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Pension SERP 2008
SPACE SYSTEMS/LORAL, INC. SUPPLEMENTAL
EXECUTIVE
RETIREMENT PLAN
Informally Known As
the Loral SERP or the Loral Pension SERP
Restated to reflect
amendments made through
December 17, 2008
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TABLE OF CONTENTS
Page
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INTRODUCTION
Article I — Definitions
Annuity Starting Date.
Pre-2009 rules:
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Basic Plan.
Basic Plan Benefit.
Beneficiary.
Board.
Cause.
Code.
Committee.
Company.
Employer.
ERISA.
FICA.
Investment Committee.
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Joint and survivor annuity.
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Loral.
Participant.
Plan.
Plan Year.
Post-Termination Bonus.
Proper Application.
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QDRO or Qualified Domestic Relations Order.
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Qualified Pre-Retirement Survivor Annuity.
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QPSA.
Reg. §.
Separation from Service.
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"Social Security Wage Base."
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Spouse.
SS/L.
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Trust Agreement or Trust.
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Trustee.
Article II — Benefits
2.1
2.2
2.3
2.4
2.5
2.6
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Eligibility for Plan Payment and Benefit Formula Rules.
Post-Termination Bonuses Credited as Compensation under Plan.
Post-Retirement Death Benefits.
Pre-Retirement Death Benefits.
Small Benefit Immediate Lump Sum Cashout Rules
Benefits under Multiple Qualified Plans
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2.7
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Suspension of Accruals under Basic Plan; or Employer’s
Withdrawal from Basic Plan.
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2.8
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Form of Annuity Paid under this Plan.
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Article III — Administration; Accrued
Benefits; Right to Amend
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3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
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The Committee — the Plan Administrator.
Rules and Powers of the Committee.
Claims Procedure.
QDRO Claim.
Indemnification of Plan Fiduciaries.
Power to Execute Plan and Other Documents.
Conclusiveness of Records.
Plan Amendments and Termination.
Investment Committee.
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Article IV — Vesting and
Forfeiture
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4.1
4.2
4.3
4.4
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Vesting.
Cause.
Forfeiture after Plan Benefits have Commenced.
Determinations by Committee.
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Article V — General Provisions
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5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.11
5.12
5.13
5.14
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No Assignment or Alienation of Benefits.
FICA & Other Withholding Taxes.
No Right to Continue Employment.
Unfunded Plan.
Governing Law, Code §409A, and Construction of this Plan
Document.
Payment of Benefits.
Payment to a Minor or Incompetent.
Doubt as to Right to Payment.
Missing Payees.
Mistaken Payments.
Receipt and Release for Payments; Discharge of Liability.
Illegality of Particular Provisions.
Gender and Number.
Headings of Sections and Articles.
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2
INTRODUCTION
This plan, the Space Systems/Loral, Inc.
Supplemental Executive Retirement Plan (the "Plan") was established
to offset certain limitations placed on benefits received under the
Plan sponsor’s qualified defined benefit pension plan. These
limits are imposed by the Internal Revenue Code, and restrict both
the maximum amount of compensation that can be taken into account,
and the maximum amount of benefits that can be paid under a
qualified plan.
The Plan sponsor established this Plan effective
April 23, 1996 to permit employees and their beneficiaries to
enjoy the benefits that would have been provided to them, but for
these Code limitations.
The Plan is therefore an "excess benefit plan" as
defined by the Employee Retirement Income Security Act of 1974, as
amended. The Plan shall be known as the Space Systems/Loral, Inc.
Supplemental Executive Retirement Plan, or as the Loral SERP or
Loral Pension SERP.
Restatements & Change of Plan Sponsor
The Plan was initially effective April 23,
1996.
The Plan has been restated to reflect amendments
made through December 17, 2002; and restated again to reflect
amendments made through December 17, 2008.
The sponsorship of the Plan was adopted by Loral
Space & Communications Inc., effective November 20, 2005.
The Plan had been initially established by Space Systems/Loral,
Inc.
Article I — Definitions
The following terms shall have the designated
meaning, unless a different meaning is clearly required by the
context:
Annuity Starting Date.
