THE 2009
BENEFIT RESTORATION PLAN
FOR THE
GENCORP INC. 401(k) PLAN
Effective
January 1, 2009
The
2009 Benefit Restoration Plan for the GenCorp Inc. 401(k) Plan (the
“Plan”) was established to provide restored benefits
solely related to the statutory limits imposed on the benefits
accrued under the GenCorp Retirement Savings Plan (“Savings
Plan”). This Plan is effective January 1, 2009, unless
specifically stated otherwise in the Plan with respect to a
specific provision.
The
Plan is a successor plan to the Benefit Restoration Plan for
Salaried Employees of GenCorp Inc. and Certain Subsidiary
Companies, as amended (the “Prior Plan”), which was
originally established effective as of December 1, 1982.
Between January 1, 2005 and December 31, 2008, the Plan
operated in good faith compliance with the guidance issued under
Internal Revenue Code Section 409A.
For
the purposes of this Plan, all references to the Prior Plan shall
only be to those amounts in the Prior Plan that were contributed
because of statutory limits applied to certain employees
participating in the Savings Plan. Effective December 31,
2004, the Prior Plan was frozen and no new benefits shall be earned
or vest under it; provided, however, that any benefits earned and
vested under the Prior Plan before January 1, 2005, shall
continue to be governed by the terms and conditions of the Prior
Plan as in effect on December 31, 2004, or on the date of any
later amendment, provided that any amendment after October 3,
2004, is not a material modification of the Prior Plan under
Section 409A of the Code and regulations promulgated
thereunder. Any benefits earned and vested under the Prior Plan
after December 31, 2004, are deemed to have been earned and
vested under this Plan.
The
Plan is intended to be a plan which is unfunded and maintained
primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees within
the meaning of sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA.
The
Plan is further intended to comply with the requirements of Code
Section 409A, and the Treasury regulations issued thereunder,
and shall be administered and interpreted in a manner consistent
therewith.
The
terms and provisions of this Plan are as follows:
Any
capitalized word or phrase used in the Plan that is not defined in
this Plan, but is used in the Savings Plan shall have the meaning
it has in the Savings Plan in which a Participant hereunder has
accrued a benefit.
1.1
“Account” means, for accounting and computational
purposes only, the account established and maintained by the
Company on behalf of each Participant, which will reflect:
(a) the amounts credited pursuant to Section 3, and
(b) any distribution made to the Participant in accordance
with Section 5. The account will not reflect any amounts under
the Prior Plan.
1.2
“Administrative Committee” means the Administrative
Committee as appointed by the Board of the Company.
1.3
“Beneficiary” means a beneficiary or beneficiaries
designated by a Participant in writing on the form prescribed by
the Company (or its designee), in its sole discretion, and
delivered to the Company (or its designee) prior to the
Participant’s death. In the absence of one or more
Beneficiaries named in accordance with the foregoing sentence, the
Beneficiary for a Participant’s benefits under this Plan
shall be the beneficiary or beneficiaries determined under the
Savings Plan for death benefits payable thereunder.
1.4
“Board” shall mean the Board of Directors of the
Company.
1.5
“Code” means the Internal Revenue Code of 1986, as
amended. Any reference to Section 409A of the Code shall include
reference to the Treasury Regulations thereunder.
1.6
“Company” means GenCorp Inc., an Ohio
corporation.
1.7
“Compensation” means the definition of Compensation
used in the Savings Plan for the purpose of determining which
monies can be deferred to the Savings Plan.
1.8
“Compensation Committee” means the Organization and
Compensation Committee appointed by the Board.
1.9
“Employee” means an employee of an Employer on or after
the date such Employer becomes a Member Company.
1.10
“Employer” means the Company and each entity that is
treated with the Company as a single “service
recipient” under Treasury Regulations
Section 1.409A-1(h)(3), except that “greater than
50 percent” shall be used instead of “at least
80 percent” in each place it appears in Code
Sections 1563(a)(1), (2), and (3).
1.11
“ERISA” means the Employee Retirement Income Security
Act of 1974, as presently in effect or as hereafter
amended.
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1.12
“Member Company” means the Company, Aerojet-General
Corporation, and any of their subsidiaries which the Compensation
Committee designates, in its sole discretion, as a Member
Company.
1.13
“Participant” means an Employee who meets the
eligibility requirements for participation in the Plan as set forth
in Section 2 and who has accrued, or is deemed to have
accrued, any benefits under this Plan, unless and until such
benefits are forfeited or distributed in full in accordance with
the terms and conditions of the Plan.
1.14
“Plan” means the plan set forth in this instrument and
known as the “2009 Benefit Restoration Plan for the GenCorp
401(k) Plan,” as it may be amended from time to
time.
1.15
“Plan Year” means the calendar year.
1.16
“Salary Deferral Agreement” means a written agreement
in the form prescribed by the Administrative Committee by which a
Participant may elect to defer a portion of such
Participant’s Compensation in the such amounts and by such
procedures as set forth by the Administrative Committee, in its
sole discretion, and consistent with the terms of this Plan and
Section 409A of the Code.
