3 MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS. In the event of any
merger or consolidation of this Plan with, or transfer in whole or in part of
the assets and liabilities of the Trust Fund or assets attributable to any
insurance contract or policy in or through which Plan assets have been invested
(as provided in Section 10.4(q)) to another trust fund held under any other plan
of deferred compensation maintained or to be established for the benefit of all
or some of the Participants, the assets of the Trust Fund or assets attributable
to any insurance contract or policy in or through which Plan assets have been
invested (as provided in Section 10.4(q)) and applicable to such Participants
shall be transferred to the other trust fund only if:
69
(a) Each Participant would, if either this Plan or the other then
terminated, receive a benefit immediately after the merger, consolidation or
transfer which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation, or transfer
(if this Plan had then terminated), and a certification from the Actuary to this
effect is obtained and filed with the Secretary of the Treasury or his delegate
at least thirty (30) days prior to the consummation of such merger,
consolidation or transfer;
(b) Resolutions of the Board of Directors and of any new or
successor employer of the affected Participants shall authorize such transfer of
assets, and, in the case of the new or successor employer of the affected
Participants, its resolution shall include an assumption of liabilities with
respect to such Participants' inclusion in the new or successor employer's plan,
and
(c) Such other plan and trust are qualified and exempt within the
meaning of sections 401(a) and 501(a) of the Code.
13.4 TERMINATION. Subject to the provisions of Section 13.1, each
Employer shall have the right to terminate its participation in the Plan at any
time with respect to its Eligible Employees who are Participants. The Plan
shall terminate upon the first to occur of the following:
(a) The date terminated by action of the Board of Directors or
other governing body; or
(b) The date terminated by action of the Pension Benefit Guaranty
Corporation.
An Employer's participation in the Plan shall terminate on:
(a) The date the Employer shall be judicially declared bankrupt or
insolvent; or
(b) The dissolution, merger, consolidation, or reorganization of
the Employer, unless the successor to the Employer, if any, makes provision to
continue to participate in the Plan in accordance with Section 13.9, in which
event the successor or purchaser shall be substituted as an Employer under this
Plan.
13.5 VESTING ON TERMINATION. Notwithstanding any other provision of
the Plan to the contrary, upon the date of full or partial termination of the
Plan an affected Participant's right to his Accrued Benefit shall become one
hundred percent (100%) vested. The value of such Accrued Benefit shall be
determined on the date the Accrued Benefit becomes fully vested. The
Administration Committee shall interpret and administer this Section 13.5 in
accord with the intent and scope of the regulations issued under section
411(d)(3) of the Code.
13.6 PROCEDURE ON TERMINATION. In the event of termination of the Plan
or permanent discontinuance of Employer contributions, the Company shall, in its
sole discretion, authorize any one of the following procedures:
70
(a) CONTINUE PLAN. To continue the Plan in operation in all
respects until the Trustee and all insurance companies in or through the
insurance contracts or policies of which Plan assets have been invested (as
provided in Section 10.4(q)) have distributed all benefits under the Plan,
except that no further persons shall become Participants, no further Employer
contributions shall be made, all Accrued Benefits shall be fully vested and
nonforfeitable, and no further payments shall be made except in distribution of
the Trust Fund or the assets under such insurance contracts or policies to
Participants and Beneficiaries and in payment of administration expenses; or
(b) LIQUIDATE PLAN. To wind up and liquidate the Plan, Trust,
and all insurance contracts or policies in or through which assets of the Plan
have been invested (as provided in Section 10.4(q)) and distribute the assets
thereof (after deduction of all expenses) to the Participants, Former
Participants, and Beneficiaries in accordance with their respective Accrued
Benefits as then determined.
If the Company makes no election before or concurrent with termination, then
subsection (b) will govern distribution of the Trust Fund and the proceeds of
any insurance contracts or policies in or through which assets of the Plan have
been invested (as provided in Section 10.4(q)).
13.7 PARTIAL TERMINATION. Upon termination of this Plan with respect
to a group of Participants which constitutes a partial termination of the Plan,
the Administration Committee shall instruct the Trustee and any insurance
company in or through the insurance contracts or policies of which Plan assets
have been invested (pursuant to Section 10.4(q)) to allocate and segregate for
the benefit of the Participants with respect to which the Plan is being
terminated the proportionate interest of such Participants in the Trust Fund or
such insurance contracts or policies. Such proportionate interest shall be
determined by the Actuary. The Actuary shall make this determination upon the
basis of the contributions made by the affected Employer, the provisions of this
Article XIII, and such other considerations as the Actuary deems appropriate.
The Fiduciaries shall have no responsibility with respect to the determination
of any such proportionate interest.
The funds so allocated and segregated shall be used by the Trustee or
Administration Committee to pay benefits to or on behalf of the affected
Participants in accordance with Section 13.8.
13.8 LIQUIDATION OF TRUST FUND AND INSURANCE CONTRACTS. Upon
termination or partial termination of the Plan, the assets of the Trust Fund and
the proceeds of any insurance contracts or policies in or through which assets
of the Plan have been invested (as provided in Section 10.4(q)), or the portion
thereof segregated in accordance with Section 13.7, which are allocable to the
terminating Participants shall be liquidated (after provision is made for the
expenses of liquidation) by the payment or provision for payment of benefits in
the following order of priority:
(a) FIRST, in the case of benefits payable as an annuity, (i) in
the case of the benefit of a Participant or Beneficiary which was in pay status
as of the beginning of the three (3) year period ending on the effective date of
the Plan's termination, to each such benefit, based on the provisions of the
Plan (as in effect during the five (5) year period ending on such date)
71
under which such benefit would be the least, and (ii) in the case of a
Participant's or Beneficiary's benefit (other than a benefit described in (i)
above) which would have been in pay status as of the beginning of such three (3)
year period if the Participant had retired prior to the beginning of the three
(3) year period and if his benefits had commenced (in the normal form of Pension
under Section 7.1(a) or (b)), as of the beginning of such period, to each such
benefit based on the provisions of the Plan (as in effect during the five (5)
year period ending on such date) under which the benefit would be the least.
