UDLP EMPLOYEES PENSION PLAN
Effective as of January 1, 1999
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PREAMBLE: ESTABLISHMENT AND PURPOSE OF THE PLAN ........................ 1
ARTICLE I. DEFINITIONS ............................................... 3
ARTICLE II. SERVICE AND SERVICE AGGREGATION .............................. 12
2.1 Hour of Service ................................... 12
2.2 Year of Service ................................... 13
2.3 One-Year Break in Service ......................... 13
2.4 Total Years of Service ............................ 15
2.5 Total Years of Vesting Service .................... 15
2.6 Hours of Credited Service ......................... 16
2.7 Year of Credited Service .......................... 16
2.8 Total Years of Credited Service ................... 16
2.9 Changes in Coverage Under Benefit Schedules ....... 17
2.10 Military Service .................................. 18
ARTICLE III. ELIGIBILITY AND PARTICIPATION ................................ 18
ARTICLE IV. NORMAL RETIREMENT BENEFITS ................................... 19
4.1 Normal Retirement ................................. 19
4.2 Calculation of Normal Retirement Benefit .......... 19
ARTICLE V. EARLY RETIREMENT BENEFITS .................................... 19
5.1 Early Retirement .................................. 19
5.2 Calculation of Early Retirement Benefit ........... 20
ARTICLE VI. DISABILITY RETIREMENT BENEFITS ............................... 20
ARTICLE VII. DEFERRED RETIREMENT BENEFITS AND DISTRIBUTION RULES .......... 20
7.1 Deferred Retirement ............................... 20
7.2 Suspension of Benefits ............................ 21
7.3 Distribution Requirements ......................... 21
ARTICLE VIII. OTHER TERMINATION BENEFITS ................................... 22
8.1 Vested Benefit .................................... 22
ARTICLE IX. BENEFIT LIMITATIONS ........................................... 22
9.1 Limitation on Accrued Benefit ..................... 22
9.2 Annual Compensation Limit ......................... 27
ARTICLE X. FORMS OF RETIREMENT BENEFITS .................................... 28
10.1 Normal Form of Benefit ............................ 28
10.2 Alternative Forms of Benefit ...................... 28
10.3 Election of Alternative Form of Benefit ........... 30
10.4 joint annuitants .................................. 31
10.5 Survivor's Benefits ............................... 31
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(a) Coverage of Pre-Retirement Survivor's Benefit When Death Occurs on Or After Age 55 .................. 31
(c) Pre-Retirement Survivor's Benefit When Death Occurs Before Age 55 ................................... 32
10.6 Small Annuities ............................................................................................. 33
ARTICLE XI. ADMINISTRATION OF THE PLAN .................................................................................... 33
11.1 Appointment of Plan Committee ............................................................................... 33
11.2 Resignation and Removal of Members .......................................................................... 33
11.3 Appointment of Successors ................................................................................... 34
11.4 Power and Duties of the Committee ........................................................................... 34
11.5 Allocation and Delegation of Duties ......................................................................... 36
11.6 Committee Procedure ......................................................................................... 36
11.7 Investment Manager .......................................................................................... 37
11.8 Compensation of Committee ................................................................................... 37
11.9 Expenses .................................................................................................... 37
11.10 Information Required From Participants ...................................................................... 37
11.11 Records ..................................................................................................... 38
11.12 Multiple Fiduciary Capacity ................................................................................. 38
11.13 Indemnification ............................................................................................. 38
ARTICLE XII. FUNDING OF THE PLAN .......................................................................................... 39
12.1 Actuarial Cost Method ....................................................................................... 39
12.2 Cost of the Plan ............................................................................................ 39
12.3 Funding Policy .............................................................................................. 39
12.4 Public Accountant ........................................................................................... 39
12.5 Enrolled Actuary ............................................................................................ 40
12.6 Basis of Payments to the Plan ............................................................................... 40
12.7 Basis of Payments from the Plan ............................................................................. 41
ARTICLE XIII. CLAIMS AND APPEAL PROCEDURE ................................................................................. 41
13.1 Inquiries and Applications for Benefits ..................................................................... 41
13.2 Denial of Applications ...................................................................................... 41
13.3 Requests for a Review ....................................................................................... 42
13.4 Decision on Review .......................................................................................... 42
13.5 Rules and Procedures ........................................................................................ 42
13.6 Exhaustion of Remedies ...................................................................................... 43
ARTICLE XIV. AMENDMENT AND TERMINATION OF THE PLAN ........................................................................ 43
14.1 Future of the Plan .......................................................................................... 43
14.2 Amendments of the Plan ...................................................................................... 44
14.3 Termination of the Plan ..................................................................................... 45
14.4 Allocation of Trust Fund on Termination ..................................................................... 46
ARTICLE XV. MISCELLANEOUS PROVISIONS ...................................................................................... 47
15.1 Subsequent Changes .......................................................................................... 47
15.2 Plan Mergers ................................................................................................ 47
15.3 No Assignment of Property Rights ............................................................................ 47
15.4 Incapacity .................................................................................................. 48
15.5 Employment Rights ........................................................................................... 48
15.6 Reemployment and Suspension of Annuities .................................................................... 48
15.7 Proof of Age and Marriage ................................................................................... 48
15.8 Choice of Law ............................................................................................... 49
15.9 Direct Rollover Option ...................................................................................... 49
15.10 Effect of Merger and Restatement ............................................................................ 50
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ARTICLE XVI. TOP HEAVY PROVISIONS ................................................... 51
16.1 Top Heavy Plan Requirements .................................. 51
16.2 Determination of Top Heavy Status ............................ 51
16.3 Minimum Benefit Requirement for Top Heavy Plan ............... 58
16.4 Vesting Requirement for Top Heavy Plan ....................... 59
ARTICLE XVII. SCHEDULE OF BENEFITS FOR SALARIED
EMPLOYEES ............................................................ 61
17.1 Eligibility and Participation ................................ 61
17.2 Normal Retirement Benefit .................................... 62
17.3 Early Retirement Benefit ..................................... 65
(a) Early Retirement Eligibility ......................... 65
(b) Early Retirement Reduction Factor .................... 65
17.4 Disability Retirement Benefit ................................ 66
17.5 Vested Benefit ............................................... 66
17.6 Alternate Forms of Benefit ................................... 67
18.1. Benefit Offset ............................................... 68
ARTICLE XVIII. SCHEDULE OF BENEFITS FOR HOURLY
EMPLOYEES OF STEEL PRODUCTS DIVISION -
"ANNISTON" ........................................................... 70
18.1. Eligibility and Participation ................................ 70
18.2 Normal Retirement Benefit .................................... 70
(a) Normal Retirement Date ............................... 70
(b) Main Plant ........................................... 70
(c) Vehicle Rebuild Facility ............................. 71
18.3 Early Retirement Benefit ..................................... 72
(a) Early Retirement Eligibility ......................... 72
(b) Reduction Factor ..................................... 72
18.4 Disability Retirement Benefit ................................ 72
(a) Eligibility .......................................... 72
(b) Disability Retirement Benefit ........................ 73
18.5 Vested Benefit ............................................... 75
ARTICLE XIX. SCHEDULE OF BENEFITS FOR HOURLY
EMPLOYEES ARMAMENT SYSTEMS DIVISION
(NORTHERN ORDNANCE) - "NORTHERN ORDNANCE HOURLY" ..................... 76
19.1 Eligibility and Participation ................................ 76
19.2 Normal Retirement Benefit .................................... 76
19.3 Early Retirement Benefit ..................................... 77
(a) Early Retirement Eligibility ......................... 77
(b) Reduction Factor ..................................... 77
19.4 Disability Retirement Benefit ................................ 78
(a) Eligibility .......................................... 78
(b) Disability Retirement Benefit ........................ 79
19.5 Vested Benefit ............................................... 81
19.6 Pre-Retirement Survivor's Benefit ............................ 81
19.7 Enhanced Benefits. ........................................... 81
(a) Definitions .......................................... 81
(b) Special Enhanced Benefit ............................. 83
(c) Forms of Distribution ................................ 84
(1) Single Sum and Partial Sum Distributions ...... 84
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(2) Vested Benefits and Level Form of
Accelerated Pension .............................. 85
19.8 Additional Enhanced Benefit .................................... 85
ARTICLE XX. SCHEDULE OF BENEFITS FOR CERTAIN
EMPLOYEES OF ARMAMENT SYSTEMS DIVISION
(NORTHERN ORDNANCE PRE-MAY 2, 1969 PLAN) -
"NORTHERN ORDNANCE CERTAIN" ........................................... 87
ARTICLE XXI SCHEDULE OF BENEFITS FOR HOURLY
EMPLOYEES OF THE ARMAMENT SYSTEMS
DIVISION - " LOUISVILLE" .............................................. 88
21.1 Eligibility and Participation .................................. 88
21.2 Normal Retirement Benefit ...................................... 88
21.3 Early Retirement Benefit ....................................... 89
(a) Early Retirement Eligibility ............................ 89
(b) Reduction Factor ........................................ 89
21.4 Disability Retirement Benefit .................................. 90
(a) Eligibility ............................................. 90
(b) Disability Retirement Benefit ........................... 91
21.5 Vested Benefit ................................................. 93
ARTICLE XXII. SCHEDULE OF BENEFITS FOR HOURLY
EMPLOYEES OF SAN JOSE - "SAN JOSE" .................................... 94
22.1 Eligibility and Participation .................................. 94
22.2 Normal Retirement Benefit ...................................... 94
22.3 Early Retirement Benefit ....................................... 96
(a) Early Retirement Benefit ................................ 96
(b) Reduction Factor ........................................ 96
22.4 Disability Retirement Benefit .................................. 96
(a) Eligibility ............................................. 96
(b) Disability Retirement Benefit ........................... 97
2.5 Vested Benefit ................................................. 99
2.6 Alternative Form of Benefit .................................... 99
2.7 Enhanced Benefits .............................................. 100
(a) Definitions ............................................. 100
(b) Special Enhanced Benefit ................................ 101
(c) Forms of Benefit Distribution ........................... 102
(1) Single Sum and Partial Sum Distributions ......... 102
ARTICLE XXIII. SCHEDULE OF MEDICAL AND RELATED BENEFITS ............................. 104
23.1 Purpose; Use of Terms .......................................... 104
23.2 Medical and Related Benefits ................................... 104
23.3 Funding of Benefits ............................................ 104
23.4 Five Percent Owners Excluded ................................... 104
Appendix A ........................................................................... A-1
Appendix B ........................................................................... B-1
Appendix C ........................................................................... C-1
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Appendix D .............................................................. D-1
Appendix E .............................................................. E-1
Appendix F .............................................................. F-1
Appendix G .............................................................. G-1
Appendix H .............................................................. H-1
Appendix I .............................................................. I-1
Appendix J .............................................................. J-1
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UDLP EMPLOYEES PENSION PLAN
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PREAMBLE: ESTABLISHMENT AND PURPOSE OF THE PLAN
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The FMC Corporation Defense Segment Pension Plan was established by FMC
Corporation effective as of September 1, 1997 to assume the obligations of the
FMC Corporation Salaried Employees' Pension Plan as to those former FMC
Corporation employees who became employees of United Defense, Limited
Partnership ("UDLP") upon its creation. Effective December 17, 1997, UDLP
assumed sponsorship of the plan, which was renamed the UDLP Salaried Employees
Retirement Plan.