1.17
“Savings Plan” means the GenCorp Retirement Savings
Plan, as it may be amended from time-to-time.
1.18
“Spouse” has the same meaning as the term
“spouse” in the Savings Plan.
1.19
“Termination of Employment” means a separation from
service within the meaning of Treasury
Regulation Section 1.409A-1(h). Whether a Termination of
Employment has occurred is based on whether the facts and
circumstances indicate that the Participant and the Employer
reasonably anticipate that no further services would be performed
after a certain date. A Participant shall not be deemed to have
separated from service if the Participant continues to provide
services to the Employer (whether as an employee or contractor) at
an annual rate that is 50% or more of the services rendered, on
average, during the immediately preceding 36 months of service
with the Employer (or if less than 36 months, such lesser
period); provided, however, that a separation from service will be
deemed to have occurred if a Participant’s service with the
Employer (whether as an employee or contractor) is reduced to an
annual rate that is less than 20% of the services rendered, on
average, during the immediately preceding 36 months of service
with the Employer (or if less than 36 months, such lesser
period). Participant shall be deemed to separate from service if
Participant is on a bona fide leave of absence that exceeds 6
months in duration and Participant’s right to reemployment
with the Employer is not provided either by statute or by contract
on the day immediately following such 6-month period. A bona fide
leave of absence shall include a military leave, sick leave or
other bona fide leave of absence if such leave does not exceed
6 months, or longer, so long as Participant’s right to
reemployment with the Employer is provided either by statute or
contract.
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2.1
Eligibility to Participate in the Plan . In order to
be eligible, an employee must be: (a) an active participant in
the Savings Plan, (b) eligible for the GenCorp and
Participating Subsidiaries Deferred Bonus Plan, (c) an officer
or key employee of the Member Company and (d) designated by
the Compensation Committee as eligible for the Plan.
2.2
Eligibility for Allocation of Benefits . In order to
become a Participant and accrue benefits under this Plan in any
Plan Year, an eligible Employee must submit the Salary Deferral
Agreement in accordance with Section 2.2(a) below:
(a)
For each Plan Year, a Salary Deferral Agreement must be delivered
to the Company (or its designee) by the date indicated by Company
(or its designee), which date shall not be later than:
(i)
The last day of the Plan Year immediately preceding the Plan Year
in which the Compensation will be earned and to which the Salary
Deferral Agreement relates; or
(ii)
In the case of an Employee’s initial eligibility (as
determined under Treasury
Regulation Section 1.409A-2(a)(7)) to participate in the
Plan, the 30th day after the date of such initial eligibility but
only with respect to Compensation earned after the date of such
initial election (for the purposes of this subsection, initial
eligibility shall mean initially eligible for any elective account
balance plan, as required by Code Section 409A).
(b)
Notwithstanding anything to the contrary, a new election may be
made by December 31, 2008, as to the time and form of payment under
the Plan. However, no election under this Section 2.2(b)
shall: (i) change the payment date of any distribution
otherwise scheduled to be paid in 2008 or cause a payment to be
paid in 2008, or (ii) be permitted after December 31,
2008.
(c)
Notwithstanding anything to the contrary, once a Participant makes
a valid election under this Section 2.2, the election shall
continue to be effective for each succeeding Plan Year, unless the
Participant changes his election within the time periods set forth
in Section 2.2(a) above.
Except as provided in
Section 2.3 and Section 5.8, any election made under this
Section 2.2 shall be irrevocable.
2.3
Cancellation of Deferral Elections . Upon a
distribution to a Participant due to an unforeseeable emergency in
accordance with Section 5.8, a Participant’s deferral
election for the remainder of the Plan Year, if any, may be
cancelled.
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3.1
Election to Defer . Under this Section 3.1, for
any particular Plan Year, a Participant may elect to defer
Compensation, as specified on a valid and timely filed Salary
Deferral Agreement, which provides for the deferral of up to a
maximum of forty percent (40%) of Compensation.
3.2
Other Contributions to the Account . Under this
Section 3.2, for any particular Plan Year, the Company will
credit to the Participant’s Account, the following
amounts:
(a)
Any applicable Company matching contributions made that year under
the Savings Plan that would have been made on the
Participant’s behalf under the Savings Plan on the
Compensation deferred in Section 3.1 if the Participant
contributed the maximum pre-tax amount allowable under the Savings
Plan and the Participant’s contributions under the Savings
Plan were not limited by the applicable limits to the Savings Plan
under the Code.
(b)
Any income, gains and losses calculated on the hypothetical
investment of the amounts credited under Sections 3.1 and
3.2(a) as determined in accordance with
Section 3.5.
