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SIEMENS SAVINGS PLAN

Employee Benefits Plan Agreement

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SIEMENS AKTIENGESELLSCHAFT

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Title: SIEMENS SAVINGS PLAN
Date: 2/28/2006
Industry: Conglomerates     Sector: Conglomerates

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Exhibit 4.2

SIEMENS SAVINGS PLAN

(As Amended and Restated Effective January 1, 2001)

 


 

TABLE OF CONTENTS

 

 

 

 

 

ARTICLE I

 

 

1

 

PURPOSE

 

 

1

 

 

 

 

 

 

ARTICLE II

 

 

1

 

DEFINITIONS

 

 

1

 

 

 

 

 

 

ARTICLE III

 

 

9

 

ELIGIBILITY AND MEMBERSHIP

 

 

9

 

 

 

 

 

 

ARTICLE IV

 

 

11

 

TAX-DEFERRED MEMBER CONTRIBUTIONS AND AFTER-TAX CONTRIBUTIONS

 

 

11

 

 

 

 

 

 

ARTICLE V

 

 

18

 

EMPLOYER CONTRIBUTIONS

 

 

18

 

 

 

 

 

 

ARTICLE VI

 

 

21

 

MEMBERS’ ACCOUNTS

 

 

21

 

 

 

 

 

 

ARTICLE VII

 

 

24

 

INVESTMENT FUNDS

 

 

24

 

 

 

 

 

 

ARTICLE VIII

 

 

27

 

VESTING

 

 

27

 

 

 

 

 

 

ARTICLE IX

 

 

28

 

LOANS

 

 

28

 

 

 

 

 

 

ARTICLE X

 

 

30

 

WITHDRAWALS

 

 

30

 

 

 

 

 

 

ARTICLE XI

 

 

33

 

DISTRIBUTIONS

 

 

33

 

 

 

 

 

 

ARTICLE XII

 

 

42

 

APPLICATION OF FORFEITURES

 

 

42

 

 

 

 

 

 

ARTICLE XIII

 

 

42

 

FUNDING

 

 

42

 

 

 

 

 

 

ARTICLE XIV

 

 

42

 

ADMINISTRATION

 

 

42

 

 

 

 

 

 

ARTICLE XV

 

 

46

 

APPROVAL BY THE INTERNAL REVENUE SERVICE

 

 

46

 

 

 

 

 

 

ARTICLE XVI

 

 

46

 

GENERAL PROVISIONS

 

 

46

 

 

 

 

 

 

ARTICLE XVII

 

 

49

 

AMENDMENT AND TERMINATION

 

 

49

 

 

 

 

 

 

ARTICLE XVIII

 

 

50

 

TOP-HEAVY PROVISIONS

 

 

50

 

 

 

 

 

 

ANNEX a SIEMENS SAVINGS PLAN – EMPLOYER CONTRIBUTIONS

 

 

55

 

- i - 


 

APPENDICES

 

 

 

Appendix A -

 

Special Vesting Provision for Certain Employees of Rofin-Sinar, Inc.

 

 

 

Appendix B -

 

Special Vesting Provision for Certain Employees of ROLM Systems

 

 

 

Appendix C -

 

Additional Distribution Options for Former Participants in Tel-Plus Communications, Inc. Employee Retirement Savings Plan

 

 

 

Appendix D -

 

Special Provisions for Former Participants in Burdick Corporation Plans

 

 

 

Appendix E -

 

Special Provisions for Employees of Tel Plus of Puerto Rico

 

 

 

Appendix F -

 

Special Provisions for Certain Employees of Siemens Stromberg-Carlson

 

 

 

Appendix G -

 

Additional Distribution Options for Former Participants in Quantum Medical Systems, Inc. 401(k) Savings Plan

 

 

 

Appendix H -

 

Special Provisions for Former Participants in Siemens Stromberg-Carlson Savings Plan (Union Employees)

 

 

 

Appendix I -

 

Special Provisions for Certain Employees of Cardion, Inc.

 

 

 

Appendix J -

 

Special Provisions for Certain Employees of Siemens Industrial Automation, Inc.

 

 

 

Appendix K -

 

Additional Distribution Options for Former Participants in Tel Plus Communications Employee Retirement Savings Plan for Certain Members of Collective Bargaining Units

 

 

 

Appendix L -

 

Special Employer Distribution Rates for Employees of American Consolidated Technologies, Inc.

 

 

 

Appendix M -

 

Withdrawal of Linotype — Hell Company and Transfer of Accounts

 

 

 

Appendix N -

 

Special Provisions for Certain Employees of OSRAM SYLVANIA, INC.

 

 

 

Appendix O -

 

Participation of Siemens Power Corporation Savings Plan in the Siemens Savings Plan

- ii - 


 

 

 

 

Appendix P-

 

Participation of Siemens Audio, Inc. in the Siemens Savings Plan

 

 

 

Appendix Q -

 

Special Employer Contribution Rate for Employees of Siemens Nixdorf Information Systems, Inc.

 

 

 

Appendix R -

 

Special Provisions For Former Participants In the Siemens Energy & Automation Inc. Savings Plan

 

 

 

Appendix S -

 

Special Provisions For Salaried Employees of Siemens-Furnas Controls Who Were Participants of Siemens-Furnas Electric Company Controls Retirement Savings Plan

 

 

 

Appendix T -

 

Special Provisions For Salaried Employees Of The Meter Division of Siemens Power Transmission & Distribution Inc. And Who Were Participants of Process Systems Inc. Salary Reduction Profit- Sharing Plan

 

 

 

Appendix U -

 

Elimination of Matching Contribution Under Siemens Savings Plan For Employees of Relectronic-Remech Inc.

 

 

 

Appendix V -

 

Special Provisions For Salaried Employees of Siemens Automotive Corporation Who Were Participants of Siemens Automotive Savings Plan

 

 

 

Appendix W -

 

Special Provisions For Employees Who Were Participants In The Electrocom Automation LP Savings and Investment Plan

 

 

 

Appendix X -

 

Special Provisions For Salaried Employees of Westinghouse Electric Corporation Who Were Participants of Westinghouse Savings Program

 

 

 

Appendix Y -

 

Special Provisions For Employees Who Were Participants In The NSW Corporation Investment Plan

 

 

 

Appendix Z -

 

Special Provisions For Salaried Employees of The Part Of The Meter Division Of Siemens Power Transmission & Distribution LLC That Was Formerly Landis & Gyr Utilities Services, Inc.

 

 

 

Appendix AA -

 

Special Provisions For Salaried Employees of the Eagle Traffic Control Systems Business Unit Of Siemens Energy & Automation

 

 

 

Appendix BB -

 

Special Provisions For Employees Who Were Participants In The Siemens Pyramid 401(k) Plan

- iii - 


 

 

 

 

Appendix CC -

 

Special Provisions For Employees Of The Cerberus Division Of Siemens Building Technologies, Inc. Who Were Participants In The Cerberus Pyrotronics, Inc. Retirement Savings Plan

 

 

 

Appendix DD -

 

Special Provisions For Employees Of The Electrical Machine Control Products and Solutions Business of Vickers Electronic Systems Division

 

 

 

Appendix EE(a)-

 

Special Company Discretionary Contribution for Employees of Opuswave Networks Inc. for Plan Year 1999

 

 

 

Appendix EE(b)-

 

Special Provisions For Former Employees of Motorola, Inc. Who Have Been Transferred to OSRAM Sylvania Products, Inc.

 

 

 

Appendix FF -

 

Special Provisions For Employees of Siemens Moore Process Automation Inc.

 

 

 

Appendix GG -

 

Special Provisions For Employees Of Shared Medical Systems Corporation

 

 

 

Appendix HH -

 

Special Provisions For Employees Of Entex IT Services Inc.

 

 

 

Appendix II -

 

Special Provisions for Employees of Former Ellenco, LLC. and Cerel, LLC.

 

 

 

Appendix JJ -

 

Special Provisions for Employees of Former Jencourt, Inc.

 

 

 

Appendix KK -

 

Special Provisions Relating to the “Let’s Share” Program

 

 

 

Appendix LL -

 

Special Provisions for Employees of Former FrankenData USA, Inc.

 

 

 

Appendix MM -

 

Special Provisions for Employees of Former Cube Technology, Inc.

 

 

 

Appendix NN -

 

Special Provisions for Salaried Employees of Former Milltronics, Inc.

 

 

 

Appendix OO -

 

Special Provisions for Employees of Acuson Corporation or Ecton, Inc.

 

 

 

Appendix PP -

 

Special Provisions for Former Employees of Security Technologies Group

 

 

 

Appendix QQ -

 

Special Provisions for Employees of Efficient Networks, Inc.

- iv - 


 

 

 

 

Appendix RR -

 

Special Provisions for Certain Employees of Siemens VDO Automotive

 

 

 

Appendix SS -

 

Special Provisions for Employees of Optisphere

- v - 


 

SIEMENS SAVINGS PLAN

(As Amended And Restated Effective As Of January 1, 2001)

ARTICLE I

PURPOSE

1.1

 

The purpose of the Siemens Savings Plan is to encourage and assist eligible employees to save part of their income on a regular basis through payroll deductions and salary reduction, supplemented by contributions by the participating employers. The Effective Date for this Plan was January 1, 1980.

 

 

 

1.2

 

The provisions of the Plan as amended and restated herein shall apply only with respect to Employees who complete at least one Hour of Service on or after January 1, 2001, except as may expressly be provided otherwise herein. The benefit entitlements of all other persons shall be governed by the terms of the Plan in effect at the time of their retirement or other termination of employment with the Employers. Notwithstanding the January 1, 2001 effective date for the restatement of this Plan, any change required by federal law with respect to the Plan and any plan that is merged into this Plan, including, without limitation, amendments to the Internal Revenue Code and the Act and regulations or rulings issued pursuant thereto, shall be effective on the latest date on which such change may become effective and comply with such laws, and each such plan shall be deemed to be amended accordingly.

ARTICLE II

DEFINITIONS

2.1

 

Whenever used in the Plan, the following terms shall have the respective meanings set forth below, unless otherwise expressly provided herein, and when the defined meaning is intended the term is capitalized:

 

(a)

 

“Act” means the Employee Retirement Income Security Act of 1974, as amended.

 

 

 

 

 

(b)

 

“Affiliated Company” means Siemens AG (hereinafter called “Siemens”), and any company, whether or not incorporated in the United States, (i) which is a member of a controlled group of corporations (as defined in Section 414(b) of the Internal Revenue Code) which group includes any Employer, (ii) which is under

1


 

 

 

 

common control (within the meaning of Section 414(c) of the Internal Revenue Code) with any Employer, (iii) which is a member of an affiliated service group (as defined in Section 414(m) of the Internal Revenue Code) which group includes any Employer, (iv) which is otherwise required to be aggregated with any Employer pursuant to Section 414(o) of the Internal Revenue Code, or (v) in which Siemens either directly or indirectly has ownership of at least 25% of the equity interest.

 

 

 

 

 

(c)

 

A Member’s “Basic After-Tax Contribution Account,” “Basic Tax-Deferred Contribution Account,” “Employer Contribution Account,” “Supplemental After-Tax Contribution Account,” “Supplemental Tax-Deferred Contribution Account”, “Rollover Contribution Account” and his “GSOP Account” mean, respectively, the applicable Accounts established and maintained for him as provided in Section 6.1. A Member’s “Accounts” means the applicable accounts maintained for him.

 

 

 

 

 

(d)

 

“Beneficiary” means the person or persons designated by the Member or otherwise determined in accordance with Section 16.7.

 

 

 

 

 

(e)

 

“Board of Directors” means the Board of Directors of the Company, as constituted from time to time, or any successor thereto.

 

 

 

 

 

(f)

 

“Committees” means the Administrative Committee and the Investment Committee appointed by the Board of Directors to manage and administer the Plan as provided for in Article XIV.

 

 

 

 

 

(g)

 

“Company” means Siemens Corporation, a Delaware corporation, or any successor thereto.

 

 

 

 

 

(h)

 

Compensation” means all cash compensation received by a Member from an Employer, including bonuses (other than retention, stay, sign on, gainsharing, profit sharing, special and long-term incentive bonuses), overtime payments and commissions, compensation as would have been received in the absence of an election to reduce compensation pursuant to Section 4.2, Compensation reductions made pursuant to a plan maintained by the Employer qualifying under Section 125 of the Internal Revenue Code (but not including Flex Credits under the Flexible Benefits Program), and Compensation reductions for qualified transportation benefits under Section 132(f)(4) of the Internal Revenue Code; but Compensation shall exclude contributions (other than contributions under Section 4.2) to and payments from any plan of deferred compensation (including, but not limited to, this Plan, the Siemens Pension Plan, the

2


 

 

 

 

OSRAM Sylvania Pension Plans, Siemens Westinghouse Retirement Plans, the Siemens Pension Preservation Plan, the Siemens Deferred Savings Plan and the Siemens Corporation Deferred Compensation Plan, and any deferred compensation plan of OSRAM Sylvania), premiums paid for group insurance coverages, welfare benefits, car and expense allowances and similar payments, and severance payments and accrued but unused vacation pay. In addition to the other applicable limitations set forth in the Plan, and notwithstanding any other provision of the Plan to the contrary, for Plan Years beginning on or after January 1, 2001, the Compensation of each Member taken into account under the Plan for any Plan Year shall not exceed $170,000, or such other amount as set forth in Section 401(a)(17) of the Internal Revenue Code as adjusted by the Commissioner of the Internal Revenue Service for increases in the cost of living in accordance with Section 401(a)(17) of the Internal Revenue Code. The cost of living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which compensation is determined (determination period) beginning in such calendar year.

 

 

 

 

 

 

 

If a determination period consists of fewer than 12 months, the annual Compensation limit set forth in the preceding paragraphs is an amount equal to the otherwise applicable annual Compensation limit multiplied by a fraction, the numerator of which is the number of months in the short determination period and the denominator of which is 12.

 

 

 

 

 

 

 

The family aggregation rules that were in effect pursuant to Section 414(q)(6) of the Internal Revenue Code for Plan Years beginning prior to January 1, 1997 ceased to apply to this Plan (and to plans merged into this Plan) for Plan Years beginning on or after January 1, 1997.

 

 

 

 

 

(i)

 

“Continuous Employment” is the period of service with an Employer or an Affiliated Company at the time such service is performed, from the Employee’s original date of hire to his date of termination (by reason of quit, retirement or discharge) including periods of layoff, leave of absence or other temporary breaks in service not in excess of 12 complete months.

 

 

 

 

 

 

 

For the purpose of determining the Continuous Employment of an individual who becomes an employee of an Employer in connection with the acquisition of some or all of the assets of any business entity, service by the individual prior to such acquisition with such business entity or with any member of a controlled group of companies (whether or not incorporated) of

3


 

 

 

 

which such business entity was a member at the time such service was performed shall be treated as service with such Employer if and to the extent determined by the Board of Directors.

 

 

 

 

 

 

 

In calculating an Employee’s period of Continuous Employment, all periods of Continuous Employment determined under the foregoing rules (whether or not consecutive) shall be aggregated; except that Continuous Employment prior to an Employee’s quit, retirement or discharge shall not be aggregated and shall not be taken into account in the case of a re-employed individual if both of the following conditions are met:

 

(1)

 

the Employee did not have a vested right to any benefits under the Plan derived from Employer contributions at the time of such quit, retirement or discharge; and

 

 

 

 

 

(2)

 

the period between such quit, retirement or discharge, and the date of reemployment equals or exceeds the greater of (A) 60 months or (B) the period of Continuous Employment before such quit, retirement or discharge.

 

 

(j)

 

“Contributions” means

 

(1)

 

“After-Tax Contributions,” i.e., an Employee’s Basic and Supplemental After-Tax Contributions to the Plan as provided in Article IV;

 

 

 

 

 

(2)

 

“Employer Contributions,” i.e., an Employer’s Contributions to the Plan as provided in Article V;

 

 

 

 

 

(3)

 

“Tax-Deferred Contributions,” i.e., the contributions to the Plan made by an Employer on behalf of a Member in connection with a Member’s election to reduce his Compensation pursuant to Section 4.2; and

 

 

 

 

 

(4)

 

“Rollover Contribution,” i.e., an Employee’s Qualified Plan Rollover Contribution or Qualified Plan Transfer Contribution to the Plan in accordance with Section 4.10.

 

 

(k)

 

“Delegate” means an individual who has been assigned by an Affiliated Company located outside the United States to an employment position with an Employer for a defined period of time with the intention that such individual will, at the end of the defined period of time, be reassigned to an Affiliated Company located

4


 

 

 

 

outside the United States.

 

 

 

 

 

(l)

 

“Disability” means that condition of a Member due to bodily injury or disease whereby the Member cannot continue in his regular employment with his Employer, excluding, however,

 

(i)

 

disability suffered or incurred while the Member was engaged in, or resulting from his having engaged in, a criminal enterprise;

 

 

 

 

 

(ii)

 

disability resulting from habitual drunkenness or addiction to narcotics; or

 

 

 

 

 

(iii)

 

disability resulting from self-inflicted injury.

 

 

 

 

The date on which a disability is sustained shall be (i) in the case of disability due to bodily injury, the date on which such injury occurred and (ii) in the case of disability due to disease the date certified by a physician chosen by the Administrative Committee as the date on which such disability commenced. Disability shall not be deemed to exist if the Member refuses to submit to a physical examination to be made by a physician chosen by the Administrative Committee for the purpose of determining the existence thereof.

 

 

 

 

 

(m)

 

“Effective Date” means January 1, 1980.

 

 

 

 

 

(n)

 

“Employee” means each person who is employed by an Employer in a position rated as salary (other than a person who is neither a citizen nor a resident of the United States and who receives no earned income from the Employer which constitutes income from sources within the United States), but shall not include any person included in a unit of employees covered by a collective bargaining agreement unless and until the applicable collective bargaining agreement expressly provides for participation in this Plan.

