Exhibit 10.xxxi
THE MEAD CORPORATION
EXCESS EARNINGS BENEFIT PLAN
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TABLE OF CONTENTS
SECTION 1 - GENERAL.............................................................. 1
1.1 History and Purpose................................................. 1
1.2 Plan Funding and Administration..................................... 1
1.3 Applicable Law...................................................... 2
1.4 Gender and Number................................................... 2
1.5 Assignment.......................................................... 2
1.6 Plan Year........................................................... 2
SECTION 2 - PARTICIPATION........................................................ 2
2.1 Eligibility for Participation....................................... 2
2.2 Participation Not Contract of Employment............................ 2
SECTION 3 - DETERMINATION OF EXCESS EARNINGS BENEFIT AMOUNT...................... 2
3.1 Excess Earnings Benefit Amount...................................... 2
3.2 Unlimited Accrued Benefit........................................... 3
3.3 Qualified Accrued Benefit........................................... 3
SECTION 4 - DISTRIBUTION OF EXCESS EARNINGS BENEFIT.............................. 4
4.1 Distribution to a Participant....................................... 4
4.2 Distribution to a Surviving Spouse.................................. 4
4.3 Distribution in Discretionary Form.................................. 4
4.4 Distribution to a Beneficiary....................................... 5
4.5 ECAP Credit in Lieu of Distribution................................. 6
4.6 Distribution to Incapacitated Persons............................... 6
SECTION 5 - DISPUTE RESOLUTION................................................... 6
5.1 Notice of Denial.................................................... 6
5.2 Notice of Appeal.................................................... 6
5.3 Decision on Appeal.................................................. 7
SECTION 6 - AMENDMENT AND TERMINATION............................................ 7
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THE MEAD CORPORATION EXCESS EARNINGS BENEFIT PLAN
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SECTION 1 - GENERAL
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1.1 History and Purpose. Effective January 1, 1976, THE MEAD
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CORPORATION, an Ohio corporation ("Mead") established The Mead Excess Benefits
Plan (the "Prior Plan"). The Prior Plan was subsequently amended and restated,
effective May 1, 1979, amended, effective November 1, 1986, and again amended
and restated, effective October 27, 1988. The following provisions constitute
an amendment, restatement, and continuation of the portion of the Prior Plan
that is intended to be a "top hat plan" (within the meaning of the Employee
Retirement Income Security Act of 1974 ("ERISA")) into a separate plan which
shall be effective January 1, 1996, and shall be known as THE MEAD CORPORATION
EXCESS EARNINGS BENEFIT PLAN (the "Plan"). The sole purpose of the Plan is to
supplement the amount of the "Pension" (as defined in the Mead Retirement Plan)
payable to or on account of any employee or former employee of Mead or of any
"Affiliate" (as defined below) from The Mead Retirement Plan to the extent, if
any, that the amount of his Pension is limited by application of the provisions
of section 401(a)(17) of the Internal Revenue Code of 1986 (the "Code"). Mead
and such Affiliates are sometimes referred to below individually, as an
"Employer" and, collectively, as the "Employers." The term "Affiliate" means
any entity during the period that it is, along with Mead, a member of a
controlled group of corporations, a controlled group of trades and businesses,
an affiliated service group or any other entity designate by the Secretary of
the Treasury as described in sections 414(b), 414(c), 414(m), and 414(o),
respectively, of the Code.
1.2 Plan Funding and Administration. The benefits payable under the Plan
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are unfunded and are payable, when due, from the general assets of the Employers
or, in the sole discretion of the Compensation Committee of the Board of
Directors of Mead (the "Committee"), from the assets of a benefit trust, the
assets of which shall be subject to the claims of the unsecured general
creditors of the Employers. Notwithstanding the foregoing, in the event of a
"Potential Change in Control" (as defined in Section 3.02 of Benefit Trust
Agreement, a trust agreement established January 9, 1987 by and between Mead and
Society Bank, National Association) the provisions of Benefit Trust Agreement
shall become operative with respect to the Plan. The Plan shall be administered
by the Vice-President-Human Resources of Mead (the "Administrator") who shall
have the rights, powers and duties with respect to the Plan that are hereinafter
set forth.
1.3 Applicable Law. The Plan will be construed and administered in
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accordance with the laws of the State of Ohio to the extent that those laws are
not preempted by the laws of the United States of America.
