Exhibit 10.3
UNITED TECHNOLOGIES
CORPORATION
PENSION PRESERVATION
PLAN
AS AMENDED AND RESTATED EFFECTIVE
JANUARY 1, 2005
WHEREAS, United Technologies
Corporation (the “Corporation”) established the United
Technologies Corporation Pension Preservation Plan (the
“Preservation Plan”) effective January 1, 1978 for
the benefit of certain employees; and
WHEREAS, the Corporation established
the United Technologies Corporation Pension Replacement Plan (the
“Replacement Plan”) effective April 1, 1985 for
the benefit of certain employees; and
WHEREAS, the Corporation reserved
the right to amend the Preservation Plan through the action of its
Pension Administration Committee (the “PAC”);
and
WHEREAS, the Corporation reserved
the right to terminate and amend the Replacement Plan through the
action of the PAC; and
WHEREAS, at its meeting of
December 8, 2006, the PAC approved the merger of the
Replacement Plan into the Preservation Plan, effective
December 31, 2006; and
WHEREAS, the merger is intended to
simplify administration and communication of the programs operated
under the respective Plans, which have effectively been, for all
practical purposes, operated as a single program;
WHEREAS, Section 409A of the
Internal Revenue Code requires the amendment of both the
Replacement Plan and the Preservation Plan;
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WHEREAS, From January 1, 2005
through December 31, 2008, the Replacement Plan and the
Preservation Plan have been operated in good faith compliance with
Section 409A in accordance with guidance provided by the
Internal Revenue Service;
NOW, THEREFORE, effective
December 31, 2006, the Replacement Plan is hereby merged into
the Preservation Plan, and the Preservation Plan is amended and
restated; and
NOW, THEREFORE, effective
January 1, 2005, the merged Preservation Plan is hereby
amended and restated to reflect the requirements of
Section 409A of the Internal Revenue Code as
follows:
1. INTRODUCTION &
PURPOSE
The United Technologies Corporation
Pension Preservation Plan (the “Preservation Plan”) is
maintained as an unfunded plan solely for the purpose of providing
retirement benefits in excess of the retirement and survivor
benefits that may be paid from tax-qualified retirement plans due
to (i) benefit limitations imposed by Section 415 of the
Internal Revenue Code of 1986, as amended from time to time (the
“Code”) and (ii) the limitation imposed by
Section 401(a)(17) of the Code on compensation that may be
taken into account in computing retirement benefits under
tax-qualified retirement plans (referred to collectively as the
“Limits”). The Preservation Plan restores the amount of
the retirement benefit or survivor benefit that may not be paid
from the United Technologies Corporation Employee Retirement Plan
(or any other tax-qualified defined benefit retirement plan
sponsored by the Corporation) (the “Qualified Retirement
Plan”) as a result of the Limits so that the total actuarial
present value of the Qualified Retirement Plan and Pension
Preservation Plan benefits equals the actuarial present value of
the retirement benefit or survivor benefit that would be paid from
the Qualified Retirement Plan if such Plan were administered
without regard to the Limits. Effective with the merger of the
Replacement Plan into this Plan, the amount of any reduction of
Qualified Plan Retirement benefits resulting from the deferral of
compensation that would otherwise be recognized under the Qualified
Retirement Plans shall be provided under this Plan. The
Preservation Plan shall be administered and construed to effectuate
the foregoing intent.
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2. EFFECTIVE DATE
The Preservation Plan became
effective on January 1, 1978. Except to the extent otherwise
specifically provided herein, the Preservation Plan is hereby
amended and restated, effective January 1, 2005, to reflect
the requirements of Section 409A of the Internal Revenue Code.
The Preservation Plan, as amended and restated, applies to amounts
that were earned or vested after December 31, 2004 under the
Preservation and Replacement Plans. Amounts that were earned and
vested (within the meaning of Section 409A) under either the
Preservation Plan or the Replacement Plan before January 1,
2005, and any subsequent increases in these amounts that are
treated as grandfathered benefits under Section 409A, are
subject to and shall continue to be governed by the terms of the
Prior Plans as set forth in Appendix A and Appendix B as
applicable. The Preservation Plan is further amended and restated
effective December 31, 2006 to effectuate the merger of the
Replacement Plan into the Preservation Plan effective
December 31, 2006.