For purposes of (i) above, the lowest benefit in pay status during a three (3)
year period shall be considered the benefit in pay status for such period.
SECOND, to all other benefits (if any) due individuals under
the Plan to the extent guaranteed under the termination insurance provisions of
the Act.
THIRD, to all other nonforfeitable benefits under the Plan.
FOURTH, to all other benefits under the Plan.
(b) If the assets available for allocation under any priority
category (other than the third or fourth priority category) are insufficient to
satisfy in full the benefits of all individuals described in such category, the
assets shall be allocated pro rata among such individuals on the basis of the
present value (as of the termination date) of their respective Accrued Benefits.
(c) The Actuary shall calculate the allocation of the assets of
the Trust Fund or the proceeds of any insurance contracts or policies in or
through which assets of the Plan have been invested (as provided in Section
10.4(qq) in accordance with the above priority categories, and certify his
calculations to the Trustee and the Administration Committee. Notwithstanding
the provisions of subsection (a) above, in the event at the date of termination
of the Plan such provisions conflict with the then applicable provisions of the
Act or regulations issued thereunder, the provisions of the Act or its
regulations shall control.
(d) No liquidation of assets and payment of benefits (or provision
therefor) shall actually be made by the Trustee until after it is advised by the
Company in writing that applicable requirements, if any, of the Act governing
termination of "employee pension benefit plans" have been, or are being,
complied with or that appropriate authorizations, waivers, exemptions, or
variances have been, or are being obtained.
13.9 SUCCESSOR EMPLOYER. In the event of the dissolution, merger,
consolidation, or reorganization of an Employer, provision may be made by which
the successor employer can continue to participate in the Plan and Trust, and,
in that event, such successor shall be substituted for the Employer under this
Plan. The substitution of the successor employer shall constitute an assumption
of Plan liabilities by the successor, and the successor employer shall have all
of the powers, duties and responsibilities of the Employer under the Plan.
13.10 MANNER OF DISTRIBUTION. Subject to the provisions of this Article
XIII, any distribution due on or after termination of the Plan may be made, in
whole or in part, to the
72
extent that no discrimination in value results, in cash, in securities, or other
assets in kind, or in nontransferable annuity contracts, as the Administration
Committee, in its discretion, shall determine.
13.11 RESIDUAL AMOUNTS. In no event shall an Employer receive any
amounts from the Trust Fund or proceeds from any insurance contracts or policies
in or through which assets of the Plan have been invested (as provided in
Section 10.4(q)) upon termination of the Plan, except that, notwithstanding any
other provision of the Plan to the contrary, an Employer shall receive such
amounts, if any, as determined by the Administration Committee, as may remain
after the satisfaction of all liabilities of the Plan, such amounts arising out
of any variance between actual requirements and expected actuarial requirements.
13.12 TRANSFER OF ASSETS AND LIABILITIES FROM ICC PLAN AND WESCAR PLAN.
Subject to such rules as the Administration Committee shall prescribe, the
assets and liabilities attributable to active and former employees (other than
those individuals actively employed by International Controls Corp. on January
1, 1988 and who were subject to the provisions of the Stock Purchase Agreement
between International Controls Corp. and Datron Inc. dated May 6, 1988) under
the ICC Plan may be transferred to this Plan and the assets and liabilities
attributable to active and former employees under the Wescar Plan may be
transferred to this Plan.
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End of Article XIII
73
ARTICLE XIV
PLAN TERMINATION
Upon the termination of the Plan, the annual pension benefit payments to a
Participant who is among the twenty-five (25) highest Highly Compensated
Employees and the twenty-five (25) highest Highly Compensated Former Employees
shall be restricted to an amount equal to the payments that would be made on
behalf of the Participant under a single life annuity that is the Actuarial
Equivalent of the Participant's Accrued Benefit under the Plan. The foregoing
restrictions will not apply, however, if one of the following conditions are
satisfied:
(a) After payment to an Employee described in the preceding
paragraph of all of his benefits under the Plan, the value of the Plan assets
equals or exceeds one hundred and ten percent (110%) of the value of current
liabilities, as defined in section 412(l)(7) of the Code, or
(b) The value of "benefits" for an Employee described in the
preceding paragraph is less than one percent (1%) of the value of current
liabilities, or
(c) The value of benefits payable to the Employee under the Plan
does not exceed the amount described in section 411(a)(11)(A) of the Code
regarding the restrictions on mandatory lump sum distributions of less than
Three Thousand Five Hundred Dollars ($3,500).
The term "benefits" for purposes of this Article XIV includes any periodic
income, any withdrawal values payable to a living Participant, and any death
benefits not provided for by insurance on the Participant's life.
- ---------------------------
End of Article XIV
74
ARTICLE XV
ADOPTION OF PLAN BY AFFILIATE
15.1 ADOPTION BY AFFILIATES. Any corporation (within the meaning of
section 7701(a)(3) of the Code) that is a Related Employer, may, with the
consent and approval of the Company, by formal resolution of its own board of
directors or other governing body, adopt the Plan and the Trust for its Eligible
Employees and thereby, from and after the specified effective date of the
adoption, become an Employer under this Plan. Such adoption shall be
effectuated by and evidenced by a formal resolution of the Board of Directors
consenting to and containing or incorporating by reference such formal
resolution of the adopting corporation.