1.4 Gender and Number. Where the context admits, words in any gender will
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include any other gender, words in the singular will include the plural and
words in the plural will include the singular.
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1.5 Assignment. No Plan right or interest of any person under the Plan
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shall be assignable or transferable, in whole or in part, either directly or
otherwise, including without limitation thereto, by execution, levy, attachment,
garnishment, pledge or in any other manner, but excluding transfers by reason of
death or mental incompetency; no attempted assignment or transfer thereof shall
be effective; and no such right or interest shall be liable for, or subject to,
any obligation or liability of any person.
1.6 Plan Year. The term "Plan Year" means the calendar year.
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SECTION 2 - PARTICIPATION
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2.1 Eligibility for Participation. An employee shall become a Participant
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in the Plan on the date on which he first has an "Excess Earnings Benefit" (as
defined in subsection 3.1).
2.2 Participation Not Contract of Employment. The Plan does not
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constitute a contract of employment and participation in the Plan will not give
any employee the right to be retained in the employ of the Employers or
Affiliates nor give any person any right or claim to any benefit under the terms
of the Plan unless such right or claim has specifically accrued under the terms
of the Plan.
SECTION 3 - DETERMINATION OF EXCESS EARNINGS BENEFIT AMOUNT
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3.1 Excess Earnings Benefit Amount. A Participant's "Excess Earnings
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Benefit" as at any date is an amount, if any, payable under this Plan commencing
on the Participant's "Normal Retirement Date" (as defined in The Mead Retirement
Plan), which, when expressed as an annual amount payable as a single life
annuity, is equal to the amount determined by reducing the amount of his
"Unlimited Accrued Benefit" (as defined in subsection 3.2) as of that date by an
amount equal to the sum of:
(a) the amount of his "Qualified Accrued Benefit" (as defined in
subsection 3.3) as of that date; and
(b) the amount of his "Section 415 Excess Benefit" (determined in
accordance with the provisions of The Mead Corporation Section 415
Excess Benefit Plan).
Notwithstanding the foregoing provisions of this subsection, if a Participant
continues in the employ of the Employers and Affiliates after his Required
Beginning Date (as defined in The Mead Retirement Plan), the amount of his
Excess Earnings Benefit shall be recomputed as of the last day of each Plan
Year, beginning with the Plan Year during which the Participant's Required
Beginning Date occurs, taking into account amounts previously distributed to him
under the Plan. If any such recomputation results in an additional Excess
Earnings Benefit amount, that amount shall be distributed to him in accordance
with paragraph 4.1(b).
3.2 Unlimited Accrued Benefit. A Participant's "Unlimited Accrued
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Benefit" as at any date is an amount equal to the amount of his "Accrued
Benefit" (as determined in accordance with the provisions of The Mead Retirement
Plan as of that date), computed without regard to:
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(a) the limitations of section 415 of the Code;
(b) the amount of any otherwise applicable reduction in the amount of
his Accrued Benefit on account of any amount paid or payable:
(i) to or on account of the Participant under any other
"qualified" defined benefit pension plan maintained by any
Employer; or
(ii) to an "alternate payee" (as defined in section 414(p) of the
Code); or
(c) the limitation of section 401(a)(17) of the Code; but
(d) by taking into account the amount, if any, that:
(i) the Participant elects to defer under the terms of The Mead
Corporation Executive Capital Accumulation Plan ("EXCAP") for
any applicable Plan Year, exclusive of any portion of a
deferral that is attributable to long-term incentive
compensation paid to him;
(ii) the fair market value of each share of common stock of Mead
issued, or deemed issued, to the Participant (whether or not
subject to a risk of forfeiture) in lieu of cash payment of
the Participant's base salary or short term incentive
compensation for any applicable Plan Year, which value shall
be determined as the closing price of a share of such stock
on the New York Stock Exchange on the date payment is
otherwise due or, if no Mead common stock is traded on that
Exchange on that date for any reason, the next preceding day
on which Mead common stock was traded on the New York Stock
Exchange; and
(iii) any amount paid to the Participant paid to the Participant in lieu
of an annual incentive plan payment and not deferred by him
under EXCAP.