 

 

 

 

 

 

 

Notwithstanding the foregoing, any person who is classified by the Employer as a leased employee or independent contractor shall not be an Employee for any purposes of this Plan, even if such person is subsequently determined to be a common law employee by a local, state or federal court or governmental entity or agency thereof. However, solely for purposes of determining eligibility for membership under Article III and vesting under Article VIII, any person (i) who was formerly classified as a leased employee or independent contractor, (ii) who is determined by the Employer to have performed any services as a common law employee of the Employer or as a leased employee as defined in Section 414(n) of the Internal Revenue Code

5


 

 

 

 

during such period of classification, and (iii) who then becomes an Employee, shall be treated as an Employee during his or her prior period of employment as a common law employee of the Employer or as a leased employee as defined in Section 414(n) of the Internal Revenue Code.

 

 

 

 

 

(o)

 

“Employer” means Siemens Corporation and any Affiliated Company, provided that Siemens Corporation acting by its Board of Directors shall approve the participation in the Plan of such Affiliated Company and provided the board of directors of such Affiliated Company shall elect to participate in the Plan.

 

 

 

 

 

(p)

 

“Enrollment Date” means a day that is administratively feasible to enroll in the Plan as is permitted by the Administrative Committee (which shall be no less frequently than once per month).

 

 

 

 

 

(q)

 

“Fund” shall mean the assets of the Plan held by the Trustee and/or the Insurance Company contracts or policies constituting the Fund. Any such Insurance Company contracts or policies shall provide either as a part of the contract or policy or by a definite written arrangement between the Company and the Insurance Company that any dividends or retroactive rate reductions or other refunds of premiums shall be applied within the current or next succeeding taxable year toward the purchase of retirement annuities under the Insurance Company contract by way of reduction of future Employer contributions to the Plan or by way of increase in benefits. Such contracts or policies shall further provide that the annuities and all interest of Members and Beneficiaries thereunder shall be nontransferable. Such contracts or policies shall be issued to the Company or the Trustee as holder. The provisions of any Trust Agreement or any Insurance Company contract shall not prevent the return to an Employer of a contribution made by mistake of fact if such return is made within one year after payment of the contribution, or return to an Employer of a contribution (each of which shall be conditioned upon deductibility of the contribution under Section 404 of the Internal Revenue Code) to the extent such deduction is disallowed if such return is made within one year after the disallowance of the deduction, or the return of Plan assets in the event of denial of initial qualification of the Plan.

 

 

 

 

 

(r)

 

“Highly Compensated Employee” shall mean, for any Plan Year on or after January 1, 1997 an Employee who performs any services during such Plan Year and either

 

(i)

 

is a five-percent (5%) owner of the Employer or an

6


 

 

 

 

Affiliated Company (within the meaning of Section 416(i)(1)(iii) of the Internal Revenue Code) at any time during such Plan Year or the preceding Plan Year, or

 

 

 

 

 

(ii)

 

received compensation in excess of $80,000 (as may be adjusted for cost-of-living increases pursuant to Section 415(d) of the Internal Revenue Code) during the preceding Plan Year and, if the Administrative Committee so elects, was in the “top-paid group” for such year within the meaning of Section 414(q)(3) of the Internal Revenue Code.

 

 

 

Compensation for purposes of this Section (q) shall be compensation as defined in Section 414(q) of the Internal Revenue Code.

 

 

 

 

 

(s)

 

“Hour of Service” means:

 

 

(i)

 

Each hour for which a person is paid or entitled to payment by an Employer or Affiliated Company for the performance of duties.

 

 

 

 

 

(ii)

 

Each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by an Employer or Affiliated Company, with no duplication of credit for hours.

 

 

 

 

 

(iii)

 

Each hour, in addition to the hours in subparagraph (i) above, for which the person is directly or indirectly paid or entitled to payment by an Employer or Affiliated Company on account of a period of time during which no duties are performed due to vacation, holiday, illness, disability, lay-off, jury duty, military duty or leave of absence. No more than 501 hours shall be credited under this subparagraph (iii) on account of any single continuous period during which he performs no duties.

 

(iv)

 

Hours of Service shall be calculated and credited in accordance with the rules of Department of Labor Regulations § 2530.200b-2.

 

 

 

 

 

(v)

 

Solely for purposes of Section 3.5, Hours of Service shall be credited on account of a Maternity or Paternity Absence at the rate which otherwise would normally have been credited to such person but for such absence or, if such rate cannot be determined, at the rate of eight (8) Hours of Service for each day of such absence; provided that no more than 501 Hours of Service shall be credited on account of any single Maternity or Paternity Absence. Such Hours of

7


 

 

 

 

Service shall be taken into account only in the Plan Year in which the absence from work commences, except that if the person had completed at least 501 Hours of Service in the Plan Year at the commencement of such absence, such Hours of Service shall be taken into account in the next following Plan Year.

 

(t)

 

“Insurance Company” means an insurance company which is qualified to manage, acquire or dispose of assets of the Fund under the laws of more than one State; is qualified to do business in the State of New York; and has issued a contract or policy for the purpose of funding the Plan.

 

 

 

 

 

(u)

 

Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.

 

 

 

 

 

(v)

 

“Maternity or Paternity Absence” means an absence beginning on or after October 1, 1985 —

 

 

(i)

 

by reason of the pregnancy of the individual,

 

 

 

 

 

(ii)

 

by reason of the birth of a child of the individual,

 

 

 

 

 

(iii)

 

by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or

 

 

 

 

 

(iv)

 

for purposes of caring for such child for a period beginning immediately following such birth or placement.

 

 

 

 

 

 

 

In no case shall a period of absence be treated as a “Maternity or Paternity Absence” unless the individual furnishes to the Administrative Committee such timely information as the Administrative Committee may reasonably require to establish that the absence is for one of the reasons specified above.

 

(w)

 

“Member” means an Employee who is eligible to become a Member of the Plan in accordance with Article III and has elected to participate in the Plan.

 

 

 

 

 

(x)

 

“Plan” means the Siemens Savings Plan as set forth herein and as it may be amended from time to time.

 

 

 

 

 

(y)

 

“Plan Year” means the period commencing on the Effective Date and ending on September 30, 1981 and each twelve-month period commencing on each October 1 thereafter. Effective January 1, 1996, Plan Year means the twelve-month period commencing on the first day of

8


 

 

 

 

January and ending on the last day of December. Accordingly there was a short Plan Year for the period commencing October 1, 1995 and ending on December 31, 1995. With respect to such short Plan Year, appropriate adjustments were made in dollar amounts and other provisions as required by law to the extent necessary to reflect such shorter period.

 

 

 

 

 

(z)

 

“Retirement” of a Member shall mean the termination of a Member’s Employment on or after the date on which he has attained age fifty-five (55), provided he has completed five or more years of Continuous Employment.

 

 

 

 

 

(aa)

 

“Temporary Employee” means an Employee classified as a Temporary Employee in the records of an Employer.

 

 

 

 

 

(bb)

 

“Trust Agreement” shall mean the instrument or instruments that provide for the receiving, holding, investing and disposing of the Fund.

 

 

 

 

 

(cc)

 

“Trustee” means the trustee at any time acting under the Trust Agreement or Agreements.

 

 

 

 

 

(dd)

 

“Year of Service” means a twelve-month period during which a Temporary Employee completes at least 1,000 Hours of Service. For this purpose, the first twelve-month period shall commence on the date the Temporary Employee completes his first Hour of Service; subsequent twelve-month periods shall be each Plan Year commencing after the date the Temporary Employee completes his first Hour of Service.

2.2

 

Gender and Number. Except when otherwise indicated by the context, any masculine terminology herein shall also include the feminine, and the definition of any term herein in the singular shall also include the plural.

ARTICLE III

ELIGIBILITY AND MEMBERSHIP

3.1

 

Each Employee who was a Member of the Plan on December 31, 2000 and who is employed by an Employer on January 1, 2001 will continue to be a Member as of such date. Subject to the provisions of any applicable collective bargaining agreement that expressly provides for participation in this Plan, any individual who was a Member of the Plan on December 31, 2000 and who is employed by an Employer in an employment position rated as non-salaried on January 1, 2001 shall be eligible to become a Member of the Siemens Savings Plan For Hourly Employees or the Siemens Savings Plan for Union Employees, as applicable, on January 1, 2001 and the amounts in such individual’s accounts in the Plan shall be transferred to the Siemens Savings Plan for Hourly Employees or the Siemens

9


 

 

 

Savings Plan for Union Employees, as applicable.

 

 

 

 

 

Subject to Section 3.2, each other Employee will be eligible to become a Member of the Plan as of the Enrollment Date coincident with or next succeeding the date on which such Employee’s Continuous Employment commenced if he then is employed by an Employer. Notwithstanding the foregoing, if an individual who is a participant in a thrift or savings plan maintained by an Affiliated Company which is not an Employer is transferred directly from employment with such Affiliated Company to employment as an Employee of an Employer and such individual would have been eligible to become a Member of the Plan on or before his date of transfer if his period of service with such Affiliated Company prior to such transfer (including any such service before the company became an Affiliated Company) were treated as a period of service with an Employer, such individual shall be eligible to become a Member as an Enrollment Date coincident with or next succeeding the date of such transfer).

 

 

 

 

 

Also, if an individual who is employed by an Employer and who is eligible to be a Member of the Siemens Savings Plan for Hourly Employees or the Siemens Savings Plan for Union Employees is transferred directly from an employment position with an Employer rated as non-salaried to an employment position rated as salaried, such individual shall be eligible to become a Member of this Plan as of an Enrollment Date coincident with or next succeeding the date of such transfer, and the amounts in such individual’s Accounts in those Plans shall be transferred to this Plan. Amounts so transferred shall retain their characterization as contributions pursuant to a qualified cash or deferred arrangement described in Section 401(k) of the Internal Revenue Code, matched and unmatched, tax-deferred and after-tax employee contributions, rollover contributions and earnings therein, and shall be credited according to the applicable Employee’s Basic or Supplemental Tax-Deferred Contribution Account, Basic or Supplemental After-Tax Contribution Account, Employee Contribution Account and Rollover Contribution Account.

 

 

 

3.2

 

A Temporary Employee shall be eligible to become a Member of the Plan as of any Enrollment Date coincident with or next succeeding the date on which such Temporary Employee completes a Year of Service if he is then employed by an Employer.

 

 

 

3.3

 

Subject to the provisions of Section 4.11, membership of any Employee in the Plan shall be entirely voluntary.

 

 

 

3.4

 

Subject to Sections 3.1 and 3.2, an Employee may elect to participate in the Plan as of any Enrollment Date on prior notice of such election to his Employer. Such election

10


 

 

 

shall include payroll deduction authorization and/or any election to reduce Compensation and a Contribution rate on forms prescribed by the Administrative Committee.

 

 

 

3.5

 

If an Employee ceases to be a Member by reason of the termination of his employment with the Employers and he is later re-employed as an Employee, he shall again become a Member as of the date on which his employment as an Employee resumes, unless his prior Continuous Employment is disregarded pursuant to sub-section 2.1(i), in which event he shall be treated upon re-employment as a new Employee for the purposes of this Article III.

ARTICLE IV

TAX-DEFERRED MEMBER CONTRIBUTIONS AND AFTER-TAX CONTRIBUTIONS

4.1

 

Each Member, for as long as he continues active participation in the Plan, shall for each payroll period either make After-Tax Contributions to the Plan from his Compensation by payroll deduction pursuant to Section 4.3 and/or have the Employer make Tax-Deferred Contributions on his behalf pursuant to Section 4.2 in lieu of Compensation otherwise paid to him currently.

 

 

 

4.2

 

Each Member may elect that his Compensation be reduced and that his Employer contribute a Tax-Deferred Contribution to the Plan in the same amount on his behalf, subject to the following:

 

(a)

 

Tax-Deferred Contributions of from 1% to 16% (18% effective July 1, 2001), in 1% increments, of Compensation may be elected by any Member; provided, however, that the minimum rate of Tax-Deferred Contributions shall be 2% rather than 1% unless the Member elects to make After-Tax Contributions of at least 1% of Compensation; and provided further, that such contributions shall be subject to the provisions of sub-section 4.2(b). The first 6% of Tax-Deferred Contributions elected by a Member are sometimes referred to herein as “Basic Tax-Deferred Contributions”; the balance of such Member’s Tax-Deferred Contributions are sometimes referred to herein as “Supplemental Tax-Deferred Contributions.”

 

 

(b)

(1) 

 

The Administrative Committee shall determine from time to time, as it deems desirable, the criteria for determining the maximum permissible Tax-Deferred Contribution rate for Employees who are Highly Compensated Employees which the Administrative Committee believes is likely to cause the Plan to satisfy the Actual Deferral Percentage Test described below. The Administrative Committee’s determinations pursuant

11


 

 

 

 

to this Section 4.2 shall be final and shall not be subject to question by the Employers, the Trustee, the Insurance Company or any Member or group of Members.

 

 

 

 

 

(2)

 

The Actual Deferral Percentage Test requires that, for any Plan Year, the Actual Deferral Percentage for the eligible Employees who are Highly Compensated Employees shall not exceed the greater of (i) or (ii) as follows:

 

(i)

 

The Actual Deferral Percentage for the eligible Employees other than Highly Compensated Employees, times 1.25, or

 

 

 

 

 

(ii)

 

The Actual Deferral Percentage for the eligible Employees other than Highly Compensated Employees, times 2.0; provided, however, that the Actual Deferral Percentage for Highly Compensated Employees may not exceed the Actual Deferral Percentage for the eligible Employees other than Highly Compensated Employees by more than two percentage points.

 

 

 

 

 

 

 

The Actual Deferral Percentage for either specified group of eligible Employees for a Plan Year shall be the average of the ratios (calculated separately for each eligible Employee in such group) of the sum of (a) the amount of Tax-Deferred Contributions actually paid to the Plan on behalf of each such eligible Employee for such Plan Year, (b) all other elective contributions made on behalf of such eligible Employee for such Plan Year under any other plan aggregated with this Plan for purposes of Section 401(a)(4) or Section 410(b) of the Internal Revenue Code, and (c) in the case of a Highly Compensated Employee, all other elective contributions made on behalf of such eligible Employee for such Plan Year under any other cash-or-deferred arrangement in which he is eligible (other than one which may not be aggregated with this Plan), to the eligible Employee’s compensation, as defined in Section 414(s) of the Internal Revenue Code, for such Plan Year. The Actual Deferral Percentage Test shall be calculated in accordance with Section 401(k) of the Internal Revenue Code and Treasury Regulations thereunder, which are hereby incorporated by this reference.

12


 

 

(3)

 

In the event that at the end of the Plan Year it is determined that the Plan would otherwise fail to satisfy the Actual Deferral Percentage Test for that Plan Year, the Administrative Committee may determine either (i) that an additional Employer Contribution shall be made pursuant to sub-section 5.1(b) or (ii) to reduce the Tax-Deferred Contributions on behalf of those Highly Compensated Employees whose Tax-Deferred Contributions are the highest, and to have such amounts (together with any income allocable to such amounts for such Plan Year) paid to such Highly Compensated Employees (and to forfeit any corresponding Employer Contributions for application under Article XII) in accordance with Section 401(k) of the Internal Revenue Code and Treasury Regulations thereunder, to the extent the Administrative Committee deems necessary so as to cause the Plan to satisfy the Actual Deferral Percentage Test. The earnings (or losses) allocable to excess contributions shall be determined by multiplying the earnings (or losses) allocable to the Highly Compensated Employee’s Tax-Deferred Contributions for the Plan Year by a fraction, the numerator of which is the excess contributions on behalf of the Highly Compensated Employee for the Plan Year and the denominator of which is the Highly Compensated Employee’s Tax-Deferred Account balance on the last day of the Plan Year reduced by the earnings (or increased by the losses) allocable to such Tax-Deferred Account Balance for the Plan Year. The amount which may be distributed pursuant to this sub-section for any Plan Year shall be reduced by the amount of any excess Tax-Deferred Contributions previously distributed pursuant to sub-section 4.2(d) for the calendar year ending in such Plan Year. Any amounts to be distributed to a Highly Compensated Employee pursuant to the Subsection 4.2(b)(3) shall be made within 12 months after the close of the Plan Year in which the Plan failed to satisfy the Actual Deferral Percentage Test.

 

(c)

 

If the total Tax-Deferred Contributions made on behalf of a Member during a calendar year by the application of the percentage elected by him under this Plan, together with such Member’s elective contributions previously made to other plans maintained by the

13


 

 

 

 

Affiliated Companies during such calendar year, would otherwise exceed $10,500 (adjusted for cost of living increases to the extent permitted under Section 402(g) of the Internal Revenue Code), the excess shall not constitute a reduction of the Member’s Compensation or a Tax-Deferred Contribution for the balance of such calendar year. Such excess shall instead constitute:

 

(i)

 

a Basic After-Tax Contribution to the extent required to make the sum of the Member’s Tax-Deferred and After-Tax Contributions equal 6% of his Compensation, and

 

 

 

 

 

(ii)

 

a Supplemental After-Tax Contribution for all additional amounts deducted.

 

 

 

 

This excess shall be credited to the applicable Member’s Accounts. In such event, Tax-Deferred Contributions will be resumed at the rate previously in effect as of the first day of the next succeeding calendar year unless otherwise changed by the Member.

