RE-ESTABLISHED RETIREMENT PLAN FOR HOURLY EMPLOYEES OF KEWAUNEE SCIENTIFIC CORPORATION

Exhibit 10.2

EXECUTION COPY

RE-ESTABLISHED RETIREMENT PLAN FOR HOURLY EMPLOYEES OF

KEWAUNEE SCIENTIFIC CORPORATION

(As Amended and Restated Effective as of May 1, 2007)

RE-ESTABLISHED RETIREMENT PLAN FOR HOURLY EMPLOYEES OF

KEWAUNEE SCIENTIFIC CORPORATION

(As Amended and Restated Effective as of May 1, 2007)

WHEREAS , prior to April 30, 1985, Kewaunee Scientific Corporation, formerly known as Kewaunee Scientific Equipment Company, maintained the Kewaunee Scientific Equipment Corporation Hourly Employees’ Retirement Plan, which was terminated effective April 30, 1985, and replaced, effective as of May 1, 1985, with the Re-established Retirement Plan for Hourly Employees of Kewaunee Scientific Equipment Corporation, which was amended and restated in its entirety effective as of May 1, 1989, in order to comply with the Tax Reform Act of 1986, and renamed effective as of May 1, 1991, as the “Re-Established Retirement Plan for Hourly Employees of Kewaunee Scientific Corporation” (the “Plan”), and was again amended and restated effective as of May 1, 1989, in order to comply with the Tax Reform Act of 1986; and

WHEREAS , the Kewaunee Scientific Corporation (the “Company”) subsequently restated the Plan in its entirety to incorporate certain design changes and to incorporate the requirements of the Internal Revenue Code of 1986, as amended (the “Code”) and the Employee Retirement Income Security Act of 1974 (“ERISA”) that have been amended by Congress’ enactment of the Uniformed Services Employment and Reemployment Rights Act of 1994, the General Agreement on Tariffs and Trades Act of 1994, the Small Business Job Protection Act of 1996, the Taxpayer Relief Act of 1997, the Internal Revenue Service Restructuring and Reform Act of 1998, the Community Renewal Tax Relief Act of 2000, the Economic Growth and Tax Relief Reconciliation Act of 2001, and to make other necessary changes; and

WHEREAS , the Company has determined that it is again desirable to restate the Plan in its entirety to incorporate the changes reflected in the 2006 Cumulative List of Changes in Plan Qualification, as set forth in Internal Revenue Service Notice 2007-3, which specifically lists changes to the Code and ERISA made by the Economic Growth and Tax Relief Reconciliation Act of 2001 (with technical changes made by the Job Creation and Worker Assistance Act of 2002), the Pension Funding Equity Act of 2004, the American Jobs Creation Act of 2004, the Gulf Opportunity Zone Act of 2005, and certain changes under the Pension Protection Act of 2006.

NOW, THEREFORE , pursuant to the power reserved to the Company by the Company’s Board of Directors, and pursuant to the authority delegated to the undersigned by resolutions of the Company’s Board of Directors, the Plan be and it is hereby amended and restated effective as of May 1, 2007, as follows.

IN WITNESS WHEREOF , the Company has caused these presents to be signed on its behalf by its officers duly authorized, this      day of         , 2007.

 

CERTIFICATE

The attached document is an accurate and complete copy of the RE-ESTABLISHED RETIREMENT PLAN FOR HOURLY EMPLOYEES OF KEWAUNEE SCIENTIFIC CORPORATION as amended and restated effective as of May 1, 2007.

Dated this      of         , 2007.

 

 

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RE-ESTABLISHED RETIREMENT PLAN FOR HOURLY EMPLOYEES

OF

KEWAUNEE SCIENTIFIC CORPORATION

TABLE OF CONTENTS

 

 

 

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RE-ESTABLISHED RETIREMENT PLAN FOR HOURLY EMPLOYEES

OF

KEWAUNEE SCIENTIFIC CORPORATION

(As Amended and Restated Effective as of May 1, 2007)

ARTICLE I

INTRODUCTION

1.1 History of the Plan . Prior to April 30, 1985, Kewaunee Scientific Corporation, a Delaware Corporation, (previously known as Kewaunee Scientific Equipment Corporation) maintained a defined benefit pension plan for the benefit of certain of its hourly employees known as the Kewaunee Scientific Equipment Corporation Hourly Employees’ Retirement Plan (the “Prior Plan”). On April 30, 1985, Kewaunee Scientific Corporation terminated the Prior Plan and effective May 1, 1985, adopted the Re-established Retirement Plan for Hourly Employees of Kewaunee Scientific Equipment Corporation (the “Plan”). The Plan was amended and restated effective as of May 1, 1989, to comply with the Tax Reform Act of 1986. Effective as of May 1, 1991, the Plan was further amended and restated, and was renamed the “Re-established Retirement Plan for Hourly Employees of Kewaunee Scientific Corporation,” and subsequently amended and restated to further comply with the Tax Reform Act of 1986, effective May 1, 1989. The Plan was subsequently amended and, effective as of May 1, 2001, amended and restated in its entirety to incorporate certain desired design changes and changes to the applicable provisions of the Internal Revenue Code or 1986, as amended (the “Code”) and the Employee Retirement Income Security Act of 1974 (“ERISA”). The Plan was subsequently amended and, effective as of May 1, 2007, is herby amended and restated in its entirety to incorporate the applicable changes reflected in the 2006 Cumulative List of Changes in Plan Qualification, as set forth in Internal Revenue Service Notice 2007-3, which specifically lists changes to the Code and ERISA made by the Economic Growth and Tax Relief Reconciliation Act of 2001 (with technical changes made by the Job Creation and Worker Assistance Act of 2002), the Pension Funding Equity Act of 2004, the American Jobs Creation Act of 2004, the Gulf Opportunity Zone Act of 2005, and certain changes under the Pension Protection Act of 2006.

1.2 Plan Objectives . The Plan is maintained by Kewaunee Scientific Corporation to provide retirement benefits for the employees of the Employer who were participants under the Prior Plan and certain other hourly employees of the Employer and any other organization which may adopt the Plan and is intended to be a defined benefit pension plan as such term is defined in Treasury Regulation Section 1.401-1(b).

ARTICLE IA

SPECIAL PROVISION AND PLAN FREEZE

Effective as of April 30, 2005, the Plan is frozen. The existence of the Plan and Trust subsequent to April 30, 2005 will be solely for the purpose of continuing to hold and invest the assets of the Plan until such amounts are distributed to Participants and Beneficiaries pursuant to the terms and conditions of the Plan. Effective as of April 30, 2005, all benefits accrued to date pursuant to Articles V and VI of the Plan shall be frozen and each Participant’s Accrued Benefit shall become 100% vested. No Employees or other persons shall become Participants in the Plan on or after April 30, 2005. This Article IA shall apply as of April 30, 2005. To the extent of any conflict with existing provisions of the Plan, this Article IA shall supersede such provisions.

 

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ARTICLE II

DEFINITIONS

When used herein, the following words and terms shall have the respective meanings hereinafter set forth, unless a different meaning is clearly required by the context. Whenever appropriate, words used in the singular shall be deemed to include the plural, and vice versa, and the masculine gender shall be deemed to include the feminine gender, and vice versa, unless a different meaning is clearly required by the context.

2.1 Accrued Benefit . The monthly amount payable to a Participant at his Normal Retirement Age as determined in accordance with the provisions of Section 6.2, considering the Participant’s Years of Credited Service at the Benefit Commencement Date.

2.2 Actuarial (or Actuarially) Equivalent . Equality in present value in the aggregate amounts expected to be received under different forms of payment, based on actuarial assumptions selected, from time to time, by an actuary. The actuarial assumptions used in the Plan are set forth in Exhibit A attached hereto and made a part hereof. In the event that the actuarial assumptions set forth in Exhibit A shall be changed, the Actuarial Equivalent of a Participant’s Accrued Benefit on or after the date of such amendment shall be equal to the greater of (a) the Actuarial Equivalent of his Accrued Benefit as of such date computed on the basis of the prior actuarial assumptions or (b) the Actuarial Equivalent of his Accrued Benefit as of the date of the Participant’s Retirement computed on the basis of the new actuarial assumptions. Effective as of January 1, 1997, for purposes of determining the Actuarial Equivalent of lump sum distributions the rules of Section 7.5(c) shall govern and control.

