Exhibit 10.11F
JOHN BEAN TECHNOLOGIES CORPORATION
EMPLOYEES’ RETIREMENT PROGRAM
(As Amended and Restated, Effective as of January 1, 2012)
JOHN BEAN TECHNOLOGIES CORPORATION EMPLOYEES’ RETIREMENT PROGRAM
PART I
SALARIED AND NONUNION HOURLY EMPLOYEES’ RETIREMENT PLAN
(As Amended and Restated, Effective as of January 1, 2012)
JOHN BEAN TECHNOLOGIES CORPORATION EMPLOYEES’ RETIREMENT PROGRAM
PART I
SALARIED AND NONUNION HOURLY EMPLOYEES’ RETIREMENT PLAN
INTRODUCTION
WHEREAS, the John Bean Technologies Corporation Employees’ Retirement Program (“Program”) was established effective June 1, 2008, in connection with a spin-off of assets and liabilities from the FMC Technologies, Inc. Employees’ Retirement Program (the “FMCTI Plan”), which spin-off complied with the requirements of Code Section 414(l); and
WHEREAS, the FMC Technologies, Inc. Employees’ Retirement Program (“Program”) was established effective May 1, 2001, in connection with a spin-off of assets and liabilities from the FMC Corporation Employees’ Retirement Program (the “FMC Plan”); and
WHEREAS, the Program consists of two parts, Part I Salaried and Nonunion Hourly Employees’ Retirement Plan and Part II Union Hourly Employees’ Retirement Plan, which are contained in two separate plan documents; and
WHEREAS, Supplements to Part I and Part II of the Program contain provisions which apply only to a specific group of Employees or Participants as specified therein and override any contrary provision of the Program or either Part I or Part II; and
WHEREAS, this document is Part I Salaried and Nonunion Hourly Employees’ Retirement Plan (“Plan”) and covers the eligible employees as provided in Article II Participation, and is generally originally effective as of June 1, 2008; except as and to the extent otherwise provided herein or as required with respect to the accrued benefits of any Participant affected by the FTI Spinoff or the JBT Spinoff; and
WHEREAS, the Plan shall not be construed to affect an FMC Participant’s accrued benefit under the FMC Plan, or to alter in any way the rights of any FMC Participant, FMC Joint Annuitant or FMC Beneficiary thereof who has retired, died, or with respect to whom there has been a severance from service date under the FMC Plan before May 1, 2001; and
WHEREAS, the Plan shall not be construed to affect an FMCTI Participant’s accrued benefit under the FMCTI Plan, or to alter in any way the rights of any FMCTI Participant, FMCTI Joint Annuitant or FMCTI Beneficiary thereof who has retired, died, or with respect to whom there has been a severance from service date under the FMCTI Plan before June 1, 2008; and
WHEREAS, Plan is intended to be qualified under Code Section 401(a), and its associated trust is intended to be tax exempt under Code Section 501(a). The Plan is intended also to meet the requirements of ERISA and shall be interpreted, wherever possible, to comply with the terms of the Code and ERISA. The Plan is intended to provide a regular monthly retirement benefit for employees who meet the eligibility requirements; and
WHEREAS, the Company desires to amend and restate the Plan, effective January 1, 2012, and submit the Plan to the Internal Revenue Service for a favorable determination letter.
NOW, THEREFORE, effective January 1, 2012, the Company hereby amends and restates the Plan to provide as follows:
ARTICLE I
Definitions
For purposes of this Plan and any amendments to it, the following terms have the meanings ascribed to them below.
Actuarial Equivalent
means a benefit determined to be of equal value to another benefit, on the basis of either (a) the actuarial assumptions in Exhibit E-1, E-2, E-3, or E-4, as applicable or (b) the mortality table and interest rate described in the applicable Supplement.
Notwithstanding the above to the contrary, effective February 1, 2006, for purposes of optional form of benefit conversions (including optional form of benefit conversions described in Supplements 2, 3 and 4, but excluding optional form of benefit conversions described in Supplement 1), Actuarial Equivalent means a benefit determined to be of equal value to another benefit on the basis of the greater of (1) either (a) the actuarial equivalent, computed using the actuarial assumptions in Exhibit E-1, E-2, E-3, or E-4, as applicable, of the accrued benefit as of February 1, 2006 or (b) the actuarial equivalent, computed using the mortality and interest rate described in the applicable Supplement, of the accrued benefit as of February 1, 2006, or (2) the actuarial equivalent, computed using the RP-2000 Combined Healthy Participant Table (RP2000CH), weighted 80% male/20% female and 6% interest compounded annually, of the accrued benefit as of the date of determination on or after February 1, 2006.
