EXHIBIT 10.3
EG&G TECHNICAL SERVICES, INC.
AMENDED AND RESTATED EMPLOYEES RETIREMENT PLAN
Amended and Restated as of December 31, 2003
TABLE OF CONTENTS
Page
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ARTICLE
I DEFINITIONS 1
II PARTICIPATION 11
III SERVICE 13
IV ELIGIBILITY FOR AND AMOUNT OF PENSION 19
V PAYMENT OF RETIREMENT INCOME 31
VI CONTRIBUTIONS 39
VII ADMINISTRATION OF PLAN 41
VIII MANAGEMENT OF FUNDS 45
IX TOP-HEAVY PROVISIONS 47
X RETIREE HEALTH PLAN ACCOUNT 52
XI AMENDMENT, MERGER AND TERMINATION 57
XII MISCELLANEOUS PROVISIONS 60
INTRODUCTION
Effective as of August 20, 1999, as amended and restated, EG&G Technical
Services, Inc. adopted the EG&G Technical Services, Inc. Employees Retirement
Plan as a program for providing retirement income and other benefits for the
benefit of certain of its employees and their beneficiaries.
It is intended that this Plan and the trust used to provide benefits hereunder
shall at all times be qualified and tax-exempt within the meaning of Sections
401(a) and 501(a) of the Internal Revenue Code of 1986, as now in effect or
hereafter amended, and any other applicable provisions of law.
The Plan is a successor to the EG&G, Inc. Employees Retirement Plan, as it
related to employees and former employees of the Technical Services Division of
EG&G, Inc. (the "Prior Plan").
Except as specified herein, the provisions of the Plan as contained herein shall
apply only to those persons who are in the service of the Employer (as defined
herein) on or after August 20, 1999 or who were participants in the Prior Plan
immediately prior thereto.
EG&G TECHNICAL SERVICES, INC.
EMPLOYEES RETIREMENT PLAN
ARTICLE I
DEFINITIONS
1.1 "Accrued Benefit" means, as of any date of determination, the normal
Retirement Income computed under Section 4.1(b).
1.2 "Annuity Starting Date" means the first day of the month for which
Retirement Income benefits are paid as an annuity or in any other form.
1.3 "Average Earnings" means with respect to periods of Credited Service
the average annual Earnings of a Participant during the five years of
his Credited Service in the last 10 years of his Credited Service
immediately preceding or ending with his Separation from Service
affording the highest such average, or during the actual period of his
Credited Service if less than five consecutive years; provided,
however, Credited Service after December 31, 2003 shall not be taken
into account for this purpose. A Participant's Earnings shall be
annualized for any Computation Period in which he receives credit for
some portion, but less than a full year, of Credited Service.
1.4 "Beneficiary" means the person or persons named by a Participant by
written designation filed with the Plan Administrator to receive
payments after the Participant's death.
1.5 "Board of Directors" means the board of directors of the Company.
1.6 "Break in Service" means a Computation Period in which a Participant
completes no more than 500 Hours of Service. Hours of Service shall be
recognized for a "permitted leave of absence" or a "maternity or
paternity leave of absence" solely
1
for purposes of determining whether an Employee has incurred a Break in
Service.
A "permitted leave of absence" means an unpaid, temporary cessation
from active employment with the Employer pursuant to a
nondiscriminatory policy established by the Plan Administrator.
A "maternity or paternity leave of absence" means an absence from work
for any period by reason of the Employee's pregnancy, birth of the
Employee's child, placement of a child with the Employee in connection
with the adoption of such child, or any absence for the purpose of
caring for such child for a period immediately following such birth or
placement. The Hours of Service credited for a "maternity or paternity
leave of absence" shall be those that would normally have been credited
but for such absence, or, in any case in which the Plan Administrator
is unable to determine such hours normally credited, eight Hours of
Service per day. For this purpose, Hours of Service shall be credited
for the 12-month period in which the absence from work begins if such
credit is necessary to prevent the Employee from incurring a Break in
Service, or in the immediately following 12-month period.
1.7 "Code" means the Internal Revenue Code of 1986, as now in effect or
hereafter amended.
1.8 "Company" means EG&G Technical Services, Inc. and any successor
thereto.
1.9 "Computation Period" means a 12-month period beginning on an Employee's
Employment Commencement Date or Reemployment Commencement Date, if
applicable, and anniversaries thereof.
1.10 "Covered Contract" means a contract that the Employer enters directly
into with, or a subcontract by which the Employer enters indirectly
into a contract with, the
2
federal government or an agency or instrumentality thereof, the latter
through another entity that has entered directly into such contract.
1.11 "Covered Contract Employee" means an Employee whose service with the
Employer, at the relevant time, is primarily devoted to work under a
Covered Contract and who works at a location listed below.
Location Bargaining Representative or Employer Unit
- -------- ------------------------------------------
Huntsville, Alabama International Brotherhood of Electrical Workers Local No. 558
San Antonio, Texas MSSA (KDC)
Bloomington, Indiana Crane, Indiana
1.12 "Credited Service" means service recognized for purposes of computing
the amount of any benefit, determined as provided in Section 3.2.
1.13 "Disability" means a Participant's physical or mental condition, as
determined by the Social Security Administration, that renders him
eligible to receive disability benefits under Title II of the Social
Security Act, as amended from time to time. The Plan Administrator will
apply the provisions of this Section 1.13 in a nondiscriminatory,
consistent and uniform manner.
1.14 "Earnings" means a Participant's regular base salary or wages from the
Employer, including salary deferrals under any salary reduction
agreement under Sections 125, 402(g)(3) or 457 or, effective January 1,
2001, Section 132(f)(4) of the Code, commissions and severance pay, but
excluding any bonuses, overtime payments, incentive pay, reimbursements
or other expense allowances or other adjustments, fringe benefits and
any other type of special or nonrecurring pay.
3
The annual Earnings of each Participant taken into account for all Plan
purposes shall not exceed $160,000, as adjusted by the Secretary of the
Treasury for increases in the cost of living in accordance with Code
Section 401(a)(17)(B). The cost-of-living adjustment in effect for a
calendar year applies to any period, not exceeding 12 months, over
which Earnings are determined (the "determination period") beginning in
such calendar year. If a determination period consists of fewer than 12
months, the limit referred to above will be multiplied by a fraction,
the numerator of which is the number of months in the determination
period and the denominator of which is 12.
If Earnings for any prior determination period are taken into account
in determining a Participant's benefits accruing in the current Plan
Year, the Earnings for that prior determination period are subject to
the annual Earnings limit in effect for that prior determination
period.
1.15 "Effective Date" means August 20, 1999.
1.16 "Eligible Employee" means any Employee of the Employer, excluding any
person who is (a) a Covered Contract Employee or (b) included in a unit
of employees covered by an agreement recognized for purposes of
collective bargaining with the Employer, provided retirement benefits
have been the subject of good faith bargaining and such bargaining does
not provide for coverage under this Plan.
1.17 "Employee" means any person employed by the Employer, other than an
independent contractor, who receives stated remuneration other than a
pension, severance pay, retainer or fee under contract. Employees shall
also include leased employees within the meaning of Code Section
414(n)(2) unless such leased employees are covered by a money purchase
pension plan requiring a 10 percent contribution and such leased
employees do not constitute more than 20 percent of the recipient's
nonhighly compensated workforce, as defined in
4
Section 414(n)(5)(C)(ii) of the Code. Notwithstanding any other
provision of this Plan, the term "Employee" shall not include any
employee, independent contractor, leased employee or other individual
unless such individual is contemporaneously treated by an Employer as
an employee for purposes of this Plan (without regard to any subsequent
recharacterization or inconsistent determination made by any person or
entity or by any court, agency or other authority with respect to such
individual).
1.18 "Employer" means the Company and any subsidiary or affiliated
organization of the Company that, with the approval of the Board of
Directors and subject to such considerations as the Board of Directors
may impose, adopts this Plan.
In determining a Participant's Hours of Service for purposes of
eligibility for participation and entitlement to benefits under Section
1.22, in determining whether an election to change the Limitation Year
has been made in accordance with Section 1.23, in determining whether
an Employee has incurred a Separation from Service under Section 1.34,
in determining the limitations on annual benefits under Section 4.6 and
the limitation in case of dual plans under Section 4.7 and in
determining whether the Plan is Top-Heavy under Article IX, the term
"Employer" shall include any other corporation or business entity that
must be aggregated with the Employer under Section 414(b), (c) , (m) or
(o) of the Code, but only for such periods of time when the Employer
and such other corporation or business entity must be aggregated as
aforesaid. For purposes of Sections 4.6 and 4.7, such definition of
"Employer" shall be modified by Section 415(h) of the Code.
1.19 "Employment Commencement Date" means the date on which an Employee
first performs an Hour of Service.
1.20 "Equivalent Actuarial Value" means equivalent value computed on the
basis of interest at 7% per annum and the 1971 Group Annuity Mortality
Table with no loading and projected by Scale E, with a one-year age
setback for the Participant
5
and a five-year age setback for any Beneficiary. Actuarial equivalence
for purposes of Section 4.6 shall be computed on the basis of interest
at 5% per annum and the 1983 Group Annuity Mortality Table (Unisex).
Actuarial equivalence for purposes of Section 5.1(c) shall be computed
on the basis of (a) the annual rate of interest on 30-year Treasury
securities for the second calendar month preceding the first day of the
Plan Year that contains the Annuity Starting Date and (b) the mortality
table prescribed by the Secretary of the Treasury that is based on the
prevailing commissioners' standard table, described in Section
807(d)(5)(A) of the Code, that is used to determine reserves for group
annuity contracts issued on the date as of which present value is being
determined, without regard to any other subparagraph of Section
807(d)(5), as published in Revenue Ruling 95-6 or any governmental
ruling or publication superseding that Ruling.
1.21 "ERISA" means the Employee Retirement Income Security Act of 1974, as
now in effect or as hereafter amended.
1.22 "Hour of Service" means, with respect to any applicable Computation
Period,
(a) each hour for which the Employee is paid or entitled to
payment for the performance of duties for the Employer,
(b) each hour for which an Employee is paid or entitled to payment
by the Employer on account of a period during which no duties
are performed, whether or not the employment relationship has
terminated, but not more than 501 hours for any single
continuous period, and
(c) each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer,
excluding any hour credited under (a) or (b).