Subject to Section ý2.6, a
Participant’s "Annuity Starting Date" shall be determined
under these rules:
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(1)
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The Annuity Starting Date under this Plan will generally be the
"Annuity Starting Date" defined in the Basic Plan, provided that by
the close of calendar year 2008 the Participant (1) is fully
vested under Article IV of this Plan; (2) has made
"Proper Application" for an "Annuity Starting Date" in or before
calendar year 2008 under the Basic Plan, as defined by that plan;
(3) is eligible to incur an "Annuity Starting Date" under the Basic
Plan, as that term is defined in the Basic Plan, and (4) has
met the payment eligibility criteria set out in Section
ý2.1.1. If an "Annuity Starting Date" is determined under
this paragraph, it will be considered to be determined under the
"Pre-2009 rules."
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(2)
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The definition of "Annuity Starting Date" set out in the
preceding paragraph (a)(1) will apply to all Plan Participants who
meet the criteria set out in paragraph (a)(1), even if their Plan
benefits do not actually begin until after 2008.
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(1)
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If a Plan Participant does not meet the criteria set out in the
preceding provisions of subsection (a) of this definition, he
will incur an Annuity Starting Date if he meets all the eligibility
requirements for Plan payment set out in Section ý2.1.1. In
this event, his Annuity Starting Date must be the later of either
(1) the first day of the calendar month coincident with or
immediately following the day that the Participant reaches age 55,
or (2) the first day of the calendar month that is six months
after the date of the Participant’s Separation from Service.
Any "Annuity Starting Date" under this Plan that is determined
under this paragraph will be considered to be determined under the
Post-2008 rules.
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(2)
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The Annuity Starting Date set out in the preceding paragraph
cannot be delayed or accelerated. It is a mandatory payment date.
Participants shall not be given any election or power to change the
timing of this date.
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(3)
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An immediate lump-sum payment of a small benefit, made under
Sections ý2.5 or ý2.4 after 2008 will be subject to
the timing rules of an Annuity Starting Date determined under the
Post-2008 rules of this paragraph (b).
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Basic Plan.
The qualified defined benefit pension plan
sponsored by SS/L (through November 19, 2005) or by Loral
(effective November 20, 2005), in which a Participant
participates. If a Participant has an interest in more than one
such plan, then the term "Basic Plan" shall refer to such plans
collectively, except as this Plan’s context shall otherwise
require.
Basic Plan Benefit.
The benefit amount accrued by a Participant under a
Basic Plan.
Beneficiary.
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(a)
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General definition . Beneficiary means the person, trust,
estate, or other entity entitled to receive benefits (if any) after
the Participant’s death under the Plan
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(b)
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Pre-2009 rules. If the Annuity Starting Date of a
Participant is determined under the Pre-2009 rules, the Beneficiary
shall be the same as the Participant’s beneficiary under the
Basic Plan.
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(1)
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If the Annuity Starting Date of a Participant is determined
under the Post-2008 rules, then the Participant may select a
Beneficiary by making Proper Application before his Annuity
Starting Date. The deadline for this Proper Application will be
determined by procedures set by the Committee.
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(2)
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If the Participant fails to make a Proper Application by this
deadline, then (1) he shall have no Beneficiary if he is
unmarried on his Annuity Starting Date (or is determined by the
Committee to be unmarried as of that date, based on the most recent
and reliable information that it has received); and (2) will
have his Spouse as his deemed designated Beneficiary, if he is
married on his Annuity Starting Date (or is determined by the
Committee to be married on that date, based on the most recent and
reliable information that it has received).
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(3)
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Proper Application for a married Participant to select a
Beneficiary who is not his Spouse must comply with the rules set
out in Section ý2.8.4.
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(4)
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In no event will a Beneficiary designation be permitted to
affect, modify, or delay a Participant’s Annuity Starting
Date.
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Board.
The Board of Directors of the Company, or the
Board’s Executive Committee or Compensation Committee.
Cause.
The term "Cause" is defined in Section
ý4.2.
Code.
The Internal Revenue Code of 1986, as amended from
time to time, and all applicable regulations, administrative
guidance, and judicial rulings..
