Exhibit(10)(iii)(A)(17.13)
AMENDMENT TO
CINCINNATI BELL MANAGEMENT
PENSION PLAN
The Cincinnati Bell Management
Pension Plan (the “Plan”) is hereby amended, effective
as of January 1, 2005 and in order to conform the provisions
of the Plan that provide certain excess benefits (that are not
included in the portion of the Plan that is intended to qualify as
a plan under section 401(a) of the Internal Revenue Code) to the
requirements of section 409A of the Internal Revenue Code, by
deleting current Section 18.15 of the Plan in its entirety and
adding a new Article 21 reading as follows immediately after
current Article 20 of the Plan.
ARTICLE 21
NON-QUALIFIED EXCESS
PLAN
This Article 21 shall provide
benefits separate from the benefits provided by the Tax-Qualified
Plan and is being set forth in this document only for the
convenience of using the Tax-Qualified Plan’s provisions in
determining the terms and benefits of this Article 21. In fact,
notwithstanding any other provisions of the Tax-Qualified Plan,
this Article 21 shall be deemed to be separate from the
Tax-Qualified Plan (as set forth in the other Articles of this
document) and shall be named the Cincinnati Bell Management Excess
Plan (for purposes of this Article 21, the “Excess
Plan”). All benefits provided under this Article 21 shall be
deemed to be provided not by the Tax-Qualified Plan but instead by
the Excess Plan.
21.1 Purpose of Excess Plan .
The Excess Plan is intended to provide certain management and
highly compensated Participants with supplemental retirement
benefits to replace certain benefits not provided to them under the
Tax-Qualified Plan due to certain legal and other limits that apply
under the Tax-Qualified Plan. The Excess Plan is intended to be an
unfunded deferred compensation plan for a select group of
management and highly compensated employees (within the meaning of
title I of ERISA) of the Participating Companies and is not
intended to be a plan subject to section 401(a) of the
Code.
21.2 Definitions . For
purposes of the Excess Plan, the “Tax-Qualified Plan”
means the plan as set forth in the remainder of this document
(other than this Article 21), which plan is intended to be a plan
that qualifies as a plan under section 401(a) of the Code. Except
where the context otherwise requires, any reference in the
Tax-Qualified Plan to a benefit or a payment shall not be deemed to
be referring to a benefit or payment made under the Excess Plan.
Further, all capitalized terms that are used in this Article 21 and
that are defined in Article 2 of the Tax-Qualified Plan shall have
the same meanings as they do in such Article 2.
21.3 Benefits .
21.3.1 Subject to the provisions of
Section 21.2 below, to the extent that the benefit that would
otherwise be payable to a Participant under the Tax-Qualified Plan
(if it were payable in the form of a single sum payment made as of
the date next following the date on which the Participant separates
from
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service with the Participating
Companies) is reduced from what it would be because of a limitation
contained in Subsection 5.7.5, Section 10.1,
Section 10.2, Section 10.3, or Subsection 10.4.4 of the
Tax-Qualified Plan (or any other provision of the Tax-Qualified
Plan that carries into effect the requirements of Code section
401(a)(17) or Code section 415), then the single sum amount by
which such benefit is so limited (for purposes of this Article 21,
the “Excess Plan Benefit”) shall be payable in fifteen
annual installments (or, if less, a number of installments equal to
the result, rounded up to the nearest whole number, obtained by
dividing the Excess Plan Benefit by $25,000) that commence as of
the date determined in accordance with the provisions of
Subsections 21.3.3 and 21.3.4 below (and under which each
installment other than the first installment shall be paid as of an
annual anniversary of the benefit’s initial commencement date
and shall be credited with assumed interest, at the rate called for
under Subsection 5.5.2 or 5.5.3 of the Tax-Qualified Plan, as the
case may be, for the period from the initial commencement date of
the Excess Plan Benefit to the applicable installment’s
payment date).
21.3.2 Notwithstanding the
provisions of Subsection 21.3.1 above, if a Participant’s
Excess Plan Benefit is in excess of $25,000, the amount of the
first installment of such benefit shall be increased, and the
amount of the last installment of such benefit shall be decreased,
by the Federal Insurance Contributions Act tax imposed under Code
sections 3101, 3121(a), and 3121(v)(2) with respect to the
Participant’s Excess Plan Benefit (or, if less, by the amount
by which the Excess Plan Benefit exceeds $25,000).
21.3.3 Prior to January 1,
2009, a Participant’s Excess Plan Benefit shall commence to
be paid as of the earlier of (a) the date as of which his
retirement benefit under the Tax-Qualified Plan begins to be paid
(or, if later, the date next following the date on which the
Participant separates from service with the Participating
Companies) or (b) the date next following the date of the
Participant’s death. Effective January 1, 2009, in the
event that a Participant’s Excess Plan Benefit has not
commenced to be paid as of any date prior to January 1, 2009,
the Participant’s Excess Plan Benefit shall commence to be
paid as of the first day of the first month that begins after the
date on which the Participant separates from service with the
Participating Companies (or, if later, as of January 1,
2009).
21.3.4 Notwithstanding the
provisions of Subsection 21.3.3 above, if a Participant is a
specified employee on the date he is deemed to have separated from
service from the Participating Companies, then the date as of which
the initial installment payment of the Participant’s Excess
Plan Benefit shall be paid shall be deferred until, and shall be
paid as of, the date immediately following the date which is six
months after the date he so separates from service.
(a) For purposes of the provisions
of this Subsection 21.3.4, a Participant shall be deemed to be a
“specified employee” on each and any day that occurs
during any twelve month period that begins on an April 1 and
ends on the next following March 31 (for purposes of this
paragraph (a), the “subject period”) if, and only if,
(i) on any day that occurs in the twelve month
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period (for purposes of this
paragraph (a), the “identification period”) that ends
on the latest identification date that precedes the start of the
subject period any corporation or organization that is then an
Affiliated Employer has stock which is publicly traded on an
established securities market (within the meaning of Treas. Reg.
section 1.897-1(m)) or otherwise and (ii) the Participant is a
key employee for the identification period (as determined under the
provisions of Subsection 17.1.3 of the Tax-Qualified Plan and as if
the identification period were a plan year of the Tax-Qualified
Plan).
(b) Also for purposes of the
provisions of this Subsection 21.3.4, the “identification
date” means December 31. In this regard, the Company has
elected that December 31 serve as the identification date for
purposes of determining specified employees in accordance with the
provisions of Treas. Reg. section 1.409A-1(i).
21.3.5 All installment payments of a
Participant’s Excess Plan Benefit shall be paid to the
Participant if he is still living at the time of the payment. If
the Participant is not living at the time of any installment
payment of his Excess Plan Benefit, it shall be paid to any
beneficiary whom he designates in a writing to the Committee prior
to his death (or, if none, to his estate).
21.3.6 Notwithstanding any other
provision of the Excess Plan, a Participating Company shall have
the right (without notice to or approval by a Participant, his
beneficiary, or any other person) to withhold from any amounts
otherwise payable by the Participating Company to or on account of
the Participant, or from any payment otherwise then being made by
the Participating Company to the Participant, his beneficiary, or
any other person by reason of the Excess Plan, an amount which the
Participating Company determines is sufficient to satisfy all
federal, state, local, and foreign tax withholding requirements
that may apply with respect to such benefit payment made under the
Excess Plan. To the extent such tax withholding requirements are
satisfied from any payment otherwise then being made by the
Participating Company to the Participant, his beneficiary, or any
other pers
