Document/Exhibit Description Pages Size
1: 10-K Annual Report 84± 410K
2: EX-2 Plan of Acquisition, Reorganization, Arrangement, 388± 1.56M
Liquidation or Succession
3: EX-10 Material Contract 2 12K
4: EX-10 Material Contract 2 10K
5: EX-10 Material Contract 3 8K
6: EX-10 Material Contract 45± 188K
7: EX-10 Material Contract 7± 28K
8: EX-10 Material Contract 10± 42K
9: EX-21 Subsidiaries of the Registrant 1 7K
10: EX-23 Consent of Experts or Counsel 1 6K
11: EX-27 Financial Data Schedule (Pre-XBRL) 1 8K
EXHIBIT 10.36
Smith Corona Corporation Hourly Employees' Retirement Plan and
SCM Office Supplies, Inc. Salaried Employees' and Hourly
Employees' Retirement Plan.
THE SMITH CORONA CORPORATION HOURLY
EMPLOYEES' RETIREMENT PLAN
and
SCM OFFICE SUPPLIES, INC.
SALARIED EMPLOYEES' AND HOURLY EMPLOYEES'
RETIREMENT PLAN
(As Amended And Restated As Of December 31, 1995)
TABLE OF CONTENTS
Page
FORWARD. . . . . . . . . . . . . . . . . . . . . . . . . . . . v
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Act". . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Actuary". . . . . . . . . . . . . . . . . . . . . . . . . 1
"Actuarial Equivalent" . . . . . . . . . . . . . . . . . . 1
"Additional Benefit" . . . . . . . . . . . . . . . . . . . 1
"Board of Directors" . . . . . . . . . . . . . . . . . . . 1
"Break-in-Service" . . . . . . . . . . . . . . . . . . . . 1
"Break-in-Service Rules" . . . . . . . . . . . . . . . . . 2
"Code" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Committee". . . . . . . . . . . . . . . . . . . . . . . . 2
"Company". . . . . . . . . . . . . . . . . . . . . . . . . 2
"Credited Service" . . . . . . . . . . . . . . . . . . . . 2
"Employee" . . . . . . . . . . . . . . . . . . . . . . . . 3
"Hours of Service" . . . . . . . . . . . . . . . . . . . . 3
"Leave of Absence" . . . . . . . . . . . . . . . . . . . . 3
"Member" . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Normal Retirement Date" . . . . . . . . . . . . . . . . . 3
"Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Plan Year". . . . . . . . . . . . . . . . . . . . . . . . 4
"Predecessor Plan" . . . . . . . . . . . . . . . . . . . . 4
"Prior Plan" . . . . . . . . . . . . . . . . . . . . . . . 4
"Qualified Joint and Survivor Annuity" . . . . . . . . . . 4
"Required Beginning Date". . . . . . . . . . . . . . . . . 4
"Total and Permanent Disability" . . . . . . . . . . . . . 4
"Trust Agreement". . . . . . . . . . . . . . . . . . . . . 4
"Trustee". . . . . . . . . . . . . . . . . . . . . . . . . 4
"Trust Fund" . . . . . . . . . . . . . . . . . . . . . . . 5
"Year of Service". . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II
MEMBERSHIP IN THE PLAN . . . . . . . . . . . . . . . . . . . . 6
Section 2.1. Members on December 31, 1993.. . . . . . . . 6
Section 2.2. Eligible Employees on and after
January 1, 1994. . . . . . . . . . . . . . . 6
Section 2.3. Transfer of Salaried Employee. . . . . . . . 6
Section 2.4. Coverage by Another Plan . . . . . . . . . . 6
Section 2.5. SCM Office Supplies, Inc. Members. . . . . . 6
ARTICLE III
CREDITED SERVICE . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1. Credited Service . . . . . . . . . . . . . . 7
Section 3.2. Leave of Absence . . . . . . . . . . . . . . 7
Section 3.3. Military Service . . . . . . . . . . . . . . 7
ARTICLE IV
TIME OF RETIREMENT . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.1. Normal Retirement. . . . . . . . . . . . . . 8
Section 4.2. Early Retirement . . . . . . . . . . . . . . 8
Section 4.3. Postponed Retirement . . . . . . . . . . . . 8
Section 4.4. Total and Permanent Disability
Retirement . . . . . . . . . . . . . . . . . 8
Section 4.5. Written Request. . . . . . . . . . . . . . . 8
ARTICLE V
RETIREMENT BENEFITS. . . . . . . . . . . . . . . . . . . . . . 9
Section 5.1. Benefit Amount . . . . . . . . . . . . . . . 9
Section 5.2. Member's Contributions to Predecessor
Plans (Additional Benefit) . . . . . . . . 10
Section 5.3. Retirement Benefits. . . . . . . . . . . . 11
Section 5.4. Total and Permanent Disability
Retirement Benefit . . . . . . . . . . . . 13
Section 5.5. Election to Reject the Qualified Joint
and Survivor Annuity . . . . . . . . . . . 13
Section 5.6. Optional Forms of Payment. . . . . . . . . 14
Section 5.7. Termination of Service Other Than By
Death. . . . . . . . . . . . . . . . . . . 15
Section 5.8. Payment of Retirement Benefits . . . . . . 17
Section 5.9. Forfeitures. . . . . . . . . . . . . . . . 17
Section 5.10. Reemployment . . . . . . . . . . . . . . . 17
Section 5.11. Payment of Small Amounts . . . . . . . . . 17
Section 5.12. Death Benefit for Certain Members. . . . . 17
Section 5.13. Pre-Benefit Commencement Survivor Option
for Vested Terminated Members. . . . . . . 21
Section 5.14. Commencement of Retirement Benefits. . . . 23
Section 5.15. Restriction on Benefit Suspension. . . . . 24
ARTICLE VI
TOTAL AND PERMANENT DISABILITY . . . . . . . . . . . . . . . 25
Section 6.1. Determination of Total and Permanent
Disability . . . . . . . . . . . . . . . . 25
Section 6.2. Review by the Committee. . . . . . . . . . 25
ARTICLE VII
FUNDING OF BENEFITS. . . . . . . . . . . . . . . . . . . . . 26
Section 7.1. Cost of Plan . . . . . . . . . . . . . . . 26
Section 7.2. Source of Payments . . . . . . . . . . . . 26
Section 7.3. Timing and Contingent Nature of
Contributions. . . . . . . . . . . . . . . 26
Section 7.4. Exclusive Benefit; Refund of
Contributions. . . . . . . . . . . . . . . 26
ARTICLE VIII
ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . . . 28
Section 8.1. Appointment of the Committee . . . . . . . 28
Section 8.2. Committee Action . . . . . . . . . . . . . 28
Section 8.3. Powers of the Committee. . . . . . . . . . 28
Section 8.4. Lawsuits . . . . . . . . . . . . . . . . . 29
ARTICLE IX
NONALIENATION OF BENEFITS. . . . . . . . . . . . . . . . . . 30
Section 9.1. Rights Inalienable . . . . . . . . . . . . 30
Section 9.2. Effect of Attempted Alienation . . . . . . 30
ARTICLE X
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . 31
Section 10.1. No Implied Rights . . . . . . . . . . . . 31
Section 10.2. Interpretation of Plan. . . . . . . . . . 31
Section 10.3. Disappearance of Person Entitled to
Payment . . . . . . . . . . . . . . . . . 31
Section 10.4. Limit on Benefits . . . . . . . . . . . . 31
Section 10.5. Payment Due on Incompetent. . . . . . . . 33
Section 10.6. Invalidity of Certain Provisions. . . . . 34
ARTICLE XI
AMENDMENT AND TERMINATION. . . . . . . . . . . . . . . . . . 35
Section 11.1. Right Reserved to Amend and Terminate . . 35
Section 11.2. No Obligation on the Company after
Termination . . . . . . . . . . . . . . . 35
Section 11.3. Rights of Successor . . . . . . . . . . . 35
Section 11.4. Disposition of Fund on Termination. . . . 36
Section 11.5. Merger, Consolidation or Transfer . . . . 39
ARTICLE XII
TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . 40
Section 12.1. Purpose and Limited Application of this
Article . . . . . . . . . . . . . . . . . 40
Section 12.2. Additional Definitions. . . . . . . . . . 40
Section 12.3. Effect of the Plan's Becoming Top-heavy . 42
Section 12.4. Effect of Change in Pertinent
Legislation or Regulation . . . . . . . . 43
ARTICLE XIII . . . . . . . . . . . . . . . . . . . . . . . . 44
TREASURY DEPARTMENT LIMITATIONS. . . . . . . . . . . . . . . 44
13.1 Early Termination:. . . . . . . . . . . . . . . . 44
ARTICLE XIV. . . . . . . . . . . . . . . . . . . . . . . . . 46
DIRECT ROLLOVER DISTRIBUTIONS. . . . . . . . . . . . . . . . 46
14.1 Purpose and Limited Application of this Article . . 46
14.2 Definitions . . . . . . . . . . . . . . . . . . . . 46
FORWARD
The SCM Hourly (Fixed Benefit) Pension Plan ("Prior
Plan") was amended and restated in its entirety as of January 1,
1985, and covered employees at various locations. As so
restated, the Prior Plan applied to, amongst others, eligible
hourly employees of Smith Corona Corporation (located at
Cortland, New York) and eligible hourly employees of Hulse
Manufacturing Company, a wholly owned subsidiary of Smith Corona
Corporation (located at Geneva, New York).
Effective January 1, 1987, Smith Corona Corporation
adopted the Smith Corona Corporation Hourly Employees' Retirement
Plan ("Successor Plan") for the benefit of its hourly employees,
as well as, the hourly employees of Hulse Manufacturing Company
and, simultaneously therewith, the assets and liabilities
respecting all such hourly employees and former hourly employees
were "spun-off" from the Prior Plan and transferred to the
Successor Plan. The "spin-off" was accomplished pursuant to
Section 414(1) of the Internal Revenue Code of 1986, as amended,
and applicable regulations thereunder. As of July 28, 1989,
Smith Corona Corporation became a public company with an offering
of its common stock on the New York Stock Exchange.
Effective as of January 1, 1989, the Smith Corona
Corporation further amended and restated the Successor Plan by
dividing this single plan into two plan documents, namely, one
text covering the hourly employees of Smith Corona Corporation
(at Cortland) entitled "The Smith Corona Corporation Hourly
Employees' Retirement Plan" and one text covering the hourly
employees of Hulse Manufacturing Company (at Geneva) entitled
"The Hulse Manufacturing Company Hourly Employees' Retirement
Plan." The restated plan texts were designed principally to
comply with changes in applicable law, including without
limitation, the Tax Reform Act of 1986, as amended. Hulse
Manufacturing Company closed its only plant in Geneva, N.Y. and
currently it has no employees.
Subject to approval from the Internal Revenue Service
and effective as of January 1, 1994, the Smith Corona Corporation
Hourly Employees' Retirement Plan ("Plan") was again amended and
restated to comply with all applicable law. The Plan, as amended
and restated effective as of January 1, 1994, received a
favorable determination letter from the Internal Revenue Service
dated July 26, 1995.