The adoption resolution shall become, as to such adopting corporation and its
Employees, a part of the Plan as then amended. It shall not be necessary for
the adopting corporation to sign or execute the original or then amended Plan
and Trust documents. The effective date of the Plan for any such adopting
corporation shall be that stated in the resolution of the adopting corporation,
and from and after such effective date the adopting corporation shall assume all
the rights, obligations and liabilities of an Employer hereunder and under the
Trust. The administrative powers and control of the Board of Directors, as now
or hereafter provided in the Plan and Trust, including the sole right of
amendment of this Plan as provided in Section 13.2, and of appointment and
removal of the members of the Administration Committees and the Trustee and its
successors, shall not be diminished by reason of the participation of any such
adopting corporation in the Plan and Trust.
15.2 WITHDRAWAL BY EMPLOYER. Any participating Employer by action of
its board of directors or other governing body and notice to the Board of
Directors and the Trustee, may withdraw from the Plan and Trust at anytime
without affecting other Employers not withdrawing, by complying with the
provisions of the Plan and Trust. Termination of the Plan as it relates to an
Employer upon its withdrawal shall be governed by the provisions of Article
XIII. A withdrawing Employer may arrange for the continuation by itself or its
successors of this Plan and Trust in separate form for its own Employees, with
such amendments, if any, as it may deem proper, or may arrange for continuation
of the Plan and Trust by merger with an existing plan and trust qualified under
sections 401(a) and 501(a) of the Code and transfer of Trust assets, subject to
the limitations of Section 13.3. The Board of Directors may, in its absolute
discretion, by resolution, terminate an adopting Employer's participation at any
time when in the judgment of the Board of Directors such adopting Employer fails
or refuses to discharge its obligations under the Plan following such prior
notice and opportunity to cure as may be appropriate under the circumstances.
Upon withdrawal of an Employer from the Plan the Administration Committee, upon
the advice of the Actuary, shall calculate the share of the assets of the Plan
allocable to the Employer and set such assets apart for transfer to a successor
plan or distribution under Article XIII, as applicable.
15.3 ADOPTION CONTINGENT UPON INITIAL AND CONTINUED QUALIFICATION. The
adoption of the Plan and Trust by a corporation as provided in Section 15.1 is
made subject to the condition precedent that the adopting corporation and the
Plan as adopted meet all the statutory
75
requirements for qualified plans under the Code for its Employees. The adopting
corporation may, or at the request of the Company shall, request an initial
letter of determination from the appropriate District Director of Internal
Revenue to the effect that the Plan and Trust, as herein set forth or as amended
with respect to the adopting corporation, meet the requirements of the
applicable federal statutes for tax qualification purposes for such adopting
corporation and its Employees. In the event the Plan or the Trust in its
operation, becomes disqualified for any reason as to an Employer and its
Employees, the portion of the Trust Fund allocable to them shall be segregated
as soon as is administratively feasible, pending (1) the prompt requalification
of the Plan and Trust as to such Employer and its Employees to the satisfaction
of the Internal Revenue Service, so as not to adversely affect the continued
qualified status of the Plan and Trust as to all other Employers and Employees,
or (2) as provided in Section 15.2 above, the prompt withdrawal of such Employer
from this Plan and Trust and a continuation by itself or its successor of a plan
and a trust separate and apart from this Plan and Trust, or by merger with
another existing qualified plan and trust by a transfer of its said segregated
portion of Trust assets, or (3) the prompt termination of its participation in
the Plan and Trust as to itself and its Employees.
15.4 NO JOINT VENTURE IMPLIED. The adoption of the Plan by any
Employer shall not create a joint venture or partnership relationship between it
and any other Employer. Any rights, duties, liabilities and obligations assumed
or incurred hereunder by any Employer, or imposed upon any Employer by the
provisions of the Plan, shall relate to and affect such Employer alone.
- -----------------------
End of Article XV
76
ARTICLE XVI
THE TRUST AND INSURANCE CONTRACTS
16.1 PURPOSE OF THE TRUST FUND AND INSURANCE CONTRACTS. A Trust Fund
has been created and will be maintained for the purposes of the Plan, and the
assets of the Trust Fund shall be invested in accordance with the terms of the
Trust Agreement. All contributions, other than contributions invested pursuant
to Section 10.4(q) in or through the contracts or policies of an insurance
company shall be paid into the Trust Fund, and all benefits under the Plan,
other than benefits paid pursuant to insurance contracts or policies, shall be
paid from the Trust Fund. Assets of the Plan that are not invested through the
Trust Fund shall be invested in or through insurance contracts or policies as
provided in Section 10.4(q).
16.2 APPOINTMENT OF TRUSTEE. One or more Trustees shall be appointed
by the Board of Directors to administer the Trust Fund. The Trustee's
obligations, duties, and responsibilities shall be governed solely by the terms
of the Trust Agreement.
16.3 EXCLUSIVE BENEFIT OF PARTICIPANTS. Subject to Sections 4.4 and
13.11, the Trust Fund and assets of the Plan invested in or through insurance
contracts or policies (as provided in Section 10.4(q)) shall 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 or such insurance
contracts or policies shall be used for or diverted to purposes other than
exclusively benefitting the Participants and their Beneficiaries and with
respect to expenses of administration. Notwithstanding the preceding sentence,
as provided in Section 13.11, the Employer reserves the right to recover any
residual amounts as may remain in the Trust Fund or remain under such insurance
contracts or policies after their termination and the satisfaction of all
liabilities of the Plan arising out of any variations between actual
requirements and expected actuarial requirements.