 

 

 

 

 

(d)

 

If at the end of a calendar year the sum of the Tax-Deferred Contributions made on behalf of a Member during such year and the Member’s elective contributions made to other plans during such year exceeds $10,500(adjusted for cost of living increases to the extent permitted under Section 402(g) of the Internal Revenue Code), the Member may elect to allocate all or any portion of such excess to his Tax-Deferred Contributions under this Plan (but not in excess of the amount thereof for such calendar year) and to have such amount (together with any income allocable to such amount during such calendar year) distributed to him. A Member must make such an election in writing to the Administrative Committee not later than January 31 of the next succeeding calendar year. Distribution of such excess amount (and allocable income thereon) shall be made not later than April 15 following such January 31. The amount which may be distributed pursuant to this sub-section for any calendar year shall be reduced by the amount of any excess Tax-Deferred Contributions previously distributed pursuant to sub-section 4.2(b)(3) for the Plan Year beginning in such calendar year.

4.3

 

After-Tax Contributions of from 1% to 16% (18% effective July 1, 2001)in 1% increments, of Compensation may be elected by any Member; provided, however, that the minimum rate of After-Tax Contributions shall be 2% rather than 1% unless the Member elects to make Tax-Deferred Contributions of at least 1% of Compensation; and provided further, that such contributions shall be subject to the following:

14


 

 

 

(a)

 

Up to the first 6% of After-Tax Contributions elected by a Member are sometimes referred to herein as “Basic After-Tax Contributions.” A Member may make Basic After-Tax Contributions only to the extent that the sum of his Basic Tax-Deferred Contribution rate and his Basic After-Tax Contribution rate does not exceed 6% of his Compensation.

 

 

 

 

 

(b)

 

A Member who is making and continues to make either Basic Tax-Deferred or Basic After-Tax Contributions, or both, which in the aggregate are at least 6% of the Member’s Compensation, may also make “Supplemental After-Tax Contributions” to the Plan from his Compensation for each pay period by payroll deduction; provided, however, that in no event may the sum of the Member’s Tax-Deferred and After-Tax Contributions exceed 16% (18%, effective July 1, 2001) of his Compensation.

 

 

 

 

 

(c)

 

Notwithstanding the foregoing provisions of this Section 4.3, Members who are determined by the Administrative Committee to be Highly Compensated Employees may elect a rate of After-Tax Contributions only if such rate is equal to or less than the maximum After-Tax Contribution rate permitted for such Members which the Administrative Committee believes is likely to cause the Plan to satisfy the Actual Contribution Percentage Test described in sub-section 5.2(b). The Administrative Committee’s determinations pursuant to this Section 4.3 shall be final and shall not be subject to question by the Employers, the Trustee, the Insurance Company or any Member or group of Members.

 

4.4

 

Subject to Sections 4.2 and 4.3, a Member may change his rate of Tax-Deferred or After-Tax Contributions at least once a month by calling the Siemens Benefit Service Center or by any other method prescribed by the Administrative Committee.

 

 

 

4.5

 

A Member who ceases to be eligible as an Employee, but who remains in the employment of an Employer or an Affiliated Company other than an Employer, shall have his Tax-Deferred and After-Tax Contributions automatically suspended as of the date of such change of employment status. Such Member’s Tax-Deferred and After-Tax Contributions may be resumed upon his again becoming an eligible Employee. Such an Employee may not make up suspended Contributions.

 

 

 

4.6

 

A Member shall not be entitled to make Contributions, other than a Rollover Contribution, to the Plan, and no deduction shall be made pursuant to his payroll deduction authorization, for any period in which he is not receiving Compensation. In addition, no Tax-Deferred Contributions, other than a Rollover Contribution, shall be made on behalf

15


 

 

 

of such Member during any such period.

 

 

 

4.7

 

The Employers shall pay to the Trustee the amount of Members’ Tax-Deferred and After-Tax Contributions for each month as soon as such amounts can reasonably be segregated from the Employer’s assets, and in no event later than the fifteenth business day of the month following the month in which the contributions are withheld by the Employer.

 

 

 

4.8

 

Payment of After-Tax Contributions, Tax-Deferred Contributions and Employer Contributions to the Plan as prescribed in Articles IV and V shall constitute the funding policy and method of the Plan.

 

 

 

4.9

 

The Siemens Retirement Plan gave a member of that plan the right to elect to transfer certain amounts from that plan directly to an account under this Plan. If an individual made such an election in accordance with the provisions of the Siemens Retirement Plan, the transferred amounts were paid to the Trustee hereunder and are treated as Supplemental After-Tax Contributions for the purposes of this Plan, subject, however, to the following exceptions:

 

(1)

 

The transfer was permitted even if the individual was not otherwise permitted to make Supplemental After-Tax Contributions under this Plan;

 

 

 

 

 

(2)

 

The transfer did not affect the amount of the Supplemental After-Tax Contributions that the individual was otherwise permitted to make pursuant to this Article IV; and

 

 

 

 

 

(3)

 

The transferred amounts were disregarded for the purposes of Section 6.8.

 

4.10

 

An Employee (whether or not he is otherwise a Member) may make a Rollover Contribution to the Plan at any time consisting of a “Qualified Plan Rollover Contribution” or a “Qualified Plan Transfer Contribution” as hereinafter prescribed:

 

(a)

 

“Qualified Plan Rollover Contribution” means any amount received by an individual from a profit-sharing, pension or stock bonus plan meeting the requirements of Section 401(a) of the Internal Revenue Code, from a qualified annuity plan meeting the requirements of Section 403(a) of the Internal Revenue Code, from an individual retirement account meeting the requirements of Section 408(a) of the Internal Revenue Code or from an individual retirement annuity meeting the requirements of Section 408(b) of the Internal Revenue Code, which is transferred to this Plan in a tax-free rollover satisfying the requirements of Section 402(c), Section 403(a)(4) or Section 408(d)(3)(A)(ii) of the

16


 

 

 

 

Internal Revenue Code.

 

 

 

 

 

(b)

 

“Qualified Plan Transfer Contribution” means any amount transferred directly to this Plan on behalf of an individual from a profit-sharing, pension or stock bonus plan meeting the requirements of Section 401(a) of the Internal Revenue Code.

 

 

No Rollover Contribution shall be accepted until the Administrative Committee has determined to its satisfaction based on the facts submitted by the Employee making the Rollover Contribution that the amount transferred meets the applicable requirements of subparagraph (a) or (b) above. The Administrative Committee may prescribe such rules and regulations governing the making of Rollover Contributions as it may deem desirable. Any Qualified Plan Rollover Contribution shall be credited to the applicable Employee’s Rollover Contribution Account. Amounts transferred to this Plan in a Qualified Plan Transfer Contribution shall retain their characterization as contributions pursuant to a qualified cash or deferred arrangement described in Section 401(k) of the Internal Revenue Code, matched and unmatched after-tax employee contributions, matching and other employer contributions, rollover contributions, and earnings thereon, and shall be credited accordingly to the applicable Employee’s Tax-Deferred Contribution Account, Basic or Supplemental After-Tax Contribution Account, Employer Contribution Account and Rollover Contribution Account. Except to the extent that the context indicates otherwise, the term “Member” as used in this Plan shall be deemed to include each Employee who has made a Rollover Contribution to this Plan irrespective of whether such Employee shall have become a Member pursuant to Article III; provided, however, that in no event shall an Employee who has not become a Member pursuant to Article III be entitled to make Tax-Deferred Contributions pursuant to Section 4.2 or After-Tax Contributions pursuant to Section 4.3, or to share in Employer Contributions pursuant to Article V prior to so becoming a Member pursuant to Article III. Rollover Contributions shall be disregarded for purposes of Section 6.8. In no event may any Member make more than one Rollover Contribution from any one plan to this Plan.

 

 

 

 

 

Notwithstanding the other provisions of this Section to the contrary, effective March 1, 2001, an Employee whose employment with all Affiliated Companies is terminated shall be able to rollover into the Siemens Savings Plan the amount of any lump sum distribution he may be entitled to receive from the Siemens Pension Plan.

 

 

 

4.11

 

Notwithstanding the other provisions of this Article IV to the contrary, Employees (other than Employees who become Delegates on or after January 1, 2002), who are hired on or after January 1, 2001 by an Employer will, as soon as

17


 

 

 

administratively possible after the 90 th day after they first become eligible to become a Member of the Siemens Savings Plan, automatically become Members and have deducted from their Compensation Tax-Deferred Contributions at 3% of their Compensation, unless and until the employee affirmatively indicates that he or she does not want to participate in the Plan or affirmatively elects to participate at a different contribution rate or on a basis other than as Tax-Deferred Contributions. These automatic contributions shall be placed in the Fixed Rate Fund (or Stable Value Fund, effective October 1, 2001) of the Plan until such time as the employee indicates that the contribution is to be placed in another investment fund of the Plan. Such automatic contributions to the Siemens Savings Plan shall be subject to the other provisions of the Plan that are applicable to Tax-Deferred Contributions. Appropriate notices will be provided to employees in connection with the application of this Section 4.11.

ARTICLE V

EMPLOYER CONTRIBUTIONS

5.1

(a)

 

 Each Employer shall make Employer Contributions to the Plan for each month equal to the percentage of the Basic Tax-Deferred and Basic After-Tax Contributions made by or on behalf of Members as applicable to Employees of that Employer as set forth in Annex A to the Plan, less any amount of forfeiture then to be applied to reduce such Employer Contributions pursuant to Article XII.

 

 

 

 

 

(b)

 

Pursuant to sub-section 4.2(b)(3) or sub-section 5.2(c), if the Administrative Committee so determines, each Employer shall make an additional Employer Contribution sufficient in amount to cause the requirements of the Actual Deferral Percentage Test or the Actual Contribution Percentage Test to be satisfied. Such additional Employer Contribution shall be credited to the Tax-Deferred Contribution Accounts of Members who are not Highly Compensated Employees in the proportion that each such Member’s Tax-Deferred Contributions represent of total Tax-Deferred Contributions of all Members in this group for the Plan Year. Employer Contributions made pursuant to this sub-section shall constitute “qualified matching contributions” or additional “matching contributions” and shall satisfy the requirements of Section 1.401(k)-1(b)(3) or Section 1.401(m)-1(b)(2), as applicable, of the Treasury Regulations, which are hereby incorporated by this reference.

18


 

 

(c)

 

This Plan is intended to constitute a profit-sharing plan as referred to in Section 401(a) of the Internal Revenue Code. Employer Contributions and Tax-Deferred Contributions may, however, be made without regard to the existence of current or accumulated profits as permitted by Section 401(a)(27) of the Internal Revenue Code.

5.2

(a)

 

 The Administrative Committee shall determine the maximum permissible rate or amount of Employer and After-Tax Contributions to the Plan which the Administrative Committee believes is likely to cause the Plan to satisfy the Actual Contribution Percentage Test described below. The Administrative Committee’s determinations pursuant to this Section 5.2 shall be final and shall not be subject to question by the Employers, the Trustee, the Insurance Company or any Member or group of Members.

 

 

 

 

 

(b)

 

The Actual Contribution Percentage Test requires that, for any Plan Year, the Actual Contribution Percentage for the eligible Employees who are Highly Compensated Employees shall not exceed the greater of (i) or (ii) as follows:

 

 

(i)

 

The Actual Contribution Percentage for the eligible Employees other than Highly Compensated Employees, times 1.25, or

 

 

 

 

 

(ii)

 

The Actual Contribution Percentage for the eligible Employees other than Highly Compensated Employees, times 2.0; provided, however, that the Actual Contribution Percentage for the Highly Compensated Employees may not exceed the Actual Contribution Percentage for the eligible Employees other than Highly Compensated Employees by more than two percentage points; provided, however, that the Actual Contribution Percentage for Highly Compensated Employees shall be further limited to the extent necessary to prevent the multiple use of the alternative limitation in sub-section 4.2(b)(2)(ii) and in paragraph (ii) above.

 

 

 

 

 

 

 

The Actual Contribution Percentage for either specified group of eligible Employees for a Plan Year shall be the average of the ratios (calculated separately for each eligible Employee in such group) of the sum of (i) the amount of the Employer and After-Tax Contributions actually paid to the Plan on behalf of each such eligible Employee for such Plan Year, (ii) all other employee and matching contributions made on behalf of such eligible Employee for such Plan Year under

19


 

 

 

 

any other plan aggregated with this Plan for purposes of Section 401(a)(4) or Section 410(b) of the Internal Revenue Code, and (iii) in the case of a Highly Compensated Employee, all other employee and matching contributions made on behalf of such eligible Employee for such Plan Year under any other plan subject to Section 401(m) of the Internal Revenue Code in which he is eligible (other than one which may not be aggregated with this Plan), to the eligible Employee’s compensation, as defined in Section 414(s) of the Internal Revenue Code, for such Plan Year. In addition, all or a portion of the Tax-Deferred Contributions actually paid to the Plan on behalf of eligible Employees other than Highly Compensated Employees may be taken into account in determining the Actual Contribution Percentage for such group, provided that the Plan continues to satisfy the Actual Deferral Percentage Test under sub-section 4.2(b)(2) without regard for such amount of Tax-Deferred Contributions taken into account hereunder. The Actual Contribution Percentage Test shall be calculated in accordance with Section 401(m) of the Internal Revenue Code and Treasury Regulations thereunder, which are hereby incorporated by this reference.

 

(c)

 

In the event that at the end of the Plan Year it is determined that the Plan would otherwise fail to satisfy the Actual Contribution Percentage Test for that Plan Year, or to prevent multiple use of the alternative limitation, the Administrative Committee may determine either (i) that an additional Employer Contribution shall be made pursuant to sub-section 5.1(b) or (ii) to reduce the amount of Contributions allocated to the Accounts of Highly Compensated Employees in a manner similar to that set forth in sub-section 4.2(b)(3)(ii), and to have such amounts (together with any income allocable to such amounts for such Plan Year) paid to such Highly Compensated Employees in accordance with Section 401(m) of the Internal Revenue Code and Treasury Regulations thereunder, to the extent the Administrative Committee deems necessary so as to cause the Plan to satisfy the Actual Contribution Percentage Test, such reduction to be made in the following order of priority:

 

 

(i)

 

Supplemental After-Tax Contributions,

 

 

 

 

 

(ii)

 

Basic After-Tax Contributions and corresponding Employer Contributions, and

 

 

 

 

 

(iii)

 

Any additional excess Employer Contributions,

20


 

 

 

 

 

except that non-vested Employer Contributions shall not be paid but shall be forfeited and applied under Article XII. The earnings (or losses) allocable to excess contributions shall be determined by multiplying the earnings (or losses) allocable to the Highly Compensated Employee’s After-Tax Contributions and Employer Contributions on his behalf for the Plan Year by a fraction, the numerator of which is the excess contribution on behalf of the Highly Compensated Employee for the Plan Year and the denominator of which is the sum of the Highly Compensated Employee’s After-Tax Contributions and Employer Contributions Account balances on the last day of the Plan Year reduced by the earnings (or increased by the losses) allocable to such account balances for the Plan Year. Any amounts to be distributed to a Highly Compensated Employee pursuant to this Subsection 5.2(c) shall be made within 12 months after the close of the Plan Year in which the Plan failed to satisfy the Actual Contribution Percentage Test.

 

5.3

 

As soon as practicable after the posting of the Employee’s Basic Tax-Deferred Contributions or Basic After-Tax Contributions to the Employee’s Accounts by the Plan’s recordkeeper, each Employer shall pay or transfer to the Trustee the amount of its Employer Contribution for such month prescribed by Section 5.1.

ARTICLE VI

MEMBERS’ ACCOUNTS

6.1

 

There shall be established and maintained for each Member, to the extent applicable:

 

(a)

 

a Basic After-Tax Contribution Account;

 

 

 

 

 

(b)

 

a Tax-Deferred Contribution Account;

 

 

 

 

 

(c)

 

an Employer Contribution Account;

 

 

 

 

 

(d)

 

a Supplemental After-Tax Contribution Account,

 

 

 

 

 

(e)

 

a Supplemental Tax-Deferred Contribution Account,

 

 

 

 

 

(f)

 

a Rollover Contribution Account, and

 

 

 

 

 

(g)

 

effective, June 1, 2001, a GSOP Account

 

6.2

 

The Administrative Committee shall establish and maintain (or cause to be established and maintained) the applicable Accounts for each Member.

 

 

 

6.3

 

The amount of a Member’s Basic After-Tax Contributions shall be credited to his Basic After-Tax Contribution Account.

21


 

6.4

 

The amount of a Member’s Basic and Supplemental Tax-Deferred Contributions shall be credited to his Tax-Deferred Contribution Account.

 

 

 

6.5

 

The amount of a Member’s Supplemental After-Tax Contributions shall be credited to his Supplemental After-Tax Contribution Account.

 

 

 

6.6

 

The aggregate amount of an Employer’s Contributions, including the amount of forfeitures then to be applied to reduce the Contributions of such Employer pursuant to Article XII, shall be credited to the Employer Contribution Accounts of Members employed by such Employer, in amounts equal to the appropriate percentage of each Member’s Basic Tax-Deferred and Basic After-Tax Contributions determined pursuant to Section 5.1, when credited pursuant to sub-section 6.7(2).

 

 

 

6.7

 

As of the end of each business day, the net worth of the assets of each investment fund under Article VII of the Plan shall be determined. In determining such net worth, the assets of the investment fund shall be valued at their fair market value as of such valuation day and any liabilities or other amounts properly chargeable against such investment fund shall be deducted. The assets of the investment fund shall be allocated among the account balances of Members in the investment fund in the following manner:

 

(1)

 

The balance for each Member in the investment fund as of the preceding business day, after reduction by any withdrawals or distributions made as of such day (the “opening balance”) shall be determined.

 

 

 

 

 

(2)

 

The opening balance shall be increased by and credited with the dollar amount of Contributions credited to the investment fund since the preceding business day, (the “adjusted balance”), and shall include all deductions from all paychecks preceding that day that have been posted to the Plan.