From January 1, 2005 through
December 31, 2008, the Preservation Plan has been operated in
good faith compliance with Section 409A in accordance with
guidance provided by the Internal Revenue Service and provided for
the following during this good faith compliance period:
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(a)
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Continued
commencement of benefits under this Plan and the Qualified
Retirement Plan;
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(b)
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Allowance of
new payment elections by participants to comply with 409A
requirements; and
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(c)
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Prohibited
acceleration of any payments that would otherwise have been made in
a later year and prohibited deferral to a later year of a payment
that would otherwise have been made in the current year.
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3. DEFINITIONS
Any capitalized terms used herein
that are not defined in this Section 3 shall have the meanings
given to them by the United Technologies Corporation Employee
Retirement Plan unless the context clearly indicates
otherwise.
Beneficiary
means the person, persons or entity
designated in writing by a Participant to receive the value of his
or her Current Plan Benefit in the event of the Participant’s
death, , in accordance with the terms of this Plan. If a
Participant fails to designate a Beneficiary under this Plan, the
Beneficiary or Contingent Annuitant shall be determined under the
Qualified Retirement Plan. If the Beneficiary (and any contingent
Beneficiary) does not survive the Participant or if no Beneficiary
is designated under the Qualified Retirement Plan, the value of the
Participant’s Plan Benefit will be payable to the estate of
the Participant, in accordance with the terms of this
Plan.
Compensation Reduction
means a reduction in compensation
otherwise recognized under the Qualified Retirement Plan (without
regard to the Limits) by reason of a Participant’s
participation in the United Technologies Corporation Deferred
Compensation Plan.
Code means the Internal Revenue Code of 1986, as
amended from time to time, and any successor thereto. Reference to
any section of the Internal Revenue Code shall include any final
regulations or other published guidance interpreting that
section.
Corporation
means United Technologies
Corporation.
Current Plan Benefit
means amounts credited on or after
January 1, 2005 under either the Preservation or Replacement
Plans.
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Disability
means permanent and total disability
as determined under the Corporation’s long-term disability
plan applicable to the Participant, or if there is no such plan
applicable to the Participant, “Disability” means a
determination of total disability by the Social Security
Administration; provided that, in either case, the
Participant’s condition also qualifies as a
“disability” for purposes of Section 409A(a)(2)(C)
of the Code.
Election Form
means the form provided to
Participants electronically or in paper form for the purpose of
electing the form of payment for a Current Plan Benefit.
Prior Plans
means the United Technologies
Corporation Pension Preservation Plan, as in effect on
December 31, 2004, as set forth in Appendix A and the United
Technologies Corporation Pension Replacement Plan, as in effect on
December 31, 2004, as set forth in Appendix B.
Prior Preservation
Plan means the United
Technologies Corporation Pension Preservation Plan, as in effect on
December 31, 2004, as set forth in Appendix A. All amounts
earned and vested under the Prior Preservation Plan as of
December 31, 2004, and any subsequent increases in these
amounts that are permitted to be treated as grandfathered benefits
under Section 409A, shall continue to be subject to the terms
and conditions of the Prior Preservation Plan and shall not be
affected by this amendment and restatement.
Prior Replacement Plan
means the United Technologies
Corporation Pension Replacement Plan, as in effect on
December 31, 2004, as set forth in Appendix B. All amounts
earned and vested under the Prior Replacement Plan as of
December 31, 2004, and any subsequent increases in these
amounts that are permitted to be treated as grandfathered benefits
under Section 409A, shall continue to be subject to the terms
and conditions of the Prior Replacement Plan and shall not be
affected by this amendment and restatement.
Prior Plan Benefit
means the aggregate value of the
Prior Preservation Plan Benefit and Prior Replacement Plan Benefit
as identified in Section 6, which are valued and administered
separately in accordance with the terms and procedures in effect
under the Prior Plans.
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Qualified Retirement
Plan means the United
Technologies Corporation Employee Retirement Plan (or any other
tax-qualified defined benefit retirement plan sponsored by the
Corporation or a UTC Company).