Notwithstanding anything herein to the contrary, for purposes of Section 12.8 Actuarial Equivalent value shall be determined as follows: (and, effective February 1, 2006, for purposes of the determination of the optional form of benefit conversion to the Level Income Option described in Section 6.2.4, Actuarial Equivalent value shall be determined as follows (provided, that with respect to the Level Income Option optional form of benefit conversion determination, Actuarial Equivalent value shall be determined on the basis of the greater of (1) either (a) the actuarial equivalent, computed using the actuarial assumptions in Exhibit E-1, E-2, E-3, or E-4, as applicable, of the accrued benefit as of February 1, 2006 or (b) the actuarial equivalent, computed using the mortality and interest rate described in the applicable Supplement, of the accrued benefit as of February 1, 2006, or (2) the actuarial equivalent, computed as provided below, of the accrued benefit as of the date of determination on or after February 1, 2006)):
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(i)
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with respect to FMC Participants whose Annuity Starting Dates occurred prior to June 1, 1995, based on the actuarial assumptions in Exhibit E-4; provided that the interest rate shall not exceed the immediate rate used by the Pension Benefit Guaranty Corporation for lump sum distributions occurring on the first day of the Plan Year that contains the Annuity Starting Date;
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(ii)
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with respect to FMC Participants with Annuity Starting Dates occurring on or after June 1, 1995, and who had an Hour of Service prior to August 31, 1999, based on the 1983 Group Annuity Mortality Table (weighed 50% male and 50% female) (or the applicable mortality table prescribed under Section 417(e)(3) of the Code) and the lesser of the interest rate in Exhibit E-4 or the applicable interest rate prescribed under Section 417(e)(3) of the Code for the November preceding the Plan Year that contains the Annuity Starting Date;
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(iii)
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for Annuity Starting Dates occurring on or after August 31, 1999, with respect to any Participant who did not have an Hour of Service prior to August 31, 1999, based on the 1983 Group Annuity Mortality Table (weighted 50% male and 50% female) (or the applicable mortality table, prescribed under Section 417(e)(3) of the Code) and the applicable interest rate prescribed under Section 417(e)(3) of the Code for the November preceding the Plan Year that contains the Annuity Starting Date;
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(iv)
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for Annuity Starting Dates occurring on or after December 31, 2002, using the applicable interest rate as described above, and based on the 1994 Group Annuity Reserving Table (weighted 50% male, 50% female and projected to 2002 using Scale AA), which is the applicable mortality table prescribed in Rev. Rul. 2001-62, (or the applicable mortality table, prescribed under Section 417(e)(3) of the Code or other guidance of general applicability issued thereunder); and
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(v)
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Effective January 1, 2008, and solely for purposes of the determination of the present value of benefits pursuant to Code Section 417(e): (1) the applicable interest rate shall mean the applicable interest rate described in Code Section 417(e)(3)(C), which is the adjusted first, second and third segment rates (defined in Code Section 417(e)(3)(D)) applied under rules similar to the rules of Code Section 430(h)(2)(C) for the month of November preceding the first day of the Plan Year which includes the date of distribution, and (2) the applicable mortality table shall mean the applicable mortality table described in Code Section 417(e)(3)(B), Revenue Ruling 2007-67 and subsequent guidance (including regulations) issued by the Internal Revenue Service.
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Administrator
means the Company. The Plan is administered by the Company through the Committee. “The Administrator” and the Committee have the responsibilities specified in Article IX.
Affiliate
means any corporation, partnership, or other entity that is:
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(a)
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(a member of a controlled group of corporations of which the Company is a member (as described in Code Section 414(b));
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(b)
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a member of any trade or business under common control with the Company (as described in Code Section 414(c));
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(c)
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member of an affiliated service group that includes the Company (as described in Code Section 414(m));
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(d)
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an entity required to be aggregated with the Company pursuant to regulations promulgated under Code Section 414(o); or
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(e)
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a leasing organization that provides Leased Employees to the Company or an Affiliate (as determined under paragraphs (a) through (d) above), unless (i) the Leased Employees constitute less than 20% of the nonhighly compensated workforce of the Company and Affiliates (as determined under paragraphs (a) through (d) above); and (ii) the Leased Employees are covered by a plan described in Code Section 414(n)(5).
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“Leasing organization” has the meaning ascribed to it in the definition of “Leased Employee” below.
For purposes of Section 3.5, the 80% thresholds of Code Sections 414(b) and (c) are deemed to be “more than 50%,” rather than “at least 80%.”