6
For purposes of this Section 1.22, performance of duties for EG&G, Inc.
prior to the Effective Date shall constitute performance of duties for
the Employer.
No hours shall be credited on account of any period during which the
Employee performs no duties and receives payment solely for the purpose
of reimbursement for medical or medically related expenses incurred by
the Employee for the purpose of complying with unemployment
compensation, worker's compensation or disability insurance laws. The
Hours of Service credited shall be determined as required by Title 29
of the Code of Federal Regulations, Section 2530.200b - 2(b) and (c).
1.23 "Limitation Year" means the calendar year, unless otherwise selected by
the Employer in a manner consistent with that described in Section
1.415-2(b)(2) of the Treasury Regulations.
1.24 "Normal Retirement Age" means the age determined in accordance with the
following table:
Year of Birth Age
------------- ---
1937 and earlier 65
1938 - 1942 65 plus 2 months per year
1943 - 1954 66
1955 - 1959 66 plus 2 months per year
1960 and later 67
1.25 "Normal Retirement Date" means the first day of the month next
following the month in which the Participant attains his Normal
Retirement Age.
1.26 "Participant" means any Eligible Employee participating in the Plan, as
provided in Article II, or any former Employee whose participation has
not ceased pursuant to Section 2.2.
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1.27 "Plan" means the EG&G Technical Services, Inc. Employees Retirement
Plan, as set forth herein and as amended from time to time.
1.28 "Plan Administrator" means the person, persons or committee designated
by the Board of Directors to administer the Plan in accordance with
Article VII. In the absence of any such designation, the Company shall
be the Plan Administrator.
1.29 "Plan Year" means (a) the period commencing on the Effective Date and
ending on the next following December 31 and (b) the 12-month period
commencing on each January 1 thereafter and ending on the next
following December 31.
1.30 "Prior Plan" means the EG&G, Inc. Employees Retirement Plan.
1.31 "Qualified Joint and Survivor Annuity" means Retirement Income
described in Section 5.1(b).
1.32 "Reemployment Commencement Date" means the first date following an
Employee's Break in Service on which the Employee again performs an
Hour of Service.
1.33 "Retirement Income" means monthly payments under the Plan as provided
in Article V.
1.34 "Separation from Service" means an Employee's death, resignation or
discharge from Service with the Employer.
1.35 "Service" means service with an Employer or predecessor employer
recognized for purposes of determining eligibility for participation in
the Plan and entitlement to certain benefits under the Plan, determined
as provided in Sections 1.43 and 3.1. Notwithstanding any other
provision of this Plan to the contrary, Service credit with
8
respect to qualified military service will be provided in accordance
with Section 414(u) of the Code.
1.36 "Social Security Retirement Age" means the age used as the retirement
age under Section 216(l) of the Social Security Act, applied without
regard to the age increase factor and as if the early retirement age
under Section 216(l)(2) of such Act were 62.
1.37 "Social Security Tax Base" means the average (without indexing) of the
Social Security Wage Bases in effect for each calendar year during the
35-year period ending with the last day of the calendar year in which
the Participant attains (or will attain) Normal Retirement Age. In
determining a Participant's Social Security Tax Base for a Plan Year,
the Social Security Wage Base for all calendar years beginning after
the first day of the Plan Year is assumed to be the same as the Social
Security Wage Base in effect as of the beginning of the Plan Year. A
Participant's Social Security Tax Base for a Plan Year after the
35-year period described in this Section shall be the Participant's
Social Security Tax Base for the Plan Year during which the 35-year
period ends. A Participant's Social Security Tax Base for a Plan Year
prior to the 35-year period described in this Section shall be the
Social Security Wage Base in effect at the beginning of the Plan Year.
A Participant's Social Security Tax Base shall be automatically
adjusted each Plan Year to reflect changes in the Social Security Wage
Base.
1.38 "Social Security Wage Base" means the contribution and benefit base
taken into account under Section 230 of the Social Security Act.
1.39 "Spouse" means the lawful spouse to whom the Participant was married on
the date Retirement Income payments commence under the Plan, or if
Retirement Income payments had not commenced, the lawful spouse to whom
the Participant was married on the Participant's date of death.
9
1.40 "Trust Agreement" means the agreement, as amended from time to time,
entered into between the Company and the Trustee to carry out the
purposes of the Plan.
1.41 "Trust Fund" means the cash or other property held by the Trustee in
accordance with the provisions of the Trust Agreement and the Plan.
1.42 "Trustee" means the trustee or trustees appointed by the Company and
acting in accordance with Article VIII.
1.43 "Year of Service" means a Computation Period during which an individual
completes at least 1,000 Hours of Service.
1.44 "Year of Vesting Service" means a Computation Period during which
Service is recognized for purposes of determining entitlement to
certain benefits under the Plan, determined as provided in Section 3.1.
Whenever used herein, the masculine gender includes the feminine and the plural
shall include the singular unless the context clearly requires otherwise.
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ARTICLE II
PARTICIPATION
2.1 Participation Requirements
(a) Every Eligible Employee on the Effective Date who was a participant in
the Prior Plan immediately prior to the Effective Date shall become a
Participant in the Plan as of the Effective Date.
(b) Every other Eligible Employee who is not already a Participant pursuant
to paragraph (a) above shall become a Participant immediately after his
completion of one Year of Service.
(c) In order to become a Participant, an Eligible Employee must complete an
enrollment form prescribed by the Plan Administrator.
2.2 Events Affecting Participation
(a) An Employee's participation in the Plan shall end when he is no longer
employed by the Employer if he is not entitled to either an immediate
or a deferred Retirement Income under the Plan. Participation shall
continue and Service shall continue to be granted while a Participant
is on authorized leave of absence or during a period while he is not an
Eligible Employee but remains in the employ of the Employer, but no
Credited Service shall be counted for that period, except as
specifically provided in Article III and Section 4.8. Any Earnings of
such a Participant while his status is other than that of an Eligible
Employee shall be disregarded for all Plan purposes.
(b) If an Employee transfers from an employment status with an Employer
other than as an Eligible Employee and thereby becomes an Eligible
Employee, he shall become a Participant immediately after the date on
which he completes the
11
requirements of Section 2.1. No Credited Service shall be counted for
the period of time prior to his becoming a Participant, except as
specifically provided in Article III and Section 4.8.
2.3 Participation upon Reemployment
If an Employee's participation in the Plan ends and he again becomes an
Eligible Employee, he shall again become a Participant as of his
Reemployment Commencement Date provided he has not incurred a Break in
Service.
2.4 Plan Closed to New Participants
No individual who first becomes an Eligible Employee of, is first
offered employment with or who first executes an employment agreement
with the Employer for a position as an Eligible Employee after June 30,
2003 shall be considered or become a Participant.
2.5 Participation Upon Reemployment or Transfer to an Eligible Unit After
June 30, 2003
Notwithstanding Section 2.4, if the participation of an Eligible
Employee who was a Participant in the Plan ends or has ended and he
again becomes an Eligible Employee on or after July 1, 2003, he shall
again become a Participant as of his Reemployment Commencement Date
provided he has not incurred a Break in Service. However, if an
Eligible Employee ceases or has ceased to be an Eligible Employee prior
to becoming a Participant, whether as a result of termination of
employment with the Employer or transfer to an ineligible unit, and he
then again on or after July 1, 2003 becomes an Employee or transfers
back to an eligible unit, such individual shall not be eligible to
become a Participant in the Plan.
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ARTICLE III
SERVICE
3.1 Service and Vesting Service
(a) Except as otherwise provided in this Plan, all service with the
Employer rendered by an Employee counts as Service. A Computation
Period described in Section 1.43 counts as a full Year of Service and a
Computation Period in which an Employee completes at least 1,000 Hours
of Service counts as a full Year of Vesting Service. Except as provided
in paragraph (b) below, no Vesting Service is counted for any
Computation Period in which an Employee completes less than 1,000 Hours
of Service. If an Employee who has not completed five Years of Vesting
Service has a Break in Service in which the number of consecutive
one-year Breaks in Service equals or exceeds five, excluding any Years
of Vesting Service disregarded under this sentence by reason of any
earlier Break in Service, the service rendered before the Break in
Service shall be excluded from his Vesting Service.
(b) A period during which an Employee is on a leave of absence approved by
the Employer shall not be considered as a Break in Service. Under rules
uniformly applicable to all Employees similarly situated, the Employer
shall credit Vesting Service for any portion of that period of leave
that is not counted as Vesting Service under paragraph (a) of this
Section, provided that the Employee returns to Service at or before the
end of such leave of absence. An Employee who fails to return to
Service at or before the end of such a leave of absence will be
considered to have incurred a Separation from Service as of the later
of (i) the last day of Service with an Employer or (ii) the date on
which the Employee's failure to return was due to his death, Disability
or retirement in accordance with Section 4.1 or 4.2.
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A period during which an Employee is laid off due to a reduction in
work force shall not be considered as a Break in Service. Under rules
uniformly applicable to all Employees similarly situated, the Employer
shall credit Vesting Service for the period of layoff that is not
counted as Vesting Service under paragraph (a) of this Section,
provided that the Employee returns to Service within the one-year
period following the beginning of the layoff. An Employee who fails to
return to Service before the end of such one-year period will be
considered to have incurred a Separation from Service as of the last
day of Service with an Employer.
3.2 Credited Service
(a) A Participant who normally works the regular full-time work week for
his Employer, whether or not considered a regular or temporary Employee
by the Employer, shall be credited with a full year of Credited Service
for each calendar year of his employment with an Employer, other than
as a Covered Contract Employee . If a Participant described in the
previous sentence completes less than a full year of Credited Service
for the calendar year in which his Employment Commencement Date or
Separation from Service occurs, he shall be credited with one-twelfth
(1/12) of a year of Credited Service for each month of employment with
an Employer, rounded to the nearest month.
(b) A Participant who does not normally work the regular full-time work
week for his Employer, whether or not considered a regular or temporary
Employee by the Employer, shall be credited with one-twelfth (1/12) of
a year of Credited Service for each 173-1/3 Hours of Service completed
as an Employee, other than a Covered Contract Employee, described in
this paragraph (b).