16.4 BENEFITS SUPPORTED ONLY BY THE TRUST FUND AND INSURANCE CONTRACTS.
Any person having any claim under the Plan shall look solely to the assets of
the Trust Fund and insurance contracts or policies in or through which assets of
the Plan have been invested (pursuant to Section 10.4(q)) for satisfaction, and
no Employer shall have any liability to any Participant, Former Participant or
Beneficiary beyond the amount of its contributions to the Plan.
16.5 RIGHTS TO ASSETS OF TRUST AND PROCEEDS OF INSURANCE CONTRACTS.
No Employee shall have any right to, or interest in, any assets of the Trust
Fund or the proceeds of any insurance contract or policy in or through which
assets of the Plan have been invested (pursuant to Section 10.4(q)) upon
termination of his employment or otherwise, except as provided from time to time
under this Plan, and then only to the extent of the benefits payable under the
Plan to such Employee out of the assets of the Trust Fund or such insurance
contract or policy. Except as otherwise may be provided under Title IV of the
Act, all payments of benefits as provided for in this Plan shall be made solely
out of the assets of the Trust Fund or the proceeds of an insurance contract or
policy in or through which assets of the Plan have been invested (pursuant to
Section 10.4(q)) and none of the Fiduciaries shall be liable therefor in any
manner.
77
- --------------------------
End of Article XVI
78
ARTICLE XVII
TOP HEAVY PLAN PROVISIONS
17.1 TOP HEAVY RULES APPLIED. Notwithstanding any provisions of this
Plan to the contrary, if during any Plan Year beginning after December 31, 1983,
the Plan is a Top Heavy Plan, the provisions of this Article XVII shall apply.
17.2 ADDITIONAL DEFINITIONS.
(a) "AGGREGATION EMPLOYEE" shall mean any employee of the
Aggregation Employer, including any leased employees (within the meaning of
section 414(n) of the Code). For this purpose, an individual formerly employed
by an Aggregation Single Employer shall be deemed an Aggregation Employee.
(b) "AGGREGATION EMPLOYER" shall mean the deemed single employer
that includes the Employer and results from the aggregation of employers that
sections 414(b), 414(c), and 414(m) of the Code require be aggregated and
treated as a single employer.
(c) "AGGREGATION SINGLE EMPLOYER" shall mean an employer that
sections 414(b), 414(c), and 414(m) of the Code require be aggregated with the
Employer and other employers and treated as a single employer.
(d) "COMPENSATION". The term "compensation," as used in this
Article XVII, shall mean an Employee's or Participant's Compensation for the
calendar year that ends with or within the plan year. For purposes of
determining whether an individual has compensation of One Hundred Fifty Thousand
Dollars ($150,000), or whether an individual is a Key Employee by reason of
being an officer or one of the ten (10) employees of the Single Aggregation
Employer described in Section 17.2(f)(ii), compensation from each entity that
sections 414(b), 414(c), and 414(m) require be aggregated is to be taken into
account.
(e) "DETERMINATION DATE" shall mean, with respect to any plan
year, the last day of the preceding plan year, except in the case of the first
plan year of a plan, in which event the Determination Date shall be the last day
of such plan year. Whenever it is necessary to determine the value of accrued
benefits as of a given Determination Date, such value shall be determined as of
the Valuation Date that coincides with the Determination Date or, if there is no
such Valuation Date, the most recent Valuation Date that is within a
twelve-month period ending on the Determination Date.
(f) "KEY EMPLOYEE". Subject to the rules set forth in the last
paragraph of this Section 17.2(f), "Key Employee" shall mean any Aggregation
Employee or former Aggregation Employee (including any deceased employee) who at
any time during the current plan year or any of the four (4) preceding plan
years, is or was:
79
(i) An officer of the Aggregation Employer having an annual
compensation greater than 150 percent of the dollar limitation in effect
under section 415(c)(1)(A) of the Code for the calendar year in which the
plan year ends;
(ii) One of the ten (10) employees of an Aggregation Single
Employer having annual compensation for the plan year from such
Aggregation Single Employer of more than the dollar limitation in effect
under section 415(c)(1)(A) of the Code and owning (or considered as owning
within the meaning of section 318 of the Code) or having owned during the
plan year containing the Determination Date or any of the four (4)
immediately preceding plan years both more than a one-half percent (1/2%)
interest and the largest interests in such Aggregation Single Employer,
and if two (2) such employees have the same interest in the employer, the
employee having the greater annual compensation from the employer shall be
treated as having a larger interest;
(iii) A five percent (5%) owner of an Aggregation Single
Employer; or
(iv) A one percent (1%) owner of an Aggregation Single
Employer having compensation of more than One Hundred Fifty Thousand
Dollars ($150,000).
In addition, the term "Key Employee" shall mean the beneficiary of any
Aggregation Employee or former Aggregation Employee defined above in this
Section 17.2(f) as being a Key Employee.