Pursuant to a resolution of the Management Committee of UDLP dated
December 11, 1998, the following plans were merged effective January 1, 1999:
(1) the UDLP Salaried Employees Retirement Plan; (2) the UDLP CSD Salaried
Employees' Pension Plan -"York Salaried"; (3) the UDLP Retirement Plan for
Hourly Employees (Steel Products Division) -"Anniston"; (4) the UDLP Retirement
Plan for Hourly Employees (Northern Ordnance Division) - "Northern Ordnance
Hourly"; (5) the UDLP Retirement Plan for Certain Hourly Employees (Northern
Ordnance Division) -"Northern Ordnance Certain"; and (6) the UDLP Retirement
Plan for Hourly Employees (Armament Systems Division) -"Louisville."
Subsequently, on September 1, 1999, the UDLP Pension Plan for Hourly Employees
of San Jose - "San Jose" was merged with the aforementioned merged plan. The
plan resulting from the mergers described above is hereby stated effective
January 1, 1999 and named the UDLP Employees Pension Plan (the "Plan").
The purpose of the Plan is to provide a regular monthly retirement
benefit for Employees who meet the eligibility requirements of the Plan. The
Plan and the trust established under the Trust Agreement to implement the Plan
are intended to constitute a pension plan under Section
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401(a) of the Code that complies with the provisions of Section 401(a) and
Section 501(a) of the Code, the requirements of ERISA and the corresponding
provisions of any other laws. The Plan and Trust Agreement shall be construed to
effectuate such intention.
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ARTICLE I.
DEFINITIONS
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1.1 "Actuarial Equivalent" means the calculation of a benefit determined to
be of equivalent actuarial value determined in accordance with a seven percent
(7%) interest rate assumption and a mortality assumption based on the GAM 1983
unisex table. Notwithstanding the preceding sentence, for purposes of
calculating a lump sum payment under Section 10.6 on and after January 1, 2000,
Actuarial Equivalent shall be determined as follows:
(a) For all Schedules of Benefit other than as specified under
Section 1.1(b):
(i) using a mortality assumption based on a blend of 50% of
the male rates and 50% of the female rates from the GAM 1983
mortality table;
(ii) using an interest rate assumption equal to the lesser of:
(A) the average yield on 30-year Treasury constant
maturity securities for the month of August preceding the Plan
Year in which the distribution is made, and
(B) 6%; and
(iii) for Plan Year 2000 only, the interest rate
assumption specified in Section 1.1 (a)(ii) shall not be
greater than the average yield on 30-year Treasury constant
maturity securities for the second month preceding the month
in which the distribution is made.
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(b) For benefits accrued as of January 1, 1995 described in
Section 17.6(a):
(i) using a mortality assumption based on a blend of 50% of
the male rates and 50% of the female rates from the GAM 1983
mortality table; and
(ii) using an interest rate assumption equal to the average
yield on 30-year Treasury constant maturity securities for the
month of August preceding the Plan Year in which the distribution
is made (or, if lower, the PBGC interest rate in effect for the
calendar month in which the distribution is made).
1.2 "Affiliated Group" means United Defense, Limited Partnership and any
other employers that with UDLP would constitute a controlled group of
corporations (as defined in Code section 414(b)), any trade or business (whether
or not incorporated) which is under common control (as defined in Code section
414(c)), an affiliated service group (as defined in Code section 414(m)), or any
other aggregation group pursuant to the regulations under Code section 414(o).
1.3 "Alternative Form of Benefit" means any form of benefit that may be
available to a Participant pursuant to Section 10.2 or an applicable Schedule of
Benefits that is not the Normal Form of Benefit.
1.4 "Beneficiary" means the person or persons so designated by such
Participant. If no Beneficiary has been designated or if the designated
Beneficiary is not living when a Plan benefit is to be distributed, the
Beneficiary shall be such Participant's spouse if then living or, if not, such
Participant's then living children in equal shares or, if there are no children,
such
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Participant's estate. A Participant may revoke and change a designation of a
Beneficiary at any time. A designation of a Beneficiary, or any revocation and
change thereof, shall be effective only if it is made in writing in a form
acceptable to the Plan Administrator and is received by it prior to the
Participant's death.
1.5 "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
1.6 "Collective Bargaining Agreement" means a contract or agreement with
any labor union or other labor organization entitling Employees represented by
such labor union or other labor organization to coverage under the Plan.
1.7 "Company" means United Defense, Limited Partnership, and any
predecessor companies of UDLP and any member of the Affiliated Group which UDLP
has designated as a participating company with respect to the Plan and which has
accepted participation in this Plan. The designation of any member of the
Affiliated Group as a participating company may be subject to such terms and
conditions as UDLP may determine. Any action by the Company provided for under
the Plan may be taken by the Management Committee of UDLP or by an officer or
officers of UDLP authorized by such Management Committee to take such action.
1.8 "Compensation" means the Participant's total compensation earned as an
Eligible Employee under the Plan or any Prior Plan, including overtime,
administrative and discretionary bonuses earned, his or her Employee-elected
Company contributions under the Thrift Plan, performance sharing plan payments
and sales bonuses and sales commissions earned (whether or not paid), but
excluding awards, deferred compensation, severance pay, accrued (but not earned)
vacation and other special payments such as relocation or moving expense
allowances. Compensation also includes sick pay or sickness benefits, but not
disability benefits from the Long-Term Disability Plan for Employees of FMC or
UDLP. Compensation shall be determined
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by the EBC under such written rules and procedures as it shall adopt from time
to time, and any such determination shall be final, conclusive and binding on
all persons.
After December 31, 1988, and before January 1, 1994, Compensation in excess
of $200,000 (or such other amount as the Secretary of the Treasury may
designate) shall be disregarded. After December 31, 1993, Compensation in excess
of $150,000 (as adjusted for the cost-of-living in accordance with section
401(a)(17)(B) of the Code) shall be disregarded. The cost of living adjustment
in effect for a year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in such year. If a
determination period consists of fewer than 12 months, the annual Compensation
limit will be multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which is 12. If
Compensation for any prior determination period are taken into account in
determining an employee's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to the annual
Compensation limit in effect for that prior determination period.
1.9 "Disability Retirement Benefit" means the benefits, if provided,
determined pursuant to the formula or formulas applicable to the disability
retirement benefit provided in the applicable Schedule of Benefits.
1.10 "Early Retirement Benefit" means the benefits determined pursuant to
the formula or formulas applicable to early retirement provided in the
applicable Schedule of Benefits.
1.11 "Early Retirement Date" means, except as otherwise provided in the
applicable Schedule of Benefits, the date on which the Participant meets
eligibility requirements for an Early Retirement Benefit.
1.12 "Effective Date" means January 1, 1999.
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1.13 "Eligible Employee" means any Employee who is eligible to become a
Participant in the Plan under the provisions of an applicable Schedule of
Benefits. Notwithstanding any other provision of the Plan to the contrary, the
term Eligible Employee shall not include any individual who is not recorded as
an employee on the payroll records of the Affiliated Group, including any such
individual who is subsequently reclassified by a court of law or a regulatory
body as a common law employee of a member of the Affiliated Group. For purposes
of clarification only and not to imply that the preceding sentence would
otherwise cover such person, the term Eligible Employee does not include any
individual who performs services for the Employer as an independent contractor
or under any other non-employee classification.
1.14 "Employee" means any individual who is employed by a member of the
Affiliated Group, including a leased employee as defined in Code section
414(n)(2). Although Eligible Employees are the only class of Employees eligible
to participate in the Plan, the term "Employee" is used to refer to persons
employed in a non-Eligible Employee capacity as well as an Eligible Employee
category.
1.15 "Employee Benefits Committee" or "EBC" means the committee appointed
pursuant to Article XI.
1.16 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
1.17 "Final Average Yearly Compensation" means one-fifth (1/5) of the sum
of the Participant's Compensation while an Eligible Employee for the sixty (60)
consecutive calendar months (not taking into account months in which the
Participant had no Compensation) out of the past one hundred and twenty (120)
calendar months in which such Compensation was the highest. If the commencement
of a Participant's retirement benefits hereunder is preceded by a
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period of long-term disability, the Company may adjust Final Average Yearly
Compensation on a nondiscriminatory basis. If fewer than 60 consecutive months
are available under the procedures above, then the Final Average Yearly
Compensation shall be calculated based on the Participant's Compensation during
the months actually available.
1.18 "Highly Compensated Employee" means any Employee who performs services
for the Affiliated Group during the current Plan Year and who, either (a) during
the Plan Year or the Look-Back Year, was a 5% owner of any member of the
Affiliated Group (within the meaning of Code section 414(q)(2)) or (b) during
the Look-Back Year, received compensation as defined in Code section 415(c)(3))
in excess of $80,000 (as adjusted from time to time under such guidance as may
be issued by the Internal Revenue Service), and during such Look-Back Year was
within the top 20% of Employees ranked by Compensation. Employees who have not
completed six months of service by the end of the applicable period, Employees
who normally work less than 17-1/2 hours per week, Employees who normally work
less than six months during a year, Employees who have not attained age 21, and
nonresident aliens who receive no earned income from U.S. sources shall be
excluded.
Highly Compensated Employees shall also include any former Employee who
separated from service with the Affiliated Group in a Plan Year preceding the
current Plan Year and was a Highly Compensated Employee in either (a) the Plan
Year in which his separation from service occurred or (b) any Plan Year ending
on or after such former Employee's 55th birthday. A former Employee is an
Employee who performs no services for any member of the Affiliated Group during
a Plan Year (for example, by reason of a leave of absence).
For purposes of this section, the term Look-Back Year means the Plan Year
immediately preceding the Plan Year in question.
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1.19 "Investment Manager" means a person who is an "investment manager" as
defined in section 3(38) of ERISA.
1.20 "Normal Form of Benefit" means that form of benefit available to a
Participant unless such Participant elects an Alternative Form of Benefit in
accordance with the provisions of the Plan. For an unmarried Participant, the
Normal Form of Benefit shall be an individual life annuity, meaning a form of
benefit providing equal monthly payments to the Participant during the
Participant's life only. For a married Participant, except as provided in the
applicable Schedule of Benefits, the Normal Form of Benefit shall be a joint and
survivor annuity which is the Actuarial Equivalent of the single life annuity
described above, meaning a form of benefit that provides annuity payments during
the Participant's life and, after the Participant's death, annuity payments
equal to one hundred percent (100%) of the original annuity payments to the
Participant's surviving spouse for the spouse's life. For purposes of
determining the Normal Form of Benefit, the EBC shall determine whether a
Participant is married as of the date when the payment of the Participant's
benefit is to commence.