Committee.
The administrative Committee appointed to
administer the Plan pursuant to Article III. The Committee is
the plan administrator.
Company.
The Company is the Plan sponsor. From
April 23, 1996 through November 19, 2005, the Company was
Space Systems/Loral, Inc. ("SS/L"). Effective November 20,
2005, the Company is Loral Space & Communications, Inc.
("Loral").
Employer.
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(a)
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Any subsidiary or affiliate of the Company which has adopted
this Plan and its related trust (if established or maintained), so
as to become a participating employer in the Plan, with the consent
of the Company.
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(b)
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Each Employer shall act by resolution of its Board of Directors.
If the Employer is a limited liability company, it shall act by
resolution of its Board of Managers; if the Employer is any other
entity that is not a corporation, then it shall act by resolution
of the Board of Directors of either its parent corporation,
managing general partner, or general partner; if such a partner is
not a corporation, then by the Board of Directors of the managing
general partner (or general partner) of the managing general
partner (or general partner), etc.
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(c)
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If the context of the Plan provision requires, the term
"Employer" shall also include the Company.
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(d)
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With respect to any Participant or Beneficiary, the term
"Employer" shall mean the Employer for which the Participant is or
was a common-law employee.
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ERISA.
The Employee Retirement Income Security Act of
1974, as amended from time to time, and all applicable regulations,
administrative guidance, and judicial rulings.
FICA.
FICA refers to the Federal Insurance Contributions
Act employment tax imposed on employees.
Investment Committee.
The group of one or more persons created at the
discretion of the Board to have investment authority over Trust or
Plan assets, as described in Section ý3.9.
Joint and survivor annuity.
The term "joint and survivor annuity" is a form of
annuity benefit provided under the Basic Plan, which pays a
specific monthly payment for the life of the Participant, and a
benefit to any surviving beneficiary. Under this Plan, a 50% joint
and survivor annuity is offered as an optional form of payment. The
definition and calculation rules of that benefit will be those set
for a 50% joint and survivor annuity by the Basic Plan. The 50%
joint and survivor annuity under this Plan shall be the actuarial
equivalent of a single life annuity under this Plan.
Loral.
Loral Space & Communications Inc., and
depending on the context, its subsidiaries, affiliates, or its
successor as Plan sponsor. Loral shall act by resolution of the
Board. Loral became the Plan sponsor effective November 20,
2005.
Participant.
(1) A Participant in the Basic Plan who
accrues benefits under that plan on or after April 1, 1996 and
whose Basic Plan Benefit is limited by § 415 of the Code or
whose compensation for purposes of calculating a Basic Plan Benefit
is limited by § 401(a)(17) of the Code.
(2) However, to the extent that the Basic Plan
provides an enhanced "contributory" formula, under which the
highest level of Basic Plan accruals are earned only if the Basic
Plan participant voluntarily makes salary deferral contributions to
the Basic Plan, then an individual can only be a Participant
accruing benefits under this Plan during those periods that he made
such contributions to the Basic Plan.
(3) In addition, effective November 1,
2007, a Participant will also include any "Participant" as that
term is defined in the Basic Plan, who receives a Post-Termination
Bonus. Such a payment will cause the eligible "Participant" (as
defined under the Basic Plan) to become a Participant of this Plan,
even if the amount of the Post-Termination Bonus does not exceed
any limit set by Code § § 415 or 401(a)(17).
(4) As context demands, the term "Participant"
shall also include a former Participant.
Plan.
This Space Systems/Loral, Inc. Supplemental
Executive Retirement Plan, as amended, and as from time to time in
effect.
Plan Year.
The Plan Year of this Plan will be that of the
Basic Plan.
Post-Termination Bonus.
A Post-Termination Bonus is recognized as credited
compensation under this Plan, for the purpose of determining the
Plan benefit, under the rules of Section ý2.2. A bonus will
only be considered to be a Post-Termination Bonus if it is:
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(1)
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paid on or after November 1, 2007, and
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(2)
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paid under the Loral Management Incentive Bonus program, and
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(3)
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paid to a "Participant" who has been "laid off," as both those
terms are described in the Basic Plan.