SCM Office Supplies, Inc. is a wholly-owned subsidiary
of Smith Corona Corporation. SCM Office Supplies, Inc.
maintained two qualified retirement plans for the benefit of its
employees, namely, SCM Office Supplies, Inc. Salaried Employees'
Retirement Plan, as amended and restated as of January 1, 1994
and SCM Office Supplies, Inc. Hourly Employees' Retirement Plan,
as amended and restated as of May 1, 1990. The SCM Office
Supplies, Inc. Salaried Employees' Retirement Plan, as amended
and restated as of January 1, 1994 received a favorable
determination letter from the Internal Revenue Service dated
October 13, 1995 and the SCM Office Supplies, Inc. Hourly
Employees' Retirement Plan, as amended and restated as of May 1,
1990 received a favorable determination letter from the Internal
Revenue Service dated January 28, 1993. On July 5, 1994, all of
the assets of SCM Office Supplies, Inc. were sold and all of the
employees of SCM Office Supplies, Inc. were terminated. As a
result of such asset sale, there were no new members in either
plan and all benefits under each such plan ceased to accrue as of
the asset sale date. Effective as of December 31, 1995, both the
SCM Office Supplies, Inc. Salaried Employees' Retirement Plan and
the SCM Office Supplies, Inc. Hourly Employees' Retirement Plan
were merged with and into the Plan. As a result of such merger,
the Plan was amended and restated effective as of December 31,
1995.
Except as otherwise specifically provided herein, the
terms of this restated Plan shall apply to hourly employees
employed by Smith Corona Corporation at Cortland, New York with
an Hour of Service on or after December 31, 1995 and who are or
become Members on or after December 31, 1995 and to members of
the merged plans maintained by SCM Office Supplies, Inc.
ARTICLE I
DEFINITIONS
The following words and phrases used herein shall have
the meaning set forth below unless the content otherwise
requires:
"Act" means the Employee Retirement Income Security Act
of 1974, as amended.
"Actuary" means the actuary appointed by the Board of
Directors or an authorized official of the Company.
"Actuarial Equivalent" means a benefit whose actuarial
value, as of the determination date, is equal to the actuarial
value of the benefit for which it is substituted, both values
being based on a mortality table and interest rate. For this
purpose, the mortality table applicable to Members shall be the
Unisex 1984 Mortality Table using 80% of the rates thereunder,
the mortality table applicable to spouses or designated
beneficiaries shall be the Unisex 1984 Mortality Table using 80%
of the rates thereunder with a three (3) year setback. The
interest rate shall be an effective annual rate of five percent
(5%).
"Additional Benefit" means the retirement income
payable to a Member who made contributions to the predecessor
plan and retains his contributions in the Plan as provided by
Section 5.2 of Article V.
"Board of Directors" means the Board of Directors of
Smith Corona Corporation.
"Break-in-Service" means any calendar year in which an
Employee does not complete more than 500 Hours of Service. A
Leave of Absence shall not be considered a Break-in-Service. For
purposes of determining whether an Employee has incurred a
one-year Break-in-Service in a 12-month computation period
beginning
on or after January 1, 1985, there shall be taken into account as
Hours of Service, in addition to Hours of Service otherwise
required to be recognized, each hour that the Employee is absent
from work because of the pregnancy of the Employee, because of
the birth of a child of the Employee, because of the placement of
a child with the Employee in connection with the adoption of the
child thereby, or for purposes of caring for such child for a
period beginning immediately following such birth or placement;
provided, however, that (i) not more than 501 Hours of Service
shall be so credited by reason of any single pregnancy, birth or
placement and (ii) no Hours of Service shall be so credited for
any such absence that began before January 1, 1985. The hours
for which Hours of Service shall be so credited are the hours
with respect to which the Employee would have been credited with
Hours of Service except for the absence (or, if such hours cannot
be determined, eight hours per day of absence). Such Hours of
Service shall be credited for the (i) 12-month computation period
in which the absence begins if the individual is prevented from
incurring a one-year Break-in-Service for such 12-month
computation period solely because of the Hours of Service so
credited, or (ii) in any other case, the immediately following
12-month computation period. No Hours of Service shall be so
credited hereunder unless the Employee furnishes to the Committee
such timely information as may be reasonably required by the
Committee to establish (i) that the absence from work is one for
which Hours of Service are to be credited, and (ii) the number of
days for which there was such an absence.
"Break-in-Service Rules" (Post-January 1, 1976). All
Years of Service shall be included in computing a Member's
Credited Service provided the Member completes one Year of
Service before his pre-break and post-break service is
aggregated, and further provided that if a Member who has no
vested interest in his retirement income
(i) has one or more consecutive one-year
Breaks-in-Service occurring in the period 1976 through 1984, or
(ii) after 1984 has the fifth of five or more
consecutive one-year Breaks-in-Service,
and the number of such consecutive one-year Breaks-in-Service
equals or exceeds the aggregate number of Years of Service to the
credit of such Member at the beginning of the first of such
consecutive one-year Breaks-in-Service (disregarding Years of
Service that were lost as a result of the application of the
Break-in-Service Rules with respect to a prior Break-in-Service),
Credited Service shall not include such Years of Service
occurring prior to the first of such consecutive one-year
Breaks-in-Service.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Committee" means the Smith Corona Corporation Pension
Committee, appointed by the Board of Directors or its delegate
and after the merger of the SCM Office Supplies, Inc. Salaried
Employees' Retirement Plan and the SCM Office Supplies, Inc.
Hourly Employees' Retirement Plan, it replaces the Retirement
Committee, and Pension Committee, respectively, appointed under
those plans prior to December 31, 1995.
"Company" means Smith Corona Corporation.
"Credited Service" means Years of Service rendered by a
Member subject to the applicable Breaks-in-Service Rules for
which retirement benefits are accrued or other rights
established, determined in accordance with the provisions of
Article III, Section 3.1 of the Plan. Any fraction of a Year of
Service occurring during a Member's first or last calendar year
of participation shall be considered a full year of Credited
Service regardless of the number of Hours of Service during the
calendar year, except for purposes of determining eligibility and
benefits under Section 5.7 of Article V. Credited Service shall
end on the earliest of the Member's termination of employment or
his actual retirement date, except as provided by Article III,
Sections 3.2 and 3.3, nor shall the total amount of Credited
Service for any Member exceed 35 years as provided by Article V,
Section 5.1.
"Employee" means any person who is employed by the
Company as a member of a group of hourly employees excluding any
"leased employee" within the meaning of Section 414(n)(2) of the
Code.
"Hours of Service" means the actual time period in
which an Employee is directly or indirectly compensated, or
entitled to payment, by the Company or an affiliate for the
performance of duties or for other reasons, such as vacation,
sickness, holidays, disability or Leaves of Absence, and each
hour for which back pay, irrespective of mitigation of damages,
has been awarded or agreed to by the Company or an affiliate at
the rate of 8 hours per day. For this purpose, affiliate means
any corporation, partnership or other entity which is a member of
a control group of corporations within the meaning of Section
414(b) of the Code, any trade or business under common control
within the meaning of Section 414(c) of the Code, or an
affiliated service group within the meaning of Section 414(m) or
(o) of the Code, regardless of whether such entity has adopted
the Plan. Each Hour of Service shall be credited to the
applicable computation period in accordance with Section
2530.200b-2(b) and (c) of the U.S. Department of Labor
Regulations, which are hereby incorporated by reference. Hours
of Service shall be determined by using the equivalency based on
periods of employment as provided in Section
2530.200b-3(e)(1)(iv) of the U.S. Department of Labor
Regulations, which is hereby incorporated by reference.
"Leave of Absence" means an absence or interruption of
employment approved by the Board of Directors or its delegate
under uniform and nondiscriminatory rules and procedures. A
Leave of Absence and absence due to military service or other
approved leaves shall be included in Credited Service as
specified in Article III, Sections 3.2 and 3.3.
"Member" means an Employee who is a member of the Plan
as provided in Article II hereof.
"Normal Retirement Date" means the first day of the
calendar month next succeeding the 65th birthday of the Member.
"Plan" means the Smith Corona Corporation Hourly
Employees' Retirement Plan up to December 30, 1995 and on and
after December 31, 1995 means the Smith Corona Corporation Hourly
Employees' Retirement Plan and SCM Office Supplies, Inc. Salaried
and Hourly Employees' Retirement Plan, as described herein and as
from time to time amended.
"Plan Year" means each year during which the Plan is in
effect commencing January 1 and ending December 31 of such year.
"Predecessor Plan" means the SCM Corporation Retirement
Plan for Hourly-Rated Employees effective January 1, 1964 or the
Employee Retirement Plan of Smith-Corona, Inc. or both.
"Prior Plan" means The Smith Corona Corporation Hourly
Employees' Retirement Plan, as amended and restated as of January
1, 1989.
"Qualified Joint and Survivor Annuity" means monthly
payments for life of the Member with 50% of the amount of such
payments to continue for the life of his spouse. The Qualified
Joint and Survivor Annuity shall be the actuarial equivalent of a
life annuity with 60 installments guaranteed for the life of the
Member.
"Required Beginning Date" means (a) except as provided
in IRS Notice 89-42, with respect to a Member who attains age 70
1/2 on or after January 1, 1988 and with respect to a Member who
is a 5% owner (as defined in Section 416(i)(1)(B) of the Code),
the April 1 of the year following the calendar year in which the
Member attains 70 1/2 years of age and (b) with respect to a
Member who attained age 70 1/2 before January 1, 1988 (other than
a 5% owner), the April 1 of the calendar year following the
calendar year in which the Member actually retires.
"Total and Permanent Disability" means presumed
permanent incapacity occurring while an Employee is a Member, and
resulting in his being unable to engage in any regular gainful
employment or occupation by reason of any medically demonstrable
physical or mental condition, excluding however, any incapacity
which (1) was contracted, suffered or incurred while engaged in,
or resulted from his having engaged in a felonious enterprise; or
(2) consists of chronic alcoholism or addiction to narcotics; or
(3) results from an intentionally self-inflicted injury; or (4)
results from service in the Armed Forces of any country.
"Trust Agreement" means the agreement between SCM
Corporation and the Trustee as amended from time to time pursuant
to which the Trust Fund is administered.
"Trustee" means the Marine Midland Bank, 120 Broadway,
New York, New York 10015, up to December 31, 1989 and effective
January 1, 1990, the Continental Illinois National Bank and Trust
Company of Chicago (currently named CTC Illinois Trust Company),
231 South La Salle Street, Chicago, Illinois 60697, or successor
trustees thereunder.
"Trust Fund" means the assets held under the Trust
Agreement.
"Year of Service" means the completion of 1,000 Hours
of Service in a complete calendar year, or such lesser amount as
provided for any fractional year occurring during Member's first
or last year of participation, or as provided by Section 5.7 of
Article V.
Words of the masculine gender include the feminine and
the neuter, and may refer to a corporation or firm, or to a board
or other body or assemblage of persons; and, when the sense so
indicates, words of the neuter gender may refer to any gender.
ARTICLE II
MEMBERSHIP IN THE PLAN
Section 2.1. Members on December 31, 1993. Each
Employee who was a Member of the Prior Plan on December 31, 1993
shall continue as a Member of the Plan as amended and restated as
of January 1, 1994.
Section 2.2. Eligible Employees on and after
January 1, 1994. Any other person who is or becomes an Employee
on or after January 1, 1994 shall become Member immediately upon
employment or upon attaining age 21, if later.
Section 2.3. Transfer of Salaried Employee. If any
employee who is a member of the Smith Corona Corporation Salaried
Employees' Retirement Plan shall become, by transfer, an Employee
under this Plan, he shall become a Member on the terms and
conditions set forth in Section 2.2 of this Article II.
Section 2.4. Coverage by Another Plan. If a Member
becomes a member of, active participant in or eligible for
coverage under another nongovernmental plan or scheme which
provides pension or retirement benefits to which the Company
contributes (other than the Smith Corona Corporation Retirement
Savings and Investment Plan) he shall, for all purposes of this
Plan, be deemed to be a Member whose Credited Service is not
recognized under this Plan until he ceases to be a member of,
active participant in or eligible for coverage under such other
plan, subject, however, to the provisions herein contained
relating to Breaks-in-Service, termination of employment, and
integration with another plan to which the Company contributes.