2.3 Anniversary Date . The last day of each Plan Year.

2.4 Beneficiary . Any person (natural or otherwise) entitled to receive any benefits which may become payable upon or after a Participant’s death.

2.5 Benefit Commencement Date . The first date for which a Participant’s benefit is paid even if payment does not actually commence on such date, as determined in accordance with the provisions of Section 7.8.

2.6 Board . The Board of Directors of the Company.

2.7 Break in Service .

(a) Except as otherwise provided under paragraphs (b) and (c), a period of one or more consecutive Plan Years during which an Employee has not completed more than 500 Hours of Service with the Company and all Related Companies. An Employee shall not incur a Break in Service solely because he fails to complete more than 500 Hours of Service with the Company and all Related Companies during the 12-month computation period beginning on his employment commencement date.

(b) Notwithstanding the provisions of paragraph (a), a Plan Year shall not be included in a Break in Service if the sum of the Employee’s Hours of Service completed during such Plan Year plus the Employee’s Childbirth Leave Hours (as defined in Section 2.8) attributable to such Plan Year exceeds 500.

 

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(c) Notwithstanding the provisions of paragraph (a), effective December 12, 1994, a Plan Year shall not be included in a Break in Service if the Employee would have completed at least 500 Hours of Service but for a Leave of Absence resulting from required service in the armed forces of the United States, or a Leave of Absence to which the Employee is entitled under the Family and Medical Leave Act of 1993, provided that such Employee returns to the Company within the period of time required for his re-employment rights to be protected by applicable law.

2.8 Childbirth Leave Hours .

(a) An Employee’s Childbirth Leave Hours shall be the number of Hours of Service (but not in excess of 501 for any one continuous period of absence) which the Employee would have completed but for the fact that the Employee is absent from the employment of the Employer, the Company, and all Related Companies: (i) by reason of the pregnancy of the Employee, (ii) by reason of the birth of a child of the Employee, (iii) by reason of the placement of a child with the Employee in connection with the adoption of such child by the Employee, or (iv) for purposes of caring for such child for a period beginning immediately following such birth or placement; provided, however, that an hour which is considered an Hour of Service shall not also be considered a Childbirth Leave Hour.

(b) All Childbirth Leave Hours for any period of absence shall be attributed to the Plan Year during which such period of absence begins if the result of such attribution is to prevent such Plan Year from being considered a Break in Service; otherwise, all Childbirth Leave Hours shall be attributed to the immediately following Plan Year.

(c) The Committee shall adopt regulations under which an Employee may be required to furnish reasonable information on a timely basis establishing the number of Childbirth Leave Hours to which such Employee is entitled with respect to any period of absence from employment, and any Employee who fails to furnish such information with respect to any period of absence shall not be credited with any Childbirth Leave Hours for such period of absence.

2.9 Code . The Internal Revenue Code of 1986, as now in effect or as hereafter amended, and any regulation issued pursuant thereto by the Internal Revenue Service.

2.10 Committee . The Committee appointed by the Employer pursuant to the provisions of Article IX to administer the Plan.

2.11 Company . Kewaunee Scientific Corporation, a Delaware corporation, and its successors.

2.12 Date of Distribution . The date the Participant’s benefit under Section 7.9 of the Plan commences based upon the Participant’s (with his spouse’s consent, if applicable) election of a Retroactive Annuity Starting Date.

 

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2.13 Distribution Calendar Year . A calendar year for which a minimum distribution is required. For distributions beginning before the Participant’s death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant’s required beginning date (within the meaning of Section 7.7(c)). For distributions beginning after the Participant’s death, the first Distribution Calendar Year is the calendar year in which distributions are required to begin pursuant to Section 7.7(c).

2.14 Effective Date . The Effective Date of the provisions of this amendment and restatement of the Plan is May 1, 2007, except as otherwise expressly set forth herein.

2.15 Employee . Any person employed by an Employer, the Company or any Related Company as a common law employee in the form of hourly wages, but excluding any person performing independent professional or consulting services for the Employer, and excluding any person who is or who becomes a member of a labor union which is a party to a collective bargaining agreement with the Employer if retirement benefits were the subject of good faith bargaining between representatives of such union and the Employer. The term “Employee” shall also include any person (a “Leased Employee”) who performs services on a substantially full-time basis under the primary direction and control of the Employer (prior to May 1, 1997, the preceding phrase is replaced by “such services are of a type historically performed in the business field of the recipient, by Employees”) the Company or any Related Company pursuant to an agreement between the Employer, the Company or such Related Company and any third person (the “Leasing Organization”), unless:

(a) the Leased Employee is covered by a money purchase pension plan maintained by the Leasing Organization and providing for contributions equal to at least 10% of the Leased Employee’s compensation (without regard to integration with Social Security) providing for full and immediate vesting of all such contributions and, providing that each employee of the Leasing Organization (other than employees who perform substantially all of their services for the Leasing Organization) immediately participate in such plan (other than employees whose compensation from the Leasing Organization for each of the plan years in the four plan year period ending with the plan year under determination is less than $1,000); and

(b) persons who would be Leased Employees but for this sentence do not comprise more than 20% of the number of Employees (excluding Leased Employees) who have performed services for the Employer, the Company or a Related Company on a substantially full-time basis for at least one year and persons who would be Leased Employees but for this sentence, excluding in each case any Highly Compensated Employee.

For purposes of Article III, a Leased Employee shall not be considered to be an Employee until he has provided such services to the Employer, the Company or a Related Company for at least one year, but thereafter the Leased Employee’s Years of Service shall be determined on the basis of the entire period that the Leased Employee has performed services for any such persons. Solely for purposes of the definition of Leased Employee, the term “Related Company” should also include any person related to the Employer, the Company or a Related Company within the meaning of Section 144(a)(3) of the Code.

 

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2.16 Employer . The term “Employer” shall include the Company and any Related Company that adopts the Plan for the exclusive benefit of its eligible employees. Anything to the contrary notwithstanding, a mere change in the identity, form or organization of an Employer shall not affect its status under the Plan in any manner and, if the corporate name of an Employer is hereafter changed, all references herein to the Employer shall be deemed to refer to the Employer as it is then known. Provided, however, an Employer other than the Company that ceases to be a Related Company shall not be eligible to continue as a participating Employer without the express written consent of the Company.

2.17 Entry Date . The first day of May and the first day of November of each Plan Year.

2.18 ERISA . The Employee Retirement Income Security Act of 1974, as now in effect or as hereafter amended, and any regulation issued pursuant thereto by the Internal Revenue Service, the Department of Labor or the Pension Benefit Guaranty Corporation.

2.19 Highly Compensated Employee .

(a) Except as otherwise provided in this Section, effective May 1, 1997, an Employee shall be considered a Highly Compensated Employee for any Plan Year if such Employee either:

 

(i)

at any time during the Plan Year or the immediately preceding Plan Year owned more than five percent, by voting power or value, of the outstanding stock of an Employer or Related Employer that is a corporation, or owned more than five percent of the capital or profits interest in an Employer or Related Employer that is not a corporation; or

 

(ii)

in the immediately preceding Plan Year received Compensation in excess of $90,000, as adjusted pursuant to Section 414(q)(1) of the Code for the preceding Plan Year, disregarding whether the Employee was a member for such preceding Plan Year of the highest-paid group described in paragraph (b).

In determining whether an Employee is a Highly Compensated Employee for the Plan Year beginning May 1, 1997, the rules stated above are treated as having been in effect for the Plan Year beginning in 1996.

(b) For any Plan Year, the highest-paid group described in this paragraph (b) shall consist of the group consisting of the top 20% of Employees when ranked on the basis of compensation paid during such Plan Year. For purposes of this paragraph (b), there shall be excluded Employees who have not completed six months of service, Employees who normally work less than 17  ¹ / 2  Hours of Service per week, Employees who normally work during not more than six months during any Plan Year, Employees who have not attained age 21, and Employees covered by a collective bargaining agreement if such Employees constitute 90% or more of the total number of Employees.