Annuity Starting Date
means the first day of the first period for which an amount is paid in an annuity or other form of benefit. In the case of a lump sum distribution, the Annuity Starting Date is the date payment is actually made.
Beneficiary
means the person or persons determined pursuant to Section 12.4.
Benefits Agreement
means the Employee Benefits Agreement by and between FMC and the Company.
Board
means the board of directors of the Company.
Code
means the Internal Revenue Code of 1986, as amended from time to time. Reference to a specific provision of the Code includes that provision, any successor to it and any valid regulation promulgated under the provision or successor provision.
Committee
means the JBT Corporation Employee Welfare Benefits Plan Committee as described in Section 9.3, its authorized delegates and any successor to the Committee.
Company
means John Bean Technologies Corporation and any successor to it. Prior to June 1, 2008, Company meant FMC Technologies, Inc.
Early Retirement Benefit
means the benefits determined pursuant to Section 3.2.
Early Retirement Date
means (a) in the case of an FMC Participant who became a Participant in the FMC Plan before January 1, 1984, such Participant’s 55th birthday; and (b) in the case of an FMC Participant who became a Participant in the FMC Plan after December 31, 1983, any FMCTI Participant who became a Participant in the FMCTI Plan on or after May 1, 2001, or any other Employee who became a Participant in this Plan after the Effective Date, the later of the Participant’s 55th birthday and the date the Participant acquires 10 Years of Credited Service.
Earnings
means the total compensation paid by the Company or a Participating Employer to an Eligible Employee for each Plan Year that is currently includible in gross income for federal income tax purposes:
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(a)
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including:
overtime, administrative and discretionary bonuses (including, gainsharing bonuses, performance related bonuses, completion bonuses (except as provided below); sales incentive bonuses; earned but unused vacation, back pay, sick pay (other than a cash payment of unused sick days) and state disability benefits; plus the Employee’s Pre-Tax Contributions and amounts contributed to a plan described in Code Section 125 or 132; and the incentive compensation (including management incentive bonuses which may be paid in cash and restricted stock and local incentive bonuses) earned during the Plan Year;
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(b)
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but excluding:
hiring bonuses; referral bonuses; stay bonuses; retention bonuses; awards (including safety awards, “Gutbuster” awards and other similar awards); amounts received as deferred compensation; disability payments from insurance or the Long-Term Disability Plan for Employees of FMC Technologies, Inc. (effective June 1, 2008, the Long-Term Disability Plan for Employees of JBT Corporation) (other than state disability benefits); workers’ compensation benefits; flexible credits (i.e., wellness awards and payments for opting out of benefit coverage); expatriate premiums (including completion of expatriate assignment bonuses); grievance or settlement pay; severance pay; incentives for reduction in force; accrued (but not earned) vacation; other special payments such as reimbursements, relocation or moving expense allowances; stock options or other stock-based compensation (except as provided above); any gross-up paid by a Participating Employer; other distributions that receive special tax benefits; any amounts paid by a Participating Employer to cover an Employee’s FICA tax obligation as to amounts deferred or accrued under any nonqualified retirement plan of a Participating Employer; and, pay in lieu of notice.
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(c)
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The annual amount of Earnings taken into account for a Participant must not exceed $160,000 (as adjusted by the Internal Revenue Service for cost-of-living increases in accordance with Code Section 401(a)(17)(B)); provided, however, in determining benefit accruals after December 31, 2001, the annual amount of Earnings taken into account for a Participant must not exceed $200,000 (as adjusted by the Internal Revenue Service, for cost of living increases in accordance with code Section 401(a)(17)(B)). For purposes of determining benefit accruals in any Plan year after December 31, 2001, Earnings for any prior Plan Year shall be subject to the applicable limit on Earnings for that prior year.
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Participant’s Earnings will be conclusively determined according to the Company’s records.
An FMC Participant’s Earnings shall include all “Earnings” determined under the FMC Plan on and prior to April 30, 2001 and all “Earnings” determined under the FMCTI Plan on and after May 1, 2001, but prior to June 1, 2008.
An FMCTI Participant’s Earnings shall include all “Earnings” determined under the FMCTI Plan on and prior to May 31, 2008.
Notwithstanding anything herein to the contrary, effective for Plan Years beginning on or after January 1, 2009, Earnings shall include differential wage payments as described in Section 2.4(b) of the Plan.
Notwithstanding any Plan provision to the contrary, a Participant’s Earnings shall not include any compensation paid by the Company or a Participating Employer to the Participant for any Plan Year commencing on or after January 1, 2010.