1.21 "Normal Retirement Date" means the date provided for in the applicable
Schedule of Benefits.
1.22 "Normal Retirement Benefit" means the benefit determined pursuant to
the formula or formulas applicable to normal retirement provided in the
applicable Schedule of Benefits.
1.23 "Participant" means an Eligible Employee who has met the eligibility
requirements for participation in the Plan under the applicable Schedule of
Benefits and has commenced participation pursuant to Article III.
1.24 "Plan" means the UDLP Employees Pension Plan, as amended from time to
time.
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1.25 "Plan Year" means the 12-month period ending December 31.
1.26 "Primary Social Security Benefit" means the primary benefit which the
Participant is eligible to receive at age sixty-two (62) under the old age
portion of the Federal Old Age, Survivors' and Disability Insurance Program
assuming that after termination of employment with the Affiliated Group the
Participant has level earnings subject to such Program. A Participant's Primary'
Social Security Benefit shall be determined by taking his or her Compensation at
the time of his or her termination of employment and applying a salary scale,
projected backwards, reflecting the change in the average wage from year to year
as determined by the Social Security Administration. However, a Participant may
provide the EBC with appropriate documentation of his or her actual salary
history prior to the time of his or her employment, and the Primary Social
Security Benefit shall be adjusted accordingly. Such documentation must be
provided to the EBC within 60 days after the later of (a) the Participant's
separation from service by retirement or otherwise, or (b) the time when the
Participant is notified of the retirement benefit to which he or she is
entitled.
1.27 "Prior Plans" means the following plans: (a) the UDLP Salaried
Employees' Pension Plan; (b) the UDLP CSD Salaried Employees Pension Plan -
"York Salaried"; (c) the UDLP Retirement Plan for Hourly Employees (Steel
Products Division) - "Anniston"; (d) the UDLP Retirement Plan for Hourly
Employees (Northern Ordnance Division) - "Northern, Ordnance Hourly"; (e) the
UDLP Retirement Plan for Certain Hourly Employees (Northern Ordnance Division)
-"Northern Ordnance Certain"; (f) the UDLP Retirement Plan for Hourly Employees
(Armament Systems Division) - "Louisville"; and (g) the UDLP Pension Plan for
Hourly Employees of San Jose - "San Jose".
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1.28 "Schedule of Benefits" means those schedules of benefits that have
been duly adopted by the Company and made a part of the Plan, and are included
in the Plan as Articles XVII to XXII.
1.29 "Social Security Covered Compensation Base" means the average of the
compensation and benefit bases in effect under section 230 of the Social
Security Act for each Plan Year in the 35-year period ending with the Plan Year
in which the Participant attains social security retirement age (as defined in
section 4l5(b)(8) of the Code).
1.30 "Spousal Consent" means, as to an election designation or other action
of a Participant, the written consent thereto of the spouse of the Participant,
witnessed by a Plan representative or a notary public, which acknowledges the
effect of such election on the rights of the spouse, and, in the case of consent
to a Beneficiary or joint annuitant designation, with such designation not being
changeable without further Spousal Consent unless the prior Spousal Consent
expressly permits such changes without the necessity of further consent. Spousal
Consent shall be deemed to have been obtained if it is established to the
satisfaction of the EBC that it cannot actually be obtained because there is no
spouse, or because the spouse could not be located, or because of such other
circumstances as the Secretary of the Treasury by regulation may prescribe. Any
Spousal Consent shall be effective only with respect to the spouse in question.
1.31 "Total and Permanent Disability" shall have such meaning as is given
to the term in the applicable Schedule of Benefits.
1.32 "Trust" means the trust established by the Trust Agreement.
1.33 "Trust Agreement" means the trust agreement or agreements, as amended
from time to time, entered into by the Company and the Trustee.
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1.34 "Trust Fund" means the trust fund established and maintained by the
Trustee to hold all assets of the Plan pursuant to the Trust Agreement.
1.35 "Trustee" means the trustee or trustees at any time appointed by the
Company.
1.36 "Vested Benefit" means the benefit determined pursuant to the formula
or formulas applicable to termination of service other than normal retirement,
early retirement, or disability retirement provided for in the applicable
Schedule of Benefits.
ARTICLE II.
SERVICE AND SERVICE AGGREGATION
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The following terms used in this Plan shall have the meaning set forth
in this Article II.
2.1 Hour of Service.
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"Hours of Service" means
(a) each hour for which an Employee is directly or indirectly
paid or entitled to payment as an Employee for the performance of
duties;
(b) each hour for which an Employee is directly or indirectly
paid or entitled to payment as an Employee for reasons other than
performance of duties;
(c) each hour for which back pay to an Employee, irrespective of
mitigation of damage, has been either awarded or agreed to by the
Company or other member of the Affiliated Group;
(d) each hour which constitutes service under any applicable
Collective Bargaining Agreement;
(e) only for purposes of determining whether a One Year Break in
Service has occurred, each hour for which an Employee is not directly
or indirectly paid or entitled to payment by the Company or other
member of the
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Affiliated Group, as may be determined by the EBC in its sole
discretion under rules uniformly applicable to all Employees similarly
situated. Hours of Service shall be credited under subsections (b) and
(c) above in
accordance with Section 2530.200b-2 of Title 29 of the Code of Federal
Regulations, as amended from time to time. The Company shall compute Hours
of Service for all Employees by crediting 190 Hours of Service for each
calendar month in which the Employee has at least one Hour of Service as
defined above.
2.2 Year of Service
---------------
"Year of Service" means each one-year computation period, described
herein, during which an Employee is credited with at least 1000 Hours of
Service. In determining Years of Service for purposes of eligibility, the
computation periods shall be the one-year period commencing on the date the
individual became an Employee and each one-year period ending on the last
day of each Plan Year ending after the end of the first computation period.
In determining Years of Service for purposes of vesting, the computation
period shall be the Plan Year.
2.3 One-Year Break in Service
-------------------------
"One-Year Break in Service" means each one-year computation period
used for determining Years of Service during which an Employee is credited
with less than 501 Hours of Service; provided that, solely for purposes of
determining whether an Employee has incurred a One-Year Break in Service,
the Employee shall be credited with:
(a) Hours of Service which otherwise would normally have been
credited to an Employee but for a maternity or paternity leave, or
13
<PAGE>
(b) if the Plan Administrator is unable to determine
the Hours of Service described in paragraph (a) above, 8 Hours
of Service for each such day of maternity or paternity leave,
except that the total number of Hours of Service so credited shall not
exceed 501. Any Hours of Service credited for a maternity or paternity
leave under this Section 2.3 shall be credited only in the computation
period in which the maternity or paternity leave began, if the Employee
otherwise would incur a One-Year Break in Service in that computation
period, and otherwise shall be credited in the immediately following
computation period.
As used in this Section 2.3, "maternity or paternity leave"
means any period of absence from employment beginning in any Plan Year
commencing after December 31, 1984 (a) by reason of the pregnancy of
the individual, (b) by reason of a birth of a child of the individual,
(c) by reason of the placement of a child with the individual in
connection with the adoption of such child by such individual, or (d)
for purposes of caring for such child for a period beginning
immediately following such birth or placement. Notwithstanding the
foregoing, a period of absence from employment shall not be regarded as
a maternity or paternity leave if the Employee shall fail to comply
with a request by the Company or the EBC to furnish the EBC such timely
information as may be reasonably required to establish that the absence
from employment was for a reason set forth above and the number of days
for which there was such an absence.
In addition, solely for purposes of determining whether a
One-Year Break in Service has occurred, Hours of Service shall include
hours during an approved leave of absence granted to an Employee on or
after August 5, 1993 pursuant to the Family and
14
<PAGE>
Medical Leave Act, if the Employee returns to work for the Company at the
end of such leave of absence.
2.4 Total Years of Service
----------------------
"Total Years of Service" means the sum of all Years of Service accrued
under the Plan , provided that Years of Service preceding a One-Year Break
in Service shall be included only if: (a) the Employee completed at least
one Year of Service following the One-Year Break in Service, and (b) either
(1) the number of consecutive One-Year Breaks in Service is less than the
greater of five or the aggregate number of Years of Service prior to such
service break or (2) the Employee was a vested participant pursuant to the
provisions of Article VIII at the time of such One Year Break in Service,
and (3) such Years of Service were not forfeited as a result of a prior
One-Year Break in Service. Total Years Service for which a Participant
received a distribution of his entire vested benefit (other than a deemed
distribution of $0) shall not be restored upon reemployment, except as
provided in the applicable Schedule of Benefits. Notwithstanding the
foregoing, a Participant's Total Years of Service as of December 31, 1999
shall not be less than such Participant's Total Years of Service as
determined under the terms of the applicable Prior Plan.
2.5 Total Years of Vesting Service
------------------------------
"Total Years of Vesting Service" means Total Years of Service, less
any Years of Service credited for Hours of Service at an employer during
periods when such employer was not included in the definition of Company,
unless otherwise provided by the EBC or applicable Collective Bargaining
Agreement. Notwithstanding the foregoing, a Participant's Total Years of
Vesting Service as of December 31, 1999 shall not be less
15
<PAGE>
than such Participant's Total Years of Vesting Service as determined under
the terms of the applicable Prior Plan.
2.6 Hours of Credited Service
-------------------------
"Hours of Credited Service" means each Hour of Service during which
the Employee qualified as an Eligible Employee under the applicable
Schedule of Benefits, provided that the Eligible Employee became a
Participant under that Schedule of Benefits.
2.7 Year of Credited Service
------------------------
"Year of Credited Service" means a Plan Year in which the Eligible
Employee is credited with not less than twelve Months of Credited Service.
A Month of Credited Service is each calendar month in which an Eligible
Employee has one Hour of Credited Service. An Eligible Employee shall be
credited with one twelfth of a Year of Credited Service for each Month of
Service.
2.8 Total Years of Credited Service
-------------------------------
"Total Years of Credited Service" means the sum (expressed in months
equal to twelfths of a year) of all Years of Credited Service, provided
that Years of Credited Service preceding a One-Year Break in Service (as
defined in Section 2.3 but substituting therein "Year of Credited Service"
for "Year of Service") shall be included only if: (a) the Employee
completed at least one Year of Credited Service following the One-Year
Break in Service, and (b) either (1) the number of consecutive One-Year
Breaks in Service is less than the greater of five or the aggregate number
of Years of Credited Service prior to such service break or (2) the
Employee was a vested Participant pursuant to the provisions of Article
VIII at the time of such One Year Break in Service, and (3) such Years of
Credited
16
<PAGE>
Service were not forfeited as a result of a prior One-Year Break in
Service. Total Years of Credited Service for which a Participant received a
distribution of his entire vested benefit (other than a deemed distribution
of $0) shall not be restored upon reemployment, except as provided in the
applicable Schedule of Benefits. Notwithstanding any of the foregoing, a
Participant's Total Years of Credited Service as of December 31, 1999 shall
not be less than such Participant's Total Years of Credited Service as
determined under the terms of the applicable Prior Plan.