 

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(c) A former Employee shall be treated as a Highly Compensated Employee if he was a Highly Compensated Employee (based on the definition in effect at such time) either when his employment was terminated or at any time after attaining age 55 in accordance with Treasury Regulations Section 1.414(q)-1T, A-4 and Notice 97-45.

(d) A nonresident alien who receives no earned income (within the meaning of Section 911(d)(2) of the Code) which constitutes income from sources within the United States (within the meaning of Section 861(a)(3) of the Code) from an Employer or Related Company during any Plan Year shall not be considered an Employee for such Plan Year for any purpose of this Section.

(e) The purpose of this Section is to conform to the definition of “highly compensated employee” set forth in Section 414(q) of the Code, as now in effect or as hereafter amended, which is incorporated herein by reference, and to the extent that this Section shall be inconsistent with Section 414(q) of the Code, either by excluding Employees who would be classified as “highly compensated employees” thereunder or by including Employees who would not be so classified, the provisions of Section 414(q) of the Code shall govern and control. The Committee may make or revoke any elective adjustment to the definition of Highly Compensated Employee permitted by Section 414(q) of the Code or any regulations, revenue procedures, or other guidance issued thereunder and may elect to utilize the simplified method described in Revenue Procedure 93-42 as modified by Revenue Procedure 95-34 (with or without “snapshot day” testing), or any successor thereto.

2.20 Hour of Service .

 

(a)

Each Employee shall be credited with an Hour of Service for:

 

(i)

Each hour for which he is directly or indirectly paid or entitled to payment by the Employer or the Company for the performance of duties. These hours shall be credited to the Employee for the computation period (or periods) during which the duties are performed.

 

(ii)

Each hour (up to a maximum of 501 hours in any one continuous period) for which he is directly or indirectly paid or entitled to payment by the Employer, the Company or any Related Company on account of a period during which no duties are performed, such as vacation, sickness, jury duty, or layoff. These hours shall be credited to the Employee for the computation period (or periods) during which payment is made or amounts payable to the Employee become due. For purposes of this paragraph (a)(ii), payment made to an Employee under an insurance policy or trust fund to which an employer contributes shall be deemed to have been paid by such employer, but no Hours of Service shall be credited for periods during which an Employee receives payments under a plan maintained solely for the purpose of complying with an applicable worker’s compensation, unemployment compensation or disability insurance law, or payments which solely reimburse the Employee for medical or medically related expenses.

 

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(iii)

Each hour for which back pay, irrespective of mitigation of damages, has been awarded or agreed to by the Employer, the Company or any Related Company. These hours shall be credited to the Employee for the computation period (or periods) to which the award, agreement or payment pertains rather than the computation period (or periods) to which the award, agreement or payment was made.

(b) Solely for purposes of determining whether (i) an individual has completed a Year of Service under Section 3.1(b)(1) and is eligible to participate in the Plan, (ii) an individual has experienced a Break in Service as defined in Section 2.7, or (iii) has five years of Vesting Service and a nonforfeitable right to his Accrued Benefit in accordance with Section 4.2, an Employee shall be credited with an Hour of Service for each hour of service performed for a Related Company which is not an Employer.

(c) Any questions concerning the determination or crediting of Hours of Service shall be resolved in accordance with the Department of Labor Regulations Section 2530.200b-2(b) and (c), which is incorporated herein by this reference.

2.21 Key Employee .

(a) Except as otherwise provided in this Section, an Employee shall be considered a Key Employee for any Plan Year if, at any time during the Plan Year which contains the Top-Heavy Determination Date, he:

 

(i)

is an officer of any Employer or Related Employer whose annual compensation exceeds $130,000 (as adjusted under Section 416(i)(1)(A) of the Code); or

 

(ii)

owns more than 5% of the stock of an Employer or Related Employer; or

 

(iii)

owns more than 1% of the stock of an Employer or Related Employer and receives compensation for any Plan Year in which he owns such percentage in excess of $150,000 (determined in accordance with Section 416(i)(1)(B) of the Code).

(b) For Plan Years beginning prior to January 1, 2002, an Employee shall be considered a Key Employee for any Plan Year if, at any time during the Plan Year which contains the Top-Heavy Determination Date, or any of the preceding four Plan Years, he:

 

(i)

is an officer of any Employer or Related Employer whose Compensation exceeds 50% of the annual dollar limitation set forth in Section 415(b)(1)(A) of the Code; provided, however, the number of Employees classified as Key Employees solely because they are officers shall not exceed the greater of (i) three or (ii) 10% of the largest number of Employees during any of the Years in the Key Employee Test Period; provided, however, that in no event shall such number exceed 50; or

 

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(ii)

owns at least  1 / 2 % of the outstanding stock of an Employer or Related Employer and receives compensation in excess of the annual defined contribution dollar limitation set forth in Section 415(c)(1)(A) of the Code (“Section 415 Compensation”), unless at least ten other Employees whose Section 415 Compensation exceeds the annual defined contribution dollar limitation set forth in Section 415(c)(1)(A) of the Code own during any Plan Year in the Key Employee Test Period a percentage share of the stock of the Employer or Affiliate which is greater than such Employee’s percentage share (and if applicable, as determined pursuant to the rules under Section 416(i)(1) of the Code relating to the determination of the largest shareholder); or

 

(iii)

owns more than 5% of the stock of an Employer or Related Employer (with ownership determined in accordance with Section 416(i)(B)(i) of the Code); or

 

(iv)

owns more than 1% of the stock of an Employer or Related Employer and receives Section 415 Compensation for any Plan Year in which he owns such percentage in excess of $150,000 (with ownership determined in accordance with Section 416(i)(B)(ii) of the Code).

(c) The purpose of this Section is to conform to the definition of “key employee” set forth in Section 416(i)(1) of the Code before and after January 1, 2002, which is incorporated herein by reference, and to the extent that this Section shall be inconsistent with Section 416(i)(1) of the Code, either by excluding Employees who would be classified as “key employees” thereunder or by including Employees who would not be so classified, the provisions of Section 416(i)(1) of the Code shall govern and control.

2.22 Key Employee Test Period . Except as otherwise provided in this Section, the Key Employee Test Period will be the Plan Year for which such determination is being made. For Plan Years beginning prior to January 1, 2002, the Key Employee Test Period is the period of five Plan Years ending with the last day of the Plan Year for which the determination as to whether an Employee is a Key Employee is being made, or, if shorter, the total period for which the Plan and all predecessor plans have been in existence. For Plan Years beginning after December 31, 2001, the Key Employee Test Period includes the period of five Plan Years ending with the last day of the Plan Year for which such determination is being made in the case of a distribution made for a reason other than severance from employment, death or disability.

2.23 Leave of Absence . Authorized leave of absence, sick or disability leave, effective December 12, 1994, service in the Armed Forces of the United States (provided that the absence is caused by war or other emergency or provided that the Employee is required to serve under the laws of conscription in time of peace) or any absence with the advance approval of the Employer, the Company or any Related Company; provided, however, that the Employee retires or returns to work for the Employer, the Company or any Related Company within the time specified in his Leave of Absence (or, in the case of a military absence, within the period provided by law). In granting such leaves, the Employer, the Company and any Related Company shall treat all Employees under similar circumstances alike under rules uniformly and consistently applied.

 

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2.24 Non-Key Employee . Any Employee who has not been a Key Employee during the Key Employee Test Period.

2.25 Normal Retirement Age . The 65 ^th birthday of a Participant.

2.26 Normal Retirement Date . The first day of the month coincident with or immediately following the Participant’s Normal Retirement Age.

2.27 Participant . An Employee who participates in the Plan as provided in Article III.

2.28 Pension . A series of monthly amounts which are payable to a person who is entitled to receive benefits under the Plan.

2.29 Plan Year . The 12-month period commencing on May 1 and ending on April 30, on the basis of which Plan records are kept. The limitation year for purposes of Section 415 of the Code shall be the Plan Year.