Section 2.5. SCM Office Supplies, Inc. Members.
Effective with the merger of the SCM Office Supplies, Inc.
Salaried Employees' Retirement Plan and the SCM Office Supplies,
Inc. Hourly Employees' Retirement Plan with and into the Plan as
of December 31, 1995, retirees and former employees with vested
benefits under the merged plans shall be deemed Members under the
Plan where appropriate.
ARTICLE III
CREDITED SERVICE
Section 3.1. Credited Service. Except as otherwise
provided in Sections 3.2 and 3.3 of this Article III, a Member
shall receive one year of Credited Service for each calendar year
during which he was a Member of the Plan and compensated for at
least 1,000 Hours of Service, provided, however, that he shall
receive one year of Credited Service for the calendar year in
which he becomes a Member of the Plan and one year of Credited
Service for the calendar year in which he retires, where
retirement under Article IV occurs on other than January 1,
regardless of the number of Hours of Service, except for purposes
of computing a benefit and determining eligibility under Section
5.7 of Article V. In no event shall the total amount of Credited
Service for any Member exceed 35 years.
Section 3.2. Leave of Absence. The Break-in-Service
Rules shall govern the determination of Credited Service, except
that Leaves of Absence granted by the Committee, not in excess of
two years, on account of illness or accident, shall not be
considered as a Break-in-Service except in cases where the Member
fails to return immediately after he has recovered from such
illness or accident.
Section 3.3. Military Service. A Member's service in
the armed forces of the United States of America shall not be
considered as a Break-in-Service provided that within 90 days
after he is first eligible for discharge or separation from such
service he shall indicate his desire for reemployment and shall
not fail to accept reemployment when offered him by the Company.
ARTICLE IV
TIME OF RETIREMENT
Section 4.1. Normal Retirement. Unless entitled to
early retirement, under Section 4.2 of this Article IV, postponed
retirement under Section 4.3 of this Article IV, or Total and
Permanent Disability retirement under Section 4.4 of this Article
IV, a Member shall retire on his Normal Retirement Date.
Section 4.2. Early Retirement. The early retirement
date is a) the first day of any month after a Member has reached
his 55th birthday and has attained at least fifteen (15) years of
Credited Service; or b) if he was in the employ of the Company on
July 1, 1972, the first day of any month after he has attained
his 60th birthday, regardless of the number of his years of
Credited Service. He may retire on the first day of any calendar
month prior to his Normal Retirement Date. A written notice must
be filed with the Committee at least one month prior to the early
retirement date selected.
Section 4.3. Postponed Retirement. The postponed
retirement date is the first day of any month after the Normal
Retirement Date. A written notice must be filed with the
Committee at least one month prior to the postponed retirement
date selected.
Section 4.4. Total and Permanent Disability
Retirement. A Member who becomes totally and permanently
disabled prior to attaining age 65 and who at the time of
becoming totally and permanently disabled has completed at least
ten (10) years of Credited Service and is not eligible for early
retirement under Section 4.2 of this Article IV, shall be
eligible for a total and permanent disability retirement benefit
as provided in Section 5.4 of Article V.
Section 4.5. Written Request. Benefits under this
Plan shall be payable only after the Member applies in writing
therefore on a form prescribed by the Committee.
ARTICLE V
RETIREMENT BENEFITS
Section 5.1. Benefit Amount. (a) Benefits for
Members who are Employees of the Company shall be determined with
reference to such Member's Benefit Base, which shall be a monthly
retirement benefit for life with 60 payments guaranteed
commencing at the end of the month in which the Member's Normal
Retirement Date occurs and is equal to the product of the number
of years of Credited Service times $13.00. The maximum number of
years of Credited Service which will be taken into account in
determining the amount of such Member's retirement benefits is
35 years. A Member's Benefit Base for retirements prior to
December 31, 1995 shall be calculated in accordance with the
formula in effect at the time of retirement.
(b) Benefits for Members who were members of the SCM
Office Supplies, Inc. Hourly Employees' Retirement Plan prior to
December 31, 1995 shall be equal to their accrued benefits under
said plan payable from the Trust Fund under this Plan. The
amount of such retirement benefits shall be determined with
reference to such member's Benefit Base, which shall be a monthly
retirement benefit for life commencing at the first day of the
month in which the Member's Normal Retirement Date occurs or
occurred. It shall be equal to Benefit Base in effect on the
member's retirement or other termination of employment based on
the following:
(i) Benefit Base effective May 1, 1988
The number of years of Credited Service
times $12.00
(ii) Benefit Base effective May 1, 1990
The number of years of Credited Service
times $13.00
(iii) Benefit Base effective May 1, 1991
The number of years of Credit Service times
$13.50
(iv) Benefit Base effective May 1, 1992
The number of years of Credit Service times
$14.00
(v) Benefit Base effective May 1, 1993
The number of years of Credit Service times
$15.00
(vi) Benefit Base effective May 1, 1994
The number of years of Credit Service times
$16.00
(vii) Benefit Base effective May 1, 1995
The number of years of Credit Service times
$17.00
For Members hired on or after May 1, 1985, the maximum number of
years of Credited Service which will be taken into account in
determining the amount of such Member's retirement benefits is
30 years.
(c) Benefits for Members who were members of the SCM
Office Supplies, Inc. Salaried Employees' Retirement Plan prior
to December 31, 1995 shall be equal to their accrued benefits
under said plan payable from the Trust Fund under this Plan. The
annual amount of such retirement benefits commencing as of his
Normal Retirement Date shall equal the greater of (i) and (ii) as
follows:
(i) the number of years of Credit Service (not
to exceed 30 years) times the difference
between (A) and (B) as follows:
(A) 1.5% of such Member's Average Final
Compensation and
(B) 1/60th of his Social Security Benefit
(ii) $360 multiplied by the number of years of
Credited Service (but not in excess of
10 years of Credited Service); provided,
however, such benefit shall be reduced in
the case of a Member who worked less than a
normal work week at his location. Such
reduction shall be made on a pro rata basis
reflecting the Member's average hours worked
per week as compared to the normal work week
or 40 hours, whichever is the lesser, during
the period used in determining his Average
Final Compensation.
For purposes of the foregoing formula, the terms Credited
Service, Average Final Compensation and Social Security Benefit
shall have the meaning described in Article I, Definitions of the
SCM Office Supplies, Inc. Salaried Employees' Retirement Plan in
effect prior to December 31, 1995. All retirement benefits shall
be paid in accordance with Section 5.3.(e) or Section 5.6.,
whichever is applicable.
Section 5.2. Member's Contributions to Predecessor
Plans (Additional Benefit). Under the provisions of the
Predecessor Plan, Employees were permitted to make voluntary
contributions to provide an Additional Benefit. As to such
Predecessor Plan employee contributions, the provisions of this
Section apply:
(a) Effective July 1, 1972 Members were not permitted
to contribute to the Predecessor Plan.
(b) Any Member who made voluntary contributions to the
Predecessor Plan may elect to withdraw such contributions or
may elect to leave such contributions in the Plan in a
segregated account subject to subsection (c) below.
(c) A Member who elects to leave his contributions in
the Plan shall be entitled to receive an Additional Benefit
attributable to such contributions which is the Actuarial
Equivalent to the value of such contributions as of the
distribution date. Such Additional benefit shall be paid in
the form specified in Section 5.3(e) subject to Sections 5.5
and 5.6. In the event the Member's death occurs while an
active employee or, if retired or a Member eligible for
benefits under Section 5.7(b) of this Article V, prior to
the receipt of the value of his contributions with interest;
computed as of the earliest of his retirement date,
termination date, or the date of his death; the excess of
such value over the retirement income received as of the
date of death of the Member, if any, shall be paid to his
designated beneficiary in cash, in one lump sum.
(d) A Member who elects to leave his contributions in
the Plan may revoke such election prior to the date upon
which his retirement or disability benefit commences. Upon
receipt of notice from a Member of revocation of his
election to leave such contributions in the Plan, the
Committee, within 60 days, shall pay to said Member the
total of all contributions made by him and interest, if any,
in cash in one lump sum and, notwithstanding any other
provision, such payment shall fully discharge all Plan
obligations with respect to such contributions and the
Additional Benefit.
(e) Interest - The rate of interest applicable to
voluntary contributions under the Predecessor Plan up to
December 31, 1973 was 3% per annum. On January 1, 1974 the
rate was amended for contributions to both of the
Predecessor Plans to 5% per annum. The amount of interest
to be paid on any contributions shall be determined by the
Committee from time to time.
Section 5.3. Retirement Benefits.
(a) Normal Retirement. A Member who retires at his
Normal Retirement Date shall be entitled to a monthly retirement
benefit for life with payment of 60 installments guaranteed, in
an amount equal to his Benefit Base. A Member's accrued benefit
shall be 100% nonforfeitable upon attainment of age 65.
(b) Early Retirement. A Member retiring prior to his
Normal Retirement Date, as provided in Section 4.2 of Article IV,
shall be entitled either to (i) a deferred monthly retirement
benefit for life commencing at his Normal Retirement Date in an
amount equal to his Benefit Base, or at his option to (ii) a
monthly retirement benefit commencing at his actual retirement
date, which shall be in an amount equal to his Benefit Base,
reduced by the lesser of (a) one-half of one percent (1/2%) for
each month by which his actual retirement date precedes his
Normal Retirement Date or (b) actuarial reduction factor for each
month by which his actual retirement date precedes his Normal
Retirement Date.
(c) Postponed Retirement. A Member who retires on a
postponed retirement date as provided by Article V, Section 5.6,
shall be entitled to a monthly retirement benefit as provided for
Normal Retirement under Section 3(a) of this Article V, based
upon the Benefit Base in effect on his postponed retirement date.
(d) Time Retirement Benefits Begin. With respect to
Members who are Employees or were members of the SCM Office
Supplies, Inc. Salaried Employees' Retirement Plan prior to
December 31, 1995, the payment of a Member's retirement benefit
(including in the Normal Form of Payment as provided in
subsection (e) hereof) shall begin on the last day of the month
in which his Normal Retirement Date occurs, and thereafter on the
last day of each calendar month provided, however, if a Member
who retires at an early retirement date or who retires at a
postponed retirement date, the payment of the retirement benefit
shall begin on the last day of the month in which his actual
retirement date occurs.
With respect to Members who were members of the SCM
Office Supplies, Inc. Hourly Employees' Retirement Plan prior to
December 31, 1995, the payment of a Member's retirement benefit
(including in the Normal Form of Payment as provided in
subsection (e) hereof) shall begin on the first day of the month
in which his Normal Retirement Date occurs, and thereafter on the
first day of each calendar month provided, however, if a Member
who retires at an early retirement date or who retires at a
postponed retirement date, the payment of the retirement benefit
shall begin on the first day of the month in which his actual
retirement date occurs.
(e) Normal Form of Payment for Retirement Benefits.
(i) A Member having a spouse at his retirement
date or the date his retirement benefits are to commence, if
later, shall be paid a benefit in the form of a Qualified
Joint and Survivor Annuity which is the Actuarial Equivalent
of the Member's retirement benefits unless the Member
otherwise elects in the manner set forth below.
(ii) A Member who is an Employee and who does not
have a spouse at his retirement date, or on the date his
retirement benefits are to commence, if later, shall be paid
his retirement benefits for life with payment of 60 monthly
installments guaranteed unless the Member otherwise elects
in the manner set forth below. Any other Member who does
not have a spouse at his retirement date or on the date his
retirement benefits are to commence, if later, shall be paid
his retirememnt benefits for life unless the Member
otherwise elects in the manner set forth below.