Separation from
Service means a
Participant’s Termination of Employment with all UTC
Companies, other than by reason of death or Disability, that
qualifies as a “separation from service” for purposes
of Section 409A of the Code. A Separation from Service will be
deemed to occur where the Participant and the UTC Company that
employs the Participant reasonably anticipate that the bona fide
level of services the Participant will perform (whether as an
employee or as an independent contractor) will be permanently
reduced to a level that is less than thirty-seven and a half
percent (37.5%) of the average level of bona fide services the
Participant performed during the immediately preceding 36 months
(or the entire period the Participant has provided services if the
Participant has been providing services to the UTC Companies for
less than 36 months.) A Participant shall not be considered to have
had a Separation from Service as a result of a transfer from one
UTC Company to another UTC Company.
Specified
Employee means each of the 50
highest-paid executives of the Corporation and its Subsidiaries
effective annually as of March 31 st , based on annual salary and
incentive compensation paid in the prior year. The term includes
both U.S. and non-U.S. employees.
UTC Company
means United Technologies
Corporation or any entity controlled by or under common control
with United Technologies Corporation within the meaning of
Section 414(b) or (c) of the Code (but substituting
“at least 20 percent” for “at least 80
percent” as the control threshold used in applying Sections
414(b) and (c)).
4. ELIGIBILITY
Each employee of a UTC Company who
is a Participant in the Qualified Retirement Plan shall be eligible
to participate in the Preservation Plan if and to the extent such
employee’s compensation increases such that the
Participant’s Accrued Benefit under the Qualified
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Retirement Plan is limited by
(i) provisions of the Qualified Retirement Plan that are
designed solely to comply with the Limits; or (ii) such
employee experiences a Compensation Reduction. In no event shall
any person who is not entitled to benefits under the Qualified
Retirement Plan be eligible for retirement benefits or survivor
benefits under this Preservation Plan. An employee of the UTC
Companies who is eligible for retirement benefits under the
Preservation Plan and has completed three years of
“continuous service” (as defined in the UTC Employee
Retirement Plan as in effect on January 1, 2008) shall be
referred to herein as a “Participant.”
5. DETERMINATION OF PRESERVATION
PLAN BENEFIT
The amount of the retirement benefit
or survivor benefit payable from the Preservation Plan to or in
respect of a Participant shall equal the excess, if any, of
(a) over (b), and for purposes of this calculation, it shall
be assumed that Qualified Retirement Plan Benefit and Preservation
Plan Benefit commence at the same time, where
(a) equals the retirement benefit or
survivor benefit that would be paid to such Participant (or on his
or her behalf to his Contingent Annuitant or Beneficiary) under the
Qualified Retirement Plan if the provisions of the Qualified
Retirement Plan were administered without regard to the Limits and
Compensation Reduction; and
(b) equals the retirement benefit or
survivor benefit payable to such Participant (or on his or her
behalf to his or her Contingent Annuitant or Beneficiary) under the
Qualified Retirement Plan.
6. PLAN BENEFITS
(a) Prior Plan Benefit. Benefits
accrued under the Prior Plan are not intended to be subject to
Section 409A of the Code. No amendment to Appendix A or
Appendix B that would constitute a “material
modification” for purposes of Section 409A shall be
effective unless the amending instrument states that it is intended
to materially modify Appendix A and/or Appendix B and to cause the
Prior Plan(s) to become subject to Section 409A. Although the
Prior Plan
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Benefit is not intended to be subject to
Section 409A, neither the UTC Companies nor any director,
officer, or other representative of a UTC Company shall be liable
for any adverse tax consequence suffered by a Participant or
Beneficiary if a Prior Plan Benefit becomes subject to
Section 409A.
(i) Prior Preservation Plan
Benefit
Amounts that were credited before
January 1, 2005, and any subsequent increases in these amounts
that are permitted to be treated as grandfathered benefits under
Section 409A of the Code, shall be maintained and accounted
for separately and shall remain subject to the terms and conditions
of the Prior Plan, as set forth in Appendix A.
(ii) Prior Replacement Plan
Benefit
Amounts that were credited before
January 1, 2005, and any subsequent increases in these amounts
that are permitted to be treated as grandfathered benefits under
Section 409A of the Code, shall be maintained and accounted
for separately and shall remain subject to the terms and conditions
of the Prior Plan, as set forth in Appendix B.