2.30 Qualified Domestic Relations Order .

(a) Except as provided in paragraph (b), any order (including a judgment, a decree or an approval of a property settlement agreement entered by any court) which the Committee determines (i) is made pursuant to any state domestic relations law (including a community property law), (ii) relates to the provision of child support, alimony payments or marital property rights of a spouse, former spouse, child or other dependent of a Participant (an “Alternate Payee”), (iii) creates or recognizes the existence of an Alternate Payee’s right to, or assigns to an Alternate Payee the right to, receive all or a portion of the benefits payable to a Participant under the Plan, and (iv) clearly specifies (A) the name and last known mailing address of the Participant and the name and last known mailing address of each Alternate Payee covered by the order, (B) the amount or percentage of the Participant’s benefits to be paid by the Plan to each Alternate Payee, or the manner in which such amount or percentage is to be determined, (C) the number of payments or period to which such order applies, and (D) the employee benefit plan to which such order applies.

(b) An order shall in no event be considered a Qualified Domestic Relations Order if the Committee determines that such order (i) requires the Plan to provide benefits to Alternate Payees, the actuarial present value of which in the aggregate is greater than the benefits which would otherwise have been provided to the Participant, (ii) requires the Plan to pay benefits to an Alternate Payee, which benefits are required to be paid to a different Alternate Payee under another order previously determined to be a Qualified Domestic Relations Order, or (iii) requires the Plan to provide any type or form of benefit, or any option, not otherwise provided under the Plan, except that a Qualified Domestic Relations Order may require the Trustee to distribute a portion of the Participant’s vested Accrued Benefit prior to the time the Participant has terminated his employment if the Participant is eligible to retire and begin receiving a Pension under any of the provisions of Article V.

 

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2.31 Related Company . Any trade or business (whether or not incorporated) that is, along with the Company, a member of a controlled group of related entities (as defined in Sections 414(b) and (c) of the Code, as modified for purposes of Sections 6.5 by Section 415(h) of the Code) or a member of an affiliated service group (as defined in Section 414(m) of the Code), or that is otherwise required to be aggregated with the Company by Treasury Regulations issued under Section 414(o) of the Code. Anything to the contrary notwithstanding, a mere change in the identity, form or organization of a Related Company shall not affect its status under the Plan in any manner and, if the corporate name of a Related Company is hereafter changed, all references herein to such Related Company shall be deemed to refer to such Related Company as it is then known.

2.32 Retirement . Termination of employment for a reason other than death after a Participant has satisfied the requirements for a Pension set forth in Article V. Retirement shall be considered as commencing on the day immediately following a Participant’s last day of employment (or the last day of a Leave of Absence, if later).

2.33 Retroactive Annuity Starting Date . A benefit commencement date (which constitutes the annuity starting date within the meaning of Section 417(f) of the Code) affirmatively elected by a Participant that occurs on or before the date on which the Plan provides the written explanation of the Qualified Joint and Survivor Pension to the Participant pursuant to Sections 7.4, in accordance with Section 417(a)(3) of the Code.

2.34 Top-Heavy Determination Date . The Anniversary Date of the immediately preceding Plan Year.

2.35 Top-Heavy Year .

(a) Except as otherwise provided below, a Top-Heavy Year shall be any Plan Year if, as of the Top-Heavy Determination Date for such Plan Year, the present value of the cumulative Accrued Benefits of all Key Employees under the Plan exceeds 60% of the present value of the cumulative Accrued Benefits of all Participants under the Plan.

(b) Notwithstanding paragraph (a), if as of any Top-Heavy Determination Date the Employer, the Company or any Related Company has adopted any other employee plan qualified under Section 401(a) of the Code and either (i) a Key Employee participates in the Plan and such other plan during the Plan Year containing the Top-Heavy Determination Date or any of the four preceding Plan Years, or (ii) the Plan or such other plan has satisfied the requirements of either Section 401(a)(4) or Section 410 of the Code only by treating the Plan and such other plan as a single plan, then the Plan Year shall be considered a Top-Heavy Year if and only if the present value of the cumulative Accrued Benefits of all Key Employees under the Plan and the present value of the cumulative benefits accrued by all Key Employees under all such other plans exceeds 60% of the present value of the cumulative benefits accrued by all Participants under the Plan and all such other plans.

(c) Notwithstanding paragraphs (a) and (b), if as of any Top-Heavy Determination Date the Employer, the Company or any Related Company has adopted any other employee plan qualified under Section 401(a) of the Code which is not a plan described in

 

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paragraph (b), but which plan may be considered as a single plan with the Plan and all plans described in paragraph (b) without causing any of such plans to violate the requirements of either Section 401(a)(4) or Section 410 of the Code, the Plan Year shall not be considered a Top-Heavy Year if the present value of the cumulative Accrued Benefits of all Key Employees under the Plan and the present value of the cumulative benefits accrued by all Key Employees under all plans described in paragraph (b) and all plans described in this paragraph (c) does not exceed 60% of the present value of the cumulative benefits accrued by all Participants under all such plans.

(d) If any of the plans described in either paragraph (b) or (c) are defined contribution plans (as defined in Section 414(i) of the Code), then the tests set forth in said paragraphs shall be applied by substituting the aggregate account balances under such plans for the present value of the cumulative benefits accrued under such plans. If any of such plans have a determination date (as defined in Section 416(g)(4)(C) of the Code) for purposes of determining top-heavy status which is different from the Top-Heavy Determination Date, the present value of the cumulative benefits accrued (or the aggregate account balances, in the case of a defined contribution plan) in such plan shall be determined as of the determination date for such plan which occurs in the same Plan Year as the Top-Heavy Determination Date.

(e) For purposes of this Section, the present value of a Participant’s Accrued Benefit shall be determined as of the Top-Heavy Determination Date, on the assumption that the Participant terminated his employment as of such date, and the present value shall be based upon the actuarial assumptions used ‘in the actuarial valuation made as of the Top-Heavy Determination Date, but the actuarial assumptions shall not exceed those prescribed by the Pension Benefit Guaranty Corporation. Such assumptions shall be used for all plans being aggregated for Top-Heavy determinations. The present value of a Participant’s Accrued Benefit shall also include the actuarial present value as of the Top-Heavy Determination Date of all distributions made to such Participant (or his Beneficiary) during the Key Employee Test Period.

(f) For purposes of this Section, account balances shall include (i) all contributions which the Employer the Company or any Related Company has paid or is legally obligated to pay to any employee plan as of the Top-Heavy Determination Date (including contributions made thereafter if they are allocated as of the Top-Heavy Determination Date) and all forfeitures allocated as of the Top-Heavy Determination Date, and (ii) all distributions made to a Participant or his Beneficiary during the Key Employee Test Period (or, in the case of a defined benefit plan, the actuarial equivalent as of the Top-Heavy Determination Date of such distributions). For purposes of this Section, account balances shall also include amounts which are attributable to contributions made by the Participants (other than deductible voluntary contributions under Section 219 of the Code) but shall not include any rollover (as defined in Section 402(a)(5) of the Code) or a direct transfer from the trust of any employee plan qualified under Section 401(a) of the Code if such plan is not maintained by the Employer, the Company or any Related Company and such rollover or transfer is made at the request of the Participant.

(g) Anything to the contrary notwithstanding, if a Participant or former Participant has not been an Employee at any time during the Key Employee Test Period, his accrued benefit (in the case of a defined benefit plan) or his account balance (in the case of a defined contribution plan) shall not be taken into consideration in the determination of whether the Plan Year is a Top-Heavy Year.

 

12

(h) The purpose of this Section is to conform to the definition of “top-heavy plan” set forth in Section 416(g) of the Code, which is incorporated herein by reference, and to the extent that this Section shall be inconsistent with Section 416(g) of the Code, either by causing any Plan Year during which the Plan would be classified as a “top-heavy plan” not to be a Top-Heavy Year or by causing any Plan Year during which it would not be classified as a “top-heavy plan” to be a Top-Heavy Year, the provisions of Section 416(g) of the Code shall govern and control.