Section 5.4. Total and Permanent Disability Retirement
Benefit. The monthly benefit of a Member eligible for retirement
on account of Total and Permanent Disability shall be the
Actuarial Equivalent of his Benefit Base. Subject to Sections
5.3(e) and 5.5 of this Article V, a Member retiring under this
Section, and not otherwise eligible to retire under Sections 4.1,
4.2, or 4.3 of Article IV, shall be entitled to receive an income
for life with payments of 60 monthly installments guaranteed
commencing at the end of the month following the month in which
the employee made application for retirement on account of Total
and Permanent Disability. Payment of benefits under this Section
shall cease at the end of the last month prior to the Member's
death, unless application for retirement on account of Total and
Permanent Disability is denied or earlier terminated in
accordance with Section 6.2 of Article VI.
Section 5.5. Election to Reject the Qualified Joint
and Survivor Annuity. A Member who is married may, during the
election period specified below, elect to reject the Qualified
Joint and Survivor Annuity form of payment and select an optional
form of payment under Section 5.6 of Article V. A rejection
shall not be effective unless the Member's spouse gives written
consent on the form provided by the Committee which consent
acknowledges the effect of the rejection and is witnessed by a
notary public (or an individual designated by the Committee).
Such consent shall not be necessary if it is established to the
satisfaction of the Committee that the consent cannot be obtained
because there is no spouse, because the spouse cannot be located,
there is a legal separation, or the Member proves abandonment as
evidenced by a court order, or because of such other
circumstances as the Secretary of the Treasury may by regulations
prescribe. Such election shall be made during an election period
which shall begin not later than the 90th day preceding the
Member's benefit commencement date and shall end on the Member's
benefit commencement date. A Member who makes an election to
reject to Qualified Joint and Survivor Annuity form of payment
may revoke such election in writing at any time during such
election period. Consent of the Member's spouse to such
revocation shall not be required. There shall be no limit on the
number of times a Member may make an election or revoke an
election during the election period, but no election or
revocation shall be permitted before or after the election
period. The Committee shall furnish to each Member within a
reasonable time period before his commencement date (no more than
90 days or less than 30 days before his benefit commencement
date) a written explanation of the terms and conditions of the
Qualified Joint and Survivor Annuity, the Member's right to make
an election to reject the Qualified Joint and Survivor Annuity
form of benefit, the rights of the Member's spouse and the
Member's right to make, and the effect of an election to revoke,
an election to reject the Qualified Joint and Survivor Annuity
form.
Section 5.6. Optional Forms of Payment. In lieu of
the normal form of the retirement benefit under Section 5.3(e)
above, a Member may elect an optional form of payment which will
be the Actuarial Equivalent of the normal form of payment under
Section 5.3(e)(ii) above. The optional forms of payment are:
Option 1. A Member may elect that even if he has a
spouse at his retirement date or the date his retirement
benefits are to commence, if later, his retirement benefits
shall be paid for his lifetime only with payment of 60 or
120 monthly installments guaranteed.
Option 2. A Member who has elected early retirement
may elect to receive an Actuarial Equivalent retirement
benefit providing larger monthly payments, in lieu of the
retirement benefit otherwise payable upon early retirement,
until the date his Social Security payments begin, with a
reduction of retirement income thereafter, to make available
for him, insofar as practicable, level payments of total
retirement benefit.
Option 3. A Member who is married may elect to receive
a reduced amount of retirement benefit payable during his
lifetime with a provision that 75% or 100% of such reduced
amount shall be continued after his death to his spouse for
his or her lifetime. The amount of the reduced benefit will
be the Actuarial Equivalent of the Benefit Base to which the
Member would otherwise be entitled. The conditions
governing this election shall be:
(i) The election must be made by the Member in
writing to the Committee and must state the effective
date of the Option, the name, sex and date of birth of
the spouse, and the percentage of the reduced
retirement income to be continued after his death to
his spouse.
(ii) If either the Member or his spouse should die
prior to the effective date of the option, or if the
monthly amount of the retirement benefit payable under
the option to either him or his spouse will be less
than $10, or if the Member cancels the option prior to
the effective date of the option, the election of the
option shall become inoperative.
Option 4. A Member who is unmarried may elect to
receive a reduced amount of retirement benefit payable
during his lifetime with provision that 100% or 75% or 50%
of such reduced amount shall be continued after his death to
his designated beneficiary for the beneficiary's lifetime.
The amount of the reduced benefit will be the Actuarial
Equivalent of the Benefit Base to which the Member would
otherwise be entitled. The conditions governing this
election shall be:
(i) The election must be made by the Member in
writing to the Committee and must state the effective
date of the Option, the name, sex and date of birth of
the designated beneficiary, and the percentage of the
reduced retirement income to be continued after his
death to his designated beneficiary.
(ii) If either the Member or his designated
beneficiary should die prior to the effective date of
the option, or if the monthly amount of the retirement
benefit payable under the option to either him or his
designated beneficiary will be less than $10, or if the
Member cancels the option prior to the effective date
of the option, the election of the option shall become
inoperative.
Option 5. A Member who is an Employee may elect that
even if he has a spouse at his retirement date or on the
date his retirement benefits are to commence, if later, his
retirement benefits shall be paid for his lifetime, and will
cease with the payment due as of the last day of the month
preceding the month in which the Member's death occurs.
The election of an option under this Article shall be
made on forms prescribed by the Committee and filed with the
Committee prior to the effective date of the option. The
election of an optional form of payment and the designation of a
beneficiary may be revoked or changed from time to time by a
Member by written notice received by the Committee prior to the
effective date of the Option. Elections by Members who are
married shall be subject to Section 5.5.
Section 5.7. Termination of Service Other Than By
Death. Upon termination of service other than by death prior to
his Normal Retirement Date, a Member other than one who elects
early retirement as provided in Article V, Section 5.3(b), or
retirement on account of Total and Permanent Disability as
provided in this Article V, Section 5.4, shall be subject to the
following provisions, as applicable:
(a) Eligibility. Notwithstanding Article III, a
Member's eligibility to the rights and benefits provided
under subsection (b) and (c), below, are determined by a
Member's "Vesting Service" calculated by computing the
aggregate of:
(i) the Years of Credited Service under Articles
II and III of the Plan; and
(ii) the years of employment with the Company
commencing with the date such Employee attained at
least age 18, but not including or exceeding the date
he attains age 21, where he was compensated for at
least 1,000 Hours of Service in each such calendar
year. Further provided, however, that the Employee
shall receive one year of eligibility credit under this
subsection for the calendar year in which he first
becomes an Employee who is at least age 21.
(b) With 5 Years or More of Vesting Service. A Member
who terminates employment and who has at least five (5)
years of Vesting Service determined under subsection (a),
above, shall be entitled to his Benefit Base computed as of
the date of his termination on the basis of his Credited
Service determined under subsection (a)(i), without regard
to subsection (a)(ii) plus, an Additional Benefit, if any,
under Section 5.2. Payment of such Member's retirement
benefit shall commence on the last day of the month in which
his Normal Retirement Date occurs, if he then so requests in
writing, in the form provided in Article V, Section 5.3(e),
unless an optional form of benefit has been elected under
Section 5.6 of Article V; provided, that if a Member has
fifteen (15) years of Credited Service determined under
subsection (a)(i) at the time of his termination of
employment, he may elect at his termination of employment to
receive a reduced benefit commencing on the last day of the
month next following his attainment of age 55, which is the
actuarial equivalent of his Benefit Base as determined under
subsection (a)(i), above. Provided, further, that
regardless of his number of years of Credited Service, a
Member who was an Employee of the Company on July 1, 1972,
may elect at his termination of employment to receive a
reduced benefit commencing on the last day of the month next
following his attainment of age 60, which is the actuarial
equivalent of his Benefit Base.
A Member eligible to receive the Additional Benefit as
provided by Section 5.2 of this Article V, may elect,
subject to Sections 5.3(e) and 5.5, to receive the total of
his contributions with interest, if any, in a one lump sum
payment in cash in lieu of the receipt of the Additional
Benefit. Such election must be filed with the Committee in
writing prior to his termination of service with the
Company.
(c) With Less than 5 Years of Vesting Service. A
Member who terminates employment and who has less than five
(5) years of Vesting Service under this Plan shall be paid
the total of his contributions, if any, in one lump sum in
cash with interest to the date of such termination provided
that if such Member is married, the form of payment shall be
subject to Sections 5.3(e) and 5.5. In addition, such a
Member shall be deemed to have received an immediate
constructive cash-out distribution of his entire accrued and
nonvested Base Benefit at termination equal to zero dollars.
Section 5.8. Payment of Retirement Benefits.
Retirement benefits payable to a Member shall normally be paid in
monthly installments. Provided that application for such
benefits is made in the manner and within the period specified in
Article V, Sections 5.5 and 5.6, the first monthly installment of
any retirement benefit shall be payable on the last day of the
month in which the Member's retirement date occurs; otherwise,
the first monthly installment of any retirement benefit shall be
payable on the last day of the calendar month after the
expiration of the 30 days following the notice to the Committee
or its delegate. Subsequent to the first installment, benefits
will be paid on the last day of each calendar month.
Section 5.9. Forfeitures. Any forfeiture arising
under the Plan shall not be applied to increase the benefits any
Member would otherwise receive under the Plan but shall be
applied to reduce contributions under the Plan.
Section 5.10. Reemployment. If a Member who has
retired or terminated for Total and Permanent Disability under
the Plan is reemployed by the Company, payment of benefits shall
be discontinued forthwith subject to regulations of the Act. On
such Member's subsequent retirement he shall be entitled to
retirement income as herein provided, adjusted for the amounts he
received while retired. If such Member dies while reemployed, he
shall be deemed to have finally retired on the date of his death.
Section 5.11. Payment of Small Amounts.
Notwithstanding the foregoing provisions of this Article V, if
the actuarial equivalent single sum present value of a Member's
retirement benefits is $3,500 or less, the Committee shall pay
such benefit in a single sum without the Member's consent or the
Member's spouses', if any, consent. For purposes of determining
the actuarial equivalent single sum present value, the interest
rate shall be equal to the rate (or rates) used by the Pension
Benefit Guaranty Corporation for purposes of calculating the
present value of benefits under plans terminating on the first
day of the Plan Year in which such lump sum amount becomes
payable.
Section 5.12. Death Benefit for Certain Members.
(a) If a Member retires from the Company under Article
V, Section 5.3(a), (b) or (c) or 5.4 and dies before commencement
of his retirement benefits, unless the Member has elected
otherwise pursuant to paragraph (e) (ii) below, his surviving
spouse, if any, shall be entitled to a retirement benefit payable
for life, as described below. The surviving spouse entitled to a
retirement benefit under this paragraph (a) may elect to have
such retirement benefit commence either as of the month following
the Member's date of death or (if later) the date that would have
been the member's Early Retirement Date.
The amount of the retirement benefit payable to a
surviving spouse under this paragraph (a) shall be equal to 50%
of the reduced retirement benefit that would have been payable to
the Member if (instead of dying) he had commenced receiving his
retirement benefits in the Qualified Joint and Survivor Annuity
form on the day before his death, computed without regard to any
charge imposed under paragraph (e) below.
(b) In the event of the death of a Member before age
65 and prior to retirement but after satisfaction of the age and
service requirements for a retirement benefit under Article V,
Section 5.3(b) (Early Retirement), unless the Member has elected
otherwise pursuant to paragraph (e) (ii) below, the person, if
any, who was the Member's spouse for the one-year period ending
on the date of the Member's death shall be entitled to a
retirement benefit payable for life, as described below. The
surviving spouse entitled to a retirement benefit under this
paragraph (b) may elect to have such retirement benefit commence
either as of the month following the Member's date of death or
the date that would have been the Member's Normal Retirement
Date.