3.3 Qualified Accrued Benefit. A Participant's "Qualified Accrued
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Benefit" as at any date is an amount equal to the amount of his Accrued Benefit
(as determined in accordance with the provisions of The Mead Retirement Plan as
of that date), but computed without regard to the amounts described in
paragraphs 3.2(b)(i), 3.2(b)(ii) and 3.2(d) above, and limited in amount as
required by the requirements of sections 401(a)(17) and 415 of the Code, as set
forth in The Mead Retirement Plan.
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SECTION 4 - DISTRIBUTION OF EXCESS EARNINGS BENEFIT
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4.1 Distribution to a Participant. Subject to the following provisions of
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the Plan, the "Present Value" (as defined and determined under the provisions of
The Mead Retirement Plan) of the amount of a Participant's Excess Earnings
Benefit shall be distributed to him, in a single lump sum, as soon as
administratively feasible (but not more than 6 months) after:
(a) the date as of which payment of his Pension is made or commenced under
The Mead Retirement Plan in the case of an Excess Earnings Benefit
attributable to his period of participation ending prior to his
Required Beginning Date; or
(b) the end of the Plan Year in which a right to an additional benefit
arises in the case of an Excess Earnings Benefit attributable to any
period of participation beginning on his Required Beginning Date.
Notwithstanding any other provision of the Plan, for purposes of this Section if
a Participant's Excess Earnings Benefit described in paragraph (a) above is
subject to distribution at any date prior to the Participant's Normal Retirement
Date, then the amount of that benefit, as otherwise determined in accordance
with the provisions of subsection 3.1, shall be reduced to reflect early
commencement by application of any reduction factors that are applicable in
determining the amount of the Pension payable to him under The Mead Retirement
Plan as of that date.
4.2 Distribution to a Surviving Spouse. The surviving "Spouse" (as
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defined in The Mead Retirement Plan) of a deceased Participant who is entitled
to receive a Pre-Retirement Survivor Pension (as defined in The Mead Retirement
Plan) shall be entitled to receive a Surviving Spouse Benefit from this Plan in
an amount, if any, equal to the Present Value of the monthly Pre-Retirement
Survivor Pension that she would have received under the provisions of The Mead
Retirement Plan had the Participant's Accrued Benefit under that Plan been an
amount equal to the amount of his Excess Earnings Benefit. Subject to the
following provisions of the Plan, a Spouse's Surviving Spouse Benefit shall be
distributed to her, in a single lump sum, as soon as administratively feasible
(but not more than 6 months) after the date as of which payment of her Pre-
Retirement Survivor Pension is commenced under The Mead Retirement Plan.
4.3 Distribution in Discretionary Form. Notwithstanding the provisions of
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subsection 4.1 and 4.2, but subject to the following provisions of this
subsection, the Committee, in its sole discretion, may direct that the benefits
payable in a single lump sum under subsection 4.1 or 4.2 be paid, beginning when
otherwise distributable under either of those subsections, to the Participant or
Surviving Spouse, as the case may be, in such periodic form as the Committee
shall decide. If the Committee exercises the discretion vested in it by the
provisions of the foregoing sentence, it may, in its sole discretion, thereafter
accelerate payments to the recipient if it is determined (as provided below)
that the Participant or Spouse, as the case may be, has experienced an
"Unforeseeable Emergency" (as defined below), provided that the amount of any
such accelerated payment shall not exceed the amount reasonably needed to
satisfy the recipient's emergency need. The term "Unforeseeable Emergency"
means severe financial hardship to the Participant or Spouse resulting from a
sudden and unexpected illness or accident of the Participant or Spouse or of his
or her
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"dependent" (as defined in section 152(a) of the Code), loss of the
Participant's or Spouse's property due to a casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant or Spouse, as the case may be. In
determining whether an Emergency Distribution should be made consideration may
be given to the extent to which his or her Unforeseeable Emergency can be
relieved through reimbursement or compensation by insurance or otherwise or by
liquidation of the Participant's or Spouse's assets, to the extent the
liquidation of such assets would not itself cause severe financial hardship. A
determination with respect to whether a Participant or Spouse has experienced an
Unforeseeable Emergency shall be made:
(a) in the case of a Participant employed, or last employed, by an
Employer at a salary grade below salary grade 24 (exclusive of an
elected officer of an Employer) and of his Spouse, by the Chairperson
of the Committee acting for the Committee; and
(b) in the case of a Participant employed, or last employed, by an
Employer at salary grade 24 or above or as an elected officer of an
Employer and of his Spouse, by the Committee.