2.36 Transfer . An Employee’s transfer of employment between the Employer, the Company and any Related Company, or an Employee’s transfer between an employment position covered by the Plan and an employment position not covered by the Plan, without a Break in Service.

2.37 Trust Fund . All assets of the Plan held by the Trustee from time to time in accordance with the provisions of the Trust Agreement established under the Plan, as the same is amended from time to time.

2.38 Trustee . The individuals or corporation which shall from time to time be appointed by the Employer to administer the Trust Fund.

2.39 Year of Service . Any 12-month computation period (as defined below) during which an Employee (i) has attained age 18, and (ii) has completed an aggregate of at least 1,000 Hours of Service with the Employer, the Company or any Related Company. The initial 12-month computation period shall begin on the Employee’s employment or re-employment commencement date. If the Employee fails to complete an aggregate of at least 1,000 Hours of Service with the Employer, the Company or any Related Company during the initial 12-month computation period, the second 12-month computation period shall consist of the Plan Year which includes the first anniversary of the Employee’s employment or re-employment commencement date, and succeeding 12-month computation periods shall also be based on the Plan Year. As of and after April 30, 2005, no Employee or Participant shall earn additional Years of Service under the Plan notwithstanding their continued employment with the Employer.

 

13

ARTICLE III

PARTICIPATION AND VESTING

3.1 Eligibility to Participate .

(a) Each Employee who is a Participant in the Plan immediately preceding the Effective Date shall continue to be a Participant in the Plan under the terms specified herein.

(b) Each other Employee who as of the Effective Date has attained age 21 and completed at least one Year of Service but who is not already a Participant in the Plan shall participate as of the Effective Date.

(c) Each other Employee (other than Leased Employees) shall be eligible to participate in the Plan, upon the Entry Date coincident with or next following the date that the Employee has satisfied the following requirements:

 

(i)

the Employee has attained age 21 and completed at least one Year of Service; and

 

(ii)

the Employee is an hourly employee of an Employer and is in a classification of employees to whom the Plan has been extended by that Employer.

(d) Anything contained herein to the contrary notwithstanding, effective as of April 30, 2005, no Employee or any other person shall become a Participant in the Plan.

3.2 Duration of Participation . An Employee shall remain a Participant until such time as he incurs a Break in Service consisting of one Plan Year, at which time his participation in the Plan shall cease, unless he has met the requirements for a Pension as set forth in Article V at such time.

3.3 Participation upon Re-Employment .

(a) Upon reemployment by an Employer, a former Employee who had attained his Vesting Date, in accordance with Section 4.3 below, shall resume participation in the Plan on the date he or she is credited with one Hour of Service. Upon the completion of one Year of Service following his reemployment, all Years of Service and Credited Service earned prior to the Break in Service shall be taken into account and aggregated with any Years of Service and Credited Service earned subsequent to the reemployment.

(b) Except as provided in Section 4.4 below, a Participant who incurred a Break in Service and who is subsequently reemployed shall, upon his or her completion of one Year of Service from the date of reemployment, have his or her Credited Service earned prior to the Break in Service restored and considered with all Credited Service earned after the date of reemployment, including the year immediately following the date of reemployment, in determining his or her benefit.

 

14

(c) Anything contained herein to the contrary notwithstanding, effective as of April 30, 2005, no Employee or any other person shall become a Participant in the Plan upon the recommencement of their employment with the Employer or for any other reason.

 

15

ARTICLE IV

FACTORS USED IN DETERMINING PLAN BENEFITS

4.1 Credited Service . For purposes of calculating the amount of a Participant’s or beneficiary’s Plan benefits, a Participant’s “Credited Service” means the total of the Participant’s Years of Service computed in accordance with the following rules except to the extent provided otherwise in a supplement to the Plan:

(a) Years of Credited Service . An Employee will be granted a Year of Credited Service for each calendar year in which he is a Participant and credited with at least at least 1,700 Hours of Service. If during any calendar year a Participant is credited with fewer than 1,700 Hours of Service, a proportionate credit shall be given to the nearest 1/10 of a year. An Employee who is hired in an eligible class of Employees and becomes a Participant after completing one Year of Service under Section 3.1(c)(1) shall also receive a Year of Credited Service (or proportionate credit) for the calendar year in which he is hired, provided that he completes at least 1,000 Hours of Service in such calendar year.

(b) Recognition of Other Prior Service . A Participant will be granted a Year of Credited Service for each Year of Credited Service the Participant earned under the Plan prior to the Effective Date. From time to time the Employer may also grant recognition of prior service not otherwise considered as Credited Service hereunder in connection with the extension of the Plan to a new covered group or the addition of a new group of employees to an existing covered group in connection with corporate acquisitions, reorganizations or other circumstances which the Employer determines, in a non-discriminatory manner.

(c) Periods of Absence . A Participant shall not receive Credited Service for the period from his date of employment termination until his date of reemployment. A period of Leave of Absence will not be deemed a termination of employment for purposes of this Section. However, Credited Service will not be granted for leave of absence periods, except for medical leaves of absence or as required by law.

(d) Concurrent Employment . Concurrent periods of employment with two or more Employers shall be considered only once in determining Credited Service.

(e) Non-Participating Employer . A period of service with an entity prior to the date the entity becomes an Employer under the Plan or a predecessor plan shall be disregarded in determining a Participant’s Credited Service unless otherwise specifically provided for herein.

(f) Non-Covered Employment . A period of service with an Employer during which the Participant is not a member of a covered group of Employees for purposes of Section 3.1 above shall be disregarded in determining a Participant’s Credited Service.

(g) Freeze of Credited Service . Anything contained herein to the contrary notwithstanding, effective as of April 30, 2005, each Employee’s and each Participant’s Years of Credited Service under the Plan shall be frozen at the number of their Years of Credited Service earned as of April 30, 2005. As of and after April 30, 2005, no Employee or Participant shall earn additional Years of Credited Service under the Plan notwithstanding their continued employment with the Employer.

 

16

4.2 Vesting Service . For purposes of determining a Participant or Beneficiary’s eligibility for Plan benefits, a participant’s “vesting service” means the total of the Participant’s Years of Service.

4.3 Vesting Date . The “vesting date” for a Participant shall be the date the Participant has accrued five Years of Service. Effective as of April 30, 2005, each Participant hereunder shall be deemed to have met their Vesting Date, notwithstanding the Participant’s actual number of Years of Service.

4.4 Break in Service . A Participant’s entire period of Credited Service (as determined under Section 4.1) shall be taken into consideration under the Plan, except that:

(a) A Participant who incurs a Break in Service prior to his Vesting Date shall have his Credited Service before such Break in Service disregarded until he has completed one Year of Service following his re-employment by the Employer, the Company or any Related Company, at which time his Credited Service before such Break shall be restored, retroactive to his date of re-employment.

(b) A Participant who incurs a Break in Service prior to his Vesting Date shall have his period of Credited Service before such Break disregarded if the number of years in such Break in Service equals or exceeds five. Notwithstanding the foregoing, any Participant who experiences a Break in Service not in excess of five years shall have all of his Credited Service earned prior to April 30, 2005 taken into consideration under the Plan. No Participant shall earn Credited Service under the Plan on and after April 30, 2005.

(c) A Participant who terminates his employment and is re-employed prior to incurring a Break in Service shall be treated, for purposes of participation in the Plan, as though he never terminated his employment. Notwithstanding the foregoing, as of and after April 30, 2005, no Participant shall earn additional Years of Credited Service under the Plan notwithstanding their continued employment with the Employer.

4.5 Transfers . A Transfer shall not affect the continuity of a Participant’s Years of Service for purposes of his eligibility for benefits under the Plan. However, in the event of a Transfer, the amount of the benefit payable to a Participant under the Plan shall be computed as follows:

(a) If a Participant is transferred to an employment position which would not make him eligible for benefits under the Plan, he shall have his Accrued Benefit under the Plan based solely on his Years of Credited Service prior to the date of Transfer.

(b) If an Employee is transferred to an employment position which would make him eligible to participate in the Plan, he shall have his Accrued Benefit under the Plan be based solely on his years of Credited Service from and after the date of Transfer.