(c) A Participant shall be credited with Credited Service for any period
during which he is on an approved leave of absence for medical or
military reasons that is counted as Vesting Service as provided in
Section 3.1(b). The Earnings for a period of
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absence that is counted as Credited Service shall be the Participant's
rate of Earnings in effect immediately before the period of absence.
3.3 Restoration of Retired Participant or Other Former Employee to Service
(a) If a Participant in receipt of a Retirement Income is restored to
service as an Eligible Employee on or after his Normal Retirement Date,
the following shall apply:
(i) His Retirement Income shall be suspended for each month during
the period of restoration that constitutes a "month of
suspension service" and he shall be granted Credited Service
with respect to such periods of restoration as otherwise
provided by Section 3.2. A month of suspension service is a
month in which the Participant completes at least 40 Hours of
Service with the Employer.
(ii) If the Participant's death occurs during the period of
restoration, any Retirement Income to which he would have been
entitled had he retired immediately prior to his date of
death, based on the benefit formula then in effect and his
Earnings and Credited Service before and after the period when
he was not in the service of the Employer, reduced by an
amount of Equivalent Actuarial Value to the benefits he
received before the date of his restoration to service, shall
be payable to his surviving Spouse or, alternatively, any
payments under an optional benefit, if one has been elected
and become effective, shall begin.
(iii) Upon later retirement, payment of the Participant's Retirement
Income, based on the benefit formula then in effect and his
Earnings and Credited Service before and after the period when
he was not in the service of the Employer, reduced by an
amount of Equivalent Actuarial Value to the benefits he
received before the date of his restoration to service, shall
begin
15
no later than the third month after the month in which the
Participant ceases to be employed in suspension service and
shall be adjusted, if necessary, to recover Retirement Income
payments erroneously made after his restoration to service, in
compliance with Title 29 of the Code of Federal Regulations,
Section 2530.203-3 in a consistent and nondiscriminatory
manner.
(b) If a Participant in receipt of Retirement Income is restored to service
with the Employer before his Normal Retirement Date, the following
shall apply:
(i) His Retirement Income shall cease and any election of an
optional benefit in effect shall be void.
(ii) Any Vesting Service and Credited Service to which he was
entitled at the time of his Separation from Service shall be
restored to him as of his Reemployment Commencement Date.
(iii) Upon later retirement or termination his Retirement Income
shall be based on the benefit formula then in effect and his
Earnings and Credited Service before and after the period when
he was not in the service of the Employer, reduced by an
amount of Equivalent Actuarial Value to the benefits he
received before the date of his restoration to service.
(iv) The part of the Participant's Retirement Income upon later
retirement payable with respect to Credited Service rendered
before his previous Separation from Service shall never be
less than the amount of his previous Retirement Income
modified to reflect any option in effect on his later
retirement.
(c) If a Participant not in receipt of a Retirement Income or a former
Participant is restored to service without having had a Break in
Service, his Vesting Service and
16
Credited Service shall be determined as provided in Sections 3.1, and
3.2, and, if applicable, he shall again become a Participant as of his
Reemployment Commencement Date.
(d) If a Participant not in receipt of a Retirement Income or a former
Participant who received a single-sum settlement in lieu of his
Retirement Income is restored to service with the Employer after having
had a Break in Service, the following shall apply:
(i) The Vesting Service to which he was previously entitled shall
be restored to him, and, if applicable, he shall again become
a Participant as of his Reemployment Commencement Date.
(ii) Any Credited Service to which the Participant was entitled at
the time of his Separation from Service that is included in
the Vesting Service so restored shall not be restored to him.
(iii) Upon later termination or retirement of a Participant whose
previous Vesting Service has been restored under this
paragraph (d), his Retirement Income shall be based on the
benefit formula then in effect and his Earnings and Credited
Service after the period when he was not in the service of the
Employer.
(e) If any other former Participant is restored to service with the
Employer after having had a Break in Service, the following shall
apply:
(i) He shall again become a Participant as of his Reemployment
Commencement Date.
(ii) The Vesting Service to which he was previously entitled shall
be restored to him, except that with respect to a former
Participant who had not completed
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five Years of Vesting Service, such Vesting Service shall be restored
to him if the total number of consecutive one-year Breaks in Service
does not equal or exceed five.
(iii) Any Credited Service to which the Participant was entitled at
the time of his Separation from Service that is included in
the Vesting Service so restored shall be restored to him.
(iv) If a Participant's Credited Service has been restored under
this paragraph (e), his Retirement Income, if any, shall be
based on the benefit formula then in effect and his Earnings
and Credited Service before and after the period when he was
not in the service of the Employer.
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ARTICLE IV
ELIGIBILITY FOR AND AMOUNT OF PENSION
4.1 Normal Retirement
(a) The right of a Participant to his normal Retirement Income shall be
nonforfeitable on attainment of his Normal Retirement Age. A
Participant may retire from service on a normal Retirement Income
beginning on his Normal Retirement Date or he may postpone his
retirement and remain in service after his Normal Retirement Date.
If the Participant postpones his retirement, he shall be retired from
service on a normal Retirement Income beginning on the first day of the
calendar month immediately after the Employer receives his written
application to retire.
If a Participant's retirement is postponed beyond his Normal Retirement
Date, then he shall be granted Credited Service, as otherwise provided
in this Plan, with respect to all periods beginning on and after his
Normal Retirement Date. Such a Participant's Retirement Income shall be
determined on the basis of his Credited Service and Earnings both
before and after his Normal Retirement Date.
Notwithstanding the foregoing, if the Participant was not given a
notice of suspension of benefits in accordance with Section
411(a)(3)(B) of the Code, the Participant's Accrued Benefit as of the
end of each Plan Year following his Normal Retirement Date shall be the
greater of the amount described in the preceding sentence or the
Equivalent Actuarial Value of his Accrued Benefit, determined as of the
later of his Normal Retirement Date or the end of the prior Plan Year.
If a Participant's Accrued Benefit is actuarially increased under the
preceding sentence, such actuarial increase shall be reduced by any
actuarial increase of his Accrued Benefit under Section 5.4(b) because
the Participant remains an Employee after attaining age 70-1/2.
19
(b) Effective January 1, 2004 and subject to the provisions of Section 5.1,
the normal monthly Retirement Income payable upon retirement on or
after Normal Retirement Date shall be equal to greater of (i) or (ii),
where
(i) Equals the sum of (A) and (B), where
(A) Equals the benefit accrued as of December
31, 2003 and determined as one-twelfth of the sum of (1) 0.85% of the
Participant's Average Earnings determined as of December 31, 2003,
multiplied by the Participant's Credited Service as of December 31,
2003, plus (2) an additional 0.75% of the Participant's Average
Earnings, determined as of December 31, 2003, in excess of the Social
Security Tax Base determined as of December 31, 2003 multiplied by the
Participant's Credited Service as of December 31, 2003 (up to a maximum
of 35 years),
and
(B) Equals for each individual one-twelfth of
the sum of the following calculations for each calendar year beginning
after December 31, 2003 that such individual is a Participant: (1)
0.65% of the individual's Earnings while a Participant for such year,
plus (2) an additional 0.65% of the individual's Earnings while a
Participant for such year in excess of 50% of the Social Security Wage
Base for the applicable year, provided that for purposes of the
calculation made pursuant to this Section 4.1(b)(i)(B)(2) no Earnings
of an individual whether as a Participant or not shall be included once
such individual has completed 35 years of Credited Service.
(ii) Equals $70.83.
(c) Notwithstanding any other provision of this Plan to the contrary, the
Accrued Benefit of a Participant as determined under Section 4.1(b)
shall not be less than
20
the Accrued Benefit of such Participant on December 31, 2003 as
calculated under the provisions of the Plan as in effect on December
31, 2003 prior to this Amendment.
4.2 Early Retirement
(a) A Participant who has not reached his Normal Retirement Date but who
has reached (i) an age that is within 10 years of his Normal Retirement
Age or (ii) his 55th birthday in the case of a Participant who was a
participant in the Prior Plan as of December 31, 1988, and completed 10
Years of Vesting Service shall be retired from service on an early
Retirement Income on the first day of the calendar month after the Plan
Administrator receives his written application to retire.
(b) The early Retirement Income shall be a deferred Retirement Income
beginning on the Participant's Normal Retirement Date and, subject to
the provisions of Section 5.1, shall be equal to his Accrued Benefit.
However, subject to the provisions of Section 4.2(a) the Participant
may elect to receive an early Retirement Income beginning on the first
day of any calendar month before his Normal Retirement Date. In that
case, the Participant's Retirement Income that otherwise would have
commenced on his Normal Retirement Date shall be as follows:
(i) With respect to that portion of the Participant
Retirement Income accrued on or prior to December 31, 2003 as set forth
in Section 4.1(b)(i)(A) of the Plan as amended above by item 6 of this
Amendment to the Plan, the Participant's Retirement Income that
otherwise would have commenced on his Normal Retirement Date shall be
reduced for early commencement by 6.7% for each of the first five full
years, 3.3% for each of the next five years and 5% for each of the next
two years by which the Annuity Starting Date precedes the Participant's
Normal Retirement Date, except that in the case of a Participant who
has completed at least 30 Years of Vesting Service, the reduction
applicable to the portion of the benefit determined under Section
4.1(b)(i)(A)(1) of the Plan as amended by item 6 of this Amendment or
the amount of the benefit determined under Section 4.1(b)(ii) of the
Plan as
21
amended by item 6 of this Amendment shall be none for the first three
full years, 8.4% for each of the next two years and 4.2% for each of
the next seven years by which the Annuity Starting Date precedes the
Participant's Normal Retirement Date. Any reduction described in the
preceding sentence shall be applied proportionately to each monthly
interval.
(ii)With respect to that portion of the Participant's
Retirement Income accrued on or after January 1, 2004 as set forth in
Section 4.1(b)(i)(B) of the Plan as amended above by item 6 of this
Amendment to the Plan, the Participant's Retirement Income that
otherwise would have commenced on his Normal Retirement Date shall be
reduced for early commencement by 6.7% for each of the first five full
years, 3.3% for each of the next five years and 5% for each of the next
two years by which the Annuity Starting Date precedes the Participant's
Normal Retirement Date. Any reduction described in the preceding
sentence shall be applied proportionately to each monthly interval.