For the purposes of determining which Aggregation Employees or former
Aggregation Employees, if any, are or were officers of the Aggregation Employer,
whether an individual is an officer shall initially be determined based on his
responsibilities with respect to the Aggregation Single Employer or Aggregation
Single Employers by whom he is directly employed, and of such individuals
initially deemed officers, no more than fifty (50) Aggregation Employees, or, if
lesser, the greater of three (3) Aggregation Employees or ten percent (10%) of
the Aggregation Employees of the Aggregation Employer, shall be treated as
officers. In addition, for plan years beginning after February 28, 1985, sole
proprietorships, partnerships, associations, corporations, trusts, and labor
organizations may have officers; and any person who is an administrative
executive in regular and continued service shall be deemed an officer, subject
to the above limitations. The number of employees that the Aggregation Employer
has for the plan year containing the Determination Date with respect to a plan
shall be the greatest number of employees the Aggregation Employer had during
that plan year or any of the preceding four (4) plan years. A "five percent
(5%) owner" shall mean, if the Aggregation Single Employer is a corporation, any
person who owns (or is considered as owning within the meaning of section 318 of
the Code) more than five percent (5%) of the outstanding stock of the
Aggregation Single Employer or stock possessing more than five percent (5%) of
the total combined voting power of all stock of the Aggregation Single Employer
and, if the Aggregation Single Employer is not a corporation, any employee who
owns more than five percent (5%) of the capital or profits interest in the
Aggregation Single Employer. A "one percent (1%) owner" shall mean, if the
Aggregation Single Employer is a corporation, any person who owns (or is
considered as owning within the meaning of section 318 of the Code) more than
one percent (1%) of the outstanding stock of the Aggregation Single Employer or
stock possessing more than one percent (1%) of the
80
total combined voting power of all stock of the Aggregation Single Employer and,
if the Aggregation Single Employer is not a corporation, any employee who owns
more than one percent (1%) of the capital or profits interest in the Aggregation
Single Employer. For purposes of applying the attribution rules of section 318
of the Code, section 318(a)(2)(C) of the Code shall be applied by substituting
"five percent (5%)" for "fifty percent (50%)" each time that term appears in
said section. In the case of an entity other than a corporation, ownership
shall be attributed as under section 318 of the Code, except that capital or
profits interests shall be substituted for stock interests. If an employee's
ownership interest in an employer changes during a plan year, his ownership
interest for such plan year is the largest interest he owned at any time during
the year.
(g) "PERMISSIVE AGGREGATION GROUP" shall mean a plan or a group
of plans that must be aggregated in the Required Aggregation Group and any other
plan or plans of an Aggregation Employer if the group would continue to satisfy
the requirements of sections 401(a)(4) and 410 of the Code with such additional
plan being taken into account. Benefits under such plans shall be aggregated by
adding together the present values of the accrued benefits (determined
separately for each plan as of each plan's Determination Date) and adding
together the results for each plan as of the Determination Dates for such plans
that fall within the same calendar year.
(h) "PLAN". The term "plan" as used in this Section 17.2 shall
mean a plan that satisfies the requirements of section 401(a) of the Code.
(i) "PLAN YEAR". The term "plan year" shall mean the plan year
of a plan of an Aggregation Single Employer.
(j) "REQUIRED AGGREGATION GROUP" shall mean a group of plans
consisting of (i) each plan of the Aggregation Employer in which a Key Employee
participates during the plan year containing the Determination Date for such
plan or has participated during any of the immediately preceding four (4) plan
years and (ii) any other plan of the Aggregation Employer that enables any of
such plans to satisfy the requirements of section 401(a)(4) or 410 of the Code.
Benefits under such plans shall be aggregated by adding together the present
values of the accrued benefits (determined separately for each plan as of each
plan's Determination Date) and adding together the results for each plan as of
the Determination Dates for such plans that fall within the same calendar year.
(k) "TOP HEAVY PLAN". If for a given Plan Year the Plan is not
a member of a Required Aggregation Group (because there are no other plans that
must be aggregated with the Plan), the Plan shall be a Top Heavy Plan (herein so
called) if the sum (determined as of the Determination Date for the Plan) of the
present value of the cumulative Accrued Benefits (determined in accordance with
section 1.416-1 of the Treasury Regulations) for Key Employees of the Employer
exceeds sixty percent (60%) of a similar sum determined for all Employees. If
for a given Plan Year the Plan is a member of a Required Aggregation Group, the
Plan shall be a Top Heavy Plan for such Plan Year if, as of the Plan's
Determination Date for such Plan Year, both the Required Aggregation Group and
the Permissive Aggregation Group that include the Plan are Top Heavy Groups
(herein so called). A "Top Heavy Group" is any Required
81
Aggregation Group or Permissive Aggregation Group if the sum (determined as of
the Determination Dates for the plans in such group that fall within the same
calendar year) of (i) the present value of the accrued benefits (determined in
accordance with section 1.416-1 of the Treasury Regulations) for Key Employees
under all defined benefit plans (within the meaning of section 414(j) of the
Code) included in such group and (ii) the accrued benefits (determined in
accordance with section 1.416-1 of the Treasury Regulations) of Key Employees
under all defined contribution plans (within the meaning of section 414(i) of
the Code) included in such group exceeds sixty percent (60%) of a similar sum
determined for all Aggregation Employees. For the purpose of determining the
present value of the accrued benefit of any employee, the present value shall be
increased, as required by section 1.416-1 of the Treasury Regulations, by the
aggregate distributions made with respect to such Employee under the plan during
the five (5) year period ending on the Determination Date for such plan, and
under any terminated plan that, if it had not been terminated, would have been
included in the Required Aggregation Group. Notwithstanding the foregoing
provisions of this Section 17.2(k), if any individual has not performed any
service for any employer maintaining the plan at any time during the 5-year
period ending on the Determination Date for such plan, any accrued benefit for
such individual (and the account of such individual) shall not be taken into
account.
Except to the extent provided in Regulations of the Secretary of the Treasury,
any Rollover Contribution (or similar transfer) initiated by an Employee and
made after December 31, 1983, to a plan shall not be taken into account with
respect to the transferee plan for purposes of determining whether such plan is
a Top Heavy Plan (or whether any aggregation group which includes such plan is a
Top Heavy Group). If any individual is not a Key Employee with respect to a
plan in the aggregation group for any plan year, but such individual was a Key
Employee with respect to a plan in the aggregation group for any prior plan
year, any accrued benefit for such Employee and the account of such employee
shall not be taken into consideration in making a determination of the top heavy
status of the plan. Each plan in a Top Heavy Group shall be deemed a Top Heavy
Plan.