 

 

 

 

 

(3)

 

The fair market value of the investment fund on the day of valuation shall be apportioned to each Member in the ratio that the adjusted account balance for such Member as of the day of valuation bears to the total of the adjusted balances in the investment fund as of such valuation date. The fair market value of a guaranteed income or guaranteed accumulation contract issued by an Insurance Company or of an interest thereunder shall be measured by the amount held under such contract or in respect of such interest as reported by the Insurance Company.

 

6.8

(a)

 

The term “Account Addition” means, for any Member for any limitation year, the sum of:

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(1)

 

the Employer Contributions and Tax-Deferred Contributions under this Plan for the Member’s Accounts including any adjustment under Article XII, plus any employer contribution allocated to the Member’s account under any other defined contribution plan (as described in Section 414(i) of the Internal Revenue Code), any individual medical account (as described in Section 415(1) of the Internal Revenue Code) or any key employee’s post-retirement medical benefit account (as described in Section 419A(d) of the Internal Revenue Code) maintained by an Employer or an Affiliated Company,

 

 

 

 

 

(2)

 

the Member’s After-Tax Contributions under this Plan, plus any employee contribution allocated to the Member’s account under any other plan maintained by an Employer or an Affiliated Company, and

 

 

 

 

 

(3)

 

forfeitures allocated to the Member’s account under any other defined contribution plan maintained by an Employer or an Affiliated Company.

 

 

(b)

 

The total Account Addition for any Member for any limitation year shall not exceed the lesser of:

 

(1)

 

$30,000 (as adjusted for cost-of-living increases pursuant to Section 415(d) thereof); or

 

 

 

 

 

(2)

 

25% of the Member’s total compensation (within the meaning of Treasury Regulations § 1.415-2(d)) for such limitation year.

 

 

 

 

If a Member’s Account Addition for any limitation year exceeds the foregoing limitation, his Supplemental After-Tax Contributions for the Plan Year (and allocable income thereon) shall be reduced and returned to the Member. If, after returning such contributions to the Member, an excess still exists, his Basic After-Tax Contributions and the related Employer Contributions for the Plan Year (and allocable income thereon) shall then be reduced proportionately; such Basic After-Tax Contributions shall be refunded to him as soon as practicable. If further reduction is necessary, his Tax-Deferred Contributions and any related Employer Contributions for the Plan Year (and allocable income thereon) shall be reduced proportionately; such Tax-Deferred Contributions shall be refunded to him as soon as practicable. The amount of any reduction in Employer Contributions and income allocable to any reduction in Contributions shall be held in the Fund and shall be applied under Article XII

23


 

 

 

 

to reduce subsequent Employer Contributions.

 

 

 

 

 

(c)

 

For purposes of this Section 6.8, the limitation year shall be the Plan Year. All defined contribution plans (whether or not terminated) maintained by an Employer or an Affiliated Company shall be treated as one defined contribution plan, provided that for purposes of this Section 6.8, “Affiliated Company” shall have the meaning set forth in sub-section 2.1(b) except that the phrase “more than 50 percent” shall be substituted for the phrase “at least 80 percent” in each place such latter phrase appears in Section 1563(a)(1) of the Internal Revenue Code referenced in Section 414(b) thereof.

 

 

 

 

 

(d)

 

The combined limitation that was in effect pursuant to Section 415(e) of the Internal Revenue Code for limitation years beginning prior to January 1, 2000 ceased to apply to this Plan (and to plans merged into this Plan) for limitation years beginning on or after January 1, 2000.

ARTICLE VII

INVESTMENT FUNDS

7.1

 

Each Member shall be entitled to direct that Contributions to be credited to his Accounts shall be invested (in integral multiples of 1%) in one or more of the Fixed Rate Fund or Stable Value Fund, effective October 1, 2001), the Balanced Fund, the Indexed Equity Fund, the International Equity Fund, the Large Cap Growth Fund, the LifePath Portfolio, the Managed Equity Fund, the Intermediate Term Bond Fund, the Small Cap Equity Fund and/or, effective June 1, 2001, the Siemens AG Stock Fund. A Rollover Contribution made by a Member to the Plan shall be invested in accordance with the investment directions the Member has made with respect to the Contributions credited to his accounts in the Plan.

 

 

 

 

 

In the absence of a Member’s direction as to the investment of Contributions credited to his Accounts, such Contributions shall be invested 100% in the Fixed Rate Fund (or Stable Value Fund, effective October 1, 2001).

 

 

 

 

 

Each Member also may elect to change prospectively his investment election and/or change the investment fund and the percentage to be invested in a particular fund for amounts that have already been contributed to his Accounts, (in integral multiples of 1% of the amounts held in each fund from which a transfer is to be made) without any limitation on the frequency of such elections, by calling the Siemens Benefits Service Center or by any other method prescribed by the Administrative Committee.

24


 

7.2

 

Fixed Rate Fund . The Fixed Rate Fund invests in a diversified portfolio of investment contracts with insurance companies, banks or other financial institutions, some of which are backed by portfolios of publicly traded fixed income securities. The Fund is designed to provide a steadily increasing principal value. Effective October 1, 2001, this Fund shall be known as the Stable Value Fund and, effective on such date, the Fund will accrue interest each day based on the rates being paid by the underlying investments, with such interest being added to the Member’s account balance. The net asset value of the Stable Value Fund increases daily, reflecting the addition of the accrued interest.

 

 

 

7.3

 

Balanced Fund . The Balanced Fund shall consist of a fund managed by the Trustee, Insurance Company or investment manager appointed by the Investment Committee, or invested in a registered investment company selected by the Investment Committee, which in either case shall be invested in both publicly-traded U.S. fixed-income securities and equity securities of corporations traded on U.S. securities exchanges. Generally, up to one-half of the Balanced Fund’s assets shall be invested in fixed-income securities, but such allocation may be changed from time to time to reflect prevailing economic conditions. The income from the investments in such fund and the Contributions and transferred amounts directed thereto shall be invested therein as soon as practicable and, pending such investment, shall be invested by the Trustee in a short-term investment account. All amounts invested in the Balanced Fund shall be subject to the conditions of any pooled fund in which such amounts are invested. Effective March 1, 2001, the Balanced Fund is eliminated from the Plan.

 

 

 

7.4

 

Indexed Equity Fund . The Indexed Equity Fund shall consist of a fund managed by the Trustee, Insurance Company or investment manager appointed by the Investment Committee, or invested in a registered investment company selected by the Investment Committee, which in either case shall be invested primarily in shares of common stock of the corporations included in the Standard & Poor’s 500 Corporate Stock Index, with the aim of closely approximating the total return of such index. The income from the investments in such fund and the Contributions and transferred amounts directed thereto shall be invested therein as soon as practicable and, pending such investment, shall be invested by the Trustee in a short-term investment account. All amounts invested in the Indexed Equity Fund shall be subject to the conditions of any pooled fund in which such amounts are invested.

 

 

 

7.5

 

International Equity Fund . The International Equity Fund shall consist of a fund managed by the Trustee, Insurance Company or investment manager appointed by the Investment

25


 

 

 

Committee, or invested in a registered investment company selected by the Investment Committee, which in either case shall be invested primarily in shares of common stock and other equity securities issued by companies principally based outside the United States. The income from the investments in such fund and the Contributions and transferred amounts directed thereto shall be invested therein as soon as practicable and, pending such investment, shall be invested by the Trustee in a short-term investment account. All amounts invested in the International Equity Fund shall be subject to the conditions of any pooled fund in which such amounts are invested.

 

 

 

7.6

 

Large Cap Growth Fund . The Large Cap Growth Fund shall consist of a fund managed by the Trustee, Insurance Company, or investment manager appointed by the Investment Committee which has as its objective capital growth over time. The Fund will have an aggressive investment strategy that will tend to increase both the volatility (upward and downward movement) of the Fund and its long-term growth potential. The manager of the Fund will identify companies with accelerating earnings and revenues and that invest primarily in common stocks considered to have better-than-average prospects for appreciation. Essentially, the Fund will be invested 100% in stocks at all times.

 

 

 

7.7

 

LifePath Fund . The LifePath Fund shall consist of separate funds managed by the Trustee, Insurance Company, or investment manager that will seek, using a computer-based asset allocation strategy, to maximize a Member’s investment results in terms of the time frame chosen by the Member as to when the Member expects to need money from his Accounts.

 

 

 

7.8

 

Managed Equity Fund . The Managed Equity Fund shall consist of a fund managed by the Trustee, Insurance Company or investment manager appointed by the Investment Committee which has as its objective the achievement of long-term capital growth while generating returns that are generally higher than the stock market average. The Managed Equity Fund aims to achieve this by investing in a widely diversified portfolio of select stocks issued primarily by large and medium sized companies.

 

 

 

7.9

 

Intermediate-Term Bond Fund . The Intermediate-Term Bond Fund shall consist of a fund managed by the Trustee, Insurance Company, or investment manager appointed by the Investment Committee which has as its objective investment in a variety of fixed income bonds that mature over an average of ten years, including investments in U.S. government bonds, corporate bonds, mortgage bonds, and U.S. dollar and foreign currency bonds of foreign issues.

 

 

 

7.10

 

Small Cap Equity Fund . The Small Cap Equity Fund shall consist of a fund managed by the Trustee, Insurance Company,

26


 

 

 

or investment manager appointed by the Investment Committee which has as its objective investment in a diverse group of small U.S. companies whose securities are traded in the U.S. securities markets and whose market value is comparable to that of smaller companies listed on the New York Stock Exchange.

 

 

 

7.11

 

Siemens AG Stock Fund (Effective June 1, 2001) . The Siemens AG Stock fund is a unitized Fund that tracks the performance of Siemens AG ordinary stock. The Fund shall invest only in Siemens AG ordinary stock, with a small amount in money market instruments to provide needed liquidity and to accommodate daily transactions. It is not actively managed. The investments of this Fund are made without regard to stock price or investment outlook. The Trustee will buy and sell the Siemens AG ordinary stock at fair market value, paying brokerage commissions from Fund assets. Cash dividends are paid into this Fund on the date paid by Siemens AG. The dividends are paid in cash at the rate of 85% of the full dividend due to foreign withholding taxes. The number of units will increase when dividends are paid. Any voting rights that a Member may have with respect to shares of Siemens AG upon which the Siemens AG Stock Fund is based shall be determined under the provisions of the Master Trust Agreement applicable to the Plan.

ARTICLE VIII

VESTING

8.1

 

The Tax-Deferred, Basic After-Tax, Supplemental After-Tax and Rollover Contribution Accounts of each Member are at all times 100% vested and non-forfeitable.

 

 

 

8.2

 

Except as provided in Sections 8.3 and 8.4, a Member shall vest in his Employer Contribution Account based upon the number of years of his Continuous Employment (excluding Continuous Employment disregarded pursuant to sub-section 2.1(i)) in accordance with the following schedule:

 

 

 

 

 

Years of Continuous Employment

 

Vested Percentage

Less than 2 years

 

 

0

%

2 but less than 3 years

 

 

40

%

3 but less than 4 years

 

 

60

%

4 but less than 5 years

 

 

80

%

At least 5 years

 

 

100

%

 

8.3

 

Notwithstanding Section 8.2, upon the occurrence of any of the following events, a Member shall become 100% vested in amounts credited to his Employer Contribution Account to and including the date of such event:

 

(a)

 

Retirement;

27


 

 

(b)

 

death or termination of the Member’s service with all Employers by reason of Disability;

 

 

 

 

 

(c)

 

termination of the Plan, partial termination of the Plan which directly affects the Member, or complete discontinuance of contributions;

 

 

 

 

 

(d)

 

permanent layoff; or

 

 

 

 

 

(e)

 

transfer without intervening employment to the employ of an Affiliated Company which is not an Employer and which is not located in the United States.

8.4

 

A Member who ceases to be an eligible Employee without termination of his employment by an Employer will continue to be deemed a Member of the Plan for purposes of vesting in his Employer Contribution Account for as long as he remains in the employment of an Employer or of an Affiliated Company which is not an Employer.

 

 

 

8.5

 

In the case of a Member who has his Accounts transferred to this Plan in accordance with the provisions of Section 3.1 of this Plan, such Member’s vested portion of such Accounts shall be determined in accordance with the vesting provisions of Article VIII of the Plan taking into account all the years of Continuous Employment such Member has.

ARTICLE IX

LOANS

9.1

 

(a) The Administrative Committee is hereby authorized to establish and administer a program of making loans to Members in the active service of an Employer, or former Members who are still employed by an Affiliated Company, from such Members’ respective Accounts in accordance with this Article IX. A Member who is the active service of an Employer, and a former Member who is still employed by an Affiliated Company, may borrow from the Plan an amount which does not exceed the smallest of:

 

(i)

 

$50,000 minus the excess of (i) the highest outstanding loan balance of the Member during the twelve months immediately preceding the business day as of which the loan is made over (ii) the outstanding balance of loans from the Plan on the date on which such loan is made, or

 

 

 

 

 

(ii)

 

50% of the balance of the Member’s vested Accounts determined as of the day preceding the date as of which the loan is made, minus the outstanding balance of the Member’s loans on such date, or

 

 

 

 

 

(iii)

 

such lesser maximum as the Administrative

28


 

 

 

 

Committee may establish to apply uniformly to all loans under the Plan.

 

(b)

 

The minimum amount of any loan shall be $1,000.

 

 

 

 

 

(c)

 

The term of any loan shall not exceed the lesser of (i) five years or, effective July 1, 2001, four years, or (ii) the period required to amortize the loan by principal payments of $5 per week or $10 biweekly; except that a loan made specifically for the purpose of acquiring a dwelling unit which within a reasonable period of time (determined at the time the loan is made) will be used as the Member’s principal residence may be for a term not to exceed 30 years.

 

 

 

 

 

(d)

 

Loans shall bear a reasonable rate of interest as the Administrative Committee may determine from time to time, in guidelines promulgated for such purpose and communicated to Members, in accordance with the provisions of Section 4975(d)(1) of the Internal Revenue Code, Section 408(b)(1) of the Act and the regulations thereunder, and other applicable legal requirements.

 

9.2

 

A Member may request only two loans from the Plan in any Plan Year. No more than two loans to any Member may be outstanding at any time.

 

 

 

9.3

 

A Member’s application for a loan shall consist of a note to the Trustee or Insurance Company establishing the Member’s personal liability therefor and an authorization for payroll deductions to the extent necessary to satisfy the principal and interest, in such forms as prescribed by the Administrative Committee. In addition, a Member requesting a loan for the purchase of a principal residence must submit with the loan application a copy of the executed purchase and sale contract with respect to such residence.

 

 

 

9.4

 

Loans shall be repaid by payroll deductions in equal installments computed to repay the principal and interest at the declared rate over the term of such loans. A lump sum repayment of the entire outstanding balance of a loan may be made by the Member at any time; however, partial prepayment shall not be permitted.

 

 

 

9.5

 

Loans from the Plan shall not operate to reduce a Member’s Accounts when made, but shall be considered a directed investment of such Accounts in the Member’s note to the Trustee or Insurance Company. Each loan shall be made from the Member’s balance in each of the investment funds in which his Accounts are then invested determined as of the day before the day, as of which the loan is made) in the proportion that the Member’s balance in each such fund bears to the total of the Member’s balances in all such investment

29


 

funds. However, the making of a loan shall not be considered a change of investment election or a transfer election for the purposes of Section 7.1. Loans shall be considered as made from within each Member’s Accounts in the following order: Tax-Deferred Contribution Account, vested balance in Employer Contribution Account, Rollover Contribution Account, Basic After-Tax Contribution Account and Supplemental After-Tax Contribution Account. Repayment of loans shall be made to such Member’s Accounts in the inverse order from which they were considered as made, and shall be credited for investment in accordance with the Member’s investment election then in effect under Article VII.

9.6

 

Each Loan to a Member shall be secured by 50% of the Member’s vested Accounts and such other collateral that the Administrative Committee deems necessary or appropriate. In the event of default, the Tax-Deferred Contribution Account shall be considered the last account to be used for satisfaction of the loan balance if a distribution or withdrawal could not then be made from such account pursuant to Section 401(k) of the Internal Revenue Code.

9.7

 

Anything in the Plan to the contrary notwithstanding, a Member shall not be permitted to make any withdrawal of funds which would reduce the aggregate balance of his vested Accounts below an amount equal to the outstanding principal balance (and accrued interest thereon) of his loans from the Plan.

 

9.8

 

In the event of termination of employment with all Employers, a Member’s loan balance and accrued interest shall become due and payable and, if such loan balance and interest is not repaid within 90 days after such termination of employment, the Member shall be in default on the loan and shall be deemed to have elected a withdrawal in the amount of such outstanding balance, and such deemed withdrawal shall be applied to satisfy the Member’s liability on the loan.

9.9

 

The Administrative Committee may prescribe such other terms and conditions for loans not inconsistent with the foregoing requirements as the Administrative Committee may deem desirable.

ARTICLE X

WITHDRAWALS

10.1

 

A Member, including a former Member who is still employed by an Affiliated Company, may make a withdrawal from his Basic After-Tax, Supplemental After-Tax or Rollover Contribution Account, or from the vested portion of his Employer Contribution Account, by calling the Siemens Benefit Service

30


 

 

Center or by any other method prescribed by the Administrative Committee and the amount of a withdrawal must be at least $250 or 100% of the amount available for withdrawal if less than $250.