4.3 Vesting
(a) A Participant shall have a 100 per cent vested nonforfeitable right to
his Accrued Benefit upon attainment of his Normal Retirement Age or
upon completion of five Years of Vesting Service. If the Participant's
employment with the Employer is subsequently terminated for reasons
other than retirement or death, he shall be eligible for a vested
Retirement Income after the Plan Administrator receives his written
application for the Retirement Income.
(b) The vested Retirement Income shall begin on the Participant's Normal
Retirement Date and, subject to the provisions of Section 5.1, shall be
equal to his Accrued Benefit as of his date of Separation from Service.
However, a Participant who has completed 10 Years of Vesting Service
may elect to have his vested Retirement Income begin on the first day
of any calendar month after his attainment of the age
22
described in Section 4.2(a) and before his Normal Retirement Date. In
that event, the Participant's Retirement Income that otherwise would
have commenced on his Normal Retirement Date shall be reduced for early
commencement in accordance with the provisions of Section 4.2(b).
4.4 Disability Retirement
(a) A Participant who has not reached his Normal Retirement Date but who
has completed at least 10 Years of Vesting Service and incurred a
Disability shall be eligible to receive a Disability Retirement Income
commencing on his Normal Retirement Date or on the first day of any
month on or after his eligibility for early retirement pursuant to
Section 4.2(a).
(b) The Disability Retirement Income of a Participant commencing on his
Normal Retirement Date shall be his normal Retirement Income determined
in accordance with Section 4.1, except that (i) the Participant's
Average Earnings shall be determined by assuming that his Earnings
continued during the period of his Disability at the same rate as in
effect on the date of his Separation from Service, (ii) Credited
Service shall continue to be granted during the period of his
Disability in accordance with the Participant's normal work schedule
and (iii) the Participant's long-term disability payments under an
Employer-sponsored plan will be reduced by the amount of his normal
Retirement Income payable under this Plan.
(c) The Disability Retirement Income of a Participant commencing on or
after his eligibility for early retirement shall be his early
Retirement Income determined in accordance with Section 4.2(b), except
that (i) the Participant's Average Earnings shall be determined by
assuming that his Earnings continued during the period of his
Disability at the same rate as in effect on the date of his Separation
from Service, (ii) Credited Service shall continue to be granted during
the period of his Disability in accordance with the Participant's
normal work schedule and (iii) the Participant's long-term disability
payments under an
23
Employer-sponsored plan will be reduced by the amount of his early
Retirement Income payable under this Plan.
4.5 Qualified Pre-Retirement Spouse's Retirement Income
(a) A Qualified Pre-Retirement Spouse's Retirement Income is payable to the
surviving Spouse of a Participant who at the time of his death had a
nonforfeitable vested right to his Accrued Benefit. Such surviving
Spouse shall receive a Qualified Pre-Retirement Spouse's Retirement
Income, which is of Equivalent Actuarial Value to the form of benefit
described in Section 5.1(a) that would begin on the Participant's
Normal Retirement Date, calculated in accordance with (i) or (ii) as
follows, whichever is applicable:
(i) If the Participant's date of death occurred prior to the
earliest date on which he could have elected to receive
Retirement Income pursuant to Section 4.2, 4.3 or 4.4
("earliest retirement age"), such Qualified Pre-Retirement
Spouse's Retirement Income shall be calculated as if the
Participant had terminated employment on his date of death or
on his date of termination of employment, if earlier, had
survived to his earliest retirement age, had elected to retire
at that time and have payments commence immediately in the
form of a Qualified Joint and Survivor Annuity of Equivalent
Actuarial Value to the Retirement Income that otherwise would
be payable pursuant to Section 5.1(a) and had died on the day
after his earliest retirement age. Benefits may commence as
early as the date on which the Participant would have attained
his earliest retirement age, subject to the provisions of
Section 5.3. Benefits commencing after the date on which the
Participant would have attained his earliest retirement age
shall be of Equivalent Actuarial Value to the benefit the
surviving Spouse would have been entitled to if payments had
commenced immediately in accordance with this paragraph
(a)(i).
24
(ii) If the Participant's date of death occurred on or after his
earliest retirement age, such Qualified Pre-Retirement
Spouse's Retirement Income shall be calculated as if the
Participant had retired on the day before his death or on his
date of termination of employment, if earlier, with payments
commencing immediately in the form of a Qualified Joint and
Survivor Annuity of Equivalent Actuarial Value to the
Retirement Income that otherwise would be payable pursuant to
Section 5.1(a) and had died on the day after his retirement.
The surviving Spouse may elect to commence payment under such
annuity within a reasonable period after the Participant's
death. Benefits that commence later than those that would have
been paid to the surviving Spouse under a Qualified Joint and
Survivor Annuity shall be actuarially adjusted to reflect the
delayed payment.
(b) The Qualified Pre-Retirement Spouse's Retirement Income shall be paid
in monthly installments to, and during the life of, the Participant's
surviving Spouse. The earliest period for which the surviving Spouse
may receive a Spouse's benefit shall be the month in which the
Participant would have attained his earliest retirement age.
4.6 Maximum Benefits
(a) For purposes of this Section 4.6, and applying the limitations of Code
Section 415, compensation shall include any amount which is contributed
or deferred by the Employer on behalf of and at the election of a
Participant and which is not includible in gross income by reason of
Code Section 125, 402(g)(3) or 457 or, effective January 1, 2001, Code
Section 132(f)(4).
(b) For purposes of determining whether the limitation contained in the
first sentence of paragraph (a) has been satisfied, in the case of any
benefit that may commence prior to a Participant's Social Security
Retirement Age but on or after
25
the Participant's attainment of age 62, the dollar limitation of Code
Section 415(b)(1)(A) shall be reduced by 5/9 of 1% for each of the
first 36 months and 5/12 of 1% for each of the next 24 months (if
applicable) by which benefits commence before the month in which the
Participant attains Social Security Retirement Age.
(c) For purposes of determining whether the limitation contained in the
first sentence of paragraph (a) has been satisfied, any benefit that
may commence in a form other than a straight life annuity or, in the
case of any benefit that may commence prior to a Participant's
attainment of age 62, the dollar limitation of Code Section
415(b)(1)(A), shall be adjusted so that it is of Equivalent Actuarial
Value to the limitation for a benefit payable as a straight life
annuity or the dollar limitation for a benefit commencing at age 62,
whichever is applicable, using whichever of the following produces the
lower applicable limitation: (i) the interest rate and mortality table
specified in the second sentence of Section 1.20 or (ii) the interest
rate and mortality table specified in the first sentence of Section
1.20 (with respect to a benefit payable in a form other than a straight
life annuity) or the early retirement reduction factors described in
Section 4.2(b) (with respect to a benefit commencing prior to age 62).
In the case of any benefit that may commence on or after the
Participant's Social Security Retirement Age, the dollar limitation of
Code Section 415(b)(1)(A) shall be adjusted so that it is of Equivalent
Actuarial Value to the dollar limitation for a benefit commencing at
the Social Security Retirement Age by using the interest rate that is
the lesser of the interest rate specified in the first sentence of
Section 1.20 or 5 percent.
(d) The dollar limitation of Code Section 415(b)(1)(A) shall be adjusted
annually for increases in the cost of living, as determined by the
Secretary of the Treasury under Code Section 415(d).
(e) For purposes of this Section and Section 4.7, references to annual
amounts of
26
benefits or contributions shall be for a Limitation Year.
4.7 Limitation in Case of Dual Plans
If a Participant is also participating in one or more defined
contribution plans of an Employer, the annual additions (as defined in
Code Section 415(c)(2)) to such defined contribution plans shall be
limited (or reduced, if applicable) so that a "combined benefit factor"
in excess of 1.0 shall not result, pursuant to Code Section 415(e). The
provisions of this Section 4.7 will cease to apply on and after any
Limitation Year beginning after December 31, 1999.
4.8 Transfers and Employment
(a) If an Employee becomes employed by the Employer in any capacity other
than as an Eligible Employee, he shall retain any Credited Service he
has under this Plan and future Service with the Employer shall count as
Years of Vesting Service under the Plan. Upon his later retirement or
termination of employment with the Employer, any benefits to which he
is entitled under the Plan shall be determined under the Plan
provisions in effect on the date he ceases to be an Eligible Employee
and only on the basis of his Credited Service accrued while he was an
Eligible Employee.
(b) Subject to the Break in Service provisions of Article III, if a person
who is originally employed by the Employer in any capacity other than
as an Eligible Employee becomes an Eligible Employee, his period of
Service with the Employer before becoming an Eligible Employee shall
count as Vesting Service under the Plan. Upon his later retirement or
termination of employment, the benefits payable under the Plan shall be
computed under the Plan provisions in effect at that time and only on
the basis of the Credited Service accrued while he is an Eligible
Employee.
27
ARTICLE V
PAYMENT OF RETIREMENT INCOME
5.1 Automatic Form of Payment
(a) If a Participant does not have a Spouse on his Annuity Starting Date,
and if he has not elected an optional benefit as provided in Section
5.2, his Retirement Income shall be payable in monthly installments
ending with the last monthly payment before death.
(b) If a Participant has a Spouse on his Annuity Starting Date, and if he
has not elected an optional form of payment as provided in Section 5.2,
his Retirement Income shall be a Qualified Joint and Survivor Annuity.
The Qualified Joint and Survivor Annuity provides Retirement Income to
the Participant for his life in an amount that is of Equivalent
Actuarial Value to the Retirement Income otherwise payable pursuant to
Section 5.1(a). Upon the Participant's death on or after his Annuity
Starting Date, 50 per cent of the initial amount of monthly Retirement
Income payable to the Participant will be paid to, and during the life
of, the surviving Spouse.