(l) "SUPER TOP HEAVY PLAN" shall mean a Top Heavy Plan if the
plan would be a Top Heavy Plan if "ninety percent (90%)" were substituted for
"sixty percent (60%)" each place it appears in Section 17.2(k) above.
17.3 ADDITIONAL LIMITATION - DEFINED BENEFIT PLAN.
(a) SUPER TOP HEAVY PLAN YEARS. If during a Plan Year this Plan
is a Super Top Heavy Plan and a Participant also participates in one or more
qualified defined contribution plans (as defined in section 414(i) of the Code)
maintained by the Employer or a Related Employer, Section 6.7 shall be applied
by substituting "one" (1.0) for "one and one-fourth" (1.25) each place "one and
one-fourth" (1.25) appears.
(b) TOP HEAVY PLAN YEARS. In addition, the above limitation
shall apply to this Plan in any Limitation Year that this Plan is a Top Heavy
Plan but is not a Super Top Heavy Plan and the Accrued Benefit of each
Participant who is a non-Key Employee, when expressed as an annual retirement
benefit, is less than three percent (3%) multiplied by the number of years of
Vesting Service with the Employer or twenty percent (20%) plus one percentage
point for each
82
year for which this Plan was taken into account under section 416(h) of the Code
(but not by more than ten (10) percentage points) multiplied by the
Participant's average compensation during the period of five (5) consecutive
years during which the Participant had the greatest aggregate compensation from
the Employer. Years of Vesting Service for purposes of the immediately
preceding sentence shall not include any year of Vesting Service ending in a
Plan Year beginning before January 1, 1984, and shall not include any year of
Eligibility Service that begins after the close of the last year in which the
Plan was a Top Heavy Plan. For the purposes of this Section, an annual
retirement benefit is a benefit payable annually in the form of a single life
annuity (with no ancillary benefits) beginning at Normal Retirement Age.
(c) SPECIAL RULE. Notwithstanding the foregoing provisions of
this Section 17.3, if for any Plan Year the Plan is a Top Heavy Plan or Super
Top Heavy Plan, the sum of the Defined Benefit Fraction (within the meaning of
Section 6.5) and the Defined Contribution Fraction (within the meaning of
Section 6.5) for a Limitation Year may in the case of a Participant exceed one
(1.0) (but not one and one-fourth (1.25)) if, but only if, there are no further
benefit accruals for that individual under any defined benefit plan (within the
meaning of section 414(j) of the Code) maintained by the Employer or a Related
Employer and no further annual additions (within the meaning of section
415(c)(2) of the Code) for that individual under any defined contribution plan
(within the meaning of section 414(i) of the Code) maintained by the Employer or
any Related Employer until the sum of such fractions satisfies the rules of
section 415(e) of the Code using the one (1.0) factor for that individual.
17.4 TERMINATION OF SERVICE PRIOR TO NORMAL RETIREMENT AGE. If during
any Plan Year a Participant has performed at least one Hour of Service for the
Employer and the Plan is a Top Heavy Plan, such Participant shall have a
non-forfeitable interest in his Accrued Benefit attributable to his Employer
Profit Sharing Contribution Account, should his Service with the Employer
terminate prior to Normal Retirement Age for any reason other than early
retirement, death or Disability, in accordance with the following schedule:
YEARS OF CREDITED PERCENT
SERVICE FOR VESTING PURPOSES VESTED
---------------------------- --------
Less than 2 years 0%
2 years but less than 3 years 0%
3 years but less than 4 years 40%
4 years but less than 5 years 60%
5 years but less than 6 years 80%
6 years or more 100%
Notwithstanding any of the foregoing, if during any prior Plan Year the Plan was
a Top Heavy Plan and in any subsequent Plan Year the Plan ceases to be a Top
Heavy Plan, the rights of a Participant who had performed at least one Hour of
Service during the period the Plan was a Top Heavy Plan in and to his Accrued
Benefit attributable to his Employer Profit Sharing Contribution Account shall
not be less than his vested rights during the period that the Plan was a Top
Heavy Plan. Provided, further, any Participant who has five (5) or more Years
of Service at the beginning of a Plan Year in which the Plan ceases to be a Top
Heavy Plan shall have the
83
right to elect, within a reasonable time of the beginning of the Plan Year in
which the Plan ceases to be a Top Heavy Plan, to have his non-forfeitable
percentage under this Plan computed in accordance with the schedule applicable
to Plan Years in which the Plan is a Top Heavy Plan. Any election made under
this Section 17.4 shall be made in the manner specified by Section 9.5 as if
such change in vesting schedule had been made by way of an Amendment.
17.5 MINIMUM BENEFITS. During any Plan Year in which this Plan is a
Top Heavy Plan the Accrued Benefit derived from Employer contributions of each
Participant who is a non-Key Employee, when expressed as an annual retirement
benefit, shall not be less than the LESSER of:
(a) Two percent (2%) multiplied by the number of the Participant's
years of Vesting Service; or
(b) Twenty percent (20%) of the Participant's average compensation
during the period of five (5) consecutive years during which the
Participant had the greatest aggregate compensation from the Employer.