The amount of the retirement benefit payable to a
surviving spouse under this paragraph (b) shall be equal to 50%
of the reduced retirement benefit that would have been payable to
the Member if (instead of dying) he had retired under Article V,
Section 5.3(b) on the date his death occurred and commenced
receiving his retirement benefits in the Qualified Joint and
Survivor Annuity form, determined without regard to any charge
that may be imposed under paragraph (e) below.
(c) If a Member should die (i) after completion of 5
years of Vesting Service, (ii) before satisfying the requirements
for retirement benefits under Article V, Section 5.3(a) or (b),
and (iii) before separation from service with the Company, unless
the Member has elected otherwise pursuant to paragraph (e) (ii)
below, the person, if any, who was the Member's spouse for the
one-year period ending on the date of the Member's death shall be
entitled to a retirement benefit payable for life, as described
below. A surviving spouse eligible for retirement benefits under
this paragraph (c) may elect to have such retirement benefits
commence either as of the date that would have been the Member's
Normal Retirement Date or as of the earliest month following the
date of the Member's death that the Member could have elected to
have retirement benefits commence if (instead of dying) he had
separated from service on the date his death occurred.
The amount of the retirement benefit payable to a
surviving spouse under this paragraph (c) shall be equal to 50%
of the reduced retirement benefit that would have been payable to
the Member under Article V, Section 5.7(b) if (instead of dying)
he had separated from service with the Company on the date his
death occurred and commenced receiving his retirement benefits in
the Qualified Joint and Survivor Annuity form on the date
retirement benefits to his surviving spouse commence, determined
without regard to any charge that may be imposed under paragraph
(e) below. If a deceased Member had voluntary contributions in
the Plan at death, the surviving spouse shall also be entitled an
annuity purchased with 100% of the value of such contributions
and payable at the same time as the other benefits specified in
this Section 5.12(c).
(d) In the event a Member dies on or after his 65th
birthday and before his retirement from the Company, his
surviving spouse, if any, shall be entitled to retirement
benefits payable for life, as described below. The retirement
benefit payable to a surviving spouse under this paragraph (d)
shall commence as of the month following the Member's date of
death.
The amount of the retirement benefit payable to a
surviving spouse under this paragraph (d) shall be equal to 50%
of the reduced retirement benefit that would have been payable to
the Member if (instead of dying) he had retired under Article V,
Section 5.3(c) on the day before his death occurred and commenced
receiving his retirement benefits in the Qualified Joint and
Survivor Annuity form and then died. If a deceased Member had
voluntary contributions in the Plan at death, the surviving
spouse shall also be entitled to an annuity purchased with 100%
of the value of such contributions and payable at the same time
as the other benefit specified in this Section 5.12(d).
(e) If a Member is not employed in a bargaining unit
represented for collective bargaining purposes by a collective
bargaining agent, there shall be no charge for the survivor
annuity coverage provided under this Section 5.12. If a Member
is employed in such a bargaining unit, there shall be a charge
for the survivor annuity coverage provided with respect to such
Member, if any, under paragraphs (a) (b) and (c) of this Section
5.12, based on the period of coverage, in the form of an
adjustment to the amount of retirement benefit otherwise payable
to the Member with respect to whom such survivor benefits are
payable, unless the applicable collective bargaining agreement
provides otherwise. If a charge is to be imposed with respect to
a Member's retirement benefits, the following provisions of this
paragraph (e) shall be applicable.
(i) For purposes of determining the charge for
the survivor annuity coverage, the period of coverage shall begin
on the date the Member attains age 35 and shall end on the date
his retirement benefits commence; provided, however, that there
shall be excluded any period during which no retirement benefits
would have been payable under paragraph (a), (b) or (c) above
with respect to the death of the Member if his death then
occurred. No charge shall be imposed for coverage provided
during the period after the Member's Normal Retirement Date.
The adjustment factor for the survivor annuity coverage
shall be determined in accordance with the table below:
Period of Coverage
For each 12 months of coverage
from age 35 through age 44 1/12%
For each 12 months of coverage
from age 45 through age 54 1/4%
For each 12 months of coverage
from age 55 through age 64 1/2%
(ii) Each Member whose retirement benefits would
be subject to a charge for the survivor benefit coverage provided
under paragraph (a), (b) or (c) above shall have the right to
reject such survivor benefit coverage, in which case no benefit
will be payable under paragraph (a), (b) or (c) above.
An election to revoke this coverage shall not take
effect unless the person, if any, who otherwise would be entitled
to retirement benefits with respect to the death of a Member
under paragraphs (a), (b) or (c) above, as the case may be, has
consented (on a form provided by the Committee for such purpose)
to such election in a written, signed and notarized statement
that acknowledges the effect of the election. A spousal consent
is irrevocable; however, any such consent shall apply only to the
spouse who gave the consent. The Committee, in its sole
discretion, may waive the requirement of consent of the spouse if
the Member establishes to the Committee's satisfaction that the
spouse cannot be located or that there are other special
circumstances referred to in Section 5.5 of Article V.
An election to revoke this survivor annuity coverage
may be made at any time within the period specified in section
417(a)(6)(B) of the Code and the Treasury Regulations thereunder.
A Member may cancel a revocation of this survivor
annuity coverage at any time during the election period. There
is no limit on the number of times during the election period
that the Member may revoke the coverage or cancel a revocation.
(iii) At the time or times specified in section
417(a)(3)(B) of the Code and the Treasury Regulations thereunder,
the Committee shall furnish each Member eligible to make an
election to reject the survivor benefit coverage that otherwise
would be provided under paragraph (a), (b) or (c) above with a
written explanation of (1) the terms and conditions of the
survivor annuity coverage, (2) the Member's right to make, and
the effect of, an election to revoke the coverage, (3) the rights
of the spouse to consent, or refuse to consent, to such
revocation, and (4) the Member's right to make, and the effect
of, a cancellation of a revocation.
(f) Claim for Benefit
The surviving spouse must file a claim for benefits
before payment of retirement benefits under this Section 3 will
commence. The claim for benefits shall be in such form as the
Committee shall designate, and shall include certifications as to
the dates of birth of the Member and of such surviving spouse,
the date of marriage to the Member, and such other information
with respect to any prior marriages of the Member as the
committee shall deem necessary to determine the appropriate
charge, if any, for the surviving spouse annuity coverage.
Section 5.13. Pre-Benefit Commencement Survivor Option
for Vested Terminated Members.
(a) In General
Unless revoked as provided under paragraph (d) below,
if a vested terminated Member who was an Employee on or after
August 23, 1984 is entitled to a retirement benefit under Article
V, Section 5.7(b) should die before his retirement benefit
commences, the person, if any, to whom the Member was married
throughout the entire one-year period ending on the date of his
death shall be entitled to a retirement benefit commencing on the
earliest date the vested terminated Member's retirement benefit
could have commenced had he survived, as determined in accordance
with the provisions of Article V, Section 5.7(b), or as of the
Member's Normal Retirement Date, as the surviving spouse may
elect.
(b) Charge for Coverage
There shall be a charge for this survivor annuity
coverage, based on the period of coverage, in the form of an
adjustment to the amount of retirement benefit otherwise payable
to the vested terminated Member.
For purposes of determining the charge for this
survivor annuity coverage, the period of coverage shall begin on
the latest of (i) January 1, 1985, (ii) the date the Member
terminates employment, (iii) the date the Member attains age 35,
and shall end on the date his retirement benefit commences;
provided, however, that there shall be excluded from the period
of coverage any period during which (i) the Member is reemployed
by the Company, (ii) the Member has not been married for at least
one year, or (iii) the Member has effectively revoked this
coverage as provided in paragraph (d) below.
The adjustment factor for the survivor annuity coverage
shall be determined in accordance with the table below:
Period of Coverage
For each 12 months of coverage
from age 35 through age 44 1/12%
For each 12 months of coverage
from age 45 through age 54 1/4%
For each 12 months of coverage
from age 55 through age 64 1/2%
(c) Amount of Survivor Benefit
The amount of the retirement benefit payable to the
surviving spouse shall equal 50% of the reduced retirement
benefit the vested terminated Member would have received under
the Qualified Joint and Survivor Annuity form had he survived to,
and commenced receiving his retirement benefit on, the date
retirement benefits to his spouse commence under this Section
5.13, but without regard to the charge for coverage under this
option that would have been made in accordance with (b) above.
(d) Election to Revoke the Option
A married Member may elect, during the election period
specified below, to revoke this survivor annuity coverage, in
which case no benefit will be payable in the event of the vested
terminated Member's death before his retirement benefit
commences.
An election to revoke this coverage shall not take
effect unless the person, if any, who otherwise would be entitled
to retirement benefits under this Section 4 has consented (on a
form provided by the Committee for such purpose) to such election
in a written, signed and notarized statement that acknowledges
the effect of the election. A spousal consent is irrevocable;
however, any such consent shall apply only to the spouse who gave
the consent. The Committee, in its sole discretion, may waive
the retirement of consent of the spouse if the Member establishes
to the Committee's satisfaction that the spouse cannot be located
or that there are other special circumstances referred to in
Section 5.5 of Article V.
An election to revoke this survivor annuity coverage
may be made at any time within the election period beginning on
the later of (i) the date of the Member's termination of
employment or (ii) January 1, 1985, and ending on the date of the
vested terminated Member's death.
A vested terminated Member may cancel a revocation of
this survivor annuity coverage at any time during the applicable
election period. There is no limit on the number of times during
the election period that the Member may revoke the coverage or
cancel a revocation.
(e) Explanation
Upon the vested terminated Member's termination of
employment (and at such other times as may be required by
applicable law) the Committee shall furnish him with a written
explanation of (i) the terms and conditions of the survivor
annuity coverage, (ii) the vested terminated Member's right to
make, and the effect of an election to revoke the coverage, (iii)
the rights of the vested terminated Member's spouse to consent,
or refuse to consent, to such revocation, and (iv) the vested
terminated Member's right to make, and the effect of, a
cancellation of a revocation.
(f) Claim for Benefit
The surviving spouse must file a claim for benefits
before payment of retirement benefits under this Section 4 will
commence. The claim for benefits shall be in such form as the
Committee shall designate, and shall include certifications as to
the dates of birth of the Member and of such surviving spouse,
the date of marriage to the Member, and such information with
respect to any prior marriages of the Member as the Committee
shall deem necessary to determine the appropriate charge, if any,
for the surviving spouse annuity coverage.
Section 5.14. Commencement of Retirement Benefits.
Notwithstanding any other Plan provisions to the contrary,
Retirement Benefit payments shall in no event commence later than
the earlier of (i) the Member's Required Beginning Date in
accordance with Section 401(a)(9) of the Code or (ii) the 60th
day after the close of the Plan Year in which the latest of the
following events occurs:
(a) the attainment by the Member of age 65,
(b) the 10th anniversary of the year in which the
Member commenced participation in the Plan, or
(c) the termination of the Member's employment with
the Company, except that, if the amount of the payment
required to commence on the date determined under the Plan
cannot be ascertained by such date, a payment retroactive to
such date may be made no later than 60 days after the
earliest date on which the amount of such payment can be
ascertained under the Plan;
provided, however, that no Retirement Benefit payment shall
commence until the Member has filed a claim for benefits with the
Committee. Where a Member's Retirement is paid commencing at the
Member's Required Beginning Date, the period over which such
Benefits are paid shall not exceed the life of the Member or the
lives of the Member and his designated beneficiary or the life
expectancy of the Member or the life expectancies of the Member
and his designated beneficiary. If a Member whose Retirement
Benefits are paid commencing at the Member's Required Beginning
Date dies after such Benefits commence, the remaining portion of
his interest will be distributed at least as rapidly as under the
method of distribution being used at his date of death. If a
Member should die prior to the commencement of payments of his
Retirement Benefits at his Required Beginning Date, his entire
interest will be distributed within five years of his death
unless it is payable to a designated beneficiary in which case it
will distributed over the life of such designated beneficiary (or
over the designated beneficiary's life expectancy) beginning not
later than one year after the Member's death.