(c) In any case, a single sum payment of Equivalent Actuarial Value shall
be made in lieu of all benefits if the present value of any Retirement
Income does not exceed at the Annuity Starting Date or has not exceeded
at the time of any prior distribution $5,000. The single sum payment
will be made as soon as practicable following the Participant's
Separation from Service. If a Participant's vested Retirement Income is
zero, a single sum payment of Equivalent Actuarial Value shall be
deemed to have been paid and the entire Accrued Benefit shall be
treated as a forfeiture and applied as provided in Section 6.1. If such
Participant again becomes a Participant before incurring five
consecutive one-year Breaks in Service, his Accrued Benefit will be
restored to the amount of such Accrued Benefit on the date of the
deemed distribution.
28
5.2 Optional Forms of Payment
Any Participant may, by written notice received by the Plan
Administrator during the election period specified in Section 5.3,
elect to convert the Retirement Income otherwise payable to him into an
optional benefit of Equivalent Actuarial Value, as provided in one of
the options named below. However, if the Beneficiary selected is not
the Participant's Spouse or if the option selected is not a joint and
survivor form of benefit, the amount of the monthly benefit payable to
the Beneficiary pursuant to the option shall not exceed the applicable
percentage of the Retirement Income payable to the Participant during
his lifetime determined under Proposed Treasury Regulation
Section 1.401(a)(9)-2 Q&A-6(b).
Option 1. Retirement Income payable pursuant to Section 5.1(a),
even if the Participant has a Spouse.
Option 2. A modified Retirement Income payable during the
Participant's life and after his death payable at the
rate of 50 or 100 per cent of his modified Retirement
Income, as the Participant elects, during the life of
and to the Beneficiary named by him when he elected
the option.
Option 3. A modified Retirement Income payable in monthly
installments ending with the last monthly payment
before death, unless the Participant has not received
120 monthly payments (the "period certain"), in which
case payments shall continue to be made to his
Beneficiary until all guaranteed payments have been
made. If the Beneficiary also dies before the
expiration of the period certain, a single sum
payment of Equivalent Actuarial Value to the
remaining guaranteed payments shall be paid to the
estate of the last to survive of the Participant and
his Beneficiary. In no event, however, shall payments
under this Option 3 extend beyond the
29
joint and last survivor expectancy of the Participant
and his Beneficiary.
Option 4. Retirement Income payable in monthly installments
during the Participant's life, beginning only on an
Annuity Starting Date that is prior to the first day
on which the Participant would otherwise be entitled
(upon proper application) to receive his old age
Social Security benefit, whether or not on a reduced
basis because of early commencement of such old age
benefit. Retirement Income payments on or after such
first day shall be adjusted to provide, insofar as
practicable, that the total of such Retirement Income
and the estimated primary old age Social Security
benefit payable on such first day shall equal the
monthly amount of Retirement Income payments prior to
such first day.
5.3 Election of Options
(a) The Plan Administrator, no less than 30 days and no more than 90 days
prior to the Participant's Annuity Starting Date, shall furnish each
Participant a written explanation in nontechnical language of (i) the
terms and conditions of the Qualified Joint and Survivor Annuity
provided by Section 5.1(b), (ii) the financial effect upon the
Participant's Retirement Income if he instead elects payment under one
of the optional forms described in Section 5.2, (iii) in the case of a
married Participant the rights of the Participant's Spouse to consent
or not to consent to the Participant's election of an optional form of
payment and (iv) the right of the Participant to make, and to revoke,
an election under Section 5.2. An election under Section 5.2 may be
made at any time after that information is furnished to the Participant
and before the Participant's Annuity Starting Date; provided that the
period during which the election may be made shall be the 90-day period
ending on the Participant's Annuity Starting Date. An election of an
option under Section 5.2 may be revoked on a form supplied by the Plan
Administrator, and a new
30
election may be made at any time and any number of times during the
applicable election period.
(b) An election of an option under Section 5.2 shall be made by written
notice received by the Plan Administrator prior to the Participant's
Annuity Starting Date. The election shall become effective on the
Participant's Annuity Starting Date. The Participant may revoke his
option by written notice to the Plan Administrator prior to that date.
Notwithstanding the foregoing, a Participant's Annuity Starting Date
may be before the date the election is made, provided that the
Participant may revoke his option within the 7-day period beginning on
the day after the Participant receives the explanation described in
paragraph (a) above and that distribution under the option does not
begin until the expiration of that 7-day period. A Participant's
Annuity Starting Date may also be less than 30 days after receipt of
the written explanation described in paragraph (a) above, provided that
the Participant may revoke his option and distributions may not begin
until the later of the Annuity Starting Date or the expiration of the
7-day period referred to in the preceding sentence.
An election of Option 2 shall be deemed to be revoked in the event the
Beneficiary named under the option shall die prior to the Participant's
Annuity Starting Date and the Participant may thereafter make another
election, subject to the conditions required therefor. If a Participant
who has elected an option shall die prior to the effective date of his
election, the option shall not become operative and the provisions of
Section 4.5 shall apply. A Participant may change the Beneficiary named
in his election at any time prior to the later of the Participant's
Annuity Starting Date or the date distribution under the option
actually commences, or, in the case of Option 3, at any time prior to
the expiration of the period certain.
(c) If the Participant has an eligible Spouse and if the Participant
desires to waive the Qualified Joint and Survivor Annuity form of
Retirement Income, his eligible Spouse must consent to such waiver
(within the 90-day election period) in a written
31
instrument received by the Plan Administrator. The eligible Spouse's
consent must acknowledge the financial effect of the waiver. The waiver
must either (i) designate the Beneficiary (if any) and form of
Retirement Income payment or (ii) expressly permit the Participant to
designate any Beneficiary and the form of payment without further
consent by the eligible Spouse, and must (iii) further acknowledge that
the eligible Spouse has the right to limit the consent to a specific
Beneficiary and form of payment and state that any relinquishment of
such right is voluntary by the eligible Spouse. The eligible Spouse's
written consent and acknowledgment must be witnessed by a Plan
representative or a notary public. The Participant may revoke the
election at any time and any number of times before his Retirement
Income payments begin.
Notwithstanding the foregoing, spousal consent to a Participant's
designation shall not be required if:
(i) the eligible Spouse is designated as the primary beneficiary
or contingent annuitant by the Participant and the method of
payment chosen for the eligible Spouse by the Participant
conforms with the definition of a qualified joint and survivor
annuity under the Code, or
(ii) it is established to the satisfaction of the Plan
Administrator that spousal consent cannot be obtained because
there is no eligible Spouse, because the eligible Spouse
cannot be located or because of such other circumstances as
may be prescribed in regulations issued by the Secretary of
the Treasury.
5.4 Required Commencement Dates
(a) Unless a Participant otherwise elects, the payment of benefits under
the Plan to the Participant will begin not later than the 60th day
after the close of the Plan Year in which the later of the following
events occurs:
32
(i) The Participant attains his Normal Retirement Age, or
(ii) The Participant's Separation from Service with the Employer.
(b) Notwithstanding any provision herein to the contrary, a Participant's
benefit payments shall commence not later than the April 1 of the
calendar year following the later of the calendar year in which he
attains age 70-1/2 or in which his Separation from Service occurs,
except that benefit payments to a Participant who is a Five Percent
Owner, as defined in Section 9.7(b), shall commence not later than the
April 1 of the calendar year following the calendar year in which he
attains age 70-1/2. In the case of a Participant other than a Five
Percent Owner who has a Separation from Service in a calendar year
after the calendar year in which he attains age 70-1/2, his Accrued
Benefit shall be actuarially increased to take into account the period
after age 70-1/2 in which the Participant was not receiving any
benefits under the Plan, to the extent required under Code Section
401(a)(9)(C)(iii).
Distributions to a Participant must be made over the life of the
Participant (or the lives of the Participant and his Spouse or
Beneficiary) or over a period not exceeding the life expectancy of the
Participant (or the life expectancies of the Participant and his Spouse
or Beneficiary).
Distributions will be made in accordance with Section 401(a)(9) of the
Code and the proposed regulations issued thereunder including Section
1.401(a)(9)-2 of such regulations, and the provisions reflecting Code
Section 401(a)(9) shall override any distribution options in the Plan
inconsistent with Section 401(a)(9).
33
5.5 Direct Rollovers
(a) In General
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a Distributee's election under this Section 5.5, a
Distributee may elect, at the time and in the manner prescribed by the
Plan Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified by
the Distributee in a Direct Rollover.
(b) Eligible Rollover Distribution
An Eligible Rollover Distribution is any distribution of all or any
portion of the balance to the credit of the Distributee, except that an
Eligible Rollover Distribution does not include: any distribution that
is one of a series of substantially equal periodic payments (no less
frequently than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated beneficiary, or for a
specified period of ten years of more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the Code; and
the portion of any distribution that is not includible in gross income.
(c) Eligible Retirement Plan
An Eligible Retirement Plan is an individual retirement account
described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan
described in Section 403(a) of the Code, or a qualified trust described
in Section 401(a) of the Code, that accepts the Distributee's Eligible
Rollover Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving Spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement annuity.
34
(d) Distributee
A Distributee includes an Employee or former employee. In addition, the
Employee's or former employee's surviving Spouse and the Employee's or
former employee's Spouse or former spouse who is the alternate payee
under a qualified domestic relations order, as defined in Section
414(p) of the Code, are Distributees with regard to the interest of the
Spouse or former spouse.
(e) Direct Rollover
A Direct Rollover is a payment by the Plan to the Eligible Retirement
Plan specified by the Distributee.
35
ARTICLE VI
CONTRIBUTIONS
6.1 Employer's Contributions
It is the intention of the Employer to continue the Plan and make the
contributions that are necessary to maintain the Plan on a sound
actuarial basis and to meet the minimum funding standards prescribed by
law. However, should the Board of Directors terminate the Plan in
accordance with the provisions of Article X, the Employer shall
discontinue its contributions. Any forfeitures shall be used to reduce
the Employer's contributions otherwise payable.
6.2 Return of Contributions
(a) If all or part of the Employer's contributions hereunder are
conditioned upon their deductibility under Section 404 of the Code and
the deduction for all or any part of such contributions to the Plan is
disallowed by the Internal Revenue Service, the portion of the
contributions to which that disallowance applies shall be returned to
the Employer without interest, but reduced by any investment loss
attributable to those contributions. The return shall be made within
one year after the date of the disallowance of deduction. All Employer
contributions to the Plan are conditioned upon their deductibility.