3.3
Limitation . Notwithstanding any provision of
Section 3.2 and Section 3.3 to the contrary, no amount
shall be credited to or deducted from a Participant’s Account
unless consistent with the limitations in Treasury
Regulation Section 1.409A-2(a)(9); specifically, any
Participant action or inaction with respect to any deferrals or
contributions under the Savings Plan shall not result in any Plan
Year in an increase in any matching or contingent employer
contributions exceeding 100% of the matching or contingent amounts
that would be provided under the Savings Plan absent any Code
limitations.
3.4
Management of Accounts .
(a)
Investment Options . The Company will designate the
available investment options in which Participants may direct the
hypothetical investment of their Account balances; provided,
however, that such available investment options shall not include a
Company stock fund.
(b)
Investment Directions . The amount credited to each
Participant’s Account will be treated as if invested in the
investment options selected by the Participant, as
follows:
(i)
Directions as to Contributions . A Participant may, in
accordance with rules and procedures established by the Company,
select from among the available investment options provided by
Section 3.4(a), the hypothetical investments into which
contributions under this Plan will be deemed invested.
(ii)
Directions as to Account Balances . A Participant may, in
accordance with rules and procedures established by the Company,
direct the re- allocation of his hypothetical investments among the
available investment options provided by
Section 3.4(a).
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Benefits
allocated under Section 3 shall vest immediately upon
allocation.
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5.1
Distribution After Termination of Employment . A
Participant may elect to receive his Account upon a Termination of
Employment. In such event, the Participant’s Account shall be
distributed to the Participant on the first day of the seventh
month following the Participant’s Termination of Employment.
If a valid and timely election is not made by the Participant, the
default time of payment will be the first day of the seventh month
following the Participant’s Termination of
Employment.
5.2
Distribution Upon a Specified Date . A Participant
may select a specific payment date for complete distribution of his
Account in a validly executed and timely submitted Salary Deferral
Agreement, and his Account shall be distributed on such specified
date if, and only if, such specified date is subsequent to the
Participant’s Termination of Employment. In the event of
distribution on such a specified payment date, the six
(6) month delay described in Section 5.1 will not
apply.
5.3
Death . Upon a Participant’s Termination of
Employment due to death, the Participant’s Account shall be
distributed on the first day of the month following the month in
which the death occurs. In the event of a Participant’s death
after commencement of payments under Section 5.1 or 5.2, the
remainder of the Participant’s Account balance, if any, shall
be distributed in one lump sum payment to the Beneficiary of the
Participant within 90 days of the Participant’s death.
The six (6) month delay described in Section 5.1 will not
apply.
5.4
Grace Period and Interest. Any payment date provided
for in the Plan shall be deemed to incorporate the longest
applicable grace period permissible under Code Section 409A
and no interest shall be earned or accrued with respect to any
payment made in the time period between the payment date and the
end of the grace period.
(a)
The default form of payment under the Plan shall be a single lump
sum cash payment.
(b)
To the extent elected in a validly executed and timely submitted
Salary Deferral Agreement, a Participant may elect to have benefits
under the Plan paid in equal annual installments over 5 or
10 years commencing on the dates set forth in Section 5.1
or 5.2 as applicable.
5.6
Small Sums . Notwithstanding anything to the contrary
in this Section 5, if the Participant’s Account, at the
time initially payable to the Participant, is less than $15,000
(which means the total value of the account, before any taxes are
withheld), then the Participant shall receive a single lump sum
cash payout of his benefit in full satisfaction or his benefit
under this Plan. If this payment is made upon Termination of
Employment, the six (6) month delay in Section 5.1 shall
apply.
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5.7
Elections Irrevocable . All elections under the Plan
are irrevocable, except as provided in this section and in
Section 5.8 and Section 5.10 below. Notwithstanding the
foregoing, all Participants may make an election with regard to the
time and form of payments under their Accounts in calendar year
2008; provided that the election is made no later than
December 31, 2008. An election made under this
Section 5.7 shall be irrevocable when made (except as provided
in Section 5.8 and Section 5.10 below) and shall be
subject to any special administrative rules imposed by the
Administrative Committee including rules intended to comply with
Section 409A of the Code, and shall not become effective until
January 1, 2009. No election under this Section 5.7 shall
(A) change the payment date of any distribution otherwise
scheduled to be paid in 2008 or cause a payment to be paid in 2008,
or (B) be permitted after December 31, 2008.
5.8
Unforeseeable Emergency .
(a)
Neither the Participant nor his Beneficiary is eligible to withdraw
amounts credited to his Account prior to the time specified in his
valid Salary Deferral Agreement or, if there is no valid Salary
Deferral Agreement, prior to the default time set forth in
Section 5.1. However, such amounts may be subject to early
withdrawal if (1) an unforeseeable emergency occurs that is
caused by a sudden and unexpected illness or accident of the
Participant, the Participant’s Spouse, the Beneficiary (if
the Beneficiary is a natural person) or of a dependent (as defined
in Section 152 of the Code without regard to
Section 152(b)(1), (b)(2) or (d)(1)(B)) of the Participant,
loss of the Participant’s property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the Participant’s control,
(2) such
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