For purposes of the calculation of benefits pursuant to a formula
expressed in the applicable Schedule of Benefits, Total Years of Credited
Service applicable to such calculation shall equal solely the Total Years
of Credited Service credited during such periods as the Employee was an
Eligible Employee pursuant to the provisions of that Schedule of Benefits,
provided that the Eligible Employee became a Participant under that
Schedule of Benefits.
2.9 Changes in Coverage Under Benefit Schedules
-------------------------------------------
(a) For purposes of determining a Year of Credited Service, a
Participant who ceases coverage under one Schedule of Benefits and who commences
coverage under another Schedule of Benefits shall remain a Participant under the
first Schedule of Benefits until the last day of the month in which such change
occurs, and shall commence being a Participant under the second Schedule of
Benefits on the first day of the month immediately following the month in which
such change occurs. A Participant shall not be entitled to have the same month
credited under more than one Schedules of Benefits.
(b) For purposes of determining the amount of a benefit under this
Plan for a Participant described in Section 2.9(a), such Participant's benefit
shall equal the sum of the
17
<PAGE>
benefit under the first Schedule of Benefits based upon the Years of Credited
Service while such Participant was covered under such Schedule of Benefits plus
the benefit under the second (or additional) Schedule of Benefits determined in
the same manner; provided, however, that the compensation factor, if any, or the
dollar multiplier factor, if any, of the benefit formula of the first Schedule
of Benefits (or additional Schedule of Benefits , if applicable) shall be
determined as of the date the Participant who is so entitled retires or
otherwise terminates service with the Company under Articles IV through VIII.
2.10 Military Service
----------------
If the Participant is absent from employment due to his service in the
uniformed services of the United States and returns to employment within the
time prescribed by, and under circumstances satisfying the applicable federal
law (including the Uniformed Services Employment and Reemployment Rights Act of
1994), such Participant's period of uniformed service will not result in a
One-Year Break in Service for all purposes under the Plan. Notwithstanding any
provision of this Plan to the contrary, contributions, benefits and service
credit with respect to qualified military service will be provided in accordance
with Section 414(u) of the Code.
ARTICLE III.
ELIGIBILITY AND PARTICIPATION
-----------------------------
All determinations of eligibility shall be made in accordance with the
provisions of the applicable Schedules of Benefits. Other than those Employees
specifically eligible to participate under such provisions, no other Employees
shall be eligible to participate in the Plan.
Once an Employee has met all eligibility requirements as set forth in the
applicable Schedule of Benefits, such Employee shall become a Participant under
the Plan in accordance with the provisions of such Schedule of Benefits. A
Participant shall cease to participate in the
18
<PAGE>
Plan as of the earlier of (a) the payment of his entire benefits under the Plan,
or (b) the Participant's death.
ARTICLE IV.
NORMAL RETIREMENT BENEFITS
--------------------------
4.1 Normal Retirement. A Participant who retires on or after the Normal
-----------------
Retirement Date shall be entitled to receive a Normal Retirement Benefit
determined according to the applicable Schedule of Benefits. Subject to Section
7.1, payment of such benefit shall commence as of the later of the Participant's
Normal Retirement Date or actual retirement date.
4.2 Calculation of Normal Retirement Benefit. A Participant's Normal
----------------------------------------
Retirement Benefit shall be calculated according to the formula or formulas set
forth in the applicable Schedule of Benefits.
ARTICLE V.
EARLY RETIREMENT BENEFITS
-------------------------
5.1 Early Retirement. A Participant who satisfies the early retirement
----------------
eligibility requirements as set forth in the applicable Schedule of Benefits may
elect to retire as of the first day of any month coinciding with or following
such Participant's Early Retirement Date by giving at least 60 days' advance
written notice to the EBC on the prescribed form. A Participant who retires
early and is eligible for an Early Retirement Benefit shall be entitled to
receive the Early Retirement Benefit as provided in the applicable Schedule of
Benefits. Payment of such benefit shall commence as of the first of the month
coincident with or next following the date the Participant retires or, if the
Participant so elects, as of the first day of any subsequent month, but not
later than the Normal Retirement Date. Any such election of a deferred
commencement date may be revoked at any time prior to such date, and a new date
may be elected by giving at least 60 days' advance written notice to the EBC.
19
<PAGE>
5.2 Calculation of Early Retirement Benefit. A Participant's
---------------------------------------
Early Retirement Benefit, including the application of any reduction factor,
shall be calculated according to the formula or formulas set forth in the
applicable Schedule of Benefits.
ARTICLE VI.
DISABILITY RETIREMENT BENEFITS
------------------------------
A Participant who satisfies the disability retirement eligibility
requirements as set forth in the applicable Schedule of Benefits, and who
separates from active employment because of Total and Permanent Disability may
elect in writing to receive a Disability Retirement Benefit. Payments of a
Participant's Disability Retirement Benefit shall commence as of the first day
of the month coincident with or next following the later of (1) the date when
the Total and Permanent Disability has endured for the required period of time,
or (2) the date when the disability is certified as a Total and Permanent
Disability. If a Participant's Total and Permanent Disability ceases, such
Participant's Disability Retirement Benefit shall cease. A Participant's
Disability Retirement Benefit shall be determined pursuant to the applicable
Schedule of Benefits, and shall be reduced by the other disability or retirement
benefits as specified in such Schedule of Benefits.
ARTICLE VII.
DEFERRED RETIREMENT BENEFITS AND DISTRIBUTION RULES
---------------------------------------------------
7.1 Deferred Retirement. A Participant may retire as of the first day
-------------------
of any month following the Participant's Normal Retirement Date. A Participant
whose retirement is deferred under this section shall be entitled to receive a
Normal Retirement Benefit determined under Sections 4.1 commencing as of the
first day of the month coincident with or next following the date when the
Participant actually retires, and shall accrue additional benefits hereunder
after the Participant's Normal Retirement Date until termination of employment.
20
<PAGE>
7.2 Suspension of Benefits. At the express request of the Company, a
----------------------
Participant may continue in or recommence employment after such Participant's
Normal Retirement Date for fewer than 40 Hours of Service in a calendar month
pursuant to nondiscriminatory rules adopted by the Company. In such event
Section 7.1 shall apply except that the Participant may elect, subject to the
approval of the Company, to receive the Normal Retirement Benefit commencing as
of the Normal Retirement Date or as of the first day of any subsequent month,
but not later than the date provided in Section 7.1. If a Participant continues
in or recommences employment after the Participant's Normal Retirement Date, the
payment of the accrued retirement benefit shall be suspended only for those
calendar months within the period of continued employment during which the
Participant receives compensation for at least 40 Hours of Service per week (at
least 20 Hours of Service per week for Participants who are rehired as part-time
employees) or, if the Company has not retained records reflecting such
Participant's Hours of Service, for service performed in each of 8 or more days,
as long as proper notification of such suspension of benefits has previously
been distributed to such Participant. Suspension of benefits for any calendar
month shall not exceed the lesser of the amount the Participant would have been
paid as a Normal Retirement Benefit or the amount the Participant is eligible to
receive under an Alternative Form of Benefit that the Participant has duly
elected.
7.3 Distribution Requirements. Notwithstanding any provision of this
-------------------------
Plan to the contrary, benefits to a Participant who is not a 5 percent owner as
defined below shall commence no later than April 1 of the calendar year
following the later of the calendar year in which the Participant attains age 70
1/2 or retires. Benefits to a Participant who is 5 percent owner shall commence
no later than April 1 of the calendar year following the calendar year in which
the Participant attains age 70 1/2. For purposes of this Section 7.3, an
Employee is a 5 percent owner
21
<PAGE>
(as defined in Code Section 416) if he is a 5 percent owner with respect to the
Plan Year ending with or within the calendar year in which such Employee attains
age 70 1/2. A Participant who attains age 70 1/2 in or before calendar year 1999
shall, notwithstanding the foregoing provisions of this Section 7.3, be
permitted to elect to commence his retirement income payments no later than the
date for required commencement provided under the terms of this Section 7.3 or
its predecessor provision under the applicable Prior Plan.
All distributions required under this subsection shall be determined
and made in accordance with the regulations under Section 401(a)(9) of the Code.
ARTICLE VIII.
OTHER TERMINATION BENEFITS
--------------------------
8.1 Vested Benefit. If a Participant's service terminates for any
--------------
reason other than normal retirement, early retirement, or disability retirement
and the Participant has completed not less than five (5) Total Years of Vesting
Service, the Participant shall be entitled to a Vested Benefit. A Vested Benefit
shall be determined pursuant to the provisions of the applicable Schedule of
Benefits. A terminated Participant who has no vested interest in his or her
accrued benefit shall be deemed to have received a distribution of his or her
entire non-forfeitable benefits.
ARTICLE IX.
BENEFIT LIMITATIONS
-------------------
9.1 Limitation on Accrued Benefit. Notwithstanding any provision of
-----------------------------
this Plan to the contrary, in no event may a Participant's annual retirement
benefit payments under the Plan exceed the product of paragraphs (a), (b), and
(c) below, with a minimum product of one thousand dollars ($1,000) for each of
the first ten (10) years of service for Employees who did not participate in a
defined contribution plan of a Company or a predecessor thereof:
22
<PAGE>
(a) Is the lesser of:
(1) One hundred percent (100%) of the Participant's highest
average annual taxable compensation during any three (3)
consecutive calendar years of his active participation
under the Plan, times a fraction (but not to exceed 1.0),
the numerator of which is the Participant's years of
service, and the denominator of which is ten (10), or
(2) Ninety thousand dollars ($90,000), adjusted pursuant to
Treasury Regulations issued under Code Section 415, as
amended from time to time, times an actuarial adjustment
factor for retirement before or after the Social Security
Retirement Age (SSRA), times a fraction (but not to exceed
1.0), the numerator of which is the Participant's years of
participation in the Plan or a predecessor plan, and the
denominator of which is ten (10). The actuarial adjustment
factor shall be five-ninths of one percent (5/9 of 1%) for
each of the first thirty-six (36) months and five-twelfths
of one percent (5/12 of 1%) for each of the additional
months up to twenty-four (24) by which benefits commence
before the Participant's SSRA.