(b) If an Employer contribution is made due to a mistake in fact, the
Employer may require the Trustee to return the contribution, without
interest but reduced by any investment loss allocable to the
contribution. The return shall be made as soon as practicable within
one year after the date the contribution was made.
(c) If an Employer contribution hereunder is conditioned on initial
qualification of the Plan under Section 401(a) of the Code and if the
Plan receives an adverse determination letter with respect to its
initial qualification, such contribution shall be
36
returned to the Employer within one year after the date the initial
qualification is denied, but only if the application for determination
is made by the time prescribed by law for filing the Employer's return
for the taxable year in which the Plan is adopted, or such later date
as the Secretary of the Treasury may prescribe. All Employer
contributions hereunder are conditioned upon the initial qualification
of the Plan.
37
ARTICLE VII
ADMINISTRATION OF PLAN
7.1 Records and Notices
The Plan Administrator shall keep a record of all its proceedings and
acts with respect to its administration of the Plan and shall maintain
all such books of accounts, records and other data as may be necessary
for the proper administration of the Plan. The Plan Administrator shall
notify the Trustees of any action taken by the Plan Administrator
affecting the Trustees and its obligations or rights regarding the Plan
and, when required, shall notify any other interested person or
persons.
7.2 Powers and Duties
The Plan Administrator shall have the responsibility for the general
administration of the Plan and for carrying out the provisions of the
Plan. The Plan Administrator shall administer the Plan in accordance
with its terms and shall discharge its duties with care, skill,
prudence and diligence under the circumstances then prevailing that a
prudent man acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and with
like aims. The Plan Administrator shall have such powers as may be
necessary to discharge its duties in managing and controlling the
operations and administration of the Plan. The Plan Administrator shall
have full and complete authority and control with respect to the
operations and administration of the Plan unless the Plan Administrator
allocates and delegates such authority or control pursuant to the
procedures stated in Section 7.2(b) or (c). The Plan Administrator
shall have discretionary authority to construe the terms of the Plan
and determine eligibility for benefits (including but not limited to
determination of an individual's eligibility for Plan participation,
the right to and amount of any benefit payable under the Plan, and the
date on which an individual ceases to be a Participant), and decide
disputed
38
claims in accordance with its interpretation of the terms of the Plan.
Decisions of the Plan Administrator shall be subject to court review
only to determine whether such decisions of the Plan Administrator are
an abuse of the Plan Administrator's discretion hereunder. The Plan
Administrator shall have no authority or control with respect to the
assets of the Plan other than as specifically provided herein and shall
not receive any compensation from the Plan for his services as such.
The powers of the Plan Administrator shall include, but shall not be
limited to, the following:
(a) To employ such accountants, counsel or other persons as it
deems necessary or desirable in connection with the
administration of the Plan and to employ one or more persons
to render advice with regard to any administrative
responsibility pursuant to the Plan. The Trust Fund shall bear
the costs of such services and other administrative expenses
unless paid by the Employer.
(b) To designate in writing persons who are to perform any of its
powers and duties hereunder including, but not limited to,
fiduciary responsibilities (other than any responsibility to
manage or control the assets of the Plan) pursuant to the
Plan.
(c) To allocate in writing any of its powers and duties hereunder,
including but not limited to fiduciary responsibilities (other
than any responsibility to manage or control the assets of the
Plan) among those persons who have been designated to perform
fiduciary responsibilities pursuant to the Plan.
(d) To construe and interpret the Plan.
(e) Subject to Section 7.4, to resolve all questions arising in
the administration, interpretation and application of the
Plan, including, but not limited to, questions as to the
eligibility or the right of any person to a benefit.
39
(f) To adopt such by-laws, rules, regulations, forms and
procedures from time to time as it deems advisable and
appropriate in the proper administration of the Plan.
(g) To receive from Participants such information as shall be
necessary for the proper administration of the Plan.
(h) To furnish, upon request, such annual reports with respect to
the administration of the Plan as are reasonable and
appropriate.
(i) To receive from the Trustees and review reports of the
financial condition and receipts and disbursements of the
Trust Fund.
(j) To prescribe procedures to be followed by any person in
applying for distributions pursuant to the Plan and to
designate the forms or documents, evidence and such other
information as the Plan Administrator may reasonably deem
necessary, desirable or convenient to support an application
for such distribution.
(k) To issue directions to the Trustees and thereby bind the
Trustees concerning all benefits to be paid pursuant to the
Plan.
(l) To apply consistently and uniformly the rules, regulations and
determinations to all Participants and Beneficiaries in
similar circumstances.
7.3 Actuary
As an aid to the Plan Administrator in adopting tables and in fixing
the rate of contributions payable to the Plan, the actuary designated
by the Board of Directors shall make annual actuarial valuations of the
contingent assets and liabilities of the
40
Plan and shall certify to the Plan Administrator the tables and rates
of contribution that he would recommend for use by the Plan.
7.4 Claims Procedure
A Participant or Beneficiary who believes he is entitled to payments
other than those awarded by the Plan Administrator may file a claim in
writing with the Plan Administrator stating the nature of his claim,
the facts supporting his claim, the amount claimed and his name and
current address. The Plan Administrator shall investigate, consider and
render a written decision regarding any claim filed pursuant to this
Section 7.4. If the Plan Administrator denies such claim, it shall
render a written decision within 90 days of receipt of the claim
describing the reasons for denial, specifically referring to pertinent
Plan provisions, informing the claimant that he or his duly authorized
representative may review pertinent documents and may submit issues and
comments in writing and advising the claimant of the procedure for
appealing such denial.
Within 60 days after notice that a claim is denied, the claimant may
file a written appeal to the Plan Administrator, including any
comments, statements or documents he may wish to provide. The Plan
Administrator shall, within a reasonable time after the submission of a
written appeal by a claimant, entertain any oral presentation the
claimant or his duly authorized representative wishes to make. Within
60 days (120 days if special circumstances require an extension of time
for processing) after the later of the submission of the written appeal
or the oral presentation by the claimant or his personal
representative, the Plan Administrator shall render a determination on
the appeal of the claim in a written statement including the reasons
therefor. The determination so rendered by the Plan Administrator shall
be binding upon all parties.
41
ARTICLE VIII
MANAGEMENT OF FUNDS
8.1 Trustee
The Company, by resolution of the Board of Directors, shall appoint one
or more Trustees to receive and hold in trust all contributions paid
into the Trust Fund. Such Trustee or Trustees shall serve at the
pleasure of the Board of Directors and shall have such rights, powers
and duties as the Board of Directors shall from time to time determine.
The Employers shall have no liability for the payment of benefits under
the Plan or for the administration of the funds paid over to the
Trustee.
8.2 Exclusive Benefit Rule
Except as otherwise provided in the Plan, no part of the corpus or
income of the funds of the Plan shall be used for, or diverted to,
purposes other than for the exclusive benefit of Participants and other
persons entitled to benefits under the Plan before the satisfaction of
all liabilities with respect to them. No person shall have any interest
in or right to any part of the earnings of the funds of the Plan, or
any right in, or to, any part of the assets held under the Plan, except
as and to the extent expressly provided in the Plan.
8.3 Investment Managers
Any Investment Manager, as defined in Section 3(38) of ERISA, may be
appointed by the Company to manage (including the power to acquire and
dispose of) all or any part of the Trust Fund. In the event of any such
appointment, the Company shall establish the portion of the assets of
the Trust that shall be subject to the management of the Investment
Manager and shall so notify the Trustee in writing. With respect to
such assets over which an Investment Manager has investment
42
responsibility, the Investment Manager shall possess all of the
investment powers and responsibilities granted to the Trustee under the
Trust Agreement, and the Trustee shall invest and reinvest such assets
pursuant to the written directions of the Investment Manager. If the
Company so directs, an Investment Manager shall have the power to
acquire and dispose of assets in the name of the Trust Fund.
43
ARTICLE IX
TOP-HEAVY PROVISIONS
9.1 When Applicable
If this Plan is determined to be "Top-Heavy", as defined in Section
9.5, for any Plan Year, the provisions of this Article shall supersede
any conflicting provisions in the Plan.
9.2 Minimum Accrual
For each Plan Year that this Plan is Top-Heavy, each Participant who is
not a Key Employee must accrue a nonintegrated benefit that, when
expressed as an annual benefit payable as a single life annuity
commencing at Normal Retirement Age, is not less than two percent of
the Participant's Average Earnings multiplied by his years of Credited
Service. Average Earnings are averaged over the five consecutive years
(disregarding years during which the Plan is not Top-Heavy) for which
the Participant had the highest Earnings. However, a Participant's
minimum benefit is not required to exceed 20 percent of his Average
Earnings. This minimum accrual shall be made even though, under other
Plan provisions, the Participant would not otherwise be entitled to
receive an accrual or would have received a lesser accrual for the year
because of (i) the Participant's failure to be employed on a specified
date such as the last day of the Plan Year, (ii) the Participant's
failure to make mandatory contributions, if any, to the Plan, or (iii)
the Participant's Earnings being less than a stated amount. To the
extent that the Participant does not receive the minimum accrual under
this Plan but is covered under any other plan or plans of the Employer,
the requirements of this Section shall be satisfied if the minimum
benefit or minimum allocation requirements applicable to Top-Heavy
plans are met in the other plan or plans.
44
9.3 Vesting Rules
For any Plan Year in which this Plan is Top-Heavy, the minimum vesting
schedule as described in Section 9.4 will automatically apply to the
Plan in lieu of the schedule provided in Article IV. The minimum
vesting schedule applies to all accrued benefits within the meaning of
Code Section 411(a)(7) (except those attributable to Participant
contributions, if any), including benefits accrued before the Plan
became Top-Heavy. Further, no reduction in vested benefits may occur in
the event the Plan's status as Top-Heavy changes for any Plan Year.
However, this Section does not apply to the Accrued Benefit of any
Employee who does not complete any Vesting Service regarding any period
after the Plan has initially become Top-Heavy and such Employee's
Accrued Benefit will be determined without regard to this Section.