4.4 Distribution to a Beneficiary. If the Committee exercises the
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discretion vested in it by the first sentence of subsection 4.3 with respect to
any distribution payable under subsection 4.1 or 4.2 and the Participant or
Spouse dies prior to receiving periodic payments in an aggregate amount equal to
the Present Value of his Excess Earnings or Surviving Spouse Benefit, as the
case may be, determined as of the date as of which periodic payments commenced,
the undistributed portion of the Present Value shall be distributed, in a single
lump sum, to a "Beneficiary" (as defined below). The term "Beneficiary" means,
with respect to any married Participant, his Spouse and,with respect to any
unmarried Participant or Spouse, such natural or legal person or persons as may
be designated by him (who may be designated contingently or successively). A
Beneficiary designation will be effective only when a signed and dated
beneficiary designation form is filed with the Committee while the Participant
or Spouse is alive, which form will cancel any beneficiary designation form
signed and filed earlier. If a Participant or Spouse is not survived by any
Beneficiary, the Committee shall make distribution to the legal representative
or representatives of the estate of the Participant or Spouse, as the case may
be.
4.5 EXCAP Credit in Lieu of Distribution. With the approval of the
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Committee, which approval shall automatically be revoked by the Committee's
exercise of its discretion under subsection 4.3, a Participant who is also a
Participant in the EXCAP may elect to waive his right to receive any amount
otherwise distributable to him pursuant to the provisions of subsection 4.1 and
to have the same amount credited for his benefit (as of the date distribution
would have been made) and subsequently distributed to him under the terms of the
EXCAP. An election made by a Participant in accordance with the provisions of
this subsection must be in such written form as the Committee shall decide and
filed with the Plan Administrator at least one year in advance of the date of
the Participant's termination of employment with the Employers and Affiliates.
An election made by a Participant pursuant to the foregoing provisions of this
subsection shall be revocable by him at any time that is at least one year prior
to the date of his termination of employment with the
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Employers and Affiliates. In no event shall this subsection be applicable to any
amount distributable to a Participant's surviving Spouse pursuant to the
provisions of subsection 4.2.
4.6 Distribution to Incapacitated Persons. Notwithstanding any other
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provision of the Plan, if a person entitled to a distribution under the Plan is
determined by a court of competent jurisdiction to be physically, mentally or
legally incapacitated and unable to manage his financial affairs and claim is
made by a conservator or other person legally charged by such court with the
care of his person, the Committee shall make distribution to such conservator or
other person. Any distribution made in accordance with this subsection shall
fully acquit and discharge all persons from all further liability on account
thereof.
SECTION 5 - DISPUTE RESOLUTION
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5.1 Notice of Denial. If any dispute arises with respect to a
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Participant, Spouse or Beneficiary (a "Claimant") under the Plan, the
Administrator will provide the Claimant with a written notice of its resolution
of the dispute setting forth:
(a) the provisions of the Plan upon which the resolution was based;
and
(b) an explanation of this claims procedure.
If the Administrator rejects a Claimant's application for failure to furnish
certain necessary materials or information, the written notice to the Claimant
will explain what additional material is needed and why, and advise the Claimant
that he may refile a proper application. In the event that the Administrator
fails to take any action on the Claimant's initial application within 90 days
after receipt, the application will be deemed denied, and the Claimant's appeal
rights under subsection 5.2 will be in effect as of the end of such period.
5.2 Notice of Appeal. Within 60 days after the receipt of the
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Administrator's notice of resolution, the Claimant may file a written notice of
appeal of the resolution with the "Claims Reviewer" (as defined below). In
addition, within such appeal period, the Claimant may review pertinent documents
at such reasonable times and places as the Claims Reviewer may specify and may
submit any additional written material pertinent to the appeal not set forth in
the notice of appeal. The appeal shall be determined by the Claims Reviewer,
and the Claimant shall be entitled to appear before the Claims Reviewer to
present his claim. The term "Claims Reviewer" means:
(a) in the case of a Participant employed, or last employed, by an
Employer at a salary grade below salary grade 24 (exclusive of an
elected officer of an Employer) and of his Spouse or Beneficiary,
the Benefit Appeals Committee, a committee appointed by the
Corporate Benefits Committee of Mead; and
(b) in the case of a Participant employed, or last employed, by an
Employer at salary grade 24 or above or as an elected officer of
an Employer and of his Spouse or Beneficiary, the Chairperson of
the Committee.