Effective Date
means (i) June 1, 2008 or, if later, an Employee’s Employment Commencement Date or Reemployment Commencement date, whichever is applicable, (ii) with respect to each FMC Participant, June 1, 2008 or, if later, the date such FMC Participant’s accrued benefit under the FMC Plan is deemed transferred to this Plan under the Benefits Agreement or (iii) with respect to each FMCTI Participant, June 1, 2008 or, if later, the date such FMCTI Participant’s accrued benefit under the FMCTI Plan is deemed transferred to this Plan.
Eligible Employee
means an Employee of a Participating Employer who is employed on a salaried basis or in such other classifications as the Company may designate as salaried positions, other than:
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(b)
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a member of a bargaining unit covered by a collective bargaining agreement that does not specifically provide for participation in the Plan by members of the bargaining unit; or
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(c)
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any Employee who generally resides outside the United States or whose principal duties generally are performed outside the United States as determined by the Company, unless such individual is a United States citizen or permanent resident alien or the Company designates such individual as an Eligible Employee.
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Any individual who is a United States citizen or permanent resident alien and who is employed by a Foreign Subsidiary in a position which would make such individual an Eligible Employee if employed by the Company shall be deemed to be employed by the Company, provided that no entity other than the Company makes contributions under any funded plan of deferred compensation (other than the Thrift Plan or any governmental retirement plan) with respect to the remuneration such individual receives from such Foreign Subsidiary.
Notwithstanding any Plan provision to the contrary, no Employee shall become an Eligible Employee on or after January 1, 2010.
Employee
means a common law employee or Leased Employee of the Company or an Affiliate, subject to the following rules:
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(a)
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a person who is not a Leased Employee and who is engaged as an independent contractor is not an Employee;
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(b)
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only individuals who are paid as employees from the payroll of the Company or an Affiliate and treated as employees are Employees under the Plan; and
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(c)
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any person retroactively found to be a common law employee shall not be eligible to participate in the Plan for any period he was not an Employee under the Plan.
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Employee Contributions
means required contributions made by Participants to the FMC Plan or prior plans prior to May 1, 1969.
Employment Commencement
Date
means the date on which the Employee first performs an Hour of Service.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a specific provision of ERISA includes the provision, any successor provision and any valid regulation promulgated under the provision or successor provision.
50% Joint and Survivor’s Annuity
means the immediate annuity determined pursuant to Section 6.1.2.
Final Average Yearly Earnings
means 1/5
th
of the sum of the Participant’s Earnings while an Eligible Employee (or with respect to an FMC Participant, while an Eligible Employee or while an eligible employee under the FMC Plan or FMCTI Plan) (or with respect to an FMCTI Participant, while an Eligible Employee or while an eligible employee under the FMCTI Plan) for the 60 consecutive calendar months (not taking into account months in which the Participant had no Earnings) out of the past 120 calendar months in which such Earnings were the highest. If the commencement of a Participant’s retirement benefits hereunder is preceded by a period of long-term disability, the Company may adjust Final Average Yearly Earnings on a nondiscriminatory basis; provided, however, that no such adjustment shall be made to the Final Average Yearly Earnings of any Participant who initially commences receiving disability benefits on or after January 12, 2006 under the Long-Term Disability Plan for Employees of FMC Technologies, Inc. (effective June 1, 2008, the Long-Term Disability Plan for Employees of JBT Corporation). With respect to Participants who accepted offers of employment with Snap-On Incorporated (“Snap-On”) as a result of the Company’s sale of assets of its Automotive Service Equipment Division to Snap-On, the Participants’ Earnings shall include eligible wages with Snap-On and its subsidiaries for purposes of calculating Final Average Yearly Earnings. Notwithstanding any Plan provision to the contrary, a Participant’s Final Average Yearly Earnings shall be determined as of December 31, 2009, and shall not be redetermined thereafter.
FMC
means FMC Corporation, a Delaware corporation.
FMC Beneficiary
means an individual who was receiving benefits under the FMC Plan as a result of the death of an FMC Participant and whose benefit was transferred to the FMCTI Plan pursuant to the FTI Spinoff.
FMC Joint Annuitant
means an individual who was designated as a joint annuitant of an FMC Participant under the FMC Plan, the benefits of such FMC Participant which were transferred to the FMCTI Plan pursuant to the FTI Spinoff.
FMC Participant
means any participant in Part I Salaried and Non-Union Hourly Employee’s Retirement Plan of the FMC Plan who had their accrued benefit, years of credited service and years of vesting service under the FMC Plan transferred to the FMCTI Plan, pursuant to the FTI Spinoff.
FMC Plan
means the FMC Corporation Employees’ Retirement Program.
FMCTI
means FMC Technologies, Inc.