9.4 Vesting Schedule
In the event the minimum vesting schedule shall apply, the
nonforfeitable interest of each Participant in his Accrued Benefit
attributable to Employer contributions shall be determined on the basis
of the following:
NUMBER OF YEARS OF SERVICE VESTED INTEREST
- -------------------------- ---------------
Less than 2 Years 0%
2 Years but less than 3 20%
3 Years but less than 4 40%
4 Years but less than 5 60%
5 Years or more 100%
45
9.5 Top-Heavy Determination
A Top-Heavy Plan is a Plan in which, as of the Valuation Date, the
ratio of the present value of the accrued benefits for Key Employees to
the present value of the accrued benefits for all Employees exceeds 60
percent. For purposes of determining the present value of the accrued
benefit of any Employee, distributions made with respect to such
Employee within a five-year period ending on the Determination Date
must be included. The Determination Date is the last day of the
preceding Plan Year. The Valuation Date is the day during the Plan Year
in which the Determination Date occurs that is used in computing Plan
costs for minimum funding.
Present value shall be based on the interest rate and mortality table
described in the second sentence of Section 1.20. If this Plan is
required to be or is permissively aggregated with any other plan or
plans as provided in Section 9.6, the same mortality and interest
assumptions shall apply to all plans that are aggregated.
The present value of accrued benefits of any Employee other than a Key
Employee under any defined benefit plan used in testing whether the
Plan is Top-Heavy shall be determined as if such benefits accrued not
more rapidly than the slowest accrual rate permitted under Code Section
411(b)(1)(C) unless the same accrual method uniformly applies for all
defined benefit plans maintained by the Employer.
9.6 Aggregation Groups
The required aggregation group consists of each plan of the Employer in
which a Key Employee is a participant and each other plan of the
Employer that enables any plan of such Employer to meet the
qualification requirements of Code Section 401(a)(4) and the minimum
participation standards of Code Section 410. The
46
Employer may permit any plan not required to be included in an
aggregation group as being part of such group if such group would
continue to meet the Code Section requirements previously set forth.
Each plan of the Employer required to be included in an aggregation
group shall be treated as a Top-Heavy plan if such group is a Top-Heavy
group. A required aggregation group will be considered a Top-Heavy
group if the sum of the present value of the cumulative accrued
benefits for Key Employees under all defined benefit plans included in
such group and the aggregate of the account balances of Key Employees
under all defined contribution plans included in such groups increased
by the aggregate distributions made in the five-year period ending on
the Determination Date exceeds 60 percent of a similar sum determined
for all Employees.
9.7 Key Employee Defined
(a) A Key Employee is any Employee or former Employee (and the
Beneficiaries of such Employee) who at any time during the Plan Year or
any of the four preceding Plan Years (i) is an officer, (ii) is one of
the 10 Employees owning the largest interests in the Employer, (iii) is
a Five Percent Owner or (iv) is a One Percent Owner and has annual
compensation from the Employer of more than $150,000.
For purposes of determining if an officer is a Key Employee, only
Employees with annual compensation in excess of 50 percent of the
yearly dollar limitation under Code Section 415(b)(1)(A) will be taken
into account as Key Employees, provided that the number of Employees
treated as officers shall be no more than 50 or, if fewer, the greater
of three Employees or 10 percent of the Employees.
For purposes of determining the 10 Employees owning the largest
interests in the Employer, only Employees with annual compensation in
excess of the yearly dollar limit on annual additions to defined
contribution plans will be taken into account as
47
Key Employees. If two Employees have the same ownership interest in the
Employer, the Employee with greater annual compensation will be treated
as having a larger interest.
(b) A Five Percent Owner is any Employee who owns more than five percent of
the outstanding stock of the corporation or stock possessing more than
five percent of the total combined voting power of all stock of the
corporation.
(c) A One Percent Owner is any Employee who owns more than one percent of
the outstanding stock of the corporation or stock possessing more than
one percent of the total combined voting power of all stock of the
corporation.
9.8 Special Limitation
In any Top-Heavy Plan Year, the figure "1.25" appearing in Code Section
415(e) shall be deemed to read "1.0" with respect to this Plan, unless
the Employer's defined benefit plans are amended with respect to such
Plan Year by changing the figures "two percent" and "20 percent"
appearing in Section 9.2 and corresponding section of any other such
plan to read "three percent" and "30 percent" respectively. In any
Super Top-Heavy Plan Year, the figure "1.25" appearing in Section
415(e) of the Code shall be deemed to read "1.0" with respect to this
Plan. "Super Top-Heavy Plan Year" means any Top-Heavy Plan Year in
which the Top-Heavy Ratio in Section 9.5 exceeds 90 percent.
48
ARTICLE X
RETIREE HEALTH PLAN ACCOUNT
10.1 Establishment of Retiree Health Plan
(a) There is created, established and maintained under this Plan a separate
account known as the Retiree Health Plan Account. The Trustee and Plan
Administrator agree to hold and administer the Retiree Health PIan
Account, and to receive contributions hereto, for the purpose of
providing for the payment of certain medical expenses, pursuant to
Section 401(h) of the Code, for Covered Retirees and their Covered
Dependents (as such terms are defined below). The separate account
shall be for record keeping purposes only. Funds contributed to the
Retiree Health Plan Account may be invested without identification of
which investments are allocable to the Retiree Health Plan Account.
(b) (i) No part of the income or corpus of the Retiree Health Plan
Account shall be (either within the taxable year of
contribution or thereafter) used for, or diverted to, any
purpose (including the provision of any retirement benefits
provided under the Plan) other than the provision of Medical
Benefits, at any time prior to the satisfaction of all
liabilities under this Plan with regard to the payment of
Medical Benefits in accordance with this Article X.
Notwithstanding the above, the payment of any necessary or
appropriate expenses attributable to the administration of the
Retiree Health Plan Account may be made from the income or
corpus of such account.
(ii) Notwithstanding any other termination provisions herein, any
amounts in the Retiree Health Plan Account which remain in
such account following satisfaction of all liabilities for the
payment of Medical Benefits arising under this Article X shall
be returned to the Employer.
49
(c) Notwithstanding the foregoing, no Medical Benefits shall be payable to
any person who is, or ever has been, a Key Employee, as defined in
Section 9.7, or his Covered Dependents.
10.2 Definitions
For purposes of this Article X, the following terms shall have the
meaning set forth below unless otherwise clearly required by the
context:
(a) "Covered Dependent" shall mean a Covered Retiree's dependent
who meets the conditions for coverage under the EG&G Technical
Services, Inc. Retiree Health Plan. In no event will the term
Covered Dependent include any person who is an eligible
Covered Retiree himself or any person who is employed
full-time with the Employer. If both parents of any Covered
Dependent child are eligible Covered Retirees, then the
Covered Dependent child shall be considered as a Covered
Dependent of only one of the Covered Retirees.
(b) "Covered Retiree" shall mean a Retired Participant who has
completed at least ten (10) Years of Vesting Service on his
Normal Retirement Date or date of eligibility for early
retirement. In no event shall a Covered Retiree include a
person not covered under the EG&G Technical Services, Inc.
Retiree Health Plan, or a person who is or ever was a Key
Employee.
(c) "Medical Benefits" shall mean, with respect to a Covered
Retiree, a percentage of the Per Capita Retiree Health Cost,
such percentage being equal to $3,400 (as indexed from time to
time) divided by the Per Capita Retiree Health Cost, but in no
event in excess of 100% of such cost.
(d) "Per Capita Retiree Health Cost" for any year means the total
annual Employer cost of claims under the EG&G Technical
Services, Inc. Retiree
50
Health Plan, divided by the number of retired employees
covered under that plan at any time during that year.
(e) "EG&G Technical Services, Inc. Retiree Health Plan" shall mean
the EG&G Technical Services, Inc. health plan, as it relates
to retired persons, as it shall be amended from time to time,
and the provisions of such Plan shall be incorporated by
reference herein.
(f) "Retired Participant" means an individual who was an active
Participant under this Plan until his retirement date and who
retires from employment with the Employer and is thereupon
immediately eligible to receive retirement benefits hereunder.
10.3 Election to Continue Coverage
In the event a Covered Dependent loses coverage as a result of the
death or divorce of a Covered Retiree, such Covered Dependent shall
have coverage continuation rights as shall be provided under the EG&G
Technical Services, Inc. Retiree Health Plan, and the provisions of
such continuation coverage shall be incorporated by reference with
respect to benefits under the EG&G Technical Services, Inc. Retiree
Health Plan Account created hereunder. Because such continuation
coverage shall be provided under the EG&G Technical Services, Inc.
Retiree Health Plan at the Covered Dependent's expense, no further
benefits will be paid from the Retiree Health Plan Account with respect
to such Covered Dependents.
10.4 Funding Method and Policy
All contributions to fund benefits provided under this Section shall be
made by the Employer, except those relating to continuation coverage
described in Section 10.3. Subject to the restrictions of this Section,
the Employer shall
51
contribute to the Retiree Health Plan Account annually an amount that
is reasonably estimated to cover the total cost of the benefits to be
provided hereunder and that satisfies the general requirements
applicable to deductions allowable under Code Section 404 (as set forth
in Treasury Regulations Section 1.404(a)-3(f)). The total cost of
providing Medical Benefits shall be determined in accordance with any
generally accepted actuarial method that is reasonable in view of the
provisions and coverage of the Plan, the funding medium, and other
applicable considerations.
10.5 Subordination to Retirement Benefits
It is intended that the Medical Benefits provided under this Article X
be subordinate at all times to the retirement benefits provided under
the Plan. Therefore, the aggregate of contributions to the Retiree
Health Plan Account shall at no time exceed 25 percent of the aggregate
of contributions for all purposes of this Plan, other than
contributions to fund past service credits. For this purpose
contributions to this plan for benefits other than Medical Benefits
shall not be deemed to be less than the cost of such benefits
determined under the projected unit credit method (other than the cost
of past service credits).
10.6 Benefits Provision
The benefits payable pursuant to this Section shall be limited to the
payment of Medical Benefits for Covered Retirees and their Covered
Dependents. The Medical Benefits provided under this Section and the
Employer contributions to fund said Benefits shall not discriminate in
favor of the highly compensated employees of the Employer within the
meaning of Code Section 414(q).