Section 5.15. Restriction on Benefit Suspension.
Notwithstanding anything in the Plan to the contrary, a Member's
retirement benefit payments shall be suspended on account of
reemployment in any month beginning on or after the Member's 65th
birthday during which the Member complete's 40 and more Hours of
Service for the Company provided that the Member is furnished
with the notice required by Department of Labor Regulations
section 2530.203-3(b)(4).
ARTICLE VI
TOTAL AND PERMANENT DISABILITY
Section 6.1. Determination of Total and Permanent
Disability. Upon incurring Total and Permanent Disability which
results in termination of employment, a Member who has not
reached age 65 and who has at least 10 years of Credited Service,
shall be entitled to receive, commencing at the end of the month
following the month in which application for retirement on
account of Total and Permanent Disability is received, disability
income for life which shall be an amount computed in the manner
set forth in Section 5.4 of Article V, and based on Credited
Service to the later of, the date of commencement of such
disability or the date of cessation of the Leave of Absence on
account of such disability. A determination of the Committee of
whether a Member is totally and permanently disabled shall be
conclusive in each case, subject to review as provided in Section
6.2 of this Article VI.
Section 6.2. Review by the Committee. Any Member who
has requested retirement on account of Total and Permanent
Disability and any former Member who shall be receiving payments
on account of such disability may be required by the Committee to
submit from time to time to medical and physical examination and
the disability retirement benefit may be denied or terminated in
the event that the Member or former Member shall refuse to so
submit to examination or, if as a result of any such examination,
the Committee shall determine that the Member, or former Member,
is not or is no longer totally and permanently disabled.
ARTICLE VII
FUNDING OF BENEFITS
Section 7.1. Cost of Plan. Except for contributions
to the Predecessor Plans, the entire cost of this Plan is to be
paid by the Company provided, however, that all actuarial, legal,
auditing and other administrative expenses may be paid from the
Trust Fund. With the advice and counsel of the Actuary, the
Board of Directors or its delegate shall establish a funding
policy and methods consistent with the objectives of this Plan
and the requirements of applicable law and shall communicate such
policy to the Trustee, and under the funding policy then in
effect determine the amounts of the contributions to be made to
fund the Plan to provide benefits to Members and their
beneficiaries under the terms of the Plan. The Company shall
make such contributions as may be authorized by the Board of
Directors.
Section 7.2. Source of Payments. All benefits shall
be paid or provided for solely from the Trust Fund and the
Company assumes no liability or responsibility therefor, except
to the extent required by law.
Section 7.3. Timing and Contingent Nature of
Contributions. The Company shall deliver its contributions made
with respect to any Plan Year to the Trustee on or before the
date established for filing of the Company's federal income tax
return (including any extensions of such date) for the year with
respect to which such contribution is made. Each contribution
made by the Company shall be made expressly contingent on the
deductibility thereof for federal income tax purposes for the
year with respect to which such contribution is paid.
Section 7.4. Exclusive Benefit; Refund of
Contributions. All contributions made by the Company are for the
exclusive purposes of providing benefits for Members and their
beneficiaries and defraying reasonable expenses of administering
the Plan and Trust. Notwithstanding the foregoing, amounts
contributed to the Trust by the Company may be refunded to the
Company under the following circumstances and subject to the
following limitations:
(a) If a contribution is conditioned on initial
qualification under Section 401 of the Code and if
the Plan receives an adverse determination with
respect to its initial qualification, such
contribution may be refunded to the Company within
one year after such determination.
(b) If a contribution is conditioned upon the
deductibility of the contribution under Section
404 of the Code, then to the extent the deduction
is disallowed, such contribution may be refunded
to the Company within one year after the
disallowance of deduction.
(c) If a contribution is made by a mistake of fact,
such contribution may be refunded to the Company
within one year after the payment of such
contribution.
ARTICLE VIII
ADMINISTRATION OF THE PLAN
Section 8.1. Appointment of the Committee. The Plan
shall be administered by a Committee of not less than three (3)
members appointed by the Board of Directors. This Committee
shall be the Plan Administrator under the Act. All of the
expenses of the Committee shall be borne by the Company.
Section 8.2. Committee Action. The Committee shall
act by a majority of its members at the time in office and such
action may be taken either by a vote at a meeting or in writing
without a meeting. The Committee may by such majority action
authorize any or more persons to execute any document or
documents on behalf of the Committee. The members of the
Committee shall serve as such without compensation.
Section 8.3. Powers of the Committee. The Committee
shall have all powers necessary to supervise the administration
of the Plan and to control its operation in accordance with its
terms, including, but not by way of limitation, power to:
(a) From time to time establish rules for the
performance of its functions and the administration of the
Plan;
(b) Interpret the provisions of the Plan and to
determine any question arising under the Plan, or in
connection with the administration or operation thereof, and
its decisions in interpreting, construing, or applying the
provisions of the Plan shall be binding and conclusive upon
the Trustee and any and all Employees, Members, and upon all
other persons whosoever;
(c) Determine the eligibility of any Employee to be or
become a Member of the Plan;
(d) Determine the Credited Service of any Member and
to compute the amount of retirement benefit, or other
amounts payable under the Plan to any person;
(e) Authorize and direct all disbursements of
retirement benefit and other amounts under the Plan;
(f) Retain counsel, employ agents and provide for such
clerical, accounting and actuarial services as may be
required in carrying out the provisions of the Plan; and
(g) Provide adequate notice in writing to any Member
or beneficiary whose claim for benefits under the Plan has
been denied, setting forth specific reasons for denial and
special reference to the pertinent Plan provisions on which
such denial is based written in a manner calculated to be
understood by the Member; and to afford a reasonable
opportunity to any Member or beneficiary whose claim for
benefits has been denied for a full and fair review of its
decision under procedures specified by the Act or
regulations thereunder. All determinations regarding
benefit claims shall be final, conclusive and binding on all
interested parties.
Section 8.4. Lawsuits. Every right of action claiming
benefits under the Plan, irrespective of the place where such
action may be brought, shall be barred after the expiration of 3
years from the event giving rise to the claim or, if later, the
date of receipt of the notice of denial of the claim for
benefits.
ARTICLE IX
NONALIENATION OF BENEFITS
Section 9.1. Rights Inalienable. No income or benefit
payable under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge and any action by way of anticipating,
alienating, selling, transferring, assigning, pledging,
encumbering or charging the same shall be void and of no effect;
nor shall any such income or benefit be in any manner liable for
or subject to the debts, contracts, liabilities, engagements, or
torts of the person entitled to such income or benefit, except as
specifically provided in the Plan or except as required by the
terms of a domestic relations order which is determined by the
Committee to be a qualified domestic relations order (within the
meaning of section 414(p) of the Code). If a qualified domestic
relations order requires the distribution of all or part of a
Member's benefits under the Plan to an alternate payee, the
establishment or acknowledgement of such alternate payee's right
to benefits under the Plan in accordance with the terms of such
qualified domestic relations order shall in all cases be deemed
to be consistent with the terms of the Plan and the benefits
otherwise payable under the terms of the Plan to or with respect
to such Member shall be reduced by the actuarial equivalent of
benefits payable to the alternate payee under the terms of the
qualified domestic relations order.
Section 9.2. Effect of Attempted Alienation. If any
Member of beneficiary under the Plan shall become bankrupt or
attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber or charge any income or benefit, except as required by
the terms of a domestic relations order which is determined by
the Committee to be a qualified domestic relations order (within
the meaning of section 414(p) of the Code), then such income or
benefit shall, in the discretion of the Board of Directors or its
delegate, cease and terminate. In that event the Board of
Directors or its delegate may hold or apply the income or benefit
or any part thereof to or for such Member or beneficiary, his
spouse, children, or other dependents, or any of them, in such
manner and in such proportions as the Board of Directors or its
delegate shall in its or his sole discretion determine.
ARTICLE X
MISCELLANEOUS
Section 10.1. No Implied Rights. No person shall have
any right in or to the Trust Fund or any part thereof, or under
the Plan, except as, and only to the extent, expressly provided
for in the Plan. Neither the establishment of the Plan, the
granting of retirement benefits, nor any action of the Company,
the Board of Directors or its delegate, shall be held or
construed to confer upon any person any right to be continued as
an Employee, nor, upon dismissal, to any right or interest in the
Trust Fund other than as herein expressly provided. The Company
expressly reserves its rights to discharge any Employee at any
time.
Section 10.2. Interpretation of Plan. The provisions
of the Plan shall be construed, administered and enforced
according to the laws of the State of New York to the extent not
inconsistent with the Act.
Section 10.3. Disappearance of Person Entitled to
Payment. In the event any amount shall become payable hereunder
to any Member, joint annuitant, beneficiary or personal
representative, and if, after written notice from the Committee
mailed to such person's last known address or addresses as shown
in the records of the Company and the Committee, such person
shall not have presented himself to the Committee within one year
after mailing of such notice, then the Committee may, in its sole
discretion, distribute such amount, including any amount
thereafter becoming due, to such person among one or more of the
spouse and blood relatives of such Member, or the Committee may,
but shall not be required to, determine that such person's
interest in the Trust Fund has terminated and the remaining
amount due forfeited subject to restoration should the person
entitled thereto reappear and verify entitlement thereto.
Section 10.4. Limit on Benefits.
(a) Anything to the contrary herein notwithstanding
and, subject to the provisions of (b) below, the annual amount of
a Member's retirement benefit shall not be more than the smaller
of (1) and (2) as follows:
(1) $90,000 adjusted for increases in the cost of
living to the extent permitted under Section 415(d) of the
Code, and
(2) 100% of the Member's average compensation (within
the meaning of Section 415(b)(3) of the Code and applicable
regulations) for his high 3 consecutive calendar years of
participation in the Plan, adjusted for increases in the
cost of living to the extent permitted under Section 415(d)
of the Code.
(b) The maximum amount of retirement benefit
determined in (a) is subject to the following:
(1) If the retirement benefit is payable in a form
other than a life annuity, the Qualified Joint and Survivor
Annuity or the form provided under Options 3 or 4 of
Article V, Section 5.5, the maximum amount of retirement
benefit shall be adjusted so that it is the actuarial
equivalent of a life annuity equal in amount to that
determined in (a).
(2) For the purpose of applying the maximum benefit,
all defined benefit pension plans maintained by members of
the Corporate Group (as defined in paragraph (b)(4) below)
shall be combined.
(3) If a Member in this Plan has also been a
participant in any defined contribution plan maintained by a
member of the Corporate Group, and if, as of the end of the
year in which retirement benefits under this Plan are due to
commence to or on account of such Member, his defined
contribution plan fraction, determined, in accordance with
section 415(e) of the Code and related regulations, on the
basis of his combined membership in all such defined
contribution plans, shall exceed two-tenths (.2) then the
defined benefit limitation applicable to such Member under
this Plan, prior to any reduction in such limitation for
benefits payable under other defined benefit plans of the
Corporate Group, shall be determined as follows:
(i) by multiplying the amounts in (a)(1)(i) and
(a)(2) by the quantity (but not greater than one (1.0)
equal to one and one quarter (1.25) multiplied by the
excess of one (1.0) over his defined contribution
fraction and
(ii) by multiplying the amount in (a)(1)(ii) by
the quantity (but not greater than one (1.0)) equal to
one and four tenths (1.4) multiplied by the excess of
one (1.0) over his defined contribution fraction.