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(4)
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Additionally, a bonus will be considered a Post-Termination
Bonus only if it is not credited as compensation under the Basic
Plan; and
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(5)
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a bonus will be considered a Post-Termination Bonus only if its
recipient made voluntary contributions to the Basic Plan for the
entire period of service which gave rise to the bonus.
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(6)
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A Post-Termination Bonus is not required to equal or exceed any
specific amount, in order to be recognized as credited compensation
by the Pension SERP.
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(7)
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A post-employment bonus that is credited as compensation under
the Basic Plan will be treated as would any other amount credited
under the Basic Plan, under Section ý2.1.2.
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Proper Application.
For all Plan purposes, making any election,
granting any consent, giving any notice or information, and making
any communication whatsoever to the Committee or its delegates, in
compliance with all Plan procedures, on forms or websites provided
by the Committee, and providing all information required by the
Committee. A Proper Application will be deemed to have been made
only if it is properly completed, as determined by the
Committee.
QDRO or Qualified Domestic Relations
Order.
A QDRO shall mean an order as defined in Code
Section 414(p), and shall be subject to all administrative
rules established under the Basic Plan. The Committee shall have
full discretionary authority to determine whether any court order
is a QDRO.
Qualified Pre-Retirement Survivor
Annuity.
This term "Qualified Pre-Retirement Survivor
Annuity" or "QPSA" as used in this Plan shall have the meaning that
it has under the Basic Plan. A QPSA is a form of benefit paid to
the surviving Spouse of a Participant who has died before incurring
an Annuity Starting Date. The term "Spouse" is defined uniquely by
the Basic Plan, in the context of eligibility for a QPSA. That
definition of "Spouse" shall apply to this Plan for the purposes of
Section ý2.4.
QPSA.
The term "QPSA" refers to a "Qualified
Pre-Retirement Survivor Annuity," as defined in this
Article I.
Reg. §.
This abbreviation means "Treasury
Regulation Section." It shall refer to a regulation section
promulgated by the Treasury, and shall also reflect any applicable
amendments or IRS or judicial guidance.
Separation from Service.
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(a)
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The term "Separation from Service" shall have the meaning set by
Reg. §1.409A-1(h). The term shall apply only to a Participant
whose Annuity Starting Date is determined under the Post-2008
rules.
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(b)
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Specifically, a Separation from Service shall be considered to
occur on the date as of which the Employer and Participant
reasonably anticipate that either (1) no further services will
be performed, or (2) that the Participant will continue to
perform services for the Employer, as either a regular employee or
as an independent contractor, but that the Participant’s work
schedule or bona fide level of services will permanently be less
than 50% of the average schedule or level that the Participant had
performed, over the previous three anniversary years.
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(1)
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Further, a Separation from Service shall occur only if the
Participant does not exceed the less-than-50% schedule that is
detailed in the preceding sentence.
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(c)
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If a Participant’s Annuity Starting Date is
(1) initially determined under the Post-2008 rules on account
of a Separation from Service, but (2) the Participant
initially undergoes a termination of employment that does not meet
the criteria of a Separation from Service, then the Annuity
Starting Date will be delayed until the Participant has incurred a
Separation from Service that meets all the criteria of a
"separation from service" as defined in Reg. §1.409A-1(h). The
Annuity Starting Date will then be the first day of the month
coincident with or immediately following this ultimate Separation
from Service.
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(1)
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In this event, the Plan will deem that the Participant had
undergone his initial termination of employment on the date of his
ultimate Separation from Service.
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(2)
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Further, in this event, the circumstances of the initial
termination of employment will determine the benefit paid under
this Plan, rather than the circumstances of the ultimate
"Separation from Service," should this consideration affect Plan
benefits or procedures.
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(d)
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This definition may be changed only under the rules set out in
Reg. §1.409A-1(h)(1)(ii).
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"Social Security Wage Base."
This term is defined in the Basic Plan.
Spouse.
A "Spouse" shall be defined as that term is defined
under the Basic Plan. The special rules of that definition, which
apply to a QPSA, shall apply for the purposes of Plan Section
ý2.4.