Years of Vesting Service for purposes of the immediately preceding sentence
shall not include any year of service ending in a Plan Year beginning before
January 1, 1984, and shall not include any year of service that begins after the
close of the last year in which the Plan was a Top Heavy Plan. For the purposes
of this Section 17.5, an annual retirement benefit is a benefit payable annually
in the form of a single life annuity (with no ancillary benefits) beginning at
Normal Retirement Age. An Employee who is not a Key Employee may not fail to
accrue a minimum benefit under this Section 17.5 because either (1) such
Employee is otherwise excluded from participation (or accrues no benefit) merely
because the Employee's Compensation is less than a stated amount or (2) the
Employee is otherwise excluded from participation (or accrued no benefit) merely
because of a failure to make mandatory Employee contributions.
In addition, notwithstanding the preceding provisions of this Section 17.5, the
following rules shall apply for purposes of determining whether the minimum
benefit requirements of this Section 17.5 have been satisfied in the event that
during a Plan Year the Employer maintains two or more qualified plans (within
the meaning of section 1.401-0(b) of the Treasury Regulations) that are Top
Heavy Plans or Super Top Heavy Plans for a Plan Year. If the Employer maintains
during a Plan Year two or more defined benefit plans (within the meaning of
section 414(j) of the Code), the minimum benefits required by this Section 17.5
on behalf of a Participant who is not a Key Employee and who participates in
both this Plan and such other plans shall, unless provided otherwise in such
other plans, be provided under this Plan to the extent this Plan provides for a
benefit accrual sufficient to satisfy such minimum, and only to the extent that
such minimum is not provided under this Plan shall any portion of such minimum
benefits be provided under such other plans.
If during a Plan Year, the Employer maintains this Plan and a defined
contribution plan (within the meaning of section 414(i) of the Code) and a
Participant who is not a Key Employee participates in both of such plans, then
if such Participant is entitled to accrue a benefit under this plan with respect
to such Plan Year, and such Participant has accrued a benefit equal to or in
excess of two percent (2%) multiplied by his number of years of Vesting Service
(excluding years
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of service accrued during Plan Years, if any, commencing prior to January 1,
1984, and Plan Years during which the Plan was not a Top Heavy Plan) multiplied
by the Participant's average compensation during the five (5) consecutive year
period during which the Participant had the greatest aggregate Compensation from
the Employer, the Employer shall not be required to provide for such Participant
under such other plan the minimum benefit otherwise required under section 416
of the Code, and for purposes of determining whether the minimum benefit
provisions of this Section 17.5 have been satisfied, the minimum benefit accrual
under this Plan shall be offset by the benefits provided under such other plan
for such Plan Year as provided in section 1.416-1, M-12, of the Treasury
Regulations.
If for a Plan Year this Plan is a Top Heavy Plan, but not a Super Top Heavy
Plan, and the Employer makes contributions on behalf of a Participant under both
this Plan and a defined contribution plan (within the meaning of section 414(i)
of the Code) and the Employer wishes to use a factor of one and one-fourth
(1.25) rather than one (1.0) as a limitation on the sum of the Defined
Contribution Fraction (within the meaning of Section 6.5) and the Defined
Benefit Fraction (within the meaning of Section 6.5) for the Limitation Year,
then the defined benefit plan minimum benefit accrual specified above shall be
increased by one (1) percentage point (up to a maximum of ten (10) percentage
points) for each year of Vesting Service within which a Plan Year during which
this Plan was a Top Heavy Plan or Super Top Heavy Plan ended; provided that no
such year of Vesting Service completed during a Plan Year beginning prior to
January 1, 1984, shall be counted for such purpose. The defined contribution
minimum for such Limitation Year shall be increased to seven and one-half
percent (7-1/2%) of compensation. Nothing in this Section 17.5 shall prohibit
the Employer from making contributions in excess of the minimums stated herein
provided such contributions are otherwise in accordance with the provisions of
the Plan or other plan pursuant to which they are made.
- ----------------------------
End of Article XVII
85
ARTICLE XVIII
MISCELLANEOUS
18.1 PAYMENT IN THE EVENT OF LEGAL DISABILITY. Payments to any
Participant, Former Participant, or Beneficiary shall be made to the recipient
entitled thereto in person or upon his personal receipt, in form satisfactory to
the Administration Committee, except when the recipient entitled thereto shall
be under a legal incapacity (e.g., minority or adjudicated incompetency), or, in
the sole judgment of the Administration Committee, shall otherwise be unable to
apply such payment in furtherance of his own interest and advantage. The
Administration Committee may, in such event, in its sole discretion, direct all
or any portion of such payments to be made in any one or more of the following
ways:
(a) To such person directly;
(b) To the guardian of his person or his estate;
(c) To a relative or friend of such person, to be expended for his
benefit; or
(d) To a custodian for such person under any Uniform Gifts to
Minors Act.
The decision of the Administration Committee, in each case, shall be final,
binding, and conclusive upon all persons ever interested hereunder. The
Administration Committee shall not be obliged to see to the proper application
or expenditure of any payment so made. Any payment made pursuant to the power
herein conferred upon the Administration Committee shall operate as a complete
discharge of all obligations of the Trustee and the Administration Committee, to
the extent of the distributions so made.
18.2 PAYMENTS ONLY FROM TRUST FUND OR INSURANCE CONTRACTS. All
benefits of the Plan shall be payable solely from the Trust Fund or the proceeds
of insurance contracts in or through which assets of the Plan have been invested
(as provided in Section 10.4(q)) and neither the Employer, Administration
Committee, Trustee nor insurance company issuing such contracts or policies
shall have any liability or responsibility therefor except as expressly provided
herein.