FMCTI Beneficiary
means an individual who was receiving benefits under the FMCTI Plan as a result of the death of an FMCTI Participant and whose benefit was transferred to this Plan pursuant to the JBT Spinoff.
FMCTI Joint Annuitant
means an individual who was designated as a joint annuitant of an FMCTI Participant under the FMCTI Plan, the benefits of such FMCTI Participant which were transferred to this Plan pursuant to the JBT Spinoff.
FMCTI Participant
means any participant (including any FMC Pariticipant) in Part I Salaried and Non-Union Hourly Employee’s Retirement Plan of the FMCTI Plan who had their accrued benefit, years of credited service and years of vesting service under the FMCTI Plan transferred to this Plan, pursuant to the JBT Spinoff.
FMCTI Plan
means the FMC Technologies, Inc. Employees’ Retirement Program.
FTI Spinoff
means the transfer of assets and liabilities attributable to FMC Participants from the FMC Plan to this Plan pursuant to the Benefits Agreement.
Foreign Subsidiary
means a foreign corporation covered by an agreement between the Company and the Internal Revenue Service extending Federal Social Security benefits to such foreign corporation’s employees who are United States citizens, provided that either (a) not less than 20% of the voting stock of such foreign corporation is owned by the Company or (b) more than 50% of the voting stock of such foreign corporation is owned by another foreign corporation which is described in (a) above.
Hour of Service
means each hour (a) for which an Employee is directly or indirectly paid or entitled to payment by the Company or an Affiliate for the performance of duties, and (b) for each FMC Participant, each hour of service credited to such individual under the FMC Plan and the FMCTI Plan as of the date prior to the Effective Date for such FMC Participant and (c) for each FMCTI Participant, each hour of service credited to such individual under the FMCTI Plan as of the date prior to the Effective Date for such FMCTI Participant. Hours of Service will be credited to the Employee for the computation period in which the duties are performed. To the extent required by law, Hour of Service will include each hour for which an Employee is paid, or entitled to payment, by the Company or any Affiliate on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence. Nor more than 501 Hours of Service will be credited for any single continuous period (whether or not such period occurs in a single computation period). Hours of Service for these purposes will be calculated and credited pursuant to section 2530.200b-2 of the Department of Labor Regulations which is incorporated herein by this reference. Also to the extent required by law, Hours of Service will include each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Company or an Affiliate, provided however, the same hours of service will not be credited. These hours will be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made.
Individual Life Annuity
means the annuity determined pursuant to Section 6.1.1.
Interest
means interest compounded annually at the following rates:
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(a)
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if Employee Contributions are withdrawn prior to retirement then
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(i)
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for periods prior to January 1, 1976 at a rate equal to 3%; and
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(ii)
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for periods on and after January 1, 1976 at a rate equal to 5%.
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(b)
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if Employee Contributions are not withdrawn and are used to increase a Participant’s Normal Retirement Benefit under Section 3.1.3, then at a rate equal to 5%.
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Investment Manager
means a person who is an “investment manager” as defined in section 3(38) of ERISA.
JBT Spinoff
means the transfer of assets and liabilities attributable to FMCTI Participants from the FMCTI Plan to this Plan.
Joint Annuitant
means the individual determined pursuant to Section 6.4.
Leased Employee
means an individual who performs services for the Company or an Affiliate on a substantially full-time basis for a period of at least one year, under the primary direction or control of the Company or an Affiliate, and under an agreement between the Company or Affiliate and a leasing organization. The leasing organization can be a third party or the Leased Employee himself.
Level Income Option
means the annuity determined pursuant to Section 6.2.4.
Normal Retirement Date
means the Participant’s 65th birthday.
100% Joint and Survivor’s Annuity
means the immediate annuity determined pursuant to Section 6.2.3.
One-Year Period of Severance
means a 12-consecutive-month period commencing on an Employee’s Severance From Service Date in which the Employee is not credited with an Hour of Service.
Participant
means an Eligible Employee who has begun, but not ended, his or her participation in the Plan pursuant to the provisions of Article II and, unless specifically indicated otherwise, shall include each FMC Participant and each FMCTI Participant. If a Participant who is vested in the Participant’s accrued benefit on his or her Severance from Service Date is subsequently reemployed after his or her Severance from Service Date, he or she will become a Participant immediately upon reemployment. If a Participant who is not vested in the Participant’s accrued benefit on his or her Severance from Service Date is subsequently reemployed after his Severance from Service Date, he or she will become a Participant immediately upon reemployment, unless his or her Period of Severance is greater than or equal to five One-Year Periods of Severance.
Participating Employer
means the Company and each other Affiliate that adopts the Plan with the consent of the Board, as provided in Section 12.12.