Withdrawals shall be made from within each Member’s Accounts in the following order: Supplemental After-Tax Contribution Account, Basic After-Tax Contribution Account, Rollover Contribution Account and Employer Contribution Account. Notwithstanding the foregoing, withdrawals from these Accounts shall be made from Supplemental and Basic After-Tax Contributions by the Member prior to January 1, 1987 until the balance of all such contributions is exhausted. Subsequent to withdrawal of all pre-1987 After-Tax Contributions, withdrawals from Supplemental After-Tax Contribution Accounts first, and thereafter from Basic After-Tax Contribution Accounts, shall be apportioned between After-Tax Contributions and earnings thereon in the proportion that the sum of the balance of After-Tax Contributions not withdrawn for all such accounts bears to the balance of earnings not withdrawn for all such accounts as of the date preceding the date the withdrawal is made. If a Member has been a member in the Plan, a predecessor plan or, with respect to a Member whose benefit under another plan was transferred to this Plan, such transferor plan, in the aggregate for less than five years and such Member elects to withdraw Basic After-Tax Contributions made to the Plan on or after January 1, 1987 or Employer Contributions made to the Plan within two years of the day as of which the withdrawal is to be made, Employer Contributions on behalf of the Member shall be suspended for a three-month period following the end of the month after the withdrawal is made.

Payments pursuant to a withdrawal election shall be made as soon as practicable after the election is approved. A Member may make only two withdrawals pursuant to this Section 10.1 in any Plan Year not including for this purpose a withdrawal in the event of a vesting occurrence described in Section 8.3.

10.2

 

A Member, including a former Member who is still employed by an Affiliated Company, who has reached age 59 1 / 2 may make a withdrawal of his Tax-Deferred Contributions in accordance with Section 10.1 above, but he shall not be limited to two such withdrawals each Plan Year.

10.3

 

A Member, including a former Member who is still employed by an Affiliated Company, who has not reached age 59 1 / 2 may, by calling the Siemens Benefit Service Center or by any other method prescribed by the Administrative Committee, request a withdrawal of an amount not greater than the balance of his Tax-Deferred Contribution Account (but not including any Contributions credited to such account pursuant to sub-section 5.1(b) or any earnings in such account credited

31


 

 

after December 31, 1988) as of the last business day preceding the date his withdrawal is made, but only on account of hardship. For the purposes of this Section 10.3, a withdrawal will be on account of hardship if the distribution is necessary in light of immediate and heavy financial needs of the Member. The determination of the existence of financial hardship and the amount required to be distributed to meet the need created by the hardship shall be made by the Administrative Committee in accordance with uniform and nondiscriminatory standards consistent with Treasury Regulations § 1.401(k)-1. Notwithstanding the preceding sentence, a distribution will be deemed to be made on account of an immediate and heavy financial need if the distribution is on account of any of the conditions so described under Treasury Regulations § 1.401(k)-1 or published IRS rulings at the time a withdrawal on account of hardship is requested, including but not limited to non-reimbursed medical expenses, tuition for post-secondary education, purchase of a primary residence and prevention of eviction from or foreclosure on the mortgage of a primary residence. A Member who makes a hardship withdrawal pursuant to this Section 10.3 shall have taken all available loans and withdrawals under the Plan and all other plans maintained by the Company and its Affiliated Companies.

A withdrawal shall be deemed necessary if

 

(a)

 

the Administrative Committee receives from the Member a representation that the need cannot reasonably be relieved

 

(i)

 

Through reimbursement or compensation by insurance or otherwise,

 

 

 

 

 

(ii)

 

By liquidation of the assets of the Member, including assets of the Member’s spouse or minor children that are reasonably available to the Member,

 

 

 

 

 

(iii)

 

By cessation of Tax-Deferred Contributions and After-Tax Contributions under the Plan, or

 

 

 

 

 

(iv)

 

By other distributions or nontaxable (at the time of the loan) loans from plans maintained by the Employer or by any other employer, or by borrowing from commercial sources on reasonable commercial terms in an amount sufficient to satisfy the need, and

 

 

(b)

 

the Administrative Committee does not have actual knowledge to the contrary.

For purposes of the immediately preceding sentence, a need cannot reasonably be relieved by one of the actions listed

32


 

above if the effect would be to increase the amount of the need.

10.4

 

When a withdrawal is made under the Plan, the amount of such withdrawal shall be paid from a Member’s balance in each of the investment funds in which the Member’s Accounts are then invested determined as of the last business day preceding the date as of which the withdrawal is made and the amount of the withdrawal in all cases shall be paid ratably from each of the investment funds in the proportion that each such fund bears to the total of the Member’s balances in all such investment funds. Any distribution on account of a withdrawal shall be made only by a single lump sum payment in cash to the Member.

ARTICLE XI

DISTRIBUTIONS

11.1

 

(a) Upon a termination of service with all Employers by a Member who is 100% vested in his Employer Contribution Account, except by reason of the death of the Member, and subject to the provisions of sub-section 11.1(d), the Member shall have distributed to him the amounts credited to his Accounts as soon as practicable following, such termination of service; provided that, if the amounts so credited exceed the maximum dollar amount that may be distributed without the consent of a Member pursuant to Section 411(a)(11) of the Internal Revenue Code (“Applicable Dollar Amount”) (which amount was increased to $5,000 effective January 1, 1998 for this Plan and plans merged into this Plan), the Member may elect to delay distribution (and no distribution may be made prior to the end of the calendar year in which the Member attains age 70 1/2 absent his election to receive a distribution) in which case the amounts credited to his Accounts shall be distributed as of such subsequent date as the Member may elect in accordance with Section 11.3 subject to the limitations set forth in Section 11.6.

(b) Upon a vesting occurrence described in sub-section 8.3(c), there shall be distributed to each affected Member, in a single lump sum payment, the amounts credited to his Accounts as soon as possible following, such vesting occurrence.

(c) Upon a Member’s termination of service by reason of death, there shall be distributed to his Beneficiary, in accordance with Section 11.3, the amounts credited to such Member’s Accounts as soon as possible following such Member’s death.

(d) A Member who terminates employment with all Employers, but who is transferred without intervening employment to the employ of an Affiliated Company located in the United States

33


 

which is not an Employer, shall not be entitled to a distribution of his Accounts pursuant to sub-section 11.1(a) until the termination of his employment with such Affiliated Company (or any other Affiliated Company located in the United States to which he is subsequently transferred without intervening employment), but he shall be entitled to elect, in lieu of any other benefit or form of distribution payable under the Plan, to have the amounts credited to his Accounts transferred directly to a thrift or savings plan maintained by the Affiliated Company which employs such Member, subject to the acceptance of such transferred amounts by the administrator of such thrift or savings plan.

11.2

 

Upon a termination of service with all Affiliated Companies by a Member who is not 100% vested in his Employer Contribution Account, there shall be distributed to him, in accordance with Section 11.3, the amounts credited to his Basic After-Tax Contribution, Basic Tax-Deferred Contribution, Supplemental After-Tax Contribution, Supplemental Tax-Deferred Contribution and Rollover Contribution Accounts and the vested balance (which may be zero) in his Employer Contribution Account as soon as practicable following, the date of such termination of service. The non-vested balance in his Employer Contribution Account shall be forfeited as soon as possible following, the Member’s termination of service and applied as permitted in Article XII. Notwithstanding the foregoing provisions of this paragraph, if the vested balance in the Member’s Accounts exceeds the Applicable Dollar Amount (as defined in sub-section 11.1(a) of the Plan, then (a) such distribution shall not be made to the Member prior to the end of the calendar year in which he attains age 70 1/2, unless such Member requests an earlier distribution, and (b) the non-vested balance in such Member’s Employer Contribution Account shall not be forfeited prior to the earlier to occur of (i) the distribution of the Member’s entire vested Accounts or (ii) the Member’s incurring a five-year break in service (as hereinafter defined).

If (a) a Member’s service with all Affiliated Companies terminates under circumstances covered by this Section 11.2 prior to becoming fully vested in his Employer Contribution Account, and (b) he is subsequently rehired by an Employer or an Affiliated Company prior to incurring a five-year break in service, there shall be re-credited to his Accounts, as soon as practicable following his date of rehire, the amount of the non-vested balance in his Employer Contribution Account forfeited by him (without interest) and he shall thereafter be treated as if his service had not theretofore terminated. The amount so to be re-credited to Members’ Accounts in a Plan Year shall be deducted from any forfeitures for such Plan Year and, to the extent such forfeitures are not sufficient, Employer Contributions shall be increased.

34


 

If (a) a Member’s service with all Affiliated Companies terminates under circumstances covered by this Section 11.2 prior to becoming fully vested in his Employer Contribution Account, and (b) he is subsequently rehired after incurring a five-year break in service, he shall be eligible to re-participate in the Plan on his date of reemployment but shall have no right to have re-credited to his Accounts any amount forfeited by him by reason of the termination of service. Notwithstanding the foregoing, no forfeiture under the Plan shall occur after termination of the Plan or complete discontinuance of contributions as provided in Section 17.2.

For this purpose, a five-year break in service is a period of 60 consecutive months, beginning with the date on which the Member’s Continuous Employment ceases and during which the Member does not resume Continuous Employment. In determining whether a Member has a five-year break in service, the first 24 months of any Maternity or Paternity Absence shall be disregarded.

11.3

 

Distribution of Accounts.

The distribution of Accounts under this Plan shall be governed by the following rules:

 

(a)

 

Termination of service described in Section 11.2 . A distribution of Accounts pursuant to Section 11.2 in the event of termination of service with all Affiliated Companies by a Member who is not 100% vested in his Employer Contribution Account can be made under any of the payment methods set forth in Section 11.3 (b).

 

 

 

 

 

(b)

 

Vesting occurrence other than death . Any distribution of Accounts, pursuant to Section 11.1, to a Member who is 100% vested in his Employer Contribution Account, except by reason of death, and subject to the provisions of sub-section 11.1(d), shall be made, subject to sub-section 11.3(b) and Section 11.6, in one of the following ways selected by the Member, commencing, in each case, as soon as practicable after, the amount to be distributed is determined and provided, however, that if the aggregate value of a Member’s Accounts does not exceed the Applicable Dollar Amount (as defined in sub-section 11.1(a) the distribution will be made only in one lump sum:

 

(i)

 

in one lump sum payable at any time up to the end of the calendar year in which the Member attains age 70 1/2; or

 

 

 

 

 

(ii)

 

in part in one lump sum with the balance in installments, commencing no later than the end

35


 

 

of the calendar year in which the member attains age 70 1/2; or

 

(iii)

 

in installments, commencing no later than the end of the calendar year in which the Member attains age 70 1/2; or

 

 

 

 

 

(iv)

 

effective March 1, 2001, up to two partial lump sum payments each calendar year, as selected by the Member, until the Member’s Accounts in the Plan are fully distributed, provided, however, that if the Member’s Accounts have not been fully distributed by the end of the calendar year in which the Member attains age 70 1 / 2 , the balance shall be distributed commencing by the end of the calendar year in which the Member attains age 70 1 / 2 in one lump sum or in installments.

In no event, however, may any payment pursuant to this sub-section (ii) be payable over a period extending beyond the life expectancy of the Member or the joint life and last survivor expectancy of the Member and his spouse. The amount of any distribution to be made in installments shall be held in such Investment Funds under the Plan as elected by the Member, participating proportionately in the gains, losses, income and expenses of such Funds during the distribution period. A Member who is to receive distributions in installments may elect to receive monthly or annual installments. If distributions are made in monthly installments, the amount of each monthly installment shall be determined as of the day of distribution, by dividing the amount then remaining on hand for distribution by the number of monthly installments yet to be made. If distributions are made in annual installments, the amount of each annual installment shall be determined as of the date as of which distributions commence and as of each anniversary thereof by dividing the amount then remaining on hand for distribution by the number of annual installments yet to be made.

A Member who has not commenced receiving payments from his Accounts may change his selection of payment methods under this subsection by calling the Siemens Benefit Service Center or by any other means prescribed by the Administrative Committee.

 

(c)

 

Death . If (i) the Member dies before any payments of his Accounts in the Plan have been made to him and the

36


 

 

 

 

aggregate value of the member’s Accounts does not exceed the Applicable Dollar Amount (as defined in sub-section 11.1 (a)) or (ii) the Member dies after payments of his Accounts in the Plan have commenced and there is still a remaining amount in the member’s Accounts in the Plan, the Member’s Beneficiary may select a distribution of the Member’s Accounts in one of the following ways:

 

A.

 

If the Member’s Beneficiary is the spouse of the Member:

 

 

(1)

 

in one lump sum, payable at any time up to the later of the end of the calendar year in which the Member would have attained age 70 1 / 2 or the end of the calendar year in which the Member dies; or

 

 

 

 

 

(2)

 

in part in one lump sum with the balance in installments; over a period not to exceed the life expectancy of the spouse, commencing no later than the later of the end of the calendar year in which the Member would have attained age 70 1 / 2 or the end of the calendar year in which the Member dies; or

 

 

 

 

 

(3)

 

in installments over a period not to exceed the life expectancy of the spouse, commencing no later than the later of the end of the calendar year in which the Member would have attained age 70 1 / 2 or the end of the calendar year in which the Member dies; or

 

 

 

 

 

(4)

 

Effective March 1, 2001, up to two partial lump sum payments each calendar year, as elected by the Spouse, until the Member’s Accounts in the Plan are fully distributed, provided, however, that if the Member’s Accounts have not been fully distributed by the later of the end of the calendar year in which the Member attains age 70 1 / 2 or the end of the calendar year in which the member dies, the balance shall be distributed commencing as of the end of such calendar year in installments over a period not to exceed the life expectancy of the spouse or as a lump sum.

     The amount of any distribution to be made in installments to the spouse of a Member shall be held in such Investment Funds under the Plan as elected by the spouse, participating proportionately in the gains, losses, income

37


 

and expenses of such Funds during the distribution period. If distributions are made in monthly installments, the amount of each monthly installment shall be determined as of the day of distribution, by dividing the amount then remaining on hand for distribution by the number of monthly installments yet to be made. If distributions are made in annual installments, the amount of each annual installment shall be determined as of the date as of which distributions commence and as of each anniversary thereof by dividing the amount then remaining on hand for distribution by the number of annual installments yet to be made.

 

B.

 

If the Member’s Beneficiary is not the spouse of the Member :

 

 

 

 

 

(1)

 

in one lump sum payable as soon as practicable after the death of the Member; or

 

 

 

 

 

(2)

 

in one lump sum payable on the December 31 st following the fifth anniversary of the death of the Member.

C. Notwithstanding any of the provisions of this Section 11.3 (iii) to the contrary, if a Member dies after the end of the calendar year in which the member attains age 70 1 / 2 while still receiving payments from his Accounts in the Plan, the payment methods available to a member’s Beneficiary (whether or not the Beneficiary is the spouse of the Member) is subject to the minimum distribution requirements of Section 401 (a) (9) of the Code.

D. If a Member has not designated a Beneficiary for the Member’s Accounts, or if no Beneficiary designation is effective, or if the beneficiary pre-deceases the member without another beneficiary being designated, the member’s Accounts shall be paid in accordance with the provisions of Section 16.7(b) of the Plan.

 

(iv)

 

Transfer of Accounts to Plan of Affiliated Company

A Member who terminates employment with the Employers but who is transferred without intervening employment to the employ of an Affiliated Company which is not an Employer, shall be entitled to elect, in lieu of any other benefit or form of distribution payable under the Plan, to have the amounts credited to his Accounts transferred directly to a qualified thrift or savings plan maintained by the Affiliated Company which employs such Member.

 

(v)

 

With respect to distributions under the Plan made

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in calendar years beginning on or after January 1, 2001, the Plan will apply the minimum distribution requirements of Section 401(a)(9) of the Internal Revenue Code in accordance with the regulations under Section 401(a)(9) that were proposed in January 2001, notwithstanding any provision of the Plan to the contrary. This provision shall continue in effect until the end of the last calendar year beginning before the effective date of final regulations under Section 401(a)(9) or such other date specified in guidance published by the Internal Revenue Service.

11.4

 

Distributions shall be charged to the Member’s Accounts in the Fund. The amount of any distribution of less than the Member’s entire balance in his Accounts shall be paid from the Member’s Account in the Plan according to the following order: Supplemental After-Tax Contribution Account, Basic After-Tax Contribution Account, Rollover Contribution Account, Employer Contribution Account, GSOP Account, Supplemental Tax-Deferred Contribution Account, and Basic Tax-Deferred Contribution Account

11.5

 

The distributable amount in a Member’s Account shall be determined on the basis of the value of such Account on the day preceding the date as of which such distribution is effected.

 

11.6

 

Unless a Member otherwise elects, the distribution of benefits under the Plan to him shall commence no later than the 60th day after the latest of the close of the Plan Year in which (a) the Member attains age 65, (b) the Member completes 10 years of participation in the Plan, or (c) the Member terminates his service with the Employers and the Affiliated Companies. Notwithstanding the preceding sentence, a Member whose total vested Accounts exceed the Applicable Dollar Amount (as defined in subsection 11.1(a) of the Plan) shall be required to file a claim for benefits before the payment of benefits will commence, except as may be otherwise required in order to comply with the distribution requirements hereinafter set forth in this Section 11.6. Anything in this Plan to the contrary notwithstanding, effective January 1, 1999, distributions under the Plan to a Member (other than a 5-percent owner, as defined below) shall commence no later than April 1 of the calendar year next following the later of (i) the calendar year in which he attains age 70 1 / 2 or (ii) the calendar year in which the Member terminates his service with the Employers and the Affiliated Companies. However, notwithstanding the immediately preceding sentence any Member who has attained age 70 1 / 2 before January 1, 1999 and is still employed with an Affiliated Company, and who is not a 5-percent owner of an Employer within the meaning of

39


 

 

Section 4 (i)(1)(B)(i) of the Internal Revenue Code (“5- Percent Owner”) shall have a one-time election to either continue receiving or begin to receive distributions of his benefit from the Plan under Section 401(a)(9) of the Internal Revenue Code or else defer receipt of any further benefit payments until he actually retires. If the Member is a 5-Percent Owner, distribution of such Member’s Accounts under the Plan shall commence no later than April 1 of the calendar year next following the calendar year in which he or she attains age 70 1 / 2 , even if such Member has not yet terminated from employment.