For payment prior to age 62 or after SSRA, the actuarial
adjustment factor shall be the factor determined using the
required mortality and 5% interest. The required mortality table
is based upon a fixed blend of 50 percent of the male mortality
rated and 50 percent of the female mortality rated from the 1983
Group Annuity Mortality Table.
(b) Is the lesser of:
23
<PAGE>
(1) For any form of benefit option elected under Article X
or any Schedule of Benefits, is the lesser of:
(A) the actuarial adjustment factor determined using the
required mortality and 5% interest, or
(B) the Actuarial Equivalent factor applicable to the form
of benefit option applicable to the option elected;
(2) For a lump sum payment option, is the lesser of:
(A) the actuarial adjustment factor determined using the
required mortality and the greater of the Applicable
Interest Rate and 5%, and
(B) the actuarial adjustment factor determined by the lump
sum amount payable on the payment date divided by the
immediate life annuity payable on the payment date.
(3) For purposes of Section 9.1(b)(2)(A), Applicable Interest
Rate means the annual rate of interest on 30-year Treasury
securities for the fifth month preceding the first day of
the Plan Year; provided, however, that if the average yield
on 30-year Treasury securities for the second month
preceding the month in which distribution is made is used
pursuant to under Section 1.1(a)(ii), such interest rate
shall also be the Applicable Interest Rate.
The required mortality table is based upon a fixed blend of 50
percent of the male mortality rated and 50 percent of the
female mortality rated from the 1983 Group Annuity Mortality
Table. Such factor shall be deemed to be one hundred percent
(100%) for purposes of this paragraph if the applicable form of
payment is a joint
24
<PAGE>
and survivor annuity option, described in Section 1.20, with the
Participant's spouse designated as his Beneficiary; and
(c) Is the lesser of:
(1) 1.00, or
(2) The product of (A) and (B) where:
(A) is 1.00 minus the ratio of (i) the sum of the annual
additions to (ii) the sum of the lesser of (I) 1.25
times the dollar limit in effect under Code Section 415
adjusted for changes to the extent permitted under
Treasury Regulations, and (II) 1.40 times twenty-five
percent (25%) of the Participant's total taxable
compensation for each year, and
(B) is the ratio of (i) the lesser of 1.40 times the
amount of Paragraph (a)(1) above or 1.25 times the
amount in Paragraph (a)(2) above, to (ii) the lesser of
the amount in Paragraphs (a)(1) or (a)(2) above.
Prior to January 1, 2000, the provisions of this Section 9.1(c) shall
be calculated as above.
Effective January 1, 2000, any requirements relating to the Code
Section 415(e) combined plan limits are inapplicable to any Participant
who completes at least one Hour of Service on or after January 1, 2000.
As a result, on or after January 1, 2000, the resulting calculation
under this Section 9.1(c) shall be deemed to be equal to 1.0 for any
Participant who completes at least one Hour of Service on or after such
date.
25
<PAGE>
Annual additions are the sum of:
(1) The contributions of the Company or a non-participating
member of the Affiliated Group made on behalf of such
Participant under any defined contribution plan,
(2) Any forfeitures reallocated to such Participant's account
under the terms of any such plan,
(3) Any portion of such Participant's own contributions to any
such plan, subject to the following restrictions:
(A) Such contributions prior to 1976 shall not be
considered to be annual additions.
(B) For such contributions made in years from 1976 to 1986,
the lesser of one-half of such annual contributions and
such annual contributions in excess of six percent (6%)
of his annual taxable compensation shall be considered
to be annual additions.
(C) All such contributions made after 1986 shall be
considered annual additions.
Social Security Retirement Age ("SSRA") shall mean the age used as the
retirement age for the Participant under Section 216(l) of the Social Security
Act, except that such Section shall be applied without regard to the age
increase factor, and as if the early retirement age under Section 216(l)(2) of
such Act were 62.
For the purposes of this Section 9.1, the "limitation year" shall be the
Plan Year.
26
<PAGE>
For the purpose of this Section 9.1, a member of the Affiliated Group shall
be determined by assuming the phrase "no more than 50 percent" is substituted
for the phrase "at least 80 percent" each place it appears in Code Section
1563(a)(1).
In no event shall the limitation of this Section 9.1 decrease a
Participant's annual retirement benefit payable on or after January 1, 1987 to
an amount less than the benefit based upon the amount of normal retirement
benefit determined in accordance with the provisions of this Article IX that he
had accrued under a Prior Plan as of December 31, 1986, as adjusted by Treasury
Regulations. The preceding sentence applies only if the Plan meets the
requirements of Code Section 415 for all limitation years beginning before
January 1, 1987.
9.2 Annual Compensation Limit. The accrued benefit of each section
-------------------------
401(a)(l7) employee" under this Plan will be the greater of the accrued benefit
determined for the Employee under (a) or (b) below:
(a) The Employee's accrued benefit determined with respect to the
benefit formula applicable as applied to the Employee's Total Years of
Credited Service taken into account under the Plan for the purpose of
benefit accruals, or
(b) The sum of:
(1) the employee's accrued benefit as of the last day of the
last Plan Year beginning before January 1, 1994, frozen in accordance with
section 1.401(a)(4)-13 of the Treasury Regulations, and
(2) the employee's accrued benefit determined under the benefit
formula applicable for the Plan Year beginning on or after January 1, 1994,
as applied to the Employee's Years of Credited Service credited to the
Employee for Plan Years beginning on or after January 1, 1994, for purposes
of benefit accruals.
27
<PAGE>
A "section 401(a)(17) employee" means an Employee whose current accrued benefit
as of a date on or after the first day of the first Plan Year beginning on or
after January 1, 1994, is based on Compensation for a year beginning prior to
the first day of the first Plan Year beginning on or before January 1, 1994,
that exceeded $150,000.
ARTICLE X.
FORMS OF RETIREMENT BENEFITS
----------------------------
10.1 Normal Form of Benefit. If a Participant fails to make an effective
----------------------
election for any Alternative Form of Benefit provided for in this Article X or
in an applicable Schedule of Benefits, such Participant's benefit shall be paid
in the form of the Normal Form of Benefit.
10.2 Alternative Forms of Benefit. Subject to the applicable Schedule of
----------------------------
Benefits and the election procedures described in Sections 10.2 and 10.3, a
Participant may elect one of the following Alternative Forms of Benefit which is
the Actuarial Equivalent (except for the option described in Section 10.2 (e))
of the Participant's Normal Retirement Benefit:
(a) a married Participant may elect an individual life annuity;
(b) a Participant, whether married or unmarried, may elect a 50%
joint and survivor annuity;
(c) an unmarried Participant may elect a 100% joint and survivor
annuity;
(d) a Participant, whether married or unmarried, may elect a
Life and Ten Year Installments Certain Annuity. This benefit is reduced in
amount from the Normal Retirement Benefit. This benefit is payable monthly
for the life of the Participant after retirement, but with one hundred
twenty (120) of such monthly payments guaranteed, in the event of the
Participant's death within ten (10) years after commencement of payments
under the option. The first monthly payment of such benefit
28
<PAGE>
shall become due on the same date that is applicable in the case of the
Normal Retirement Benefit, and the last monthly payment shall be either the
one hundred twentieth (120th) such payment, or that which comes due on the
first day of the month in which the Participant's death shall occur,
whichever shall be the later payment. If the death of the Participant
occurs within ten (10) years after retirement, in lieu of paying the
remaining number of guaranteed monthly payments to the person or persons
designated by the Participant to receive such remaining payments, the EBC
may, at its sole discretion and considering any applicable Collective
Bargaining Agreement and current law, elect to pay to such person or
persons a lump sum which shall be the Actuarial Equivalent of the total of
such remaining payments; or
(e) A Participant, whether married or unmarried, may elect a
Level Income Option. A Level Income Option means a form of benefit that
provides increased monthly annuity payments prior to the Participant's 62nd
birthday (determined in accordance with Appendix A for benefits under
Section 17.2(c), and as an Actuarial Equivalent benefit for all other
Schedules of Benefits) and after such birthday provides reduced monthly
annuity payments in an amount which, when added to the Primary Social
Security Benefits which the Participant could elect to receive,
approximately equals the amount of the monthly annuity paid prior to the
Participant's 62nd birthday. In no event shall this amount be less than the
amount calculated based on the mortality assumption specified in Section
1.1(b)(i) and the interest rate assumption specified in Section 1.1(b)(ii).
A Participant who is entitled to an Early Retirement Benefit and who elects
to have such benefit commence prior to age 62 may elect the Level Income
Option, unless the Primary Social Security Benefits which the Participant
could elect to receive at
29
<PAGE>
age 62 would equal or exceed the amount of the monthly annuity payments
prior to age 62 or unless the Participant is receiving Social Security
disability benefits.
10.3 Election of Alternative Form of Benefit. During the 90 day period
---------------------------------------
ending on the annuity starting date, if a Participant elects, with Spousal
Consent if the Participant is married, to waive the Normal Form of Benefit, such
Participant may elect an Alternative Form of Benefit as may be provided under
Section 10.2 or the applicable Schedule of Benefits. The Spousal Consent and the
Participant's waiver must state the specific nonspouse Beneficiary, if any
(including any class of beneficiaries or contingent beneficiaries) and the
particular Alternative Form of Benefit, neither of which may be further modified
(except back to the Normal Form of Benefit or the 50% joint and survivor annuity
with the spouse as joint annuitant) without subsequent Spousal Consent (unless
expressly permitted by the spouse), and the Spousal Consent acknowledges the
effect of the election. Such waiver is revocable at any time and any number of
times during the aforesaid 90 day period.
No more than 90 days prior to and no less than 30 days prior to the
commencement of distributions under any form of benefit, the EBC shall provide
(by mail or personal delivery) each Participant such information as may be
required to be provided under Section 417 of the Code and the regulations
promulgated thereunder. Notwithstanding the foregoing, distributions may
commence prior to the end of the thirty (30) to ninety (90) day period provided
that (a) the Participant is advised that the Participant has at least 30 days to
make an election of an Alternative Form of Benefit, and (b) the Participant
elects, on a form provided by the EBC, for distributions to begin after the
expiration of seven days following the distribution of the materials described
above.
30
<PAGE>
10.4 Joint Annuitants. A Participant may designate any individual as the
----------------
joint annuitant; provided, however, that a designation of any individual other
than the Participant's spouse shall be subject to the Spousal Consent rules
described in Section 10.3. A Participant who elects an Alternative Form of
Benefit in the form of a joint and survivor annuity shall designate a joint
annuitant when making such an election. A designation of a joint annuitant may
be revoked or changed at any time prior to the annuity starting date, but such
designation shall become irrevocable thereafter. If the joint annuitant dies on
or after the date as of which payment of the Participant's joint and survivor
annuity is to commence, the Participant shall continue to receive the reduced
monthly annuity.