(4) For purposes of this Section 4, the term
"Corporate Group" means the Company (including all
unincorporated divisions and units thereof) and any other
company which is related to the Company as a member of a
controlled group of corporations in accordance with
section 414(b) of the Code, or as a trade or business under
common control in accordance with section 414(c) of the
Code, provided that for purposes of this Section 4 the
standard of control for determining a member of the
Corporate Group under Sections 414(b) and 414(c) of the Code
shall be deemed to be 'more than 50%' rather than 'at least
80%'.
(5) If the annual amount of a Member's retirement
benefit begins before the Member's Social Security
Retirement Age (as defined in Section 415(b)(8) of the
Code), the $90,000 limitation shall be reduced so that it is
the actuarial equivalent of the $90,000 limitation beginning
at the Member's Social Security Retirement Age. If a
Member's retirement benefit begins at or after age 62 but
prior to the Member's Social Security Retirement Age, the
$90,000 limitation shall be reduced (i) in the case of a
Member whose Social Security Retirement Age is 65, 5/9 of 1%
for each month by which benefits commence before the month
in which the Member attains age 65 and (ii) in the case of a
Member whose Social Security Retirement Age is greater than
65, 5/9 of 1% for each of the first 36 months and 5/12 of 1%
for each additional month (up to 24) by which benefits
commence before the month in which the Member attains his
Social Security Retirement Age. If the annual amount of a
Member's retirement benefit begins after the Member's Social
Security Retirement Age, the $90,000 limitation shall be
increased so that it is the actuarial equivalent of the
$90,000 limitation beginning at the Member's Social Security
Retirement Age.
(6) If a Member has less than 10 years of Service at
the time he begins to receive retirement benefits under the
Plan, the limitations in (a) above shall be reduced by
multiplying such limitations by an "appropriate fraction."
The "appropriate fraction" in the case of the compensation
limitation shall be (i) the numerator of which is the number
of years of service (or part thereof) and (ii) the
denominator of which is 10. The "appropriate fraction" in
the case of the dollar limitation shall be (i) the numerator
of which is the number of years of participation (or part
thereof) and (b) the denominator of which is 10.
Notwithstanding the foregoing, the limitation on benefits
shall be deemed to be satisfied if (i) the retirement
benefits payable to a Member under the Plan and all defined
benefit pension plans maintained by members of the Corporate
Group do not exceed $10,000 for the Plan Year or (ii) the
Member does not participate in a defined contribution
maintained by the Company.
Section 10.5. Payment Due on Incompetent. If the
Committee determines that any person to whom payment is due
hereunder is incompetent by reason of physical or mental
disability, the Committee shall have the power to cause the
payments becoming due to such person to be made to another for
the benefit of the incompetent, without responsibility of the
Committee or the Trustee to see to the application of such
payment. Payments made in accordance with such power shall
operate as a complete discharge of all obligations of the
Committee, Plan, and Trustee on account of such payment.
Section 10.6. Invalidity of Certain Provisions. If
any provisions of this Plan shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not
affect any other provisions hereof and the Plan shall be
construed and enforced as if such provisions, to the extent
invalid or unenforceable, had not been included.
ARTICLE XI
AMENDMENT AND TERMINATION
Section 11.1. Right Reserved to Amend and Terminate.
The Company reserves the right, at any time and from time to
time, to modify, suspend, amend or terminate the Plan and to
modify, suspend, amend or terminate the Trust Agreement, or
either, in whole or in part (including the provisions relating to
contributions) by delivering to the Trustee a copy of such
modification, suspension, amendment or termination certified by
any officer of the Company provided, that the Company shall have
no power to modify, suspend, amend or terminate the Plan or the
Trust Agreement in such manner as will cause or permit any
reduction in accrued benefits or the elimination of any optional
form of benefit payment or as will cause or permit any part of
the Trust Fund to be used or diverted to purposes other than for
the exclusive benefit or Members, or their beneficiaries,
survivors or estates, or as will cause or permit any portion of
the Trust Fund to revert to or be recoverable by the Company,
except such funds, if any, as may remain at the termination of
the trust that are due to erroneous actuarial calculations, after
all liabilities to Members, and their beneficiaries, survivors
and estates are satisfied, subject to the remaining portions of
this Article.
The Company reserves the right to modify, alter or
amend this Plan to ensure the qualification of the Plan under
Section 401(a) the Code.
For purposes of this Section 11.1 the Committee may, on
behalf of the Company, adopt any and all amendments to the Plan
which do not substantially increase the cost of the Plan to the
Company. Amendments which substantially increase the cost of the
Plan to the Company must be adopted by the Board of Directors.
Section 11.2. No Obligation on the Company after
Termination. Notwithstanding anything herein contained, the
Company, upon any such termination of the Plan, shall have no
obligation or liability whatsoever to make any further payments
(including all or any part of any contribution payable prior to
any termination of the Plan) to the Trustee for retirement
benefits under this Plan whether for past service or future
service and neither the Trustee, the Board of Directors nor its
delegate, nor any Employee, retired Employee, spouse or
beneficiary shall have any right to compel the Company to make
payment after the termination of the Plan.
Section 11.3. Rights of Successor. Unless the Plan be
sooner terminated, a successor to the business of the Company or
any portion thereof, by whatever form or manner resulting, may,
with the written consent of the Company, continue the Plan and
become a party to the Trust Agreement by executing appropriate
supplemental agreement or other documents and such successor
shall ipso facto succeed to all applicable rights, powers and
duties of the Company with relations thereto. The employment of
any Employee who is continued in the employ of such successor
shall not be deemed to have been terminated or severed for any
purpose hereunder. In the case of any merger or consolidation
with, or transfer of assets or liabilities of the Plan to any
other plan qualified under Section 401(a) of the Code after
September 2, 1974, each Member shall (if the Plan then
terminated) be entitled to receive a benefit immediately after
the merger, consolidation or transfer which is at least equal to
the benefit he would have been entitled to receive immediately
before the merger, consolidation or transfer (if the Plan has
then terminated).
Section 11.4. Disposition of Fund on Termination.
(a) Partial Termination. Upon termination of the Plan
with respect to a group of Members which constitutes a partial
termination of the Plan within the meaning of the Code, the
Trustee shall allocate and segregate for the benefit of the
Members then or theretofore employed by the Company with respect
to which the Plan is being terminated the proportionate interest
of such Members in the Trust Fund. Such proportionate interest
shall be determined by the Board of Directors or its delegate
with the advice of the Actuary. The funds so allocated and
segregated shall be used by the Trustee to pay benefits to or on
behalf of Members in accordance with subsection (b) below.
(b) Termination. Upon termination of the Plan, or
upon termination of employment of a group of Members constituting
a partial termination of the Plan, or in the event of a complete
discontinuance of contributions, the rights of affected Members,
spouses and beneficiaries to the benefits accrued under the Plan
to the date of such termination or discontinuance, to the extent
then funded, shall be non-forfeitable. The assets of the Trust
Fund, or the portion thereof, shall be liquidated (after
provision is made for the expenses of liquidation) by the payment
of or provision for benefits in the following order of
preference:
(i) Certain Benefits Payable Three Years Prior to
Termination. The available assets of the Trust Fund
shall first be allocated to provide benefits that
became payable three or more years before the effective
date of Plan termination, or that could have become
payable at the beginning of such three-year period had
the Member not deferred the commencement of his
benefits by failing to elect earlier commencement, or
that could have become payable had a Member's
retirement occurred immediately prior to the beginning
of such three-year period, provided that
(x) The portion of the benefit payable a
Member, spouse or beneficiary (or that could have
been payable) shall be based on the provisions of
the Plan in effect five years prior to the
effective date of Plan termination; and for this
purpose, the first Plan Year in which an amendment
became effective, or was adopted if later, shall
constitute the first year an amendment was in
effect; and further provided that,
(y) If the benefit payable under the Plan
had been reduced, either by amendment or due to
the form in which the benefit is being paid,
during the three-year period ending on the
effective date of Plan termination, then the
lowest benefit in pay status during such three-year
period shall be considered the benefit in pay
status for purposes of this category (i).
(ii) Other Benefits Eligible for Termination
Insurance. To the extent that the amount of a benefit
has not been provided in the foregoing category (i),
the remaining assets shall be allocated to provide any
benefit provided under the Plan for a Member whose
employment terminated prior to the effective date of
Plan termination, or any immediate or deferred benefit
that would have been payable to or on behalf of a
Member had his employment terminated for a reason other
than death on the effective date of Plan termination,
and shall be determined as follows:
(x) the portion of the benefit payable to a
Member, spouse or beneficiary (or that could have
been payable) based on the provisions of the Plan
in effect five years prior to the effective date
of Plan termination; and for this purpose, the
first Plan Year in which an amendment became
effective, or was adopted if later, shall
constitute the first year an amendment was in
effect; plus
(y) the portion of the benefit payable to a
Member spouse or beneficiary which would have been
included in (x) above had the Plan or Plan
amendment been in effect five years prior to the
effective date of Plan termination, determined as
follows: 20% for each Plan Year (less than five)
than the Plan or an amendment thereto was in
effect, multiplied by the amount that would have
been included under subparagraph (x) for such
Member or beneficiary had the Plan or the
amendment been in effect for five Plan Years as of
the effective date of Plan termination; provided
that,
(z) no benefit payable under this category
(ii) to a Member, spouse or beneficiary shall
exceed an amount with an actuarial value of a
monthly benefit in the form of a life only annuity
commencing at age 65 equal to $750 multiplied by a
fraction, the numerator of which is the Social
Security contribution and Benefit Base determined
under Section 230 of the Social Security Act in
effect at the effective date of Plan termination
and the denominator of which is such contribution
and Benefit Base in effect in calendar year 1974.
(iii) Other Vested Benefits. To the extent that
the amount of a benefit has not been provided in the
foregoing categories (i) and (ii), the remaining assets
shall be allocated to provide the benefit payable under
the Plan to or on behalf of a Member whose employment
terminated prior to the effective date of Plan
termination to a spouse or beneficiary, or the benefit
that would have been payable to or on behalf of a
Member had his employment terminated for a reason other
than death on the effective date of Plan Termination,
in the following order
(x) to any Member who had retired prior to
the effective date of Plan termination under
either Section 5.2(a) of Article V, or who was
eligible to retire on the effective date of Plan
termination under either of said Sections or to
any spouse or beneficiary;
(y) to any Member who had retired prior to
the effective date of Plan termination under
Section 5.2(b) of Article V, or who was eligible
to retire on the effective date of Plan
termination under said Section; or
(z) to any Member whose employment had
terminated prior to the effective date of Plan
termination with entitlement to a deferred benefit
under Section 5.5 of Article V or who would have
been eligible for a benefit under said Section had
his employment terminated on the effective date of
Plan termination.
(iv) Other Benefits. To the extent that the
amount of a benefit has not been provided in the
forgoing categories (i), (ii) and (iii), the remaining
assets shall be allocated to provide the benefit
accrued under the Plan, without regard to the
satisfaction of the vesting requirements of this Plan,
with respect to each Member whose employment had not
terminated as of the effective date of Plan
termination, according to the respective actuarial
value of each such Member's accrued benefit.
If the assets of the Trust Fund applicable to any of
the above categories are insufficient to provide full benefits
for all persons in such group, the benefits otherwise payable to
such persons shall be reduced proportionately. No liquidation of
assets and payment of benefits (or provisions therefor) shall
actually be made by the Trustee until after it is advised by the
Board of Directors or its delegate in writing that applicable
requirements, if any, of the Act governing termination of
"Employee Pension Benefit Plans" have been, or are being,
complied with or that appropriate authorizations, waivers,
exemptions or variances have been, or are being, obtained.