11.7

 

A Member terminating service with the Employers who elects (or, by operation of sub-section 11.1(a) or 11.1(d) or the first paragraph of Section 11.2, is deemed to have elected) to defer the distribution of his vested Accounts shall continue to be entitled to direct the investment of such vested Accounts in accordance with Article VII pending distribution.

11.8

 

Prior to the time a Member commences to receive payments from his Accounts, the Member may change the payment method he has selected under subsection 11.3 (b). A Member who is receiving payments from his Accounts and who has selected an installment method of payment under subsection 11.3(a)(ii) may change the remaining period over which the installment payments shall be made, including selecting an immediate single lump sum payment of the remaining balance, provided, however, the modified payment period cannot exceed the life expectancies of the Member and the Member’s spouse.

The Beneficiary of a Member may change the payment method the Beneficiary has selected under subsection 11.3 (c) prior to the time the Beneficiary commences to receive payments from the Account of the Member. If a Member’s spouse has selected an installment method of payment under subsection 11.3(c), the spouse may change the remaining period over which the installment payments shall be made, including selecting an immediate single lump sum payment of the remaining balance, provided, however, the modified payment period cannot exceed the life expectancy of the spouse.

11.9

 

Effective with withdrawals or distributions made on or after January 1, 1993, notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee’s election under this Article, a distributee may elect, at the time and in the manner prescribed by the Plan administrator, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. Such distribution may commence less than 30 days after the notice required under Section 1.411(a)-11(c) of the Income Tax Regulations is given, provided that:

40


 

 

 

(1)

 

the Plan administrator clearly informs the Member that the Member has a right to a period of at least 30 days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option), and

 

 

(2)

 

the Member after receiving the notice, affirmatively elects a distribution.

For purposes of this Section, an eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee’s designated beneficiary, or for a specified period of ten years of more; any distribution to the extent such distribution is required under Section 401(a)(9) of the Internal Revenue Code; any hardship distribution under Section 401(k)(2)(B)(i)(IV) of the Internal Revenue Code; and the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities).

For the purpose of this Section, an eligible retirement plan is an individual retirement account described in Section 408(a) of the Internal Revenue Code, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code, an annuity plan described in Section 403(a) of the Internal Revenue Code, or a qualified trust described in Section 401(a) of the Internal Revenue Code, that accepts the distributee’s eligible rollover distribution. However, in the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity.

For purposes of this Section, a distributee includes an Employee or former Employee. In addition, the Employee’s or former Employee’s surviving spouse and the Employee’s or former Employee’s spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in section 414(p) of the Internal Revenue Code, are distributees with regard to the interest of the spouse or former spouse.

For purposes of this Section, a direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee.

41


 

ARTICLE XII

APPLICATION OF FORFEITURES

Any amount which shall be forfeited by a Member pursuant to Section 4.2, 5.2, 6.8 or 11.2 shall be applied, as soon as practicable, to reduce Employer Contributions.

ARTICLE XIII

FUNDING

The Company, by the action of the Board of Directors, shall designate the Trustee or Insurance Company to act under the Plan. The Company may, without reference to or action by any Employee, Member or Beneficiary or any other Employer, enter into a Trust Agreement with the Trustee or a contract or policy with the Insurance Company and from time to time enter into further agreements with either amending the same. The Company may at any time remove the Trustee and appoint a successor Trustee or may designate an additional or substitute Insurance Company.

ARTICLE XIV

ADMINISTRATION

14.1

(a)

 

The Plan shall be administered by the Administrative Committee and the Investment Committee which shall have the respective powers, duties and responsibilities set forth in specific provisions of the Plan and otherwise in accordance with the Sections of this Article XIV for carrying out the provisions of the Plan.

 

 

 

 

 

(b)

 

There shall be nine members of the Administrative Committee, composed of the Director of Employee Benefits of the Company, as chairperson, the Vice President, Controller of the Company and seven representatives of Affiliated Companies located in the United States designated from time to time by the Vice President of Human Resources of the Company. There shall be three members of the Investment Committee, composed of the Chief Financial Officer of the Company, as chairperson, the Vice President, Treasurer of the Company, and the Vice President — Human Resources of the Company. Effective March 1, 2001, there shall be six members of the Investment Committee, composed of the Chief Financial Officer of the Company, as chairperson; Vice President, Treasurer of the Company; Vice President – Human Resources of the Company; Senior Vice President – Legal Counsel of the Company; Vice President – Mergers & Acquisitions of the Company; and Vice President – Accounting & Controls of the Company. A member of either of the Committees may, but need not be a Member of the Plan. Each person appointed a

42


 

 

 

 

 

member of either of the Committees shall signify his acceptance by filing a written acceptance with the Board of Directors and with the secretary of the applicable Committee. Any member of either of the Committees may be removed by the Board of Directors or may resign by delivering his written resignation to the Board of Directors and to the secretary of the applicable Committee.

 

 

 

 

 

(c)

 

The chairperson of each of the Committees shall appoint a secretary, who need not be a Member of the Plan nor a member of such Committee. Each of the Committees may delegate to one or more sub-committees comprised of its members the powers of such Committee as its members shall determine; may authorize one or more of its members or any agent to exercise any of such Committee’s powers, ministerial or discretionary, or to execute or deliver any instrument or make any payment in its behalf; and may employ such counsel, accountants, actuaries and other agents and clerical services as it requires in carrying out the provisions of the Plan over which such Committee has any responsibility.

 

 

 

 

 

(d)

 

Each of the Committees shall hold meetings upon such notice, at such place or places, and at such time or times as its members may determine from time to time. A numerical majority of the members of the applicable Committee then in office shall constitute a quorum for the transaction of such Committee’s business. All resolutions or other actions taken by the applicable Committee shall be by the vote of a three-fifths majority of those present at a meeting, or by a writing signed by at least three-fifths of all members at the time in office if they act without a meeting.

 

 

 

 

 

(e)

 

All expenses incurred in connection with the administration of the Plan and the Fund including, but not limited to, administrative expenses and proper charges and disbursements of the Trustee, Insurance Company and the Committees, and compensation and other expenses and charges of any actuary, legal counsel, accountant, investment adviser, broker, specialist or other person employed by the Trustee, Insurance Company or either of the Committees, shall be paid from the Fund unless paid by the Employers; provided, however, that no member of either of the Committees shall receive any compensation for his services as such except as the Act may permit.

43


 

 

14.2

(a)

 

The Administrative Committee shall be responsible for the administration, interpretation and compliance requirements pertaining to the Plan. These responsibilities include, but are not limited to, reviewing claims and adjudicating appeals; monitoring Plan compliance with laws, regulations and court decisions as related to Plan design, administration, communication and reporting requirements; approving actuarial tables for optional forms of benefit payments; and approving, jointly with the Investment Committee, the payment of administrative expenses from the Fund. Subject to the provisions of the Plan, the Administrative Committee shall from time to time establish rules for the carrying out of its duties and responsibilities under the Plan.

 

 

 

 

 

(b)

 

If any claim for benefits under the Plan is denied, the Administrative Committee shall give notice in writing, by registered or certified mail, of such denial to the affected Member or Beneficiary, setting forth the specific reasons for such denial and advising him that he may request further review by the Administrative Committee of the decision denying such claim by filing with the Administrative Committee, within 60 days after the date of mailing of such notice, a request for such review. If the Member or Beneficiary files such request for review, such review shall be made within 60 days after the receipt of a written request for such review unless a hearing is necessitated to determine the facts and circumstances, in which event a decision shall be rendered as soon as possible, but not later than one hundred and twenty (120) days after receipt of a written request for such review.

 

 

 

 

 

(c)

 

The decisions of the Administrative Committee or its actions with respect to the Plan and the records of the Committees shall be conclusive and binding upon each Employer and all persons having or claiming to have any right or interest in the Plan or Fund. The Administrative Committee has full and exclusive discretionary authority under the Plan to determine eligibility for benefits and to construe the terms of the Plan. Any interpretation or determination made pursuant to such discretionary authority shall be given full force and effect unless it can be shown that the interpretation or determination was arbitrary and capricious.

 

14.3

(a)

 

The Investment Committee shall be responsible for investing the assets of the Plan and monitoring the investment performance of the investment funds made available from time to time under the Plan for investment of Members’ Accounts. The Investment Committee also shall be responsible for selecting and

44


 

 

monitoring the appropriate fund managers for each such investment fund, and shall be responsible for selecting and monitoring the Trustee and/or Insurance Company. These responsibilities include, but are not limited to, determining asset allocation; insuring compliance with laws, regulations and court decisions concerning Plan assets; and, approving jointly with the Administrative Committee, fees paid from the Fund for investment managers, Trustee fees, and related charges.

 

(b)

The decisions of the Investment Committee or its actions with respect to the Plan and the records of the Committees shall be conclusive and binding upon each Employer and all persons having or claiming to have any right or interest in the Plan or Fund.

14.4

 

The members of each of the Committees and each Employer and the officers and directors of each Employer, shall be entitled to rely upon all tables, valuations, certificates and reports made by any duly appointed actuary or accountant, and upon all opinions given by any duly appointed legal counsel. The members of each of the Committees, and each Employer and the officers and directors thereof, shall be fully protected in respect of any action taken or permitted by them in good faith in reliance upon such tables, valuations, certificates, reports or opinions and all actions so taken or permitted shall be conclusive upon each of them and upon all persons having or claiming to have any interest in or under the Plan. With respect to actions so taken, no member of either of the Committees or any officer or director of an Employer shall be personally liable by virtue of any instrument made or executed by him or on his behalf as a member of the applicable Committee or as an officer or director of an Employer, or any mistake of judgment made by him or any other member of the applicable Committee or any other officer or director of an Employer, nor for any neglect, omission or wrongdoing of any other member of the applicable Committee or of any other officer or director of an Employer or of anyone employed by an Employer, nor for any loss unless resulting from his own gross negligence or willful misconduct, except as the Act may otherwise require. Each person who is or has been a member of either of the Committees or who is or has been an officer or director of an Employer shall be indemnified, with respect to actions so taken, by the Employers against expenses and losses (including amounts paid in settlement with the approval of the Company) reasonably incurred by him in connection with any action, suit or proceeding to which he may be a party or with which he shall be threatened by reason of his being, or having been, a member of the applicable Committee or an officer or director of an Employer, except in relation to matters as to which he shall be adjudged in such action, suit or proceeding to be liable for gross negligence or willful misconduct in the

45


 

 

performance of his duty as such member of the applicable Committee or as an officer or director of an Employer. The foregoing rights of indemnification shall be in addition to any other rights to which any such member of each of the Committees or such officer or director of the Employer may be entitled as a matter of law.

ARTICLE XV

APPROVAL BY THE INTERNAL REVENUE SERVICE

15.1

 

The Company intends to secure a determination that the Plan continues to be a qualified Plan under Section 401 of the Internal Revenue Code.

15.2

 

Any modification or amendment of the Plan or the Trust Agreement or Insurance Company contract may be made retroactively by the Company, if necessary or appropriate to cause the Plan to qualify or maintain its qualification as a plan and/or trust meeting the requirements of applicable sections of the Internal Revenue Code and/or other Federal and State laws, as now in effect or hereafter amended or enacted or a determination to that effect. Any such modification or amendment, however, shall not adversely affect any right or obligation of any Member theretofore accrued.

ARTICLE XVI

GENERAL PROVISIONS

16.1

 

All elections, notices, designations and other communications to the Administrative Committee shall be in the respective forms from time to time prescribed by the Administrative Committee and shall be mailed or delivered to the Administrative Committee in care of the Member’s Employer, and shall be deemed to have been duly given upon receipt by the Administrative Committee.

16.2

 

The establishment of the Plan shall not be construed as conferring any legal rights upon any Employee or any other person for a continuation of employment, nor shall it interfere with the rights of any Employer to discharge any Employee and/or to treat him without regard to the effect which such treatment might have upon him as a Member.

 

16.3

 

All benefits payable under the Plan shall be paid or provided for solely from the Fund and neither the Company nor any other Employer assumes any liability therefor. The Plan is intended to constitute a plan described in Section 404(c) of the Act and the regulations thereunder, and the fiduciaries of the Plan may be relieved of liability for any losses which are the direct and necessary result of investment instructions given by a Member or Beneficiary.

46


 

 

Each Member assumes all risk connected with any decrease in the market value of any assets held by the Trustee or Insurance Company under the Plan. Neither the Trustee, the Committees nor any Employer in any way guarantees the Fund against loss or depreciation, or the payment of any amount which may be or become due to any person from the Fund.

16.4

 

If any person to whom a payment is due hereunder is a minor or is determined by the Administrative Committee to be incompetent by reason of physical or mental disability, the Administrative Committee shall have the power to cause the payments becoming due to such person to be made to another for the benefit of the minor or incompetent, without responsibility of any Employer, the Committees, the Trustee or the Insurance Company to see to the application of such payment. Payments made pursuant to such power shall operate as a complete discharge of all Employers, the Committees, the Trustee, the Insurance Company and the Fund.

16.5

 

No right or interest of any Member in the Plan shall be alienable, assignable or transferable, or, to the extent permitted by law, subject to any lien, in whole or in part, either directly or by operation of law, or otherwise, including, but not by way of limitation, execution, levy, garnishment, attachment, pledge, bankruptcy, or in any other manner, and no right or interest of any Member in the Plan shall be liable for, or be subject to, any obligation or liability of such Member. This Section 16.5 shall apply to the creation, assignment or recognition of a right to any benefit payable with respect to a Member pursuant to a domestic relations order but shall not apply if the order is determined by the Administrative Committee to be a qualified domestic relations order within the meaning of Section 414(p) of the Internal Revenue Code. Notwithstanding any provision of the Plan to the contrary, benefits shall be payable in accordance with the applicable terms of a qualified domestic relations order. Also, notwithstanding any provision of the Plan to the contrary, a Member’s benefits assigned to an alternate payee, within the meaning of Section 414(p)(8) of the Internal Revenue Code, under a qualified domestic relations order which provides that such assignment is to be immediately distributable, can be distributed to such alternate payee as soon as administratively possible after a determination is made by the Administrative Committee that such assignment is made pursuant to a qualified domestic relations order, even if the Member is still employed by an Employer.

47


 

 

16.6

 

In the event any distribution mailed to a Member or Beneficiary at his or her last known address remains unclaimed by the Member or Beneficiary, as the case may be, for a period of 24 months and payment cannot be made alternatively to the estate of either and no surviving spouse, child, parent, brother or sister, or grandchild of the Member or Beneficiary are known to the Employer or the Trustee or the Insurance Company, or if known, cannot with reasonable diligence be located, the amount payable shall be placed in a separate interest bearing fund or otherwise dealt with (including forfeiture, subject to restoration) pending eventual distribution in such manner as the Administrative Committee shall determine in its sole and exclusive discretion, subject to any requirements of applicable law.

 

16.7

 

(a) Any Member may at any time and from time to time designate the Beneficiary to whom the amounts in his Accounts shall be delivered in the event of the death of such Member. Any such designation shall take precedence over any testamentary or other disposition. Such designation or any change or cancellation of such designation under this Plan shall become effective only upon the receipt thereof by the Administrative Committee as provided in Section 16.1, and shall then relate back to the date of its execution; provided, however, that neither the Trustee, the Insurance Company, the Committees, the Company nor any Employer shall be liable by reason of any payment made before receipt of such designation, change, or cancellation to the Member’s estate or to any Beneficiary theretofore designated. Notwithstanding the foregoing, if a Member is married, the Member shall be deemed to have designated his spouse as his Beneficiary (regardless of whether any contrary designation is then on file with the Administrative Committee) and such spouse shall be his Beneficiary for purposes of the Plan, unless the Member designates another person or persons as his Beneficiary with the contemporaneous consent of such spouse (which consent must be in writing and witnessed by a notary public).

(b) If no Beneficiary designation is effective pursuant to this Section 16.7 or if the Administrative Committee or the Trustee or the Insurance Company shall be in doubt as to the right of any claimant, or if a designated Beneficiary shall predecease the Member, the amount in question may, in the discretion of the Administrative Committee, be paid directly to the estate of the Member, in which event the Trustee, the Insurance Company, the Employers, the Company and the Committees shall have no further responsibility or liability with respect thereto. However, notwithstanding the immediately preceding paragraph, effective April 1, 2001, if no Beneficiary designation is effective pursuant to this Section 16.7 or if the Administrative Committee or the Trustee or the Insurance Company shall be in doubt as to the

48


 

right of any claimant, or if a designated Beneficiary shall predecease the Member, the amount in question shall be paid first to the surviving spouse; if no surviving spouse, then to all the surviving children in equal shares and, if no surviving spouse or surviving children, then to the estate of the Member.

(c) Upon receipt by the Administrative Committee of evidence satisfactory to it of the death of a Member and of the existence and identity of the Beneficiary designated by the Member entitled to benefits, the Trustee or Insurance Company shall pay to such Beneficiary an amount equal to the balance of the Member’s Accounts in accordance with the provisions of Section 11.1.

16.8

 

Notwithstanding anything in the Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with Section 414(u) of the Internal Revenue Code. The Plan will comply with any applicable provisions of the Uniformed Services Employment and Reemployment Acts Rights of 1994, effective as of the relevant effective dates of such Act.

16.9

 

The Administrative Committee is designated as the agent of each Employer and of the Plan for service of process to commence any legal proceeding against the Employer or against the Plan, pertaining to this Plan or the determination of any rights hereunder.

 

16.10

 

The validity of the Plan or any of its provisions shall be determined under, and it shall be construed and administered according to, the laws of the State of New York, except as may be required by any provision of the Act.