10.5 Survivor's Benefits.
-------------------
(a) Pre-Retirement Survivor's Benefit When Death Occurs on Or After
---------------------------------------------------------------
Age 55. If a Participant (i) continues to be employed by the Company at any time
------
on or after such Participant's 55th birthday and (ii) dies (whether or not so
employed on the date of death) before payment of any monthly retirement benefit
under the Plan commences, then such Participant's surviving spouse (if any)
shall be entitled to receive a survivor's benefit for life, determined as
follows commencing as of the first day of the month next following the date of
the Participant's death:
(1) If the Participant's service has not terminated before the
Participant's death, the survivor's benefit shall be equal to the benefit
which would have been paid to the Participant's spouse if the Participant's
service had terminated on the date of death, and benefits in the form of a
100% joint and survivor annuity commenced as of the first day of the next
following month.
31
<PAGE>
(2) If the Participant's service has terminated before the
Participant's death but the Participant has deferred the commencement of
the Early Retirement Benefit or the Vested Benefit, the survivor's benefit
shall be equal to the benefit which would have been paid to the
Participant's spouse if the Participant had elected a 50% joint and
survivor annuity benefit commencing as of the first day of the month next
following the date of the Participant's death.
(b) Pre-Retirement Survivor's Benefit When Death Occurs Before Age
--------------------------------------------------------------
55. If a Participant has five (5) or more Total Years of Service and dies before
--
attaining age 55, then such Participant's surviving spouse (if any) shall be
entitled to receive a survivor's benefit for life. The amount of such survivor's
benefit shall be determined pursuant to Section 8.1 based upon the Participant's
age and Total Years of Credited Service on the date of the Participant's death .
(1) If the Participant's service has not terminated before the
Participant's death, the survivor's benefit shall be equal to the benefit
which would have been paid to the Participant's spouse if the Participant
had separated from service as of the date of death, survived to the
Participant's 55th birthday, retired with an immediate 100% joint and
survivor annuity at the Participant's 55th birthday, and died on the day
after the day on which the Participant would have attained his 55th
birthday.
(2) If the Participant's service has terminated before the
Participant's death, the survivor benefit shall be equal to the benefit
which would have been paid to the Participant's spouse if the Participant
had separated from service on the date of death, survived to the
Participant's 55th birthday, retired with an immediate 50% joint and
32
<PAGE>
survivor annuity at the Participant's 55th birthday, and died on the day
after the day on which the Participant would have attained his 55th
birthday.
(3) The Participant's spouse may elect to commence payment of
benefits on the first day of the month next following the Participant's
55th birthday or as of the first day of any subsequent month, but not later
than the Participant's Normal Retirement Date, unless the Actuarial
Equivalent of the benefit is equivalent to $5,000 or less, in which case
the benefit shall be paid pursuant to Section 10.6.
10.6 Small Annuities. The EBC shall pay any benefit which is the Actuarial
---------------
Equivalent of a lump sum payment of $5,000 or less to a Participant, Beneficiary
or joint annuitant in a lump sum. If a lump sum distribution is so paid and the
Participant is thereafter reemployed by the Company, the Participant shall have
the option to repay to the Plan the amount of such distribution, together with
interest at the rate as may be prescribed pursuant to section 411(c)(2)(C) of
the Code, compounded annually from the date of the distribution to the date of
repayment. If a reemployed Participant does not make such repayment, no part of
the service with respect to which the lump sum distribution was made shall count
as service or a Year of Credited Service.
ARTICLE XI.
ADMINISTRATION OF THE PLAN
--------------------------
11.1 Appointment of Plan Committee. There shall be an Employee Benefits
-----------------------------
Committee ("EBC") which shall consist of not fewer than three (3) nor more than
seven (7) members who shall be appointed by the Company. Members of the EBC
shall hold office until their death, resignation, disqualification or removal.
The EBC shall be the Plan Administrator.
11.2 Resignation and Removal of Members. Any member of the EBC may resign
----------------------------------
at any time by giving written notice to the other members and to the Management
Committee of
33
<PAGE>
UDLP, effective as therein stated. Any member of the EBC may, at any time, be
removed by the Management Committee.
11.3 Appointment of Successors. Upon the death, resignation,
-------------------------
disqualification or removal of any member of the EBC, the Management Committee
of UDLP may appoint a successor. Notice of appointment of a successor member
shall be given by the Management Committee of UDLP in writing to the EBC and to
the Trustee.
11.4 Power and Duties of the Committee. The EBC shall have full power,
---------------------------------
authority and discretion to control and manage the operation and administration
of the Plan and to construe and apply all of its provisions, provided that the
EBC shall have no power, authority, or responsibility with respect to those
matters which are the responsibility of the Trustee. Any action taken by the EBC
in its discretion in the exercise of authority conferred upon it by this Plan
shall be conclusive and binding upon Participants, their Beneficiaries and all
other persons. All discretionary powers conferred upon the EBC shall be
absolute, provided that no discretionary power shall be exercised in such manner
as to cause or create discrimination in favor of Employees who are officers or
shareholders of the Company or Highly Compensated Employees. The authority of
the EBC shall include, but not by way of limitation, the following:
(a) Authority to interpret the provisions of the Plan and to
determine any questions arising under the Plan or in
connection with the administration or operation thereof;
(b) Authority to determine all questions affecting the
eligibility of any person to be, become or remain a
Participant in the Plan;
(c) Authority to determine the Service of any person and to
compute the amount of benefit or other sum payable under the
Plan to any person;
34
<PAGE>
(d) Authority to determine all questions regarding the status of
any person as a Participant;
(e) Authority to authorize and direct all disbursements of
benefits and other sums under the Plan and to determine the manner in which
benefits shall be payable to Participants;
(f) Authority to adopt such rules as it may deem desirable for
the purpose of regulating the conduct and discharge of its business and
duties in the administration of the provisions of the Plan, provided that
such rules shall not be inconsistent with the provisions of the Plan;
(g) Authority to purchase such liability insurance as it may
deem appropriate in connection with the operation and administration of the
Plan;
(h) Authority to direct the Trustee to undertake and assume the
authority and responsibility to invest and reinvest the assets of the Plan
and to make any decision respecting assets of the Plan, provided that any
such direction shall be in writing;
(i) Authority to engage such legal, actuarial, accounting,
clerical, administrative, medical and other services as it may deem proper,
including authority to employ one or more persons to render advice with
regard to any responsibility which the EBC, any member thereof or any other
person designated under Section 11.5 may have under the Plan; and
(j) Authority to perform or cause to be performed such further
acts as it may deem to be necessary, appropriate or convenient in the
exercise of its power and authority under the Plan.
35
<PAGE>
11.5 Allocation and Delegation of Duties. The EBC may allocate its
-----------------------------------
fiduciary responsibilities among its members and may designate other persons (or
committee(s) of persons) to carry out fiduciary or other responsibilities (other
than responsibilities for the management or control of Plan assets) under the
Plan. Pursuant to this Section, the EBC shall appoint from among its members a
chairman and a secretary, who shall have such duties as the EBC may provide from
time to time. The EBC, and any person delegated under the provisions hereof to
carry out any responsibilities under the Plan, shall be entitled to rely upon
information, data and documentation furnished by the Company, tables,
valuations, certificates, and reports furnished by actuaries, and upon
certificates, reports, and opinions made or given by any accountant, legal
counsel or other expert or advisor (who may be employed or retained by one or
more Affiliates) selected or approved by the EBC; and the members of the EBC and
any delegate thereof shall not be liable, except to the extent provided by law,
for any action taken, suffered or omitted by them in good faith or for any such
action in reliance upon any such actuary, accountant, legal counsel or other
expert or advisor, or upon any information, data, documentation, report or
opinion furnished by the same or by the Company.
11.6 Committee Procedure. A majority of the members of the EBC as
-------------------
constituted at any time shall constitute a quorum, and any action by a majority
of the members present at any meeting, or authorized by a majority of the
members in writing without a meeting, shall constitute the action of the EBC. A
member of the EBC who is also a Participant hereunder shall not vote on any
question involving his own interest under the Plan, as distinguished from
interests of others similarly situated. The EBC may authorize each or any one or
more of its members to execute any document or documents on behalf of the EBC,
in which event it shall notify the Trustee in writing of such action and the
name or names of its members so designated,
36
<PAGE>
and the Trustee may thereafter accept and rely upon any document executed by
such member or members as representing action by the Plan Committee until the
EBC shall file with the Trustee a written revocation of such designation.
11.7 Investment Manager. The EBC may appoint one or more Investment
------------------
Managers to manage all or any part of the assets of the Plan. Such appointment
shall be reflected in the minutes of the EBC. The Investment Manager(s) shall
discharge its duties in accordance with applicable law and in particular in
accordance with Section 404(a)(l) of ERISA. The Investment Manager(s) shall have
such responsibility to manage the assets of the Plan as the EBC shall designate,
and the EBC shall thereafter have no responsibility for the management of such
assets to the extent that responsibilities are designated to be the
responsibilities of the Investment Manager(s).
11.8 Compensation of Committee. Members of the EBC shall serve as such
-------------------------
without compensation from the Plan, but may receive compensation from any member
of the Affiliated Group for so serving.
11.9 Expenses. Ordinary and necessary expenses incurred in connection with
--------
the establishment or termination of the Plan may be paid from the Trust Fund to
the extent allowed under Section 403(c)(1) of ERISA. Ordinary and necessary
expenses (including the cost of any bond required under Section 412 of ERISA)
incurred for any Plan Year in connection with administering the Plan, other than
establishment or termination expenses, may be paid from the Trust Fund. To the
extent expenses incurred in establishing, administering or terminating the Plan
are not paid from the Trust Fund, they shall be paid by the Affiliated Group.
11.10 Information Required From Participants. Each Participant or
--------------------------------------
Beneficiary shall furnish to the EBC such information in writing as the EBC
considers necessary or desirable for
37
<PAGE>
purposes of administering the Plan, and the provisions of the Plan respecting
any payments thereunder are conditional upon the Participant's or Beneficiary's
furnishing promptly such true, full and complete information as the EBC may
request. Any notice or information which, according to the terms of the Plan or
the rules of the EBC, must be filed with the EBC shall be deemed so filed at the
time that it is actually received by the EBC.
11.11 Records. The EBC shall keep a record of all its proceedings and shall
-------
keep, or cause to be kept, all such books, accounts, records or other data as
may be necessary or advisable in its judgment for the administration of the Plan
and properly to reflect the affairs thereof.
11.12 Multiple Fiduciary Capacity. Nothing in this Plan shall be deemed to
---------------------------
prohibit any person or group of persons from serving in more than one fiduciary
capacity with respect to the Plan.