Period of Service
means the period commencing on the Effective Date and ending on the Severance From Service Date including, for each FMC Participant and each FMCTI Participant, periods of service credited under the FMC Plan and/or the FMCTI Plan, as applicable, as of the date immediately prior to the relevant Effective Date for such FMC Participant or FMCTI Participant. All Periods of Service (whether or not consecutive) shall be aggregated. For a Participant who is not immediately eligible to participate in the Plan under the terms of Section 2.1 hereof, Period of Service shall include service from and after the first day of the period in which they become eligible to participate in the Plan pursuant to the terms of Section 2.1, but in no event earlier than the Participant’s date of hire by the Company or its Affiliates. Notwithstanding the foregoing, if an Employee incurs a One-Year Period of Severance at a time when he or she has no vested interest under the Plan and the Employee does not perform an Hour of Service within 5 years after the beginning of the One-Year Period of Severance, the Period of Vesting Service prior to such One-Year Period of Severance shall not be aggregated.
Period of Severance
means the period commencing on the Severance From Service Date and ending on the date on which the Employee again performs an Hour of Service.
Plan
means Part I Salaried and Nonunion Hourly Employees’ Retirement Plan of the John Bean Technologies Corporation Employees’ Retirement Program.
Plan Year
means the period beginning June 1, 2008 and ending December 31, 2008 and thereafter the 12-month period beginning on January 1 and ending the next December 31.
Primary Social Security Benefit
means the primary benefit which the Participant is eligible to receive at age 65 under the old age portion of the Federal Old Age, Survivors’ and Disability Insurance Program assuming that after termination of employment with the Company and Affiliates the Participant has no further earnings subject to such programs. A Participant’s Primary Social Security Benefit shall be determined by taking his Earnings at the time of his employment and applying a salary scale, projected backwards, reflecting the actual change in the average wage from year to year as determined by the Social Security Administration.
Reemployment Commencement Date
means the first date following a Period of Severance which is not required to be taken into account for purposes of an Employee’s Period of Vesting Service on which the Employee performs an Hour of Service.
Savings Plan
means the JBT Corporation Employees’ Savings and Investment Plan, as amended from time to time.
Severance From Service
Date means the earliest of:
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(a)
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the date on which an Employee voluntarily terminates, retires, is discharged or dies;
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(b)
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the first anniversary of the first date of a period in which an Employee remains absent from service (with or without pay) with the Company and Affiliates for any reason other than voluntary termination, retirement, discharge or death; or
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(c)
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the second anniversary of the date an Employee is absent pursuant to a maternity or paternity leave of absence; provided, however, that the period between the first and second anniversaries of the first date of such absence shall be neither a Period of Service nor a One-Year Period of Severance.
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Notwithstanding the foregoing, a Severance From Service Date shall not be considered to have occurred under the following circumstances:
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(i)
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during a leave of absence, vacation or holiday with pay; during a leave of absence without pay granted by reason of disability or under the Family and Medical Leave Act of 1993;
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(ii)
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during a period of qualified military service, provided the Employee makes application to return within 90 days after completion of active service and returns to active employment as an Employee while reemployment rights are protected by law. If the Employee does not so return, the Employee shall have a Severance From Service Date on the first anniversary of the date of entry into military service.
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If the Employee violates the terms of a leave of absence, the Employee shall be deemed to have voluntarily terminated as of the date of such violation. In the case of a leave in excess of 12 months, if the Employee fails to return to active employment immediately after such leave, the Employee shall be deemed to have voluntarily terminated as of the last day of the 12th month of the leave.
A “maternity or paternity leave of absence” means an absence from work by reason of the Employee’s pregnancy, birth of the Employee’s child, placement of a child with the Employee in connection with the adoption of such child, or any absence for the purpose of caring for such child for a period immediately following such birth or placement.
Social Security Covered Compensation Base
means the average of the compensation and benefit bases in effect under Section 230 of the Social Security Act for each year in the 35-year period ending with the year in which the participant attains Social Security retirement age as defined in Section 415(b)(8) of the Code. Notwithstanding any Plan provision to the contrary, no future adjustments occurring pursuant to Section 230 of the Social Security Act on or after January 1, 2010 shall be made to the Social Security Covered Compensation Base with respect to any Participant.
Supplement
means the provisions of the Plan which apply only to a specific group of Employees or Participants as detailed in such Supplement and which override any contrary provision of the Plan.
Trust
means the trust established by the Trust Agreement. “Trust Agreement” means the trust agreement or agreements, as amended from time to time, entered into by the Company and the Trustee pursuant to Section 8.1. “Trustee” means the trustee or trustees at any time appointed by the Company pursuant to Section 8.1.