ARTICLE XVII

AMENDMENT AND TERMINATION

17.1

 

The Company, by action of the Board of Directors, at any time or from time to time, may amend or modify the Plan to any extent that it may deem advisable. No such amendment shall:

 

(1)

 

increase the duties and responsibilities of the Trustee or Insurance Company without its consent;

 

 

 

 

 

(2)

 

have the effect of re-vesting in any Employer the whole or any part of the principal or income of the Fund or of diverting any part of such principal or income to purposes other than for the exclusive benefit of the Members and their Beneficiaries; or

 

 

 

 

 

(3)

 

cause any reduction in any Member’s Accounts (within

49


 

 

the meaning of Section 411(d)(6) of the Internal Revenue Code) or his vested interest therein.

If any vesting schedule under the Plan is amended, each Member who has completed at least three (3) years of Continuous Employment, to whom such vesting schedule was applicable and whose vested percentage could be less if the amended schedule were applied to him, shall be entitled to elect to remain subject to the vesting schedule(s) in effect prior to such amendment.

17.2

 

The Company, by action of the Board of Directors, at any time may discontinue all Contributions under the Plan or terminate the Plan in whole or in part. Each Employer may, by action of its Board of Directors, take similar action as to Members who are its employees. Upon complete discontinuance of contributions under the Plan or complete or partial termination of the Plan as to any Members hereunder, the Accounts of such affected Members shall become fully vested, and shall not thereafter be subject to forfeiture.

17.3

 

The Plan may be merged into or consolidated with another plan, and its assets or liabilities may be transferred to another plan. However, no merger or consolidation with, or transfer of assets or liabilities to, any other plan shall occur unless each Member of the Plan would (if the plan then terminated) receive a benefit immediately after the merger, consolidation or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidation or transfer (if this Plan had then terminated).

ARTICLE XVIII

TOP-HEAVY PROVISIONS

18.1

 

Notwithstanding any other provision of this Plan to the contrary, this Article XVIII shall apply for any Plan Year commencing on or after October 1, 1984 if the Plan is a “Top-Heavy Plan” as defined herein. The Plan shall be a “Top-Heavy Plan” if, as of the Determination Date relating to such Plan Year, the present value of the cumulative accrued benefits of Key Employees exceeds sixty percent (60%) of the present value of the cumulative accrued benefits under the Plan of all employees (but excluding the value of the accrued benefits of Non-Key Employees who were formerly Key Employees and excluding the value of the accrued benefits of any employee who has not performed any services for an Employer or Affiliated Company at any time during the five-year period ending on the Determination Date). In determining whether this Plan is a Top-Heavy Plan, the Employers and all Affiliated Companies shall be treated as a single employer. In addition, all plans that

50


 

 

are part of the Aggregation Group shall be treated as a single plan.

For purposes of the foregoing, the present value of an employee’s accrued benefit shall be equal to the sum of the amounts determined under the following paragraphs:

 

(a)

 

The sum of (i) the present value of an employee’s accrued benefits in each defined benefit plan which is included in the Aggregation Group determined as of the most recent valuation date within the twelve (12) month period ending on the Determination Date and as if the employee had terminated service as of such valuation date and (ii) the aggregate distributions made with respect to such employee during the five-year period ending on the Determination Date from all defined benefit plans included in the Aggregation Group and not reflected in the present value of his accrued benefits as of the most recent valuation date; and

 

 

 

 

 

(b)

 

The sum of (i) the aggregate balance of his accounts in all defined contribution plans which are part of the Aggregation Group as of the most recent valuation date within the twelve (12) month period ending on the Determination Date, (ii) any contributions allocated to such accounts after the valuation date and on or before the Determination Date and (iii) the aggregate distributions made with respect to such employee during the five-year period ending on the Determination Date from all defined contribution plans which are part of the Aggregation Group and not reflected in the value of his accounts as of the most recent valuation date.

The account or the present value of the accrued benefit of any employee shall be determined as provided in Section 416 of the Internal Revenue Code and the regulations thereunder for the first and second plan years of a defined benefit plan. Solely for the purpose of determining if the Plan, or any other plan included in the Aggregation Group of which this Plan is a part, is a Top-Heavy Plan, the accrued benefit of an employee other than a Key Employee shall be determined under (1) the method, if any, that uniformly applies for accrual purposes under all plans maintained by the Employers and Affiliated Companies, or (2) if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional accrual rate of Section 411(b)(1)(C) of the Internal Revenue Code. Plan-to-plan transfers and rollovers shall be taken into account to the extent provided in the applicable Treasury Regulations. In addition, for purposes of paragraphs (a)(ii) and (b)(iii) above, distributions under a terminated plan which, if such plan had not terminated, would have been required to be included in an Aggregation Group, shall also be taken into account.

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     18.2 The following terms shall have the following meanings:

 

(a)

 

“Aggregation Group” means

 

(i)

 

Each stock bonus, pension, or profit sharing plan of an Employer or Affiliated Company in which a Key Employee participates and which is intended to qualify under Section 401(a) of the Internal Revenue Code; and

 

 

 

 

 

(ii)

 

Each other such stock bonus, pension or profit sharing plan of an Employer or Affiliated Company which enables any plan in which a Key Employee participates to meet the requirements of Section 401(a)(4) or 410 of the Internal Revenue Code; and

 

 

 

 

 

(iii)

 

Each other such stock bonus, pension or profit sharing plan of an Employer or Affiliated Company which the Administrative Committee designates as part of the Aggregation Group provided that the resulting group meets the requirements of Sections 401(a) and 410 of the Internal Revenue Code.

 

 

(b)

 

“Determination Date” means the last day of the preceding Plan Year, except that for the first plan year of any plan, the Determination Date shall be the last day of such plan year.

 

 

 

 

 

(c)

 

“Key Employee” means an employee, former employee, or the beneficiary under the Plan of a former employee who, in the Plan Year containing the Determination Date, or any of the four preceding Plan Years, is:

 

(i)

 

An officer of an Employer or Affiliated Company having an annual compensation greater than 50% of the maximum dollar limitation under Section 415(b)(1)(A) of the Internal Revenue Code for such Plan Year. Not more than fifty (50) employees or, if less, the greater of three (3) employees or ten percent (10%) of the employees shall be considered as officers for purposes of this paragraph.

 

 

 

 

 

(ii)

 

One of the ten (10) employees owning (or considered as owning within the meaning of Section 318 of the Internal Revenue Code) the largest interest in the Employers and Affiliated Companies and having an annual compensation greater than the maximum dollar limitation under Section 415(c)(1)(A) of the Internal Revenue Code, provided, however, that if two employees

52


 

 

have the same interest, the employee having the greater annual compensation shall be treated as having the greater interest.

 

(iii)

 

A five-percent (5%) owner of an Employer or Affiliated Company.

 

 

 

 

 

(iv)

 

A one-percent (1%) owner of an Employer or Affiliated Company having an annual compensation from the Employer and Affiliated Companies of more than $150,000.

The determination of an employee’s compensation and his ownership interest in an Employer or Affiliated Company shall be made in accordance with Section 416(i)(1) of the Internal Revenue Code.

 

(d)

 

“Non-Key Employee” means an employee, former employee, or the beneficiary under the Plan of a former employee, if such employee is not a Key Employee.

18.3

 

If this Plan is a Top-Heavy Plan for any Plan Year, the Employer contributions (excluding Tax-Deferred Contributions) to the Plan and all other defined contribution plans included in the Aggregation Plan for such Plan Year on behalf of each Non-Key Employee who is a Member of this Plan (or is eligible for membership) and who is employed by the Employer on the last day of the Plan Year shall not in the aggregate be less than the lesser of (i) three percent (3%) of such Non-Key Employee’s compensation (as defined in Section 415(c)(3) of the Internal Revenue Code)or (ii) the percentage of compensation contributed, or required to be contributed, by the Employer in the aggregate to the Plan and all other defined contribution plans in the Aggregation Group for such Plan Year on behalf of the Key Employee for whom such percentage is the highest, multiplied by such Non-Key Employee’s compensation. A Non-Key Employee shall be entitled to the contribution described in the preceding sentence notwithstanding the number of hours of service performed by him during such Plan Year and regardless of the level of his compensation for such Plan Year. If the amount contributed in the aggregate on behalf of any Non-Key Employee under the Plan and all other defined contribution plans in the Aggregation Group would otherwise be less than the minimum contribution required by this Section 18.3, an additional contribution shall be made to such plan or plans as the Company shall designate so that the minimum contribution requirement set forth in this Section 18.3 is satisfied. For purposes of this Section 18.3, compensation in excess of the limitation set forth in subsection 2.1(h) shall be disregarded.

Notwithstanding the foregoing, this Section 18.3 shall not apply to the extent the minimum benefits and contributions

53


 

required by Section 416 of the Internal Revenue Code are otherwise satisfied in a manner consistent with Treasury Regulations.

 

 

 

 

 

 

 

 

/s/ Roland Orchard

 

 

 

 

 

Roland Orchard

 

 

February 14, 2002

 

Vice President

 

 

 

 

Corporate Human Resources

 

 

 

 

Siemens Corporation

 

 

54


 

 

APPENDIX A

SPECIAL VESTING PROVISION FOR CERTAIN EMPLOYEES OF ROFIN-SINAR, INC.

Notwithstanding the provisions of Section 8.2, a Member who immediately prior to June 1, 1988 was an employee of Spectra-Physics, Inc., and who became an Employee of Rofin-Sinar, Inc. on June 1, 1988, shall vest in his Employer Contribution Account in accordance with the following schedule:

 

 

 

Years of Continuous Employment

 

Vested Percentage

Less than 1 year

 

0%

At least 1 year

 

100%

 


 

APPENDIX B

SPECIAL VESTING PROVISION FOR CERTAIN EMPLOYEES OF ROLM SYSTEMS

Notwithstanding the provisions of Section 8.2, a Member who prior to January 1, 1990 was an employee of ROLM Systems (“Rolm Employee”) shall at all times have a 100% vested interest in his Employer Contribution Account derived from Contributions made for the period commencing September 30, 1989 and ending December 31, 1989. In addition, a Rolm Employee shall at all times have a 100% vested interest in his Accounts derived from the Qualified Plan Transfer Contribution made for him from the IBM Tax Deferred Savings Plan.

 


 

APPENDIX C

ADDITIONAL DISTRIBUTION OPTIONS FOR FORMER PARTICIPANTS IN TEL-PLUS
COMMUNICATIONS, INC. EMPLOYEE RETIREMENT SAVINGS PLAN

     1.  Additional Distribution Options . Notwithstanding the provisions of Section 11.3, a Member who immediately prior to January 1, 1990 was a participant (“Tel-Plus Participant”) in the Tel-Plus Communications, Inc. Employee Retirement Savings Plan (“Tel-Plus Plan”), and whose “Participant’s Account” under the Tel-Plus Plan was transferred to this Plan in accordance with Section 4.10, shall be entitled to receive a distribution of his vested Accounts in one of the additional ways described in paragraphs (i) and (ii) below. If the Tel-Plus Participant is married and elects an option described in Section 11.3 or in paragraph (i) below, he may elect such option only if his spouse consents to such election in a writing witnessed by a notary public within 90 days prior to the commencement of payment under such option:

 

(i)

 

application of the Tel-Plus Participant’s vested Accounts to purchase an annuity contract from an Insurance Company providing for monthly payments over the life of the Tel-Plus Participant with a guarantee of 120 monthly payments (subject to the limitations set forth in sub-section 11.3(a)). Such annuity contract may provide for an increase or decrease in the amount of each monthly payment to reflect changes in the investment performance of the Insurance Company’s underlying portfolio.

 

 

 

 

 

(ii)

 

if the Tel-Plus Participant is married, application of his vested Accounts to purchase an annuity contract providing for reduced monthly payments to the Tel-Plus Participant during his lifetime with monthly payments continuing to his spouse for her remaining life in an amount equal to 50 percent or 100 percent (as the Tel-Plus Participant shall elect) of the amount of the payment made to the Tel-Plus Participant.

 

 

 

 

 

(iii)

 

Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or

1


 

 

 

 

beneficiary, shall be the option or options available under the applicable provisions of Article XI of the Siemens Savings Plan, including with respect to amounts that have been transferred to the Siemens Savings Plan.

2


 

 

APPENDIX D

SPECIAL PROVISIONS FOR FORMER PARTICIPANTS IN BURDICK CORPORATION PLANS

     1.  Salary Savings Plan . The following additional provisions shall be applicable with respect to the participation in the Plan, commencing as of October 1, 1989, of an employee of Siemens Burdick, Inc. (“Burdick Employee”) who immediately prior to such date was a participant in the Burdick Corporation Salary Savings Plan (“Burdick Savings Plan”):

 

(a)

 

Transfer of Accounts . Except as set forth in sub-section D.1(b), the Burdick Employee’s “Participant Account” under the Burdick Savings Plan was transferred to the Plan in accordance with Section 4.10.

 

 

 

 

 

(b)

 

Voluntary Deductible Employee Contribution Accounts . Each Burdick Employee for whom a “Voluntary Deductible Employee Contribution Account” was maintained under the Burdick Savings Plan on September 30, 1989 was entitled to elect either (i) to withdraw the entire amount of such account or (ii) to transfer such account to this Plan, by filing a written election to such effect with the Administrative Committee during an election period provided for such purpose. If such Burdick Employee elected a withdrawal, the appropriate amount was distributed to him as soon as practicable following the close of the election period. If such Burdick Employee elected a transfer to this Plan or made no election, the appropriate amount was transferred to a separate account (“QVEC Account”) for such person under this Plan. A Burdick Employee shall at all times be 100% vested in his QVEC Account. Investment of QVEC Accounts shall be made in accordance with Article VII. No withdrawals may be made from such Burdick Employee’s Rollover, Employer and Tax-Deferred Contribution Accounts unless prior thereto or coincident therewith the Burdick Employee withdraws the entire amount of his QVEC Account. A Burdick Employee may not receive a loan from any amounts in his QVEC Account and such QVEC Account shall not be taken into account in applying the loan provisions set forth in Article IX.

 


 

 

(c)

 

Additional Distribution Options . Notwithstanding the provisions of Section 11.3, a Burdick Employee shall be entitled to receive a distribution of his vested Accounts (including his QVEC Account, if applicable) in one of the additional ways described in paragraphs (i) and (ii) below. If the Burdick Employee is married and elects an option described in Section 11.3 or in paragraph (i) below, he may elect such option only if his spouse consents to such election in a writing witnessed by a notary public within 90 days prior to the commencement of payment under such option:

 

(i)

 

application of the Burdick Employee’s vested Accounts to purchase a non-transferable annuity contract from an Insurance Company providing for monthly payments over the life of the Burdick Employee with either 0, 60 or 120 monthly payments guaranteed (as the Burdick Employee elects, and subject to the limitations set forth in sub-section 11.3(a)); or

 

 

 

 

 

(ii)

 

if the Burdick Employee is married, application of his vested Accounts to purchase an annuity contract providing for reduced monthly payments to the Burdick Employee during his lifetime with monthly payments continuing to his spouse for her remaining life each in amount equal to two-thirds (66-2/3%) of the amount of the payment made to the Burdick Employee.

 

 

 

 

 

(iii)

 

Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or beneficiary, shall be the option or options available under the applicable provisions of Article XI of the Siemens Savings Plan, including with respect to amounts that have been transferred to the Siemens Savings Plan.

2


 

 

 

(d)

 

Spouse’s Death Benefit . Notwithstanding the provisions of sub-section 11.1(c) and Section 11.3, in the event that a Burdick Employee dies and leaves a surviving spouse, unless the Burdick Employee has waived the “Qualified Pre-retirement Survivor Annuity” under the Burdick Savings Plan or has designated another person as his Beneficiary hereunder (with the written consent of such spouse), the Burdick Employee’s vested Accounts shall be applied to purchase an annuity contract from an Insurance Company providing for monthly payments over the life of such spouse. In lieu of such annuity contract, the spouse may elect to receive payment of the Burdick Employee’s vested Accounts in any form permitted by sub-section 11.3(a)(iii). Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or beneficiary, shall be the option or options available under the applicable provisions of Article XI of the Siemens Savings Plan, including with respect to amounts that have been transferred to the Siemens Savings Plan.

     2.  Money Purchase Plan . The following additional provisions shall be applicable with respect to the participation in the Plan, commencing as of October 1, 1989, of a Burdick Employee who immediately prior to such date was a participant in the Burdick Corporation Salaried & Clerical Employees Money Purchase Plan (“Burdick Money Purchase Plan”):

 

(a)

 

Transfer of Accounts . Except as set forth in sub-section D.2(b), the Burdick Employee’s “Participant Account” under the Burdick Money Purchase Plan was transferred to the Plan in accordance with Section 4.10.

 

 

 

 

 

(b)

 

Voluntary Deductible Employee Contribution Accounts . Each Burdick Employee for whom a “Voluntary Deductible Employee Contribution Account” was maintained under the Burdick Money

3


 

 

 

 

Purchase Plan on September 30, 1989 was entitled to make the election described in sub-section D.1(b) with respect to such account. If such Burdick Employee elected a transfer to this Plan or made no election, the appropriate amount was transferred to a QVEC Account for such person under this Plan. The provisions of sub-section D.1(b) regarding vesting, investments, withdrawals and loans shall apply equally to QVEC Accounts established under this sub-section.