(b) Current Plan Benefit. Current
Plan Benefit shall include amounts credited to Participants under
either the Preservation or Replacement Plans on or after
January 1, 2005.
7. FORM OF PRESERVATION PLAN
BENEFIT
(a) The Committee shall determine,
as of the earlier of the Participant’s Separation from
Service or the Participant’s date of death, that portion of
the Participant’s total retirement benefit or survivor
benefit that is to be paid under the Preservation Plan, using the
same formula that is used under the UTC Employee Retirement Plan to
calculate such Participant’s benefit. The Committee will
apply either the Final Average Earnings (FAE) formula, Cash Balance
(CB) formula, or both as applicable to each Participant under the
Qualified Retirement Plan. The Preservation Plan retirement benefit
or survivor benefit shall be paid to the Participant, or on
his
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or her behalf to any Contingent Annuitant or
Beneficiary (as designated under the Qualified Retirement Plan), as
a monthly annuity, unless a timely election is made in accordance
with Subparagraph (c) of this Section 7.
(b) A Participant may elect separate
payment methods for Prior and Current Plan Benefits. Prior Plan
Benefit elections are administered separately in accordance with
the terms and procedures in effect under the Prior Plans, as set
forth in Appendices A and B.
(c) Unless a Participant elects a
form of the benefit payment for Current Plan Benefit, benefits
earned under the Preservation Plan will be paid as a single life
annuity or actuarially equivalent life annuity. A Participant may
elect to receive a single lump-sum payment or a series of 2 to 10
annual installment payments. A payment election under the Plan
shall be made on an electronic or written Election Form, completed
and submitted to the UTC Pension Service Center no later than
December 31st of the calendar year prior to the year in which
the period of service commences on which the benefit is based. A
change in actuarially equivalent annuities shall not be deemed to
be a change in payment election for purposes of this Plan. Except
as provided below in Subsection (d), a Participant’s payment
election shall become irrevocable on the election deadline
date.
(d) Change in Payment Election. A
Participant may make an election to change the form of payment that
the Participant elected under Section 7(c), subject to the
following requirements:
(i) The new election must be made at
least twelve months prior to the date payments are scheduled to
commence (and the new election shall be ineffective if the payment
commencement date occurs within twelve months after the date of the
new election);
(ii) The new election will not take
effect until at least twelve months after the date when the
Participant submits a new Election Form to the UTC Pension Service
Center; and
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(iii) The new benefit payment
commencement date must be five years later than the date on which
payments commence under the current election.
(e) If a Participant’s benefit
is calculated under the FAE formula and the Participant elects to
have his or her Preservation Plan benefit paid in the form of a
single lump-sum or annual installment distribution, the Actuarially
Equivalent present value of the Preservation Plan retirement
benefit or survivor benefit shall be determined using the RP-2000
Group Annuity Mortality Table and interest assumption equal to the
average yield for tax-free municipal bonds of 10-year maturities,
averaged over the prior 5 calendar years. For purposes of computing
this interest assumption, the Actuary shall utilize the Barclays
Capital 10-Year Municipal Bond Index, averaging the published yield
for 10-year maturities (credit quality AA or above) on the last
business day of the year over the most recent 5 consecutive full
calendar year period. This rate shall be adjusted annually at the
beginning of each calendar year.
(f) The payment of a monthly
annuity, lump-sum or annual installment distribution in accordance
with this Section 7 shall be in full satisfaction of all of
the Corporation’s obligations with respect to the Participant
under the Preservation Plan.
8. DISTRIBUTION OF
BENEFIT
(a) Except as provided in
Section 7(d) (concerning the five-year delay following a
Change in Payment Election), Section 8(b) (concerning
distributions to Specified Employees), the value of a
Participant’s Preservation Plan Benefit will be distributed
(or begin to be distributed) to the Participant as
follows:
(i) If a Participant’s benefit
is calculated under the FAE formula only, the benefit will be paid
to Participant on the first of the month following the later of a
Participant’s Separation from Service, or when the
Participant reaches age 55;
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(ii) If a Participant’s
benefit is calculated under the CB formula only, the benefit will
be paid to Participant on the first of the month following the
Participant’s Separation from Service;
(iii) If a Participant’s
benefit is calculated under both the FAE and CB formulas, the
benefit will be paid to the Participant according to the rules
outlined above in Subsections (i) and (ii) for the
corresponding portions of the benefit.