10.7 Coordination with EG&G Technical Services, Inc. Retiree Health Plan
Benefits under this plan shall be provided by reimbursing annually the
Employer or
52
other paying agent under the EG&G Technical Services, Inc. Retiree
Health Plan for the percentage of the Per Capita Retiree Health Cost
for each Covered Retiree.
10.8 Reservation of the Right to Terminate Benefits
The Employer reserves the right to amend or terminate the Medical
Benefits provided hereunder or the EG&G Technical Services, Inc.
Retiree Health Plan at any time. In such event assets in the Medical
Benefit Account shall be used to provide the Medical Benefits provided
hereunder, both to Covered Retirees and those Participants who at the
date of termination subsequently become Covered Retirees, but only to
the extent assets remain in such account. After the satisfaction of all
such liabilities, any assets remaining shall revert to the Employer.
10.9 Disallowance of Deduction
Notwithstanding anything to the contrary contained herein, the
provisions of Section 6.2(a) and (c) shall apply with respect to all
contributions made to the Retiree Health Plan Account.
53
ARTICLE XI
AMENDMENT, MERGER AND TERMINATION
11.1 Amendment of Plan
The Board of Directors reserves the right at any time and from time to
time, and, to the extent permitted by the Code or Treasury Regulations,
retroactively if deemed necessary or appropriate, to amend in whole or
in part any or all of the provisions of the Plan. However, no amendment
shall make it possible for any part of the funds of the Plan to be used
for, or diverted to, purposes other than for the exclusive benefit of
persons entitled to benefits under the Plan before the satisfaction of
all liabilities with respect to them. No amendment shall be made that
has the effect of decreasing the Accrued Benefit of any Participant or
of reducing the nonforfeitable percentage of the Accrued Benefit of a
Participant below the nonforfeitable percentage computed under the Plan
as in effect on the date on which the amendment is adopted or, if
later, the date on which the amendment becomes effective. For purposes
of the preceding sentence, an amendment that has the effect of (i)
eliminating or reducing an early retirement benefit or a
retirement-type subsidy, or (ii) eliminating an optional form of
benefit, with respect to benefits attributable to service before the
amendment shall be treated as reducing Accrued Benefits. 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 preamendment conditions for the subsidy. If the Plan is
amended in any way that directly or indirectly affects the computation
of a Participant's nonforfeitable percentage, each Participant with at
least three Years of Vesting Service may elect, within a reasonable
period after the adoption of the amendment, to have his nonforfeitable
percentage computed without regard to such amendment.
54
11.2 Merger or Consolidation
The Plan may not be merged or consolidated with, and its assets or
liabilities may not be transferred to, any other plan unless each
person entitled to benefits under the Plan would, if the resulting plan
were then terminated, receive a benefit immediately after the merger,
consolidation, or transfer that is equal to or greater than the benefit
he would have been entitled to receive immediately before the merger,
consolidation, or transfer if the Plan had then terminated.
11.3 Additional Participating Employers
(a) If any company is or becomes a subsidiary of or associated with the
Company, the Board of Directors may include the employees of that
subsidiary or associated company in the participation of the Plan upon
appropriate action by that company necessary to adopt the Plan. In that
event, or if any persons become Employees of an Employer as the result
of merger or consolidation or acquisition of all or part of the assets
or business of another company or for purposes of a specific assignment
at a specific location, the Board of Directors shall determine to what
extent, if any, previous service with the subsidiary, associated or
other company or at the specific location shall be recognized under the
Plan, but subject to the continued qualification and tax-exempt status
of the Plan and trust, respectively, under the Code.
(b) Any Employer may terminate its participation in and withdraw from the
Plan upon appropriate action by its board of directors, in which event
the funds of the Plan held on account of Participants in the employ of
that Employer shall be determined by the Plan Administrator and shall
be applied as provided in Section 11.4 if the Plan should be
terminated, or shall be segregated by the Trustee as a separate trust,
pursuant to certification to the Trustee by the Plan Administrator,
continuing the Plan as a separate plan for the employees of that
Employer under which the board of directors of that Employer shall
succeed to all the powers and duties of
55
the Board of Directors, including the appointment of a plan
administrator. Except as required by applicable law, the withdrawal of
an Employer from the Plan shall not constitute a partial or complete
termination of the Plan as thereafter in effect with respect to any
other Employer.
11.4 Termination of Plan
The Employer intends to continue the Plan indefinitely. However, the
Board of Directors may terminate the Plan for any reason at any time.
In case of termination of the Plan, the rights of Participants to the
benefits accrued under the Plan to the date of the termination, to the
extent then funded or guaranteed by the Pension Benefit Guaranty
Corporation, if greater, shall be nonforfeitable. The funds of the Plan
shall be used for the exclusive benefit of persons entitled to benefits
under the Plan as of the date of termination, except as provided in
Section 6.2. However, any funds not required to satisfy all liabilities
of the Plan for benefits because of erroneous actuarial computation
shall be returned to the Employer. The Plan Administrator shall
determine on the basis of actuarial valuation the share of the funds of
the Plan allocable to each person entitled to benefits under the Plan
in accordance with Section 4044 of ERISA or corresponding provision of
any applicable law in effect at the time. In the event of a partial
termination of the Plan, the provisions of this Section shall be
applicable to the Participants affected by that partial termination.
56
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 Limitation of Liability
Neither the Company, any Employer, the Plan Administrator, nor any of
their respective directors, officers and employees, shall incur any
liability for any act or failure to act unless such act or failure to
act constitutes a lack of good faith, willful misconduct or gross
negligence in relation to the Plan or the Trust Fund.
12.2 Indemnification
The Employer indemnifies and saves harmless the Plan Administrator from
and against any and all loss resulting from liability to which the Plan
Administrator may be subjected by reason of any act or conduct (except
willful misconduct or gross negligence) in the Plan Administrator's
official capacity in the administration of this Plan, the Trust Fund or
both, including all expenses reasonably incurred in the Plan
Administrator's defense, in case the Employer fails to provide such
defense. The indemnification provisions of this Section 12.2 do not
relieve the Plan Administrator from any liability under ERISA for
breach of a fiduciary duty. Furthermore, the Plan Administrator and the
Employer may execute a letter agreement further delineating the
indemnification agreement of this Section 12.2, provided the letter
agreement must be consistent with and does not violate ERISA. The
indemnification provisions of this Section 12.2 extend to the Trustee
solely to the extent provided by a letter agreement executed by the
Trustee and the Employer.
12.3 Compliance with ERISA
Anything herein to the contrary notwithstanding, nothing above or any
other provision contained elsewhere in the Plan shall relieve a
fiduciary or other person
57
of any responsibility or liability for any responsibility, obligation
or duty imposed upon him pursuant to Title I, Part 4 of ERISA.
Furthermore, anything in this Plan to the contrary notwithstanding, if
any provision of this Plan is voided by ERISA Sections 410 and 411,
such provision shall be of no force and effect only to the extent that
it is voided by such Section.
12.4 Nonalienation of Benefits
Except with respect to any indebtedness owing to the Trust Fund created
hereunder or payments required pursuant to a "Qualified Domestic
Relations Order," as defined by the Code, benefits payable under the
Plan shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, charge, garnishment,
execution or levy of any kind, either voluntary or involuntary,
including any such liability which is for alimony or other payment for
the support of a spouse or former spouse, or any relative of a
Participant prior to actually being received by the person entitled to
the benefit pursuant to the terms of the Plan. Any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge
or otherwise dispose of any right to amounts payable hereunder shall be
void. Furthermore, no benefit under the Plan shall in any manner be
liable for or subject to the debts, contracts, liabilities, engagements
or torts of the person entitled to such benefit. If the terms of this
Section 12.4 are contrary to the law governing in a particular
circumstance, then, only as to that circumstance, or any such payment
shall be exempt to the maximum extent permitted by such law.
12.5 Employment Not Guaranteed By Plan
Neither the establishment of the Plan nor its amendment nor the
granting of a benefit pursuant to the Plan shall be construed as giving
any Participant the right to continue as an employee of an Employer, as
limiting the rights of such Employer to dismiss or impose penalties
upon the Participant or as modifying in any other
58
way the terms of employment of any Participant.
12.6 Form of Communication
Any election, application, claim, notice or other communication
required or permitted to be made by or to a Participant, the Plan
Administrator, the Company, or an Employer in writing shall be made in
such form as the Plan Administrator, the Company or the Employer, as
the case may be, shall prescribe. Such communication shall be effective
upon mailing if sent first class, postage prepaid and addressed to the
addressee at its principal office, or to the Participant at his last
known address, or upon personal delivery, if delivered to an officer of
the addressee or to the Participant, as the case may be.
12.7 Facility of Payment
In the event that the Participant entitled to receive payments
hereunder is unable to care for his affairs because of illness,
accident or disability, and a duly qualified guardian or legal
representative is appointed for such Participant, the Plan
Administrator shall direct the Trustees to pay any amount to which the
Participant is entitled to such duly qualified guardian or legal
representative upon claim of such guardian or legal representative. If
a duly qualified guardian or legal representative is not appointed for
such Participant, the Plan Administrator shall direct the Trustees to
pay any amount to which the Participant is entitled to such person's
Spouse, child, grandchild, parent, brother or sister or to a person
deemed by the Plan Administrator to have incurred expense for such
person entitled to payment. Any payment made pursuant to this Section
12.7 in good faith shall be a payment for the account of the
Participant and shall be a complete discharge from any liability of the
Trust Fund or the Trustees therefor.
59
12.8 Service in More Than One Fiduciary Capacity
Any individual, entity or group of persons may serve in more than one
fiduciary capacity with respect to the Plan, the Trust Fund or both.
12.9 Binding Effect of Company's Actions
Each Employer shall be bound by any all decisions and actions taken by
the Company hereunder.
12.10 Governing Law
Except to the extent inconsistent with and preempted by ERISA or other
applicable Federal law, the Plan and all matters arising thereunder
shall be governed by the laws of the State of Maryland.
IN WITNESS WHEREOF, the undersigned officer duly authorized has
appended his signature this 31st day of December, 2003.
EG&G TECHNICAL SERVICES, INC.
By: /s/ Joseph Masters
------------------------------------
Title: Vice President and General
Counsel
Date: December 31, 2003
60