 

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ARTICLE V

REQUIREMENTS FOR PENSIONS

5.1 Normal Retirement . A Participant shall be eligible for a Normal Retirement Pension if his employment is terminated on or after his Normal Retirement Age. Payment of a Normal Retirement Pension shall commence as of the first day of the month coincident with or immediately following the Participant’s Retirement. A Participant’s right to his Normal Retirement Pension shall be non-forfeitable on attainment of his Normal Retirement Age.

5.2 Early Retirement . A Participant shall be eligible for an Early Retirement Pension if his employment is terminated on or after his 55 ^th birthday and after he has completed at least five years of Credited Service. Payment of an Early Retirement Pension shall commence as of the Participant’s Normal Retirement Date. However, if a Participant requests the Committee to authorize the commencement of his Early Retirement Pension as of the first day of the month coincident with or immediately following his Retirement, or as of the first day of any subsequent month which precedes his Normal Retirement Date, his Pension shall commence as of the first day of the month so requested, but the amount thereof shall be reduced as provided in Section 6.3.

5.3 Deferred Vested Pension . A Participant shall be eligible for a Deferred Vested Pension if his employment is terminated for any reason before his death after the Participant’s Vesting Date but prior to his Early Retirement eligibility in accordance with Section 5.2. Payment of a Participant’s Deferred Vested Pension shall commence as of his Normal Retirement Date. However, if a Participant requests the Committee to authorize the commencement of his Deferred Vested Pension as of the first day of any month after his attainment of age 55 and prior to his Normal Retirement Date, his Pension shall commence as of the first day of the month so requested, but the amount thereof shall be reduced as provided in Section 6.4.

5.4 Deferred Vested Pension in Top-Heavy Years . A Participant shall be eligible for a Deferred Vested Pension under Section 6.4 if his employment is terminated for any reason before his death and he had completed at least three Years of Service during or prior to any Top Heavy Year.

5.5 Vesting Following Plan Amendment . In the event that any amendment is adopted to the Plan which affects, directly or indirectly, the computation of the vested percentage of the Participants’ Accrued Benefits:

(a) The vested percentage of the Accrued Benefit of each Participant as of the later of the date the amendment is adopted or the date it becomes effective shall not, as a result of such amendment, be less than it would have been had the Participant terminated his employment on the day immediately preceding the day such amendment was adopted (or, if earlier, the effective date of such amendment); and

 

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(b) The vested percentage of the Accrued Benefit of a Participant who, on the day the amendment is adopted (or, if earlier, the effective date of such amendment), had completed at least three Years of Service shall thereafter be equal to the greater of the amount determined under the Plan as so amended or the amount determined under the Plan without regard to such amendment.

(c) Anything contained herein to the contrary notwithstanding, effective as of April 30, 2005, the vested percentage of each Participant’s Accrued Benefit on April 30, 2005 shall be 100%.

5.6 Freeze of Accrued Benefits . Anything contained herein to the contrary notwithstanding, effective as of April 30, 2005, each Participant’s Accrued Benefit under the Plan shall be frozen. Notwithstanding the foregoing, Participants in the Plan as of April 30, 2005 must continue to satisfy the requirements of this Article V in order to receive a Pension.

 

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ARTICLE VI

AMOUNT OF PENSIONS

6.1 Benefits Generally . Subject to the limitations hereinafter set forth in this Article VI, each Participant who retires on or after he has fulfilled the requirements for a Pension as set forth in Article V shall be entitled to the Pension determined in accordance with the provisions of this Article VI. Notwithstanding the foregoing, effective as of and after April 30, 2005, the amount of the Pension to which a Participant may be entitled under this Article VI shall be the amount to which the Participant would be entitled as of April 30, 2005. Each Participant’s Pension entitlement hereunder shall be frozen at the amount of the Participant’s Pension entitlement on April 30, 2005.

6.2 Normal Retirement .

(a) Subject to paragraphs (b), (c) and (d), a Participant’s Accrued Benefit under the Plan is the monthly benefit amount payable in the form of a single life annuity commencing at Normal Retirement Age (or Actuarial Equivalent thereof) equal to the Participant’s total number of Years of Credited Service multiplied by $9.00 with respect to the Participant’s Years of Credited Service earned prior to January 1, 2003. For Participants retiring on or after May 1, 2003, a Participant’s total number of Years of Credited Service earned beginning on or after January 1, 2003, shall be multiplied by $11.00 in determining the Participant’s Accrued Benefit. Notwithstanding the foregoing, the Accrued Benefit of any Participant who terminates employment with the Company prior to May 1, 2003, shall be determined by multiplying the Participant’s total Years of Credited Service by $9.00. A Participant’s benefit or prior plan participant’s benefit amount as determined above shall be offset by the value of the benefit distributed to or for the benefit of the Participant from the prior plan, if any.

(b) The Accrued Benefit of a Participant who participated in the Plan as of the Effective Date (and had an Accrued Benefit as of the Effective Date) determined under the Plan immediately prior to the Effective Date, based on the provisions of the Plan in effect prior to the Effective Date.

(c) If a Participant receives a distribution of his Accrued Benefit as a result of the termination of the Participant’s employment and the Participant is subsequently rehired, then the amount of the Pension to which the Participant (or his Beneficiary) shall be entitled upon his subsequent Retirement or death shall be determined by disregarding his Years of Credited Service taken into account in determining the amount of such previous distribution, provided that if the amount of such distribution was less than the present value of the Participant’s Accrued Benefit at such time (as determined under Section 7.5, and disregarding the value of any subsidies for early retirement or survivorship benefits), such Years of Credited Service shall not be disregarded, but any Pension to which the Participant (or his Beneficiary) subsequently becomes entitled shall be reduced by the Actuarial Equivalent of such distribution. If a Participant is not entitled to a Deferred Vested Pension when he incurs a termination of employment, he shall be deemed to have a received a lump sum distribution of the entire vested portion of his Accrued Benefit. If such a Participant is subsequently re-employed before incurring a Break in Service consisting of at least five Plan Years, he shall be deemed to have repaid such distribution and his Years of Credited Service prior to such termination of employment shall be included in determining his Accrued Benefit.

 

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(d) In the event this Section 6.2 of the Plan is amended to modify the manner in which a Participant’s Accrued Benefit under the Plan is determined, no such modification shall result in, or be interpreted in a manner which results in, the reduction in the Participant’s Accrued Benefit prior to such modification or amendment.

6.3 Early Retirement Pension . The monthly amount of a Participant’s Early Retirement Pension payable on a single-life basis commencing as of his Normal Retirement Date shall be equal to his Accrued Benefit at his Retirement. In the event that the Participant requests payment of his Early Retirement Pension prior to his Normal Retirement Date, the monthly amount of the Early Retirement Pension shall be equal to the Pension which is otherwise payable to the Participant as of his Normal Retirement Date, reduced at a rate of  ¹ / 2 % for each month that the commencement of Pension payments precede his Normal Retirement Date.

6.4 Deferred Vested Pension . The monthly amount of a Participant’s Deferred Vested Pension payable on a single-life basis commencing as of his Normal Retirement Date shall be equal to his Accrued Benefit at his Retirement (or, in the event that a Participant is eligible for a Deferred Vested Pension under Section 5.4, the vested percentage of his Accrued Benefit at his Retirement determined under Section 5.4). In the event that the Participant requests the payment of his Deferred Vested Pension prior to his Normal Retirement Date, the monthly amount of the Pension shall be equal to the Pension which is otherwise payable to the Participant as of his Normal Retirement Date, reduced at a rate of  ¹ / 2 % for each month that the commencement of Pension payments precede his Normal Retirement Date.

6.5 Maximum Pensions . The following provisions shall apply effective May 1, 2008, except as otherwise provided in this Section 6.5. The application of the provisions of this Section shall not cause the Maximum Permissible Benefit for any Participant to be less than his accrued benefit under all defined benefit plans of the Employer or a predecessor employer as of the end of the last limitation year beginning before May 1, 2008 under the provisions of such plans that were both adopted and in effect before April 5, 2007.