11.13 Indemnification. The Company shall indemnify any past, present,
---------------
additional or replacement director, officer or employee, of the Company who is,
or who is claimed to be, a fiduciary with respect to the Plan, or his or her
estate, heirs, or legal representatives in the event of his or her death or
incompetency, against any and all claims, losses, damages, fees, fines,
interest, penalties, taxes, expenses, including, but not limited to, counsel
fees, incurred by such persons and any liability or claim of liability to which
they may be subjected, including any amounts paid in settlement with the
Company's approval, arising from any such person's action or failure to act in
connection with the administration of this Plan or the investment of the Trust
Fund, except when the same is judicially determined to be attributable to the
gross negligence or willful misconduct of such person.
38
<PAGE>
ARTICLE XII.
FUNDING OF THE PLAN
-------------------
12.1 Actuarial Cost Method. The Company shall determine the actuarial cost
---------------------
method to be used in determining costs and liabilities under the Plan pursuant
to section 301 et seq. of ERISA, and section 412 of the Code. The Company shall
review such actuarial cost method from time to time, and if it determines from
review that such method is no longer appropriate, then it shall petition the
Secretary of the Treasury for approval of a change of actuarial cost method, if
such approval is required.
12.2 Cost of the Plan. Annually the Company shall determine the normal cost
----------------
of the Plan for the Plan Year and the amount (if any) of the unfunded past
service cost on the basis of the actuarial cost method established for the Plan
using actuarial assumptions which, in the aggregate, are reasonable. The Company
shall also determine the contributions required to be made for each Plan Year by
the Company in order to satisfy the minimum funding standard (or alternative
minimum funding standard) for such Plan Year determined pursuant to sections 302
through 305 of ERISA and section 412 of the Code.
12.3 Funding Policy. The Company shall cause contributions to be made to
--------------
the Plan for each Plan Year in the amount necessary to satisfy the minimum
funding standard (or alternative minimum funding standard) for such Plan Year;
provided, however, that this obligation shall cease when the Plan is terminated.
In the case of a partial termination of the Plan, this obligation shall cease
with respect to those Participants, joint annuitants and Beneficiaries who are
affected by such partial termination.
12.4 Public Accountant. The EBC shall engage an independent qualified
-----------------
public accountant to conduct such examinations and to render such opinions as
may be required by section 103(a)(3) of ERISA. The EBC in its discretion may
remove and discharge the person so
39
<PAGE>
engaged, but in such case it shall engage a successor independent qualified
public accountant to perform such examinations and to render such opinions.
12.5 Enrolled Actuary. The EBC shall engage an enrolled actuary to
----------------
prepare the actuarial statement described in section 103(d) of ERISA and to
render the opinion described in section 103(a)(4) of ERISA. The EBC in its
discretion may remove and discharge the person so engaged, but in such event it
shall engage a successor enrolled actuary to perform such examination and render
such opinion.
12.6 Basis of Payments to the Plan. All contributions to the Plan
----------------------------
shall be made by the Company, and no contributions shall be required of or
permitted by Participants. From time to time the Company shall make such
contributions to the Plan as it determines to be necessary or desirable in order
to fund the benefits provided by the Plan, including any medical benefits
provided for retired employees, and any expenses thereof which are paid out of
the Trust Fund in order to carry out the obligations of the Company set forth
above. All contributions to the Plan shall be held by the Trustee in accordance
with the Trust Agreement.
All contributions to the Plan are conditioned on deductibility of such
contributions under Code section 404. To the extent that a deduction under Code
section 404 is disallowed, the contribution shall be returned to the Company
within one year after disallowance. If a contribution is made by the Company
pursuant to a mistake of fact, the contribution shall be returned to the Company
within one year after the payment of the contribution. Earnings attributable to
contributions returned to the Company pursuant to this paragraph shall not be
returned to the Company, but losses attributable to such amounts shall reduce
the amount returned.
40
<PAGE>
12.7 Basis of Payments from the Plan. All benefits payable under the
-------------------------------
Plan shall be paid by the Trustee out of the Trust Fund pursuant to the
directions of the EBC and the terms of the Trust Agreement. The Trustee shall
pay all proper expenses of the Plan and the Trust Fund out of the Trust Fund or
the applicable insurance contract or policy in accordance with the terms of the
Trust Agreement, except to the extent paid by the Company.
ARTICLE XIII.
CLAIMS AND APPEAL PROCEDURE
---------------------------
13.1 Inquiries and Applications for Benefits. Any application for
---------------------------------------
benefits under the Plan and all inquiries concerning the Plan shall be submitted
to the EBC at such address as may be announced to Participants from time to
time. Applications for benefits shall be in writing on the form prescribed by
the EBC and shall be signed by the Participant or, in the case of a benefit
payable after the death of the Participant, by the Participant's joint annuitant
or Beneficiary, as the case may be.
13.2 Denial of Applications. The EBC shall give written notice of its
----------------------
decision on any application to any applicant and to any other person designated
pursuant to any applicable Collective Bargaining Agreement. In the event any
application for benefits is denied in whole or in part, the EBC shall notify the
applicant in writing of the right to a review of the denial. Such written notice
shall set forth, in a manner calculated to be understood by the applicant,
specific reasons for the denial, specific references to the Plan provisions on
which the denial is based, a description of any information or material
necessary to perfect the application, an explanation of why such material is
necessary, and an explanation of the Plan's claim review procedures. Such
written notice shall be given to the applicant within a reasonable period of
time after the EBC receives the application, based on its customary procedures
in processing such claims.
41
<PAGE>
13.3 Requests for a Review. Subject to any arbitration or grievance
---------------------
procedure established pursuant to any applicable Collective Bargaining
Agreement, any person (or his or her authorized representative) whose
application for benefits is denied in whole or in part may appeal the denial by
submitting to the EBC a request for a review of the application within 90 days
after receiving written notice of the denial. The EBC shall give the applicant
or such representative an opportunity to review pertinent materials (other than
legally privileged documents) in preparing such request for review. The request
for review shall be in writing, and shall set forth all of the grounds on which
it is based, all facts in support of the request, and any other matters which
the applicant deems pertinent. The EBC may require the applicant to submit such
additional facts, documents, or other materials as it may deem necessary or
appropriate in making its review.
13.4 Decision on Review. The EBC shall act upon each request for
------------------
review within 60 days after receipt thereof unless special circumstances require
further time for processing, but in no event shall the decision on review be
rendered more than 120 days after the EBC receives the request for review. The
EBC shall give prompt, written notice of its decision to the Company and to the
applicant. In the event the EBC confirms the denial of the application for
benefits in whole or in part, such notice shall set forth, in a manner
calculated to be understood by the applicant, the specific reasons for such
denial and specific references to the Plan provisions on which the decision is
based. Decisions of the EBC shall be final, conclusive and biding and all
Participants, Beneficiaries and all other persons.
13.5 Rules and Procedures. The EBC shall establish such rules and
--------------------
procedures, consistent with ERISA and the Plan, as it may deem necessary or
appropriate in carrying out its responsibilities under this Section.
42
<PAGE>
13.6 Exhaustion of Remedies. No legal or equitable action for benefits
----------------------
under the Plan shall be brought unless and until the claimant (a) has submitted
a written application for benefits in accordance with Section 13.1, (b) has been
notified by the EBC that the application is denied, (c) has filed a written
request for a review of the application in accordance with this Section 13.3 and
(d) has been notified in writing that the EBC has affirmed the denial of the
application; provided that legal action may be brought after the EBC has failed
to take any action on the claim within the time prescribed above.
In no event may any legal or equitable action for benefits under the
Plan be brought in a court of law or equity with respect to any claim for
benefits more than one (1) year after the final denial (or deemed final denial)
of the claim by the EBC.
ARTICLE XIV.
AMENDMENT AND TERMINATION OF THE PLAN
-------------------------------------
14.1 Future of the Plan. The Company expects to continue the Plan
------------------
indefinitely. Future conditions, however, cannot be foreseen, and the Company
retains the authority to amend or to terminate the Plan at any time and for any
reason, subject to any applicable Collective Bargaining Agreement. The Company
in any event shall have the authority to amend the Plan at any time to the
extent that such amendments are required in order to obtain a favorable
determination letter from the Internal Revenue Service regarding the Plan's
qualification under the Code or to conform the Plan to such regulations and
rulings as may be issued by the Internal Revenue Service, the United States
Department of Labor, or other governmental body. The Company may amend, modify,
or terminate the Plan at any time by resolution of its Management Committee or,
if such amendment or modification will not effect a material increase in the
benefits to be offered under the Plan or if such amendment or modification is
required in order to obtain a favorable determination letter from the Internal
Revenue Service regarding the Plan's
43
<PAGE>
qualification under the Code, or to conform the Plan to such regulations and
rulings as may be issued by the Internal Revenue Service, the United States
Department of Labor or other governmental body, by resolution of or other action
recorded in the minutes of the EBC. The execution and delivery by the President,
any Vice President of the Company, or the Secretary or any member of the EBC of
an amendment to the Plan, a restated Plan, or other plan instrument reflecting
such amendment, modification, or termination shall conclusively evidence such
amendment, modification, or termination.
14.2 Amendments of the Plan. No amendment of the Plan shall (a) reduce
----------------------
the accrued benefit of any Participant accrued under the Plan before such
amendment is adopted, or (b) divert any part of the assets of the Plan to
purposes other than the exclusive purpose of providing benefits to the
Participants, joint annuitants and Beneficiaries who have an interest in the
Plan and of defraying the reasonable expenses of administering the Plan and the
Trust Fund. No amendment to the Plan (including a change in the actuarial basis
for determining optional benefits or Early Retirement Benefits) shall be
effective to the extent that it has the effect of decreasing a Participant's
accrued benefit (within the meaning of section 411(d)(6) of the Code).
Notwithstanding the preceding sentence, a Participant's accrued benefit may be
reduced to the extent permitted under section 412(c)(8) of the Code. For
purposes of this paragraph, a Plan amendment which has the effect of (c)
eliminating or reducing an Early Retirement Benefit or a retirement-type
subsidy, or (d) eliminating an optional form of benefit with respect to benefits
attributable to Service before the amendment shall be treated as reducing
accrued benefits. In the case of a retirement-type subsidy, the preceding
sentence shall apply only with respect to a Participant who satisfies (either
before or after the amendment) the pre-amendment conditions for the subsidy. In
general, a retirement-type subsidy is a subsidy that continues after retirement,
44
<PAGE>
but does not include a qualified disability benefit, a medical benefit, a social
security supplement, a death benefit (including life insurance), or a plant
shutdown benefit (that does not continue after retirement age). Furthermore, no
amendment to the Plan shall have the effect of decreasing a Participant's vested
interest, as determined without regard to such amendment, as of the later of the
date such amendment is adopted, or becomes effective.
If an amendment modifies the vesting schedule set forth in Article
VIII, a Participant who has at least three Years of Service on or before the end
of the "election period", described in the next sentence, may elect to have the
existing vesting schedule apply to him or her rather than the new vesting
schedule, provided that such election is made within the "election period." The
"election period" begins on the date such amendment is adopted and ends 60 days
after the latest of (e) the date such amendment is adopted, (f) the date such
amendment becomes effective, and (g) the date such Company gives the Participant
written notice of such amendment.