(b) Separation from Service of
Specified Employees. If the Participant is a Specified Employee on
the date of the Participant’s Separation from Service,
distribution of the Participant’s Current Plan Benefit to the
Participant that is made on account of the Participant’s
Separation from Service will not be made or commence earlier than
the first day of the seventh month following the date of Separation
from Service.
(c) Administrative Adjustments in
Payment Date. A payment is treated as being made on the date when
it is due under the Plan if the payment is made on the due date
specified by the Plan, or on a later date that is either
(i) in the same calendar year (for a payment whose specified
due date is on or before September 30), or (ii) by the
15th day of the third calendar month following the date specified
by the Plan (for a payment whose specified due date is on or after
October 1). A payment also is treated as being made on the
date when it is due under the Plan if the payment is made not more
than 30 days before the due date specified by the Plan. In no
event, will a payment to a Specified Employee be made or commence
earlier than the first day of the seventh month following the date
of Separation from Service. A Participant may not, directly or
indirectly, designate the taxable year of a payment made in
reliance on the administrative rules in this
Section 8(c).
9. DISTRIBUTION IN THE EVENT OF
DEATH
(a) If a Participant’s benefit
(or portion of a benefit) is calculated under the FAE formula and
the Participant has not made an election to receive his or her
Pension Preservation Plan Benefit in a lump sum or installments as
of the date of death, any survivor benefits will be paid as a life
annuity subject to the following:
(i) If death occurs prior to age 55
with five years of service, the spouse of the Participant shall
receive a 50% Contingent Annuity Benefit beginning on the date the
Participant would have attained his or her 55th birthday. If the
Participant is unmarried, no Plan benefit is payable.
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(ii) If death occurs prior to age 55
with ten years of service, the spouse of the Participant shall
receive a 100% Contingent Annuity Benefit beginning on the date the
Participant would have attained his or her 55th birthday. If the
Participant is unmarried, no Plan benefit is payable.
(iii) If death occurs on or after
attainment of age 55 with ten years of service or attainment of age
65, survivor benefits shall be paid as a 100% Contingent Annuity
Benefit beginning on the first business day of the month following
the Participant’s death in the following order:
(1) to the Spouse of the
Participant, if the Participant is married at the time of
death;
(2) to the named Beneficiary or
contingent annuitant, if the Participant is not married at the time
of death;
(3) to the children of the
Participant if the Participant has not designated a Beneficiary
prior to his or her death; or
(4) to the estate of the
Participant, if the Participant has no children at the time of his
or her death.
If the Participant is not married at
the time of death and the Participant has not designated a
Beneficiary or contingent annuitant, the benefit shall be payable
as:
(1) a 10-year certain actuarially
equivalent annuity to the children of the Participant;
or
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(2) a 5-year certain actuarially
equivalent annuity to the estate of the Participant.
(b) If a Participant’s benefit
(or portion of a benefit) is calculated under the FAE formula and
the Participant has made an election to receive his or her
Preservation Plan Benefit in a lump sum or annual installments in
accordance with Section 7(c) herein, such Participant shall
have survivor benefits paid to his or her Beneficiary as follows:
If death occurs prior to age 55, the Preservation Plan accrued
benefit shall be paid in a lump sum payment as of the date the
Participant would have attained his or her 55th birthday. If death
occurs after the benefit commencement date but before all annual
installments have been paid, the remaining installments will be
paid to his or her Beneficiary as scheduled.
(c) If a Participant’s benefit
(or portion of a benefit) is calculated under the CB formula, the
Participant shall have survivor benefits paid in a lump sum on the
first business day of the month following the Participant’s
death as follows:
(i) to the Spouse of the
Participant, if the Participant is married at the time of
death;
(ii) to the named Beneficiary or
contingent annuitant, if the Participant is not married at the time
of death;
(iii) to the children of the
Participant if the Participant has not designated a Beneficiary
prior to his or her death; or
(iv) to the estate of the
Participant, if the Participant has no children at the time of his
or her death.