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5.3 Decision on Appeal. The Benefit Appeals Committee or the Chairperson
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of the Committee, as the case may be, will make a written decision on the appeal
not later than 60 days after its receipt of the notice of appeal unless special
circumstances require an extension of time, in which case a decision will be
given as soon as possible, but not later that 120 days after receipt of the
notice of appeal. The decision on the appeal will be in writing and shall
include specific reasons for the decision, making specific reference to the
provision of the Plan upon which the decision was based.
SECTION 6 - AMENDMENT AND TERMINATION
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Mead, by action of the Committee, reserves the right to amend the Plan at
any time. The Plan will terminate on the date on which it is terminated by
Mead's Board of Directors. Neither an amendment or termination of the Plan
shall, of itself, reduce the amount of a Participant's Excess Earnings Benefit,
which amount shall continue to be adjusted from time to time pursuant to the
provisions of Section 3 until distributed in accordance with the provisions of
Section 4.
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FIRST AMENDMENT
TO
THE MEAD CORPORATION
EXCESS EARNINGS BENEFIT PLAN
WHEREAS The Mead Corporation ("Mead") heretofore established The Mead
Corporation Excess Earnings Benefit Plan (the "Plan"); and
WHEREAS Mead desires to amend the Plan pursuant to the power reserved
to Mead's Compensation Committee by Section 6 of the Plan;
NOW, THEREFORE, the Plan is hereby amended, effective as of June 24,
1998, as follows:
1. Subsection 1.1 is amended by the addition of the following sentence
at the end thereof:
"The term 'Committee' means the Compensation Committee of the Board of
Directors of Mead."
2. Subsection 1.2 of the Plan is amended to read, in its entirety, as
follows:
"1.2 Plan Funding and Administration. The benefits payable under the
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Plan are unfunded and are payable, when due, from the general assets of
Mead; provided, however, that Mead, in its discretion, may establish or
maintain a trust to pay such amounts, which trust shall be subject to the
claims of Mead's unsecured general creditors in the event of Mead's
bankruptcy or insolvency; and provided, further, that Mead shall remain
responsible for the payment of any such amounts which are not so paid by
any such trust. The Plan shall be administered by the Vice-President-Human
Resources of Mead (the "Administrator") who shall have the rights, powers
and duties with respect to the Plan that are hereinafter set forth."
3. Subsection 4.3 of the Plan is amended by the addition of the
following sentence at the end thereof:
"Notwithstanding the first sentence of this subsection 4.3, upon and after
the occurrence of a Change in Control (as defined in Section 7 hereof), the
discretionary power therein given the Committee to alter the form of
payment of a Participant's benefits hereunder from lump sum payment to
periodic payments shall be exercisable only following the Committee's
receipt of a written request from the Participant for a change to periodic
payments and shall be exercisable only to determine whether to grant the
particular form of periodic payments so requested or to retain the lump sum
payment form."
4. The Plan is amended by the addition of the following new Section 7:
"SECTION 7 - DEFINITION OF CHANGE IN CONTROL
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"For purposes of the Plan, a 'Change in Control' shall be deemed to
have occurred if an event set forth in any one of the following paragraphs
shall have occurred:
"(i) date of expiration of a Tender Offer (other than an offer by
Mead), if the offeror acquires Shares pursuant to such Tender Offer;
"(ii) the date of approval by the shareholders of Mead of a
definitive agreement: (x) for the merger or consolidation of Mead or any
direct or indirect subsidiary of Mead into or with another corporation,
other than (1) a merger or consolidation which would result in the voting
securities of Mead outstanding immediately prior thereto continuing to
represent ((i) in the case of a merger or consolidation of Mead, either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof, or (ii) in the case of a merger or
consolidation of any direct or indirect subsidiary of Mead, either by
remaining outstanding if Mead continues as a parent of the merged or
consolidated subsidiary or by being converted into voting securities of
the surviving entity or any parent thereof) at least 51% of the combined
voting power of the voting securities of Mead or such surviving or parent
entity outstanding immediately after such merger or consolidation, or (2) a
merger or consolidation effected to implement a recapitalization of Mead
(or similar transaction) in which no Person (as defined below) is or
becomes the Beneficial Owner (as defined below), directly or indirectly, of
securities of Mead (not including in the securities Beneficially Owned by
such Person any securities acquired directly from Mead or its Affiliates)
representing 25% or more of the combined voting
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power of Mead's then outstanding securities, or (y) for the sale or