The amount allocated for the benefit of each person in
accordance with the provisions of this Section shall be applied
for the benefit of each such person, as determined by the Board
of Directors or its delegate, either by cash payment (lump sum or
in installments), by the purchase of a life insurance and/or
annuity contract (including a variable annuity contract), or by
the continuance of the trust and the payroll of retirement
benefits thereunder in such amounts as may be provided by the
amounts so allocated.
The balance, if any, of the Fund and allocated pursuant
to this Section after all such allocations shall be returned to
the Company.
Section 11.5. Merger, Consolidation or Transfer. In
case of any merger or consolidation with, or transfer of assets
or liabilities to, any other plan, each Member in the Plan shall
(if the Plan then terminated) receive a benefit immediately after
the merger, consolidation or transfer which is equal to or
greater than the benefit he was entitled to receive immediately
before the merger, consolidation or transfer (if the Plan had
then terminated).
ARTICLE XII
TOP-HEAVY PROVISIONS
Section 12.1. Purpose and Limited Application of this
Article. The purpose of this Article XIII is to conform to the
requirement of section 401(a)(10)(B) of the Code that the Plan
contain provisions (a) which will take effect if it becomes
Top-heavy and (b) which meet the requirements of section 416 of
the
Code.
This Article XIII shall in no way affect the amount of
or eligibility for any benefits provided under the Plan unless
and until it becomes Top-heavy.
Section 12.2. Additional Definitions. As used in this
Article XIII, the following words and phrases, in addition to
those defined in Article I shall have the following meanings:
(a) "Key Employee" means a Member, former Member or
Beneficiary of a Member or former Member, who at any time during
a specific Plan Year or any of the four preceding Plan Years is:
(1) an officer of the Corporate Group having an
annual compensation greater than 50 percent of the amount in
effect under section 415(c)(1)(A) of the Code for any such Plan
Year,
(2) 1 of the 10 Employees having annual
compensation from the Corporate Group of more than the limitation
in effect under section 415(c)(1)(A) of the Code and owning (or
considered as owning within the meaning of section 318 of the
Code) the largest interests in the Company;
(3) a 5 percent owner of the Corporate Group, or
(4) a 1 percent owner of the Corporate Group
having an annual compensation from the Corporate Group of more
than $150,000.
For purposes of (1), no more than 50 individuals (or,
if lesser, the greater of 3 or 10 percent of the total number of
individuals) shall be treated as officers. For purposes of (2),
if two individuals have the same interest in the Corporate Group,
the one having greater annual compensation from the Corporate
Group shall be treated as having a larger interest.
Other criteria for determining whether an individual is
a Key Employee shall be consistent with the provisions of section
416(i) of the Code and regulations issued thereunder.
(b) "Beneficiary" means a deceased Member's spouse or
dependent child who is receiving benefits under the Plan.
(c) "Corporate Group" means the Company (including all
unincorporated divisions and units thereof) and any other company
which is related to the Company as a member of a controlled group
of corporations in accordance with section 414(b) of the Code, or
as a trade or business under common control in accordance with
section 414(c) of the Code.
(d) "Determination Date" means, with respect to a
specific Plan Year, the last day of the preceding Plan Year.
(e) "Present Value of Accrued Benefits" as of a
specified Determination Date means
(1) the actuarial present value, as of the most
recent Valuation Date which is within the 12-month period ending
on the Determination Date, of a Member's accrued benefit or the
benefit payable to the Beneficiary of a deceased Member, plus
(2) the aggregate of amounts paid to such Member
or Beneficiary during the Plan Year ending on the Determination
Date and the four preceding Plan Years (but excluding amounts
included in the determination of (1)).
The actuarial assumptions used shall include the
interest rate and decremental rates (mortality, termination of
employment, etc.) used in the regular actuarial valuations of the
Plan.
(f) "Valuation Date" means the date within a Plan Year
as of which the Actuary regularly determines the contribution
requirements under the Plan for minimum funding purposes
regardless of whether such a valuation was performed for that
Plan Year.
(g) "Required Aggregation Group" means all plans
(including terminated plans maintained within the last five years
ending on the Determination Date for the Plan Year in question)
of the Corporate Group in which one or more Key Employees
participate and each other plan which enables this Plan to meet
the requirements of section 401(a)(4) or 410 of the Code.
(h) "Permissive Aggregation Group" means each plan
included in the Required Aggregation Group and any other plans of
the Corporate Group if, taking such other plans into account,
such group would continue to meet the requirements of section
401(a)(4) and 410 of the Code.
(i) "Top-Heavy" means, with respect to the Plan for a
specific Plan Year, that
(1) the Present Value of Accrued Benefits of Key
Employees and their Beneficiaries exceeds 60% of the Present
Value of Accrued Benefits of all Members and Beneficiaries but
excluding amounts for former Key Employees and for Members and
former Members who have not performed any services for the
Corporate Group during the five years ending on the Determination
Date, or
(2) the Plan is part of a Required Aggregation
Group that is a Top-heavy Group,
unless the Plan or such Top-heavy Group is part of a Permissive
Aggregation Group that is not a Top-heavy Group.
(j) "Top-heavy Group" means, either a Required
Aggregation Group or a Permissive Aggregation Group, for a
specific Plan Year, that meets the definition in section
416(g)(2)(B) of the Code.
Section 12.3. Effect of the Plan's Becoming Top-heavy.
If, for any Plan Year commencing after 1983, the Plan becomes
Top-heavy, the following provisions shall automatically become
effective with respect only to each Member who is an Employee:
(a) A Member who has completed at least 3 but less
than 10 years of Credited Service and who has not attained age
65, shall (i) upon his termination of employment other than by
death, be deemed to be a fully vested terminated Member entitled
to a retirement benefit under the provisions of Article V,
Section 5.7(b), or (ii) upon his termination of employment by
reason of death, be deemed to satisfy the eligibility
requirements of Article V, Section 5.3(c), in which case his
surviving spouse, if any, shall be entitled to a retirement
benefit under the provisions of Article V, Section 5.3(c). Such
Member's (or spouse's) retirement benefit shall be based on his
accrued benefit under the Plan (including the effect, if any, of
paragraph (b) below). If in a subsequent Plan Year the Plan is
not Top-heavy this vesting schedule shall continue to apply with
respect to
(1) Members who have completed at least 5 years
of Credited Service as of the end of the latest Plan Year in
which the Plan was Top-heavy, and
(2) the accrued benefit as of the end of the
latest Plan Year in which the Plan was Top-heavy for all other
Members who have completed at least 3 years of Credited Service
on such date.
(b) The amount of accrued benefit under the Plan for a
Member who is not a Key Employee shall not be less than 2% of
average annual aggregate compensation (for the 5 consecutive Plan
Years producing the highest such average) for each Year of
Service but excluding years in excess of 10 and excluding years
during which the Plan is not Top-heavy. In computing the average
annual aggregate compensation, compensation for years beginning
after the last year for which the Plan was Top-heavy shall be
excluded. If there remain fewer than 5 years the average of such
remaining years shall be used.
(c) For both the calculation of the minimum described
in (b) above and the determination of aggregate compensation,
compensation in excess of the amount determined in accordance
with section 416(d) of the Code shall be excluded with respect to
any Plan Year in which the Plan is Top-heavy.
(d) In applying the maximum benefit limitation set
forth in Article X, Section 4(b)(3)(i), for a Plan Year in which
the Plan is Top-heavy, the term 'one (1.00)' shall be substituted
for the term 'one and one quarter (1.25)'. However, this
substitution shall not result in a reduction in any Member's
Accrued Benefit as of the end of the Plan Year immediately
preceding the Plan Year in which the Plan became Top-heavy.
Section 12.4. Effect of Change in Pertinent
Legislation or Regulation. In the event that Congress should
provide by statute, or the Internal Revenue Service should
provide by regulation or ruling, that such limitations are no
longer necessary for the Plan to meet the requirements of section
401(a) or other applicable provisions of the Code then in effect,
such limitations shall become void and shall no longer apply,
without the necessity of further amendment to the Plan.
ARTICLE XIII
TREASURY DEPARTMENT LIMITATIONS
13.1 Early Termination: The purpose of this Article
XVI is to conform the Plan to the requirements of section
401(a)(4) of the Code and related regulations.
(a) The provisions of this Section 13.1 shall apply to
"highly compensated employees" and "highly compensated
former employees" within the meaning of section 414(q) of
the Code; provided that in any one year the total number of
such employees subject to the restrictions of this Section
16.1 shall be limited to the group consisting of the
twenty-five highly compensated employees and highly compensated
former employees having the greatest compensation (the "Top
Paid Group").
(b) In the event of the termination of the Plan, the
benefit of any highly compensated employee and any former
highly compensated employee is limited to a benefit that is
nondiscriminatory under section 401(a)(4) of the Code.
(c) If (b) applies, then annual payments to any Member
who is in the Top Paid Group shall be restricted to an
amount equal to the payments that would be made on behalf of
such Member under a single life annuity that is the
Actuarial Equivalent of the Member's accrued benefit and the
Member's other benefits, if any, under the Plan. However
this foregoing restriction shall not apply if either (i)
after taking into account payment to or on behalf of the
Member of all benefits payable to or on behalf of that
Member under the Plan, the value of Plan assets equal or
exceeds 110 percent of the value of "current liabilities" as
defined in section 412(i)(7) of the Code, (ii) the value of
benefits payable to or on behalf of the Member under the
Plan does not exceed one percent of the value of "current
liabilities" (as defined in Section 412(l)(17) of the Code)
before distribution or (iii) the value of the benefits
payable to or on behalf of the Member under the Plan does
not exceed $3,500.
(d) In the event that it shall be determined by
statute, court decision or ruling by the Internal Revenue
Service or otherwise that the provisions of this Section
16.1 are no longer necessary to qualify the Plan under the
Code, this Section 13.1 shall thereupon be void without the
necessity of further amendment of the Plan.
(e) The Retirement Committee may adopt and implement
on a uniform basis any administrative procedures authorized
by the Internal Revenue Service, in regulations or other
rulings and announcements, pursuant to which benefit
payments otherwise restricted by this Section 13.1 can be
paid into an escrow account or other acceptable secured
deposit arrangement.
(f) The provisions of this Section 13.1 shall be
effective for Plan Years beginning on or after January 1,
1994. For Plan Years beginning prior to such date, the
provisions of Section 16.1 of the prior Plan document (as
amended and restated as of January 1, 1989) shall apply.
ARTICLE XIV
DIRECT ROLLOVER DISTRIBUTIONS
14.1 Purpose and Limited Application of this Article:
The
purpose of this Article is to conform to section 401(a)(31) of
the
Code. This Article applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the plan to
the
contrary that would otherwise limit a distributee's election
under
this Article, a distributee may elect, at the time and in the
manner
prescribed by the Retirement Committee, to have any portion of an
eligible rollover distribution paid directly to an eligible
retirement
plan specified by the distributee in a direct rollover.
14.2 Definitions:
(a) Eligible Rollover Distribution: An eligible
rollover
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 (not less frequently
than
annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies)
of
the distributee and the distributee's designated beneficiary,
or
for a specified period of ten years or 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 (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
(b) 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 a surviving spouse, an eligible
retirement plan is an individual retirement account or an
individual retirement annuity.
(c) 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.
(d) Direct Rollover: A direct rollover is a payment by
the
Plan to an eligible retirement plan specified by the
distributee.
Under authority of the Board of Directors of the
Company,
the Plan is approved as of December 31, 1995.
____________________________________
David P. Verostko
Vice President Corporate
Human Resources
Dates Referenced Herein and Documents Incorporated by Reference
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