 

 

 

 

 

(c)

 

Vesting of Transferred Employer Contribution Account . Notwithstanding the provisions of Section 8.2, a Burdick Employee shall vest in that portion of his Employer Contribution Account attributable to amounts transferred from his “Employer Contribution Account” under the Burdick Money Purchase Plan in accordance with the following schedule:

 

 

 

 

 

 

 

Years of Continuous Employment

 

Vested Percentage

 

Less than 4 years

 

 

0

%

 

 

 

 

 

 

 

At least 4 years

 

 

100

%

 

 

(d)

 

Additional Distribution Options . Notwithstanding the provisions of Section 11.3, a Burdick Employee shall be entitled to receive a distribution of his vested Accounts transferred from the Burdick Money Purchase Plan (including his QVEC Account, if applicable) in any of the additional ways described in sub-section D.1(c). If the Burdick Employee is married and elects an option described in Section 11.3 or paragraph (i) of sub-section D.1(c), he may elect such option only if his spouse consents to such election in a writing witnessed by a notary public within 90 days prior to the commencement of payment under such option. Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or beneficiary, shall be the option or options available under the applicable

4


 

 

 

 

provisions of Article XI of the Siemens Savings Plan, including with respect to amounts that have been transferred to the Siemens Savings Plan.

 

 

 

 

 

(e)

 

Spouse’s Death Benefit . Notwithstanding the provisions of sub-section 11.1(c) and Section 11.3, in the event that a Burdick Employee dies and leaves a surviving spouse, unless the Burdick Employee has waived the “Qualified Pre-retirement Survivor Annuity” under the Burdick Money Purchase Plan or has designated another person as his Beneficiary hereunder (with the written consent of such spouse), the Burdick Employee’s vested Accounts shall be applied to purchase an annuity contract from an Insurance Company providing for monthly payments over the life of such spouse. In lieu of such annuity contract, the spouse may elect to receive payment of the Burdick Employee’s vested Accounts in any form permitted by sub-section 11.3(a)(iii). Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or beneficiary, shall be the option or options available under the applicable provisions of Article XI of the Siemens Savings Plan, including with respect to amounts that have been transferred to the Siemens Savings Plan.

     3.  Hourly Retirement Plan . The following additional provisions shall be applicable with respect to the participation in the Plan of a Burdick Employee for whose account “Voluntary Contributions” were held under the Burdick Corporation Retirement Plan for Hourly Employees (“Hourly Retirement Plan”) on September30, 1989:

 

(a)

 

Transfer of Accounts . If such Burdick Employee elected (in the manner described in sub-section D.1(b)) a transfer of his Voluntary Contributions and earnings thereon from the Hourly Retirement Plan to this Plan or made no election, the appropriate amount was transferred to a QVEC Account for such person under this Plan. The provisions of sub-section D.1(b) regarding vesting, investments, withdrawals and loans shall

5


 

 

 

 

apply equally to QVEC Accounts established under this sub-section.

 

 

 

 

 

(b)

 

Additional Distribution Options . Notwithstanding the provisions of Section 11.3, a Burdick Employee described in this Section D.3 shall be entitled have the value of his QVEC Account applied to purchase a non-transferable annuity contract from an Insurance Company providing for payments in the form of a (i) single life annuity (with or without a modified cash refund or installment refund feature at death), (ii) 60-, 120- or 180-month certain and life annuity (with or without a lump sum commutation feature at death), or (iii) joint and survivor annuity providing for either a 50%, 66-2/3% or 100% survivor benefit to the Burdick Employee’s Beneficiary. If the Burdick Employee is married and elects an option described in Section 11.3 or clause (i) or (ii) of the preceding sentence, or elects an option described in clause (iii) of the preceding sentence and names a Beneficiary other than his spouse, he may elect such option only if his spouse consents to such election in a writing witnessed by a notary public within 90 days prior to the commencement of payment under such option. Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or beneficiary, shall be the option or options available under the applicable provisions of Article XI of the Siemens Savings Plan, including with respect to amounts that have been transferred to the Siemens Savings Plan.

 

 

 

 

 

(c)

 

Spouse’s Death Benefit . Notwithstanding the provisions of sub-section 11.1(c) and Section 11.3, in the event that a Burdick Employee dies and leaves a surviving spouse, unless the Burdick Employee has waived the “Qualified Pre-retirement Survivor Annuity” under the Hourly Retirement Plan or has designated another person as his Beneficiary hereunder (with the written consent of such spouse), the Burdick Employee’s QVEC Account shall be applied to purchase an annuity

6


 

 

 

 

contract from an Insurance Company providing for monthly payments over the life of such spouse. In lieu of such annuity contract, the spouse may elect to receive payment of the Burdick Employee’s QVEC Account in any form permitted by sub-section 11.3(a)(iii). Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or beneficiary, shall be the option or options available under the applicable provisions of Article XI of the Siemens Savings Plan, including with respect to amounts that have been transferred to the Siemens Savings Plan.

7


 

 

APPENDIX E

SPECIAL PROVISIONS FOR EMPLOYEES OF TEL PLUS OF PUERTO RICO

     1.  General . Notwithstanding any other provision of the Plan, commencing January 1, 1990, the participation of employees of Tel Plus of Puerto Rico (“Tel-Plus PR Employees”) in the Plan shall be governed by the provisions of this Appendix E.

     2.  Eligibility . Notwithstanding the provisions of Section 3.1, a Tel-Plus PR Employee will be eligible to become a Member of the Plan (a) as of January 1, 1990 if immediately prior thereto he was a participant in the Tel-Plus Communications, Inc. Employee Retirement Savings Plan (“Tel-Plus Plan”), or (b) as of the Enrollment Date coincident with or next following the latest of:

 

(i)

 

his completion of one Year of Service,

 

 

 

 

 

(ii)

 

his attainment of age 21,

 

 

 

 

 

(iii)

 

his classification as a salaried Employee, and

 

 

 

 

 

(iv)

 

January 1, 1990;

subject to the completion and filing with his Employer of such forms prescribed by the Administrative Committee for the commencement of participation in the Plan.

     3.  Tax-Deferred Contributions . Section 4.2 shall not be applicable to the participation of Tel-Plus PR Employees in the Plan.

     4.  After-Tax Contributions . Notwithstanding the provisions of Sections 4.3 and 4.4, a Tel-Plus PR Employee may elect to make After-Tax Contributions of from 3% to 12% (in whole percentage units) of Compensation. A Tel-Plus PR Employee may elect to change his rate of After-Tax Contributions, to suspend such Contributions or to resume making Contributions as of any October 1 and April 1 upon prior notice of such change to his Employer.

     5.  Employer Contributions . Notwithstanding the provisions of Section 5.1, Tel Plus of Puerto Rico shall make Employer Contributions to the Plan for each month equal to 25%

 


 

of the Basic After-Tax Contributions made by Tel-Plus PR Employees.

     6.  Actual Contribution Percentage Test . Notwithstanding the provisions of sub-section 4.3(c) and Section 5.2, Tel-Plus PR Employees who are non-resident aliens with no earned income from the Employer which would constitute income from United States sources shall be excluded from consideration in calculating the Actual Contribution Percentage Test for any Plan Year and in determining which Employees are Highly Compensated Employees.

     7.  Vesting . Notwithstanding the provisions of Section 8.2, a Tel-Plus PR Employee shall at all times have a 100% vested interest in his Employer Contribution Account.

     8.  Withdrawals . Notwithstanding the provisions of Section 10.1, a Tel-Plus PR Employee who (i) has participated in the Plan, the Tel-Plus Plan or a predecessor thereof for at least 60 consecutive months, or (ii) files a written notice with the Administrative Committee canceling his further participation in the Plan, may make a withdrawal from his Basic After-Tax and Supplemental After-Tax Contribution Accounts by filing a written election with the Administrative Committee. The withdrawal shall be as of the Month Ending Date next succeeding the date of receipt of the election by the Administrative Committee.

2


 

APPENDIX F

SPECIAL PROVISIONS FOR CERTAIN EMPLOYEES OF SIEMENS STROMBERG-CARLSON

     1.  Transition Provisions for Former Stromberg-Carlson Employees . Notwithstanding any other provision of the Plan, for the period commencing December 14, 1990 and ending March 31, 1991 (or such later date specified hereunder), the participation in the Plan of employees of Siemens Stromberg-Carlson who, immediately prior to December 14, 1990, were employees of Stromberg-Carlson Corporation (“Stromberg-Carlson Employees”) shall be governed by the following provisions of this Section F.1:

 

(a)

 

Eligibility . Notwithstanding the provisions of Section 3.1, a Stromberg-Carlson Employee will be eligible to become a Member of the Plan as of the first biweekly payroll period beginning after December 14, 1990 if immediately prior thereto he was a participant in the Stromberg-Carlson Corporation 401(k) Savings Plan (“Stromberg Savings Plan”).

 

 

 

 

 

(b)

 

Tax-Deferred Contributions . Notwithstanding the provisions of Section 4.2, a Stromberg-Carlson Employee may elect to have Tax-Deferred Contributions of from 1% to 15% (in whole percentage units) of Compensation made on his behalf, subject to the provisions of sub-sections 4.2(b) and (c).

 

 

 

 

 

(c)

 

After-Tax Contributions . Section 4.3 shall not be applicable to the participation of Stromberg-Carlson Employees in the Plan.

 

 

 

 

 

(d)

 

Contribution Rate Changes . Section 4.4 shall not be applicable to the participation of Stromberg-Carlson Employees in the Plan.

 

 

 

 

 

(e)

 

Investment Funds . Notwithstanding the provisions of Section 7.1, each Stromberg-Carlson Employee shall be entitled to direct that Contributions to be credited to his Accounts shall be invested in the Fixed Rate Fund described in this Plan and/or in the Equity Income Fund and/or Equity Fund described in the Stromberg Savings Plan, provided that the portions directed to each sub-fund shall

 


 

 

 

 

be an integral multiple of 25%. In the absence of a Stromberg-Carlson Employee’s direction as to the investment of Contributions credited to his Accounts, such Contributions shall be invested 100% in the Fixed Rate Fund. Until May 1, 1991, the provisions of Article VII regarding investment election changes and transfer elections shall not be applicable to the participation of Stromberg-Carlson Employees in the Plan.

 

 

 

 

 

(f)

 

Loans . Article IX shall not be applicable to the participation of Stromberg-Carlson Employees in the Plan until May 1, 1991.

 

 

 

 

 

(g)

 

Withdrawals . Sections 10.1 through 10.3 shall not be applicable to the participation of Stromberg-Carlson Employees in the Plan until May 1, 1991.

     2.  Transfer of Accounts from Stromberg-Carlson Savings Plan . The following additional provisions shall be applicable with respect to the participation in the Plan of a Stromberg-Carlson Employee who, immediately prior to December 14, 1990, was a participant in the Stromberg Savings Plan:

 

(a)

 

Transfer of Accounts . The Stromberg-Carlson Employee’s “Account” under the Stromberg Savings Plan was transferred to the Plan in accordance with Section 4.10. Amounts invested in the Equity Income and Equity Funds described in the Stromberg Savings Plan were transferred in kind to this Plan and shall continue to be invested in such funds, subject to the Stromberg-Carlson Employee’s transfer elections pursuant to Article VII and sub-section F.2(b).

 

 

 

 

 

(b)

 

Additional Investment Funds . On and after May 1, 1991, Article VII shall be deemed to include references to the Equity Income and Equity Funds described in the Stromberg Savings Plan as regards the Stromberg-Carlson Employee’s elections thereunder with respect to Contributions invested in such funds pursuant to sub-section F.1(e) or amounts transferred from the Stromberg Savings Plan pursuant to sub-section F.2(a); provided, however, that (i) amounts held under this Plan which are invested in the Equity Income and Equity Funds described in the Stromberg Savings Plan may only be transferred (in integral

2


 

 

 

 

multiples of 25% of each such fund) to the investment funds described in Article VII, and (ii) no amounts may be transferred to the Equity Income and Equity Funds described in the Stromberg Savings Plan.

 

 

 

 

 

(c)

 

Additional Distribution Options . Notwithstanding the provisions of Section 11.3, the Stromberg-Carlson Employee shall be entitled to receive a distribution of his vested Accounts in a series of annual, semi-annual, quarterly or monthly installments payable over a fixed period of time not to exceed the joint life and last survivor expectancy of the Stromberg-Carlson Employee and his Beneficiary, as determined on the date such installments commence. Rules similar to the provisions of sub-section 11.3(a)(ii) shall govern the payment of Accounts in such installments as elected by the Stromberg-Carlson Employee. Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or beneficiary, shall be the option or options available under the applicable provisions of Article XI of the Siemens Savings Plan, including with respect to amounts that have been transferred to the Siemens Savings Plan.

3


 

 

APPENDIX G

ADDITIONAL DISTRIBUTION OPTIONS FOR FORMER PARTICIPANTS IN
QUANTUM MEDICAL SYSTEMS, INC. 401(k) SAVINGS PLAN

Notwithstanding the provisions of Section 11.3, a Member who immediately prior to January 1, 1991 was a participant (“Quantum Participant”) in the Quantum Medical Systems, Inc. 401(k) Savings Plan shall be entitled to receive a distribution of his vested Accounts in one of the additional ways described in paragraphs (i) through (iii) below. If the Quantum Participant is married and elects an option described in paragraph (i) below, or elects an option described in paragraph (ii) below and names a Beneficiary other than his spouse, he may elect such option only if his spouse consents to such election in a writing witnessed by a notary public within 90 days prior to the commencement of payment under such option:

 

(i)

 

the application of the Quantum Participant’s vested Accounts to purchase a non-transferable annuity contract from an Insurance Company providing for monthly payments over the life of the Quantum Participant with either 0, 60, 120 or 180 monthly payments guaranteed (as the Quantum Participant elects, and subject to the limitations set forth in sub-section 11.3(a));

 

 

 

 

 

(ii)

 

the application of the Quantum Participant’s vested Accounts to purchase a non-transferable annuity contract from an Insurance Company providing for reduced monthly payments to the Quantum Participant during his lifetime with monthly payments continuing to his Beneficiary for his or her remaining life each in an amount equal to 50%, 66-2/3% or 100% of the amount of the payment made to the Quantum Participant (as the Quantum Participant elects, and subject to the limitations set forth in sub-section 11.3(a)); or

 

 

 

 

 

(iii)

 

a series of monthly installments payable over a fixed period of time not to exceed the joint life and last survivor expectancy of the Quantum Participant and his Beneficiary, as determined on the date such installments commence. The Quantum Participant’s election may provide that, upon his death, the balance in his Accounts shall be paid to his Beneficiary in a single lump sum or shall continue to be paid under the

1


 

 

 

 

installment method elected. Rules similar to the provisions of sub-section 11.3(a)(ii) shall govern the payment of Accounts in such installments as elected by the Quantum Participant.

 

 

 

 

 

(iv)

 

Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or beneficiary, shall be the option or options available under the applicable provisions of Article XI of the Siemens Savings Plan, including with respect to amounts that have been transferred to the Siemens Savings Plan.

2


 

 

APPENDIX H

SPECIAL PROVISIONS FOR FORMER PARTICIPANTS IN SIEMENS STROMBERG-CARLSON SAVINGS
PLAN (UNION EMPLOYEES)

The following additional provisions shall be applicable with respect to the participation in the Plan, commencing as of April 1, 1991, of an employee of Siemens Stromberg-Carlson Company represented by International Brotherhood of Electrical Workers Local 2112 (“Stromberg-Carlson Union Employee”) who immediately prior to such date was a participant in the Siemens Stromberg-Carlson Savings Plan (Union Employees) (“Stromberg-Carlson Union Plan”):

     (1) Transfer of Accounts . The Stromberg-Carlson Union Employee’s “Member’s Account” under the Stromberg-Carlson Union Plan was transferred to the Plan in accordance with Section 4.10.

     (2) Preservation of Vested Interest . Notwithstanding the provisions of Section 8.2, a Stromberg-Carlson Union Employee shall have a vested interest in that portion of his Employer Contribution Account attributable to amounts transferred from his “Member’s Account” allocable to “Company Contributions” (other than such contributions included in “Transfer Amounts”, which shall be 100% vested at all times) under the Stromberg-Carlson Union Plan which is not less than the vested interest determined under the following schedule:

 

 

 

 

 

 

 

 

 

Vested

 

Vesting Event

 

Interest

 

Allocation of Contributions to Account

 

 

50

%

 

 

 

 

 

 

 

24 Months Following Allocation to Account if Still a Member

 

 

100

%

     (3) Additional Distribution Options. Notwithstanding the provisions of Section 11.3, a Stromberg-Carlson Union Employee whose separation from service is other than on account of resignation or discharge (including layoff) shall be entitled to receive a distribution of his vested Accounts in one of the following additional ways:

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     (a) annual installments over a period of from two to ten years, as the Stromberg-Carlson Union Employee elects, but not to exceed the joint life and last survivor expectancy of the Stromberg-Carlson Union Employee and his Beneficiary, as determined on the date such installments commence. Rules similar to the provisions of sub-section 11.3(a)(ii) shall govern the payment of Accounts in such installments; or

     (b) if “Transfer Amounts” were held for the benefit of the Stromberg-Carlson Union Employee under the Stromberg-Carlson Union Plan, (i) if the Stromberg-Carlson Union Employee is not married, application of the Stromberg-Carlson Union Employee’s vested Accounts to purchase a non-transferable annuity contract form an Insurance Company providing for monthly payments over the life of the Stromberg-Carlson Union Employee, or (ii) if the Stromberg-Carlson Union Employee is married, application of his vested Accounts to purchase either (A) an annuity contract described in clause (i) above provided that such Stromberg-Carlson Union Employee’s spouse consent to such election in a writing witnessed by a notary public within 90 days prior to the commencement of payment under such annuity contract, or (B) an annuity contract providing for reduced monthly payments to the Stromberg-Carlson Union Employee during his lifetime with monthly payments continuing to his spouse for her remaining life each in amount equal to fifty percent (50%) of the amount of the payment made to the Stromberg-Carlson Union Employee.

     (c) Notwithstanding any of the provisions of this Appendix to the contrary, effective April 1, 2002, the only distribution option or options that shall be available to a Member covered by this Appendix, as well as to his or her spouse or beneficiary, shall be the option or options available under the app


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