(i) The Annual Benefit payable to a Participant at any time shall not exceed the Maximum Permissible Benefit. If the benefit that a Participant otherwise would accrued in a limitation year would result in an Annual Benefit in excess of the Maximum Permissible Benefit, the benefit shall be limited (or the rate of accrual decrease) to a benefit that does not exceed the Maximum Permissible Benefit.

(ii) If a Participant is, or ever has been, a participant in another qualified defined benefit plan (without regard to whether such plan has been terminated) maintained by the Employer or a predecessor employer, the sum of the Participant’s Annual Benefits from all such plans may not exceed the Maximum Permissible Benefit. If a Participant’s employer-provided benefits under all such defined benefit plans (determined as of the same age) would exceed the Maximum Permissible Benefit, such aggregate benefits shall be reduced to the extent necessary so as not to exceed the Maximum Permissible Benefit. Such reduction shall be effectuated by prorating the benefit under each such plan according to the ratio that such benefit under each such plan bears to the aggregate benefit under all such plans.

 

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(iii) For purposes of this Section 6.5:

 

(i)

The term “Annual Benefit” means a Pension payable annually in the form of a single-life Pension. Except as provided below, a benefit payable in a form other than a single-life Pension shall be adjusted to an actuarially equivalent single-life Pension that begins at the same time as such other form of benefit and is payable on the first day of each month before applying the limitations of this Section. If a Participant has or will have distributions commencing at more than one Benefit Commencement Date, the Annual Benefit shall be determined as of each such date (and shall satisfy the limitations of this Section as of each such date), actuarially adjusting for past and future distributions of benefits commencing at other Benefit Commencement Dates. For this purpose, whether a new Benefit Commencement Date has occurred shall be made without regard to Treasury Regulations Section 1.401(a)-20, Q&A 10(d) and with regard to Treasury Regulations Section 1.415(b)-1(b)(1)(iii)(B) and (C).

No actuarial adjustment shall be made to the benefit for (A) survivor benefits payable to a surviving Spouse under a Qualified Joint and Survivor Annuity to the extent that such benefits would not be payable if the Participant’s benefit were paid in a different form; (B) benefits that are not directly related to retirement benefits (such as a qualified disability benefit, pre-retirement incidental death benefits, and post-retirement medical benefits); or (C) the inclusion in the form of benefit of an automatic benefit increase feature, provided, the form of benefit is not subject to Section 417(e)(3) of the Code and otherwise would satisfy the limitations of this Section, and the Plan provides that the amount payable under the form of benefit in any limitation year shall not exceed the limits of this Section applicable at the Benefit Commencement Date, as increased in subsequent years pursuant to Section 415(d) of the Code. For this purpose, an automatic benefit increase feature is included in a form of benefit if the form of benefit provides for automatic, periodic increases to the benefits paid in that form.

The Annual Benefit shall be determined taking into account Social Security supplements described in Section 411(a)(9) of the Code and benefits transferred from another defined benefit plan, other than transfers of distributable benefits pursuant to Treasury Regulations Section 1.411(d)-4, Q&A-3(c) but disregarding benefits attributable to employee contributions or rollovers.

 

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Effective for Plan Years beginning after December 31, 2003, the determination of actuarial equivalence of forms of benefit other than a life-only Pension shall be made in accordance with (A) or (B) below.

 

(A)

The life-only Pension that is actuarially equivalent to a benefit form that is not subject to Section 417(e)(3) of the Code shall be determined under this subparagraph (A) if the form of the Participant’s benefit is either (I) a nondecreasing annuity (other than a life-only Pension) payable for a period of not less than the Participant’s life (or in the case of a Qualified Pre-Retirement Survivor Pension, the life of the surviving spouse), or (II) an annuity that decreases during the Participant’s life merely because of ( 1 ) the death of the survivor annuitant (but only if the reduction is not below 50% of the benefit payable before the death of the survivor annuitant), or ( 2 ) the cessation or reduction of social security supplements or qualified disability payments (as defined in Section 401(a)(11) of the Code).

 

(I)

For limitation years beginning before July 1, 2007, the actuarial equivalent life-only Pension is equal to the amount of the life-only Pension commencing at the same Benefit Commencement Date that has the same actuarial present value as the Participant’s form of benefit computed using whichever of the following produces the greater annual amounts: ( 1 ) the interest rate and mortality table (or other tabular factor) specified in Section 2.2 for adjusting benefits in the same form; and ( 2 ) a 5% interest rate assumption and the applicable mortality table defined in Section 7.5(c) for that Benefit Commencement Date.

 

(II)

For limitation years beginning on or after July 1, 2007, the actuarial equivalent life-only Pension is equal to the greater of: ( 1 ) the annual amount of the life-only Pension (if any) payable to the Participant under the Plan beginning at the same Benefit Commencement Date as the Participant’s form of benefit; and ( 2 ) the annual amount of the life-only Pension beginning at the same Benefit Commencement Date that has the same actuarial present value as the Participant’s form of benefit, computed using a 5% interest rate assumption and the applicable mortality table defined in Section 7.5(c) for that Benefit Commencement Date.

 

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(B)

The life-only Pension that is actuarially equivalent to a benefit form that is subject to Section 417(e)(3) of the code shall be determined under this paragraph if the Participant’s form of benefit is other than a form described in subparagraph (A) above. In this case, the actuarial equivalent life-only Pension shall be determined as follows:

 

(I)

If the Benefit Commencement Date is in a Plan Year beginning after 2005, the actuarial equivalent life-only Pension is equal to the greatest of: ( 1 ) the annual amount of the life-only Pension beginning at the same Benefit Commencement Date that has the same actuarial present value as the Participant’s form of benefit, computed using the interest rate in Section 2.2 for adjusting benefits in the same form; ( 2 ) the annual amount of the life-only Pension beginning at the same Benefit Commencement Date that has the same actuarial present value as the Participant’s form of benefit, computed using a 5.5% interest rate assumption and the applicable mortality table defined in Section 7.5(c); and ( 3 ) the annual amount of the life-only Pension beginning at the same Benefit Commencement Date that has the same actuarial present value computed using the applicable interest rate and applicable mortality table defined in Section 7.5(c), divided by 1.05.

 

(II)

If the Benefit Commencement Date is in a Plan Year beginning in 2004 or 2005, the actuarial equivalent life-only Pension is equal to the annual amount of the life–only Pension beginning at the same Benefit Commencement Date that has the same actuarial present value as the Participant’s form of benefit, computed using whichever of the following produces the greater amount: ( 1 ) the interest rate and mortality table specified in Section 2.2 for adjusting benefits in the same form; and ( 2 ) a 5.5% interest rate assumption and the applicable mortality table specified in Section 7.5(c). If the Benefit Commencement Date is on or after the first day of the first Plan Year beginning in 2004 and before December 31, 2004, application of this paragraph shall not cause the amount payable under the Participant’s form of benefit to be less than the benefit calculated under the Plan, taking into account the limitations of this Section, except that the actuarial equivalent life-only Pension is equal to the amount of the life-only Pension beginning at the same Benefit Commencement Date that has the same actuarial present value as the Participant’s form of benefit, computed using whichever of the following produces the greatest annual amount: ( 3 ) the interest rate and mortality table (or other tabular factor) specified in Section 2.2 for adjusting benefits in the same form; ( 4 ) the applicable interest rate and applicable mortality table defined in Section 7.5(c); and ( 5 ) the applicable interest rate defined in Section 7.5(c) (as in effect on the last day of the last Plan Year beginning before January 1, 2004 under provisions of the Plan then adopted and in effect) and the applicable mortality table defined in Section 7.5(c).

 

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(ii)

The term “Defined Benefit Compensation Limit” means, effective for limitation years ending after December 31, 2001, $160,000, automatically adjusted under Section 415(d) of the Code effective each January 1, and payable in the form of a life-only Pension. The adjusted limitation shall apply to limitation years ending with or within the calendar year of the date of the adjustment, but a Participant’s benefits will not reflect the adjusted limit prior to January 1 of that year.

 

(iii)

For purposes of this Section, the term “Employer” means the Employer and any Related Employer.