SS/L.
Space Systems/Loral, Inc., and depending on the
context, its subsidiaries, affiliates, or its successor as Plan
sponsor. SS/L shall act by resolution of the Board. SS/L was the
Plan sponsor from April 23, 1996 through November 19,
2005.
Trust Agreement or Trust.
The document executed by SS/L and by the Trustee,
which was subsequently adopted by Loral, fixing the rights and
liabilities of each with respect to holding assets to be used to
pay Plan benefits, should any such assets be held in the Trust. The
Trust is established pursuant to the Company’s intention that
the Plan shall be an unfunded plan, as detailed in Section
ý5.4. The Company intends that no Trust need be established.
If a Trust is established, the Company does not intend that it
needs to be maintained.
Trustee.
The trustee or trustees that may from time to time
hold office pursuant to the Trust Agreement. As of June 30,
2003, the Trustee is the Frank Russell Trust Company, pursuant to
the Amended and Restated Trust Agreement made as of the 30
th day of June 2003 between Space Systems/Loral,
Inc. and Frank Russell Trust Company, known as the "Loral SERP
Trust." As context requires, the term "Trustee" may refer to either
the Plan record-keeper, or to the fiduciary with responsibility for
investing and holding the Plan’s assets. As clarity requires,
this document shall specify whether the record-keeper or such a
fiduciary shall substitute for the term "Trustee," as the term
"Trustee" appears within this document.
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Article II -
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Benefits
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2.1
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Eligibility for Plan Payment and Benefit Formula
Rules.
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2.1.1
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General Eligibility Rules.
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(a)
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An employee of an Employer will be eligible to be paid a benefit
under this Plan only if he (1) meets all the criteria set out
in the definition of "Participant;" and is and remains vested under
this Plan, as detailed in Article IV.
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(b)
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Further, benefits will be provided under this Plan to a
Participant or Beneficiary only to the extent that the particular
Employer of the Participant has actually funded the benefit. No
other Employer will be responsible for providing a
Participant’s Plan accrued benefits, or for making
contributions with respect to those accrued benefits, even if such
an "other" Employer is within the same 80% controlled group as the
particular Employer of the Participant.
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(c)
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A Beneficiary will be eligible to be paid a Plan benefit only
with respect to an individual who meets the criteria set out in the
definition of "Participant," and who satisfies the vesting criteria
of Article IV.
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(d)
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Plan benefits paid to a Participant shall commence on his
Annuity Starting Dates.
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2.1.2
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General Formula Rules .
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The benefit payable under this Plan shall be
calculated as the amount determined under Section ý2.1.3
minus the amount determined under Section ý2.1.4,
supplemented by the amount described in Section ý2.2.
Subject to Sections ý2.3 and ý2.4, the Plan benefit
shall commence as of the Participant’s Annuity Starting Date
and continue for the remainder of the Participant’s life.
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2.1.3
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SERP Formula Benefit .
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(a)
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The benefit payable under this Section ý2.1.3 is the
benefit payable to the Participant under the Basic Plan as of his
Annuity Starting Date under this Plan, irrespective of any
limitations imposed by § 415 or § 401(a)(17) of the
Code.
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(b)
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However, notwithstanding the preceding paragraph, the following
rule will apply to the extent that the Basic Plan provides an
enhanced "contributory" formula, under which the highest level of
Basic Plan accruals are earned only if the Basic Plan participant
voluntarily makes salary deferral contributions to the Basic
Plan.
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(1)
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In this event, an eligible individual will accrue benefits under
this Plan only with respect to those periods of Service (as defined
under the Basic Plan) during which he made these voluntary salary
deferrals under the Basic Plan.
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2.1.4
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Basic Plan Benefit .
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(a)
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General rules . The benefit under this Section
ý2.1.4 is the benefit payable to the Participant under the
Basic Plan, after compliance with §§ 415 and 401(a)(17)
of the Code.
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(1)
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If the Participant’s Annuity Starting Date under the Basic
Plan has not yet occurred as of the Annuity Starting Date under
this Plan, then:
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(A)
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the benefit under this Section ý2.1.4 shall be calculated
as the actuarial equivalent (as determined under the Basic Plan) of
the Basic Plan Benefit accrued as of the Annuity Starting Date
under this Plan.