10. DISABILITY
In the event of the disability of a
Participant, the Participant’s Plan Benefit will be
maintained and distributed in accordance with the
Participant’s elections on file.
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11. MINIMUM BALANCE PAYOUT
PROVISION
If the value of a
Participant’s Current Plan Benefit, determined at the time of
the Participant’s Separation From Service is less than
one-hundred thousand dollars ($100,000), the Committee will
distribute the Participant’s entire Current Plan Benefit in a
lump sum on the first business day following the
Participant’s Separation From Service, notwithstanding a
Participant’s election to receive a different form of
distribution.
12. FUNDING
The Preservation Plan shall be
maintained as an unfunded Plan that is not intended to meet the
qualification requirements of Section 401 of the Code. Except
in the event of a Change in Control of the Corporation (as
described in Section 13 hereof), all benefits under the
Preservation Plan shall be payable solely from the general assets
of the Corporation. In this regard, the rights of each Participant,
Contingent Annuitant and Beneficiary under the Preservation Plan
with respect to his or her Preservation Plan retirement benefit or
survivor benefit shall be those of a general unsecured creditor of
the Corporation. No Participant, Contingent Annuitant or
Beneficiary hereunder shall be entitled to receive any benefits
payable under the Preservation Plan from the assets of the
Qualified Retirement Plan, nor shall the Corporation undertake to
set aside assets in trust or otherwise segregate assets to fund its
obligations under the Preservation Plan except as provided in
Section 13 hereof.
13. CHANGE OF
CONTROL
In the event of a Change of Control
of the Corporation, the Corporation shall immediately fully fund
the value of all Accrued Benefit under the Preservation Plan,
determined by the Actuary as of the date of the Change of Control,
provided the funding is not proximate to a downturn in the
Corporation’s financial health within the meaning of Treas.
Reg. Section 1.409A-3(j)(4)(ix)(C)(1). The required proceeds
will be contributed to the United Technologies Corporation Pension
Preservation Plan Retirement Security Trust, a rabbi trust, and
such proceeds will be held and maintained in the United States. In
addition, if the United
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Technologies Corporation Board of Directors
Committee on Compensation and Executive Development takes any
action under the United Technologies Corporation Long Term
Incentive Plan (the “LTIP”), including, without
limitation, the accelerated vesting or other adjustment to
outstanding LTIP awards in anticipation of (i) a Change of
Control (ii) an event, which if consummated, would constitute
a Change of Control or (iii) any other significant change
pertaining to the ownership of the Corporation, the Corporation
shall then also immediately fund the United Technologies
Corporation Pension Preservation Plan Retirement Security Trust, a
rabbi trust, provided the funding is not proximate to a downturn in
the Corporation’s financial health within the meaning of
Treas. Reg. Section 1.409A-3(j)(4)(ix)(C)(1); and further
provided such funds are held and maintained in the United States.
For purposes of this Section 13, “Change of
Control” shall have the meaning given to that term under the
LTIP.
14.
NONASSIGNABILITY
No Participant, Contingent Annuitant
or Beneficiary or any other person shall have the right to sell,
assign, transfer, pledge, or otherwise encumber any interest in the
Preservation Plan. All Preservation Plan benefits are unassignable
and non-transferable and shall not be subject to attachment or
seizure for the payment of any debts, judgments or other
obligations. No Preservation Plan interest shall be transferred by
operation of law in the event of the bankruptcy or insolvency of a
Participant, Contingent Annuitant, or Beneficiary.
15. NO CONTRACT OF
EMPLOYMENT
Participation in the Preservation
Plan shall not be construed to constitute a direct or indirect
contract of employment between the Corporation and the Participant.
Nothing in the Preservation Plan shall be deemed to give a
Participant the right to be retained in the service of the
Corporation for any length of time. Participants, Contingent
Annuitants and Beneficiaries shall have no rights against the
Corporation resulting from participation in the Preservation Plan
other than as specifically provided herein.
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16. OPERATION AND
ADMINISTRATION
The Preservation Plan shall be
administered by the Pension Administration and Investment Committee
of United Technologies Corporation (the “Committee”).
The Committee shall have the right to delegate its responsibilities
hereunder to sub-committees and indi