14.3 Termination of the Plan. Upon termination of the Plan, no part of
-----------------------
the Trust Fund shall revert to the Company or be used for or diverted to
purposes other than the exclusive purpose of providing benefits to the
Participants, joint annuitants, and Beneficiaries who have an interest in the
Plan, and of defraying the reasonable expenses of administering the Plan and the
Trust Fund and the costs of such termination, except as otherwise provided in
Section 14.4. Upon termination of the Plan, each Participant's rights to
benefits accrued hereunder shall be one hundred percent (100%) vested to the
extent such benefits were not forfeited prior to the termination of the Plan.
Upon termination of the Plan, the Trust and any insurance policy or contract
shall continue until the Plan's assets have been distributed as provided in
Section 14.4. Any other provision hereof notwithstanding, the Company shall have
no obligation to continue making contributions to the Plan after termination of
the Plan. Except as otherwise provided in
45
<PAGE>
ERISA, neither the Company nor any other person shall have any liability or
obligation to provide benefits hereunder after such termination in excess of the
value of the Trust Fund. Upon such termination, Participants, joint annuitants,
and Beneficiaries shall obtain benefits solely from the Trust Fund. Upon partial
termination of the Plan, this Section shall apply only with respect to such
Participants, joint annuitants and Beneficiaries as are affected by such partial
termination.
Notwithstanding the foregoing, for a period of five years commencing as
of the Effective Date, all Participants in the Plan shall be entitled to
benefits on a termination basis as determined pursuant to the special schedule
of benefits set forth in Treasury Regulation ss. 1.414(l)-1(e) and (f). Pursuant
to Treasury Regulation ss. 1.414(l)-1(i), the Company shall retain such data as
may be necessary to create such a special schedule, in the event of a subsequent
plan termination or a subsequent plan spin-off.
14.4 Allocation of Trust Fund on Termination. On termination of the
---------------------------------------
Plan, the Trust Fund shall be allocated by the EBC on an actuarial basis among
Participants, joint annuitants and Beneficiaries in the manner prescribed by
section 4044 of ERISA. Any residual assets of the Trust Fund remaining after
such allocation shall be distributed to the Company if (a) all liabilities of
the Plan to Participants, joint annuitants and Beneficiaries have been satisfied
and (b) such a distribution does not contravene any provision of law or any
applicable Collective Bargaining Agreement. The foregoing notwithstanding, if
any remaining assets of the Plan are attributable to employee contributions,
such assets shall be equitably distributed to the Participants who made such
contributions (or to their Beneficiaries) in accordance with their rate of
contribution. The benefit of any Highly Compensated Employee or former employee
(determined in accordance with section 414(g) of the Code and regulations
thereunder) shall be
46
<PAGE>
limited to a benefit that is nondiscriminatory under section 401(a)(4) of the
Code. In the event of a partial termination of the Plan, the EBC shall arrange
for the division of the Trust Fund, on a nondiscriminatory basis to the extent
required by section 401 of the Code, into the portion attributable to those
Participants, joint annuitants and Beneficiaries who are not affected by such
partial termination and the portion attributable to such persons who are so
affected. The portion of the Trust Fund attributable to persons who are so
affected shall be allocated in the manner prescribed by section 4044 of ERISA.
ARTICLE XV.
MISCELLANEOUS PROVISIONS
------------------------
15.1 Subsequent Changes. All benefits to which any Participant, joint
------------------
annuitant, or Beneficiary may be entitled hereunder shall be determined under
the Plan in effect when the Participant ceases to be an Eligible Employee and
shall not be affected by any subsequent change in the provisions of the Plan,
unless the Participant again becomes an Eligible Employee.
15.2 Plan Mergers. The Company retains the right to merge the Plan with
------------
any other Plan, unless otherwise prohibited due to an applicable Collective
Bargaining Agreement. The Plan shall not be merged or consolidated with any
other plan, and no assets or liabilities of the Plan shall be transferred to any
other plan, except in accordance with the requirements of Section 414(l) of the
Code.
15.3 No Assignment of Property Rights. The interest or property rights
--------------------------------
of any person in the Plan, in the Trust Fund, or in any payment to be made under
the Plan shall not be assignable nor be subject to alienation or option, either
by voluntary or involuntary assignment or by operation of law, including
(without limitation) bankruptcy, garnishment, attachment, or other creditor's
process, and any act in violation of this Section 15.3 shall be void. This
provision shall not apply to a "qualified domestic relations order" defined in
Code section
47
<PAGE>
414(p), any other domestic relations order permitted to be so treated by the EBC
under the provisions of the Retirement Equity Act of 1984, or any other
assignment or alienation permitted under the terms of Code section 401(a)(13) or
the Treasury regulations thereunder. The EBC shall establish a written procedure
to determine the qualified status of domestic relations orders and to administer
distributions under such qualified orders. Further, to the extent provided under
a qualified domestic relations order, a former spouse of a Participant shall be
treated as the spouse or surviving spouse for all purposes under the Plan.
15.4 Incapacity. If, in the opinion of the EBC, any person becomes
----------
unable to handle properly any property distributable under the Plan, the EBC may
make any arrangement for distribution on such person's behalf that it determines
will be beneficial to such person, including (without limitation) distribution
to such person's guardian, conservator, spouse or dependent.
15.5 Employment Rights. Nothing in the Plan shall be deemed to give any
-----------------
person a right to remain in the employ of the Affiliated Group or affect any
right of the Affiliated Group to terminate a person's employment with or without
cause.
15.6 Reemployment and Suspension of Annuities. If any Participant who
----------------------------------------
is receiving annuity benefits hereunder is reemployed by the Affiliated Group,
the payment of such benefits shall be suspended as provided in Section 7.2 until
such Participant's employment again terminates, or the benefits otherwise become
payable as provided in Section 7.1, at which time such Participant's benefits
shall be redetermined (but not decreased) in accordance with the applicable
provisions of the Plan in effect when the Participant again ceases to be an
Eligible Employee.
15.7 Proof of Age and Marriage. Participants and joint annuitants shall
-------------------------
furnish proof of age and marital status satisfactory to the EBC at such time or
times as it shall prescribe. The
48
<PAGE>
EBC may delay the disbursement of any benefits under the Plan until all
pertinent information with respect to age or marital status has been furnished
and then make payment retroactively.
15.8 Choice of Law. The Plan and all rights thereunder shall be
-------------
interpreted and construed in accordance with ERISA and, to the extent that state
law is not preempted by ERISA, the law of the Commonwealth of Virginia.
15.9 Direct Rollover Option. Notwithstanding any provision of the Plan
----------------------
to the contrary that would otherwise limit a distributee's election under this
Section, a distributee may elect, at the time and in the manner prescribed by
the EBC, to have any portion of an eligible rollover distribution paid directly
to an eligible retirement plan specified by the distributee in a direct
rollover.
(a) As used in this Section 15.9, an "eligible rollover
distribution" means any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of substantially equal
periodic payments (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; 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), any hardship distribution described under Code Section
401(k)(2)(B)(i)(iv), and any other distribution(s) reasonably expected to total
less than $200 during a year.
(b) As used in this Section, an "eligible retirement plan"
means an individual retirement account described in section 408(a) of the Code,
an individual retirement annuity
49
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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. In the case
of an eligible rollover distribution to a Participant's surviving spouse,
however, an eligible retirement plan is an individual retirement account or
individual retirement annuity.
(c) As used in this Section, 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 4l4(p) of the Code, are distributees.
(d) As used in this Section, a "direct rollover" is a payment
by the Plan to the eligible retirement plan specified by the distributee.
15.10 Effect of Merger and Restatement.
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This statement of the Plan is intended to comply with Code
section 411(d)(6) and the regulations promulgated thereunder prohibiting any
amendment resulting in the reduction of an accrued benefit. In addition, the
mergers of the Prior Plans are intended to comply with Code section 414(l) and
the regulations promulgated thereunder governing the mergers of plans.
Therefore, notwithstanding any other provision of the Plan, any Participant
shall be entitled under the Plan to such benefits as of the date of adoption of
the Plan as shall be necessary to ensure compliance with such Code provisions
and regulations.
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ARTICLE XVI.
TOP HEAVY PROVISIONS
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16.1 Top Heavy Plan Requirements. For any Top Heavy Plan Year, the
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Plan shall provide the following:
(a) special vesting requirements of Code section 416(b)
pursuant to Section 16.4 of the Plan;
(b) special minimum benefit requirements of Code section
416(c) pursuant to Section 16.3(c) of the Plan;
(c) special Compensation requirements of Code section
416(d) pursuant to Section 16.3(e) of the Plan;
16.2 Determination of Top Heavy Status.
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(a) This Plan shall be a Top Heavy Plan for any Plan Year in
which, as of the Determination Date, (1) the present value of accrued benefits
of Key Employees and (2) the sum of the Aggregate Accounts of Key Employees
under this Plan and all plans of an Aggregation Group, exceeds sixty percent
(60%) of the present value of accrued benefits and the aggregate accounts of all
Key and Non-Key Employees under this Plan and all plans of an Aggregation Group.
If any Participant is a Non-Key Employee for any Plan Year,
but such Participant was a Key Employee for any prior Plan Year, such
Participant's present value of accrued benefits and/or Aggregate Account balance
shall not be taken into account for purposes of determining whether this Plan is
a Top Heavy or Super Top Heavy Plan (or whether any Aggregation Group which
includes this Plan is a Top Heavy Group). In addition, if a Participant or
Former Participant has not received any compensation from the Company (other
than benefits under the Plan) at any time during the five-year period ending on
the Determination Date, the Aggregate
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Account and/or present value of accrued benefits for such Participant or Former
Participant shall not be taken into account for the purposes of determining
whether this Plan is a Top Heavy or Super Top Heavy Plan.
(b) This Plan shall be a Super Top Heavy Plan for any Plan Year
in which, as of the Determination Date, (A) the present value of accrued
benefits of Key Employees and (B) the sum of the Aggregate Accounts of Key
Employees under this Plan and all plans of an Aggregation Group, exceeds ninety'
percent (90%) of the present value of accrued benefits and the Aggregate
Accounts of all Key and Non-Key Employees under this Plan and all plans of an
Aggregation Group.
(c) "Key Employee" means those Employees defined in Code section
416(i) and the Treasury regulations thereunder. Generally, they shall include
any Employee or former Employee (and his or her Beneficiaries) who, at any time
during the Plan Year or any of the preceding four (4) Plan Years, is:
(1) An officer of the Company (as that term is defined within
the meaning of the regulations under Code section 416)
having annual 415 Compensation greater than 50 percent of