18.3 UNCLAIMED ACCOUNT PROCEDURE. Neither the Trustee nor the
Administration Committee shall be obliged to search for, or ascertain the
whereabouts of, any Participant or Beneficiary. The Administration Committee,
by certified or registered mail addressed to his last known address of record
with the Administration Committee or the Employer, shall notify any Participant
or Beneficiary that he is entitled to a distribution under this Plan, and the
notice shall quote the relevant provisions of this Section 18.3. If the
Participant or Beneficiary fails to claim his benefits or make his whereabouts
known in writing to the Administration Committee within seven (7) calendar years
after the date of notification, the benefits under the Plan of the Participant
or Beneficiary will be disposed of as follows:
86
(a) If the whereabouts of the Participant is unknown but the
whereabouts of the Participant's Beneficiary is then known to the Administration
Committee, distribution will be made to the Beneficiary.
(b) If the whereabouts of the Participant and his Beneficiary is
then unknown to the Administration Committee, but the whereabouts of one or more
relatives by adoption, blood, or marriage of the Participant is known to the
Administration Committee, the Administration Committee shall direct the Trustee
to distribute the Participant's benefits to any one or more of such relatives
and in such proportions as the Administration Committee determines.
(c) If the Administration Committee does not know the whereabouts
of any of the above persons, the Administration Committee shall notify the
Social Security Administration of the Participant's (or Beneficiary's) failure
to claim the distribution to which he is entitled. The Administration Committee
shall request the Social Security Administration to notify the Participant (or
Beneficiary) in accord with the procedures it has established for such purpose.
While payment is pending the Administration Committee shall direct the Trustee
to hold the Participant's benefits in a segregated account invested in U.S.
Government obligations, certificates of deposit, or other obligations providing
a stated rate of return. The segregated account shall be entitled to all income
it earns and shall bear all expense or loss it incurs. Any payment made
pursuant to the power herein conferred upon the Administration Committee shall
operate as a complete discharge of all obligations of the Trustee and the
Administration Committee, to the extent of the distributions so made.
18.4 EXECUTION OF RECEIPTS AND RELEASES. Any payment to any
Participant, or to his legal representative or Beneficiary, in accordance with
the provisions of the Plan, shall to the extent thereof be in full satisfaction
of all claims hereunder against the Plan and Trust. The Administration
Committee may require such Participant, legal representative, or Beneficiary, as
a condition precedent to such payment, to execute a receipt and release therefor
in such form as it shall determine.
18.5 NO GUARANTEE OF INTERESTS. Neither the Trustee, the
Administration Committee, nor any Employer guarantees the Trust Fund or any
insurance contract in or through which Plan assets have been invested (pursuant
to Section 10.4(q)) from loss or depreciation. The Employer does not guarantee
the payment of any money which may be or become due to any person from the Trust
Fund or any insurance contract in or through which Plan assets have been
invested (pursuant to Section 10.4(q)). The liability of the Administration
Committee and the Trustee to make any payment from the Trust Fund and any
insurance contracts or policies in or through which Plan assets have been
invested (pursuant to Section 10.4(q)) is limited to the then available assets
of the Trust and such contracts or policies.
18.6 PAYMENT OF EXPENSES. All expenses incident to the administration,
termination, and protection of the Plan and Trust, including but not limited to
legal, accounting, and Trustee fees, shall be paid by the Employers in such
proportions as determined by the Administration Committee, except that in case
of failure of any Employer to pay such expenses, they will be paid
87
from the Trust Fund, and until paid, shall constitute a first and prior claim
and lien against the Trust Fund.
18.7 EMPLOYER RECORDS. Records of an Employer as to an Employee's or
Participant's period of employment, termination of employment and the reason
therefor, leaves of absence, re-employment, and Compensation will be conclusive
on all persons, unless determined to be incorrect.
18.8 INTERPRETATIONS AND ADJUSTMENTS. To the extent permitted by law,
an interpretation of the Plan and a decision on any matter within a Fiduciary's
discretion made in good faith is binding on all persons. A misstatement or
other mistake of fact shall be corrected when it becomes known and the person
responsible shall make such adjustment on account thereof as he considers
equitable and practicable.
18.9 UNIFORM RULES. Uniform rules shall be applied in administering
the Plan to all Participants similarly situated.
18.10 EVIDENCE. Evidence required of anyone under the Plan may be given
by certificate, affidavit, document, or other information which the person
acting on it considers pertinent and reliable, and signed, made or presented by
the proper party or parties.
18.11 SEVERABILITY. In the event any provision of the Plan shall be
held to be illegal or invalid for any reason, the illegality or invalidity shall
not affect the remaining provisions of the Plan, but shall be fully severable
and the Plan shall be construed and enforced as if the illegal or invalid
provision had never been included herein.
18.12 NOTICE. Any notice required to be given herein by the Trustee, an
Employer, or the Administration Committee, shall be deemed delivered, when (a)
personally delivered, or (b) placed in the United States mails, postage prepaid,
in an envelope addressed to the last known address of the person to whom the
notice is given.
18.13 WAIVER OF NOTICE. Any person entitled to notice under the Plan
may waive the notice.
18.14 SUCCESSORS. The Plan shall be binding upon all persons entitled
to benefits under the Plan, their respective heirs and legal representatives,
upon the Employer, its successors and assigns, and upon the Trustee, the
Administration Committee, and their successors.
18.15 HEADINGS. The titles and headings of Articles and Sections are
included for convenience of reference only and are not to be considered in
construing the provisions hereof.
18.16 GOVERNING LAW. All questions arising with respect to the
provisions of this Agreement shall be determined by application of the laws of
the State of Georgia except to the extent Georgia law is preempted by Federal
statute.
88
IN WITNESS WHEREOF, this Plan has been executed in multiple original
documents on this ----- day of -------------, 1994, effective as of the 1st day
of January, 1989.
GREAT DANE TRAILERS, INC.
By -----------------------------------
Its Vice President