Trust Fund
means the trust fund established and maintained by the Trustee to hold all assets of the Plan pursuant to the Trust Agreement.
Year of Credited Service
means (a) for an FMC Participant, his or her years of credited service under the FMC Plan and/or the FMCTI Plan prior to such FMC Participant’s Effective Date, (b) for an FMCTI Participant, his or her years of credited service under the FMCTI Plan prior to such FMCTI Participant’s Effective Date, and (c) the total number of calendar months during the Employee’s Period of Service while the Employee is an Eligible Employee and after he has become a Participant divided by 12. A partial month in such Period of Service counts as a whole month, and fractional Years of Credited Service shall be taken into account in determining a Participant’s benefits. Year of Credited Service shall also include such other periods as the Company recognizes as a Year of Credited Service, pursuant to written and nondiscriminatory rules.
Notwithstanding the foregoing, Year of Credited Service shall not include (i) any leave of absence without pay unless the Employee returns to active employment as an Employee immediately after such leave and abides by all the terms of the leave, (ii) any maternity or paternity leave of absence unless the Employee returns to active employment as an Employee within 12 months after the first day of such leave, (iii) any period of service with respect to which such Eligible Employee accrues a benefit under the FMC Plan on or after May 1, 2001, the FMCTI Plan on or after June 1, 2008, or any pension, profit sharing or other retirement plan listed on Exhibit A, or (iv) with respect to any Employee who initially commences receiving disability benefits effective on or after January 12, 2006
under the Long-Term Disability Plan for Employees of FMC Technologies, Inc. (effective June 1, 2008, the Long-Term Disability Plan for Employees of JBT Corporation), any period for which the Employee receives such benefits.
Notwithstanding any Plan provision to the contrary, except as provided below with respect solely to the determination of whether a Participant has attained his or her Early Retirement Date, the accrual of any future Year of Credited Service for all Participants shall cease and, as a result, Year of Credited Service with respect to a Participant shall not include any Period of Service of the Participant on or after January 1, 2010. Notwithstanding the preceding to the contrary, with respect solely to the determination of whether a Participant has attained his or her Early Retirement Date, each future Year of Credited Service of the Participant shall be taken into account.
Year of Vesting Service
means (a) for an FMC Participant, his or her years of service and years of vesting service credited under the FMC Plan and FMCTI Plan prior to such FMC Participant’s Effective Date, (b) for an FMCTI Participant, his or her years of service and years of vesting service credited under the FMCTI Plan prior to such FMCTI Participant’s Effective Date, and (c) the total number of calendar months during the Employee’s Period of Service divided by 12, determined in accordance with the following rules:
|
(i)
|
a partial month in the Employee’s Period of Service counts as a whole month;
|
|
(ii)
|
if the Employee has a Severance From Service Date by reason of a voluntary termination, discharge or retirement and the Employee then performs 1 Hour of Service within 12 months of the Severance From Service Date, such Period of Severance is included in the Period of Vesting Service. If the Employee has a Severance From Service Date by reason of a voluntary termination, discharge or retirement during an absence from service of 12 months or less for any reason other than a voluntary termination, discharge or retirement, and then performs 1 Hour of Service within 12 months of the date on which the Employee was first absent from service, such Period of Severance is included in the Period of Vesting Service;
|
|
(iii)
|
period of Vesting Service also includes the following:
|
|
(1)
|
a period of employment with an employer substantially all of the equity interest or assets of which have been acquired by the Company or an Affiliate, but only to the extent that the Company expressly recognizes such period as a Period of Vesting Service pursuant to written and nondiscriminatory rules; and
|
|
(2)
|
such other periods as the Company recognizes as a Period of Vesting Service pursuant to written and nondiscriminatory rules.
|
|
(iv)
|
Notwithstanding the foregoing, Year of Vesting Service shall not include with respect to any Employee who initially commences receiving disability benefits effective on or after January 12, 2006 under the Long-Term Disability Plan for Employees of FMC Technologies, Inc. (effective June 1, 2008, the Long-Term Disability Plan for Employees of JBT Corporation), any period for which the Employee receives such benefits.