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2.2
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Post-Termination Bonuses Credited as Compensation under
Plan .
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(a)
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General rules . Effective November 1, 2007, the
benefit payable under Section ý2.1.3 shall be calculated to
credit as compensation any Post-Termination Bonus paid to a
Participant.
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(1)
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The formula of the Basic Plan shall be applied to this deemed
credited compensation, so as to augment the benefit payable by this
Plan, subject to the specific additional rules of this Section
ý2.2.
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(2)
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A bonus will be credited as a Post-Termination Bonus under this
Plan only if it meets the specific definition of Post-Termination
Bonus set out in Article I.
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(b)
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Rules regarding specific Basic Plan formulas to apply to the
Post-Termination Bonus; Social Security Wage Base rules .
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(1)
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The Basic Plan provides two different benefit formulas,
depending on whether credited compensation falls above or below the
Social Security Wage Base.
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(2)
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For the purpose of determining an accrued benefit under this
Plan with respect to a Post-Termination Bonus, the Post-Termination
Bonus will be deemed to have been the sole credited compensation
under the Basic Plan and this Plan, for the calendar year in which
it is paid. Accordingly, the Social Security Wage Base rules of the
Basic Plan will apply to the Post-Termination Bonus as if the
recipient had received no other credited compensation, for the
calendar year of the bonus payment.
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(3)
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The applicable Social Security Wage Base will be that of the
year of payment (rather than that of the year for which Service was
performed, for which the bonus was paid).
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2.3
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Post-Retirement Death Benefits .
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(a)
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Pre-2009 rules . If a Participant’s Annuity
Starting Date is determined under the Pre-2009 rules, then this
paragraph shall apply. Upon the death of the Participant after his
Annuity Starting Date, benefits will continue to be paid to such
Participant’s Beneficiary in an amount equal to the benefit
determined under Section ý2.1 multiplied by a fraction, the
numerator of which is the benefit payable from the Basic Plan after
the Participant’s death, and the denominator of which is the
benefit payable from the Basic Plan immediately before the
Participant’s death. No amount will be paid after the
Participant’s death under this Plan if no such benefits are
paid under the Basic Plan.
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(b)
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Post-2008 rules . If a Participant’s Annuity
Starting Date is determined under the Post-2008 rules, then this
paragraph shall apply. Post-retirement death benefits shall be paid
following the death of a Participant only if he had elected or been
deemed to have elected a 50% joint and survivor annuity (under
rules for a deemed election set out in Section ý2.8.3). In
this event, the Basic Plan’s general rules regarding 50%
joint and survivor annuity payments will govern the payment of the
survivor annuity payments under this Plan.
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2.4
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Pre-Retirement Death Benefits .
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(a)
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Pre-2009 rules . If a Participant’s death occurs
before 2009 and before his Annuity Starting Date, then this
paragraph shall apply. Upon the death of the Participant prior to
his Annuity Starting Date, his Beneficiary shall receive a benefit
equal to the difference between the benefit received by such
Beneficiary under the Basic Plan and the benefit that would have
been paid under the Basic Plan irrespective of any limitations
imposed by § 415 or 401(a)(17) of the Code. No amount will be
paid under this Plan on account of the Participant’s death
prior to his Annuity Starting Date, unless such benefits are paid
under the Basic Plan. The benefit under this Section ý2.4
will be paid at the same time as the QPSA benefit under the Basic
Plan.
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(b)
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Post-2008 rules . If a Participant’s death occurs
after 2008, but before his Annuity Starting Date, then this
paragraph shall apply. A Plan death benefit will be paid only to
the Participant’s Spouse. For the purpose of this paragraph,
a spouse will be considered to be a Spouse only if the spouse would
be eligible to receive a QPSA under the Basic Plan. The amount of
the death benefit will be equal to the difference between the QPSA
benefit received by such Beneficiary under the Basic Plan
(calculated as if the QPSA payment date under the Basic Plan were
the payment date under this Plan) and the benefit that would have
been paid un
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