disposition of all or substantially all of the assets of Mead, other than a
sale or disposition by Mead of all or substantially all of Mead's assets to
an entity, at least 51% of the combined voting power of the voting
securities of which are owned (directly or indirectly) by shareholders of
Mead in substantially the same proportions as their ownership of Mead
immediately prior to such sale or disposition;
"(iii) (x) any Person is or becomes the Beneficial Owner of 25%
or more of the voting power of the then outstanding securities of Mead (not
including in the securities beneficially owned by such Person any
securities acquired directly from Mead or its affiliates), excluding any
Person who becomes such a Beneficial Owner in connection with a transaction
described in clause (x)(1) of paragraph (ii) above or (y) the date of
authorization, by both a majority of the voting power of Mead and a
majority of the portion of such voting power excluding the voting power of
interested Shares, of a control share acquisition (as such term is defined
in Chapter 1701 of the Ohio Revised Code); and
"(iv) a change in the composition of the Board of Directors such
that individuals who were members of the Board of Directors on the date two
years prior to such change (and any new directors (other than a director
whose initial assumption of office is in connection with an actual or
threatened election contest, including but not limited to a consent
solicitation, relating to the election of directors of Mead) who were
elected, or were nominated for election, by Mead's shareholders with the
affirmative vote of at least two-thirds of the directors then still in
office who either were directors at the beginning of such two year period
or whose election or nomination for election was previously so approved) no
longer constitute a majority of the Board of Directors.
"Notwithstanding the foregoing, a 'Change in Control' shall not be deemed
to have occurred by virtue of the consummation of any transaction or series
of integrated transactions immediately following which the record holders
of the common stock of Mead immediately prior to such transaction or series
of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of
Mead immediately following such transaction or series of transactions.
3
"'Affiliate' shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act.
"'Beneficial Owner' shall have the meaning defined in Rule 13d-3 under the
Exchange Act.
"'Exchange Act' shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"'Person' shall have the meaning given in Section 3(a)(9) of the Exchange
Act, as modified and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include (i) Mead or any of its subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee benefit
plan of Mead or any of its Affiliates, (iii) an underwriter temporarily
holding securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the shareholders of Mead in
substantially the same proportions as their ownership of stock of Mead.
"'Shares' shall mean shares of common stock, without par value, of The Mead
Corporation.
"'Tender Offer' shall mean a tender offer or a request or invitation for
tenders or an exchange offer subject to regulation under Section 14(d) of
the Exchange Act and the rules and regulations thereunder, as the same may
be amended, modified or superseded from time to time."
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AMENDMENT
TO
THE MEAD CORPORATION
EXCESS EARNINGS BENEFIT PLAN
WHEREAS, The Mead Corporation ("Mead") heretofore established The Mead
Corporation Excess Earnings Benefit Plan (the "Plan") and subsequently amended
the Plan, and
WHEREAS, Mead desires to further amend the Plan pursuant to the power
reserved to Mead's Compensation Committee by Section 6 of the Plan;
NOW THEREFORE, the Plan is hereby amended, effective as of October 26,
2001, as follows:
1. Subsection 4.5 is revised to read as follows:
4.5 EXCAP Credit in Lieu of Distribution. A Participant who is also
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a Participant in the EXCAP may elect to waive his right to receive any
amount otherwise distributable to him pursuant to the provisions of
subsection 4.1 and to have the same amount credited for his benefit
(as of the date distribution would have been made) and subsequently
distributed to him under the terms of the EXCAP. An election made by a
Participant in accordance with the provisions of this subsection must
be in such written form as the Committee shall decide and filed with
the Plan Administrator at least three months prior to the
Participant's employment termination with the Employers and Affiliates
with respect to distributions made on or after employment termination
or, as an additional alternative, filed at any time prior to a Change
in Control (as defined in Section 3.01 of Benefits Trust Agreement)
with respect to distributions made on or after a Change in Control. An
election made by a Participant pursuant to the foregoing sentence
shall be revocable at any time that is at least three months prior to
the date of termination of employment with the Employers and
Affiliates or a Change in Control, as appropriate. In no event shall
this subsection be applicable to any amount distributable to a
Participant's surviving Spouse pursuant to the provisions of
subsection 4.2.