 

(iv)

The term “High Three-Year Average Compensation” means a Participant’s average Section 415 Compensation for the three consecutive Years of Service (or if a Participant has fewer than three such years, his longest consecutive period of service, including fractions of years, but not less than one year) with the Employer that produce the highest average. If a Participant is rehired by the Employer after a Break in Service, his High Three-Year Average Compensation shall be calculated by excluding all years for which he performed no services for and received no Section 415 Compensation from the Employer and by treating the years immediately before and after the Break in Service as consecutive. A Participant’s Section 415 Compensation for a Year of Service shall not include amounts in excess of the limitation under Section 401(a)(17) of the Code in effect for the limitation year in which such Year of Service begins.

 

(v)

The term “Maximum Permissible Benefit” means the smaller of the Defined Benefit Dollar Limitation and the Defined Benefit Compensation Limitation, both adjusted if required, as provided below.

 

(A)

If a Participant has fewer than ten Years of Credited Service, the Defined Benefit Dollar Limitation shall be multiplied by a fraction the numerator of which his the Participant’s number of Years of Credited Service (or part thereof but not less than one year), and the denominator of which is ten. If a Participant has fewer than ten Years of Service, the Defined Benefit Dollar Limitation shall be multiplied by a fraction the numerator of which is the number of Years of Service (or part thereof but not less than one year), and the denominator of which is ten.

 

(B)

Effective for benefits beginning in limitation years ending after December 31, 2001, the Defined Benefit Dollar Limitation shall be adjusted if a Participant’s Benefit Commencement Date is before age 62 or after age 65. If

 

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the Benefit Commencement Date is before age 62, the Defined Benefit Dollar Limitation shall be adjusted under subparagraph (I), as modified by subparagraph (III). If the annuity starting date is after age 65, the Defined Benefit Dollar Limitation shall be adjusted under subparagraph (II), as modified by subparagraph (III).

 

(I)

Adjustment of Defined Benefit Dollar Limitation for benefit commencement before age 62.

 

( i )

If the Benefit Commencement Date for a Participant’s benefit is before age 62 and occurs in a limitation year beginning before July 1, 2007, the Defined Benefit Dollar Limitation for the Participant’s Benefit Commencement Date is the annual amount of a benefit payable in the form of a life-only Pension commencing at the Participant’s Benefit Commencement Date that is the actuarial equivalent of the Defined Benefit Dollar Limitation (adjusted for Years of Credited Service less than ten, if required) with actuarial equivalence computed using whichever of the following produces the smaller annual amount: ( 1 ) the interest rate and mortality table (or other tabular factor) specified in Section 2.2, or ( 2 ) a 5% interest rate assumption and the applicable mortality table as defined in Section 7.5(c).

 

( ii )

If the Benefit Commencement Date for a Participant’s benefit occurs in a limitation year beginning on or after July 1, 2007 and, the Defined Benefit Dollar Limitation for the Participant’s Benefit Commencement Date is the lesser of the annual amount of a benefit payable in the form of a life-only Pension beginning at the Participant’s Benefit Commencement Date that is the actuarial equivalent of the Defined Benefit Dollar Limitation (adjusted for Years of Credited Service less than ten, if required) with actuarial equivalence computed using a 5% limitation and the applicable mortality table for the annuity starting date as defined in Section 7.5(c) (and expressing the Participant’s age based on completed calendar months as of the Benefit Commencement Date, and the Defined Benefit Dollar Limitation (adjusted for Years of Credited Service less than ten, if required) multiplied by the ratio of the annual

 

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amount of the immediately commencing life-only Pension at the Participant’s Benefit Commencement Date to the annual amount of the immediately commencing life-only Pension under the Plan at age 62, both determined without applying the limitations of this Section.

 

(II)

If the Benefit Commencement Date for a Participant’s benefit is after age 65 and occurs in a limitation year beginning on or after July 1, 2007, the Defined Benefit Dollar Limitation at the Participant’s Benefit Commencement Date is the lesser of: ( 1 ) the annual amount of a benefit payable in the form of a life-only Pension beginning at the Participant’s Benefit Commencement Date that is the actuarial equivalent of the Defined Benefit Dollar Limitation (adjusted for Years of Credited Service less than ten, if applicable), with actuarial equivalence computed using a 5% interest rate assumption and the applicable mortality table for that annuity starting date as defined in Section 7.5(c) (and expressing the Participant’s age based on completed calendar months as of the Benefit Commencement Date), and ( 2 ) the Defined Benefit Dollar Limitation (adjusted for Years of Credited Service less than ten, if applicable) multiplied by the ratio of the annual amount of the adjusted immediately commencing life-only Pension under the Plan at the Participant’s Benefit Commencement Date to the annual amount of the adjusted immediately commencing life-only Pension under the Plan at age 65, both determined without applying the limitations of this Section. For this purpose, the adjusted immediately commencing life-only Pension under the Plan at the Participant’s Benefit Commencement Date is the annual amount of such Pension payable to the Participant, computed disregarding the Participant’s accruals after age 65 but including actuarial adjustments even if used to offset accruals, and the adjusted immediately commencing life-only Pension under the Plan at age 65 is the annual amount of such Pension that would be payable under the Plan to a hypothetical Participant who is age 65 and has the same accrued benefit as the Participant.

 

(III)

Notwithstanding the other requirements of this paragraph, no adjustment shall be made to the Defined Benefit Dollar Limitation to reflect the probability of a Participant’s death between the Benefit Commencement Date and age 62, or between age 65 and the Benefit Commencement Date, as applicable, if benefits are not forfeited upon the death of the Participant prior to the Benefit Commencement Date. To the extent benefits are forfeited upon death

 

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before the Benefit Commencement Date, such an adjustment shall be made. For this purpose, no forfeiture shall be treated as occurring upon the Participant’s death if the Plan does not charge Participants for providing a Qualified Pre-Retirement Survivor Annuity.

 

(vi)

The term “Section 415 Compensation” means wages within the meaning of Section 3401(a) of the Code for the purpose of income tax withholding at the source but determined without regard to any rule that limits the remuneration included in wages based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in Section 3401(a)(2) of the Code). Section 415 Compensation shall include amounts that otherwise would be included therein but for an election under Section 125(a), 132(f)(4), 402(e)(3), 402(h)(1)(B), 402(k) or 457(b) of the Code.

(d) Notwithstanding any provision to the contrary in this Section, the benefit otherwise accrued or payable to a Participant under the Plan shall be deemed not to exceed the Maximum Permissible Benefit if (i) the retirement benefits payable for a limitation year under any form of benefit with respect to the Participant under the Plan and all other defined benefit plans (without regard to whether a plan has been terminated) ever maintained by the Employer do not exceed $10,000 multiplied by a fraction the numerator of which is the Participant’s number of Years of Service (or part thereof but not less than one year), not to exceed ten years, and the denominator of which is ten; and (ii) the Employer (or a predecessor employer) has not at any time maintained a defined contribution plan in which the Participant participated (excluding for this purpose mandatory employee contributions under a defined benefit plan, individual medical accounts under Section 4019h) of the Code, and post-retirement medical accounts under Section 419A(d)(1) of the Code).

(e) The limitations of this Section shall be determined and applied by taking into account the rules in Treasury Regulations Section 1.415(f)-1(d), (e) and (h).

6.6 Additional Restrictions .

(a) In the event that the Plan terminates, the Pension paid to or on behalf of any Highly-Compensated Employee or former Employee treated as a Highly Compensated Employee shall be limited to a benefit that is non-discriminatory under Code Section 401(a)(4).

(b) Except as provided in paragraph (c), the annual payments to any member of the Highly-Compensated Group shall be limited to an amount equal to the payments that would be made on behalf of the Participant under a single life annuity that is the Actuarial Equivalent of the sum of (i) the Participant’s Accrued Benefit plus (ii) the Participant’s other benefits (as that term is defined in Section 6.6(d) below), if any, under the Plan.

(c) The limitations of Section 6.6(b) shall not apply if (i) after the payment of the benefits described in Section 6.6(d)(ii) below to such Participant, the