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ARTICLE II
Participation
2.1
Eligibility and Commencement of Participation
Each FMC Participant and FMCTI Participant shall automatically became a Participant in the Plan on such FMC Participant’s or FMCTI Participant’s Effective Date. Except as otherwise provided in the applicable Supplement, each other Employee shall automatically become a Participant in the Plan as of the first day of the month in which the Participant satisfies all of the following requirements:
|
(a)
|
the Employee is an Eligible Employee; and
|
|
(b)
|
the Employee either (i) is a regular, full-time Employee, or (ii) has completed not less than 1,000 Hours of Service in a 12-month period beginning on the date his employment commenced or any anniversary thereof.
|
Notwithstanding any Plan provision to the contrary, (a) no Employee shall become a Participant in the Plan on or after January 1, 2010; (b) no Participant shall be credited with future Earnings for any Plan Year commencing on or after January 1, 2010; (c) except with respect solely to the determination of whether a Participant has attained his or her Early Retirement Date as set forth in the definition of Year of Credited Service set forth in Article I of the Plan, no Participant shall accrue any future Year of Credited Service on or after January 1, 2010; and (d) no future adjustments occurring pursuant to Section 230 of the Social Security Act on or after January 1, 2010 shall be made to the Social Security Covered Compensation Base with respect to any Participant.
2.2
Provision of Information
Each Participant must make available to the Administrator any information it reasonably requests. As a condition of participation in the Plan, each Employee, FMC Participant and FMCTI Participant agrees, on his or her own behalf and on behalf of all persons who may have or claim any right by reason of the Employee’s participation in the Plan, to be bound by all provisions of the Plan.
2.3
Termination of Participation
A Participant ceases to be a Participant when he or she dies or, if earlier, when his or her entire vested benefit accrued under the Plan has been paid to him or her.
2.4
Special Rules Relating to Veterans’ Reemployment Rights
Notwithstanding any provision of this Plan to the contrary, with respect to an Eligible Employee or Participant who is reemployed in accordance with the reemployment provisions of the Uniformed Services Employment and Reemployment Rights Act following a period of qualifying military service (as determined under such Act), contributions, benefits and service credit will be provided in accordance with Section 414(u) of the Code. Notwithstanding the preceding, effective January 1, 2009, unless an earlier date is specifically set forth in this Section 2.4, the following shall apply:
|
(a)
|
General Rule
. Notwithstanding any provisions of this 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 Code. “Qualified military service” means any service in the uniformed services (as defined in chapter 43 of title 38 of the United States Code) by any individual if such individual is entitled to reemployment rights under such chapter with respect to such service.
|
|
(b)
|
Differential Wage Payments
. An individual receiving a differential wage payment, as defined by Section 3401(h)(2) of the Code, is treated as an Employee of the Participating Employer making the payment and the differential wage payment is treated as Earnings under the Plan.
|
The Plan is not treated as failing to meet the requirements of any provision described in Section 414(u)(1)(C) of the Code due to any contribution or benefit which is based on the differential wage payment provided that all Employees of the Participating Employer are entitled to receive differential wage payments, and to make contributions based on such payments, on reasonably equivalent terms.
|
(c)
|
Death During Qualified Military Service
. In the case of a death occurring on or after January 1, 2007, if a Participant dies while performing qualified military service (as defined in Section 414(u) of the Code), the survivors of the Participant are entitled to any additional benefits (other than benefit accruals relating to the period of qualified military service) provided under the Plan as if the Participant had resumed and then terminated employment on account of death.
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ARTICLE III
Normal, Early and Deferred Retirement Benefits
3.1
Normal Retirement Benefits
3.1.1
Normal Retirement:
A Participant who retires on the Normal Retirement Date shall be entitled to receive a Normal Retirement Benefit determined under Section 3.1.2. Payment of such benefit shall commence as of the first day of the month coincident with or next following the Participant’s Normal Retirement Date, unless the Participant elects to defer commencement subject to Section 3.3.2.
3.1.2
Calculation of Normal Retirement Benefit:
Subject to Section 3.1.3, a Participant’s monthly Normal Retirement Benefit shall be equal to the product of (a) multiplied by (b) below:
|
(a)
|
1/12th of the sum of (i) and (ii) below:
|
|
(i)
|
the sum of (1) 1% of the Participant’s Final Average Yearly Earnings up to the Social Security Covered Compensation Base and (2) 1-1/2% of the Participant’s Final Average Yearly Earnings in excess of the Social Security Covered Compensation Base multiplied by the Participant’s expected Years of Credited Service at age 65 up to 35 Years of Credited Service; and
|
|
(ii)
|
1-1/2% of the Participant’s Final Average Yearly Earnings multiplied by the Participant’s expected Years of Credited Service at age 65 in excess of 35 Years of Credited Service.
|
|
(b)
|
the ratio of actual Years of Credited Service to expected Years of Credited Service at age 65.
|
In no event, however, shall an FMC Participant’s monthly Normal Retirement Benefit be less than his or her accrued monthly Normal Retirement Benefit under the FMC Plan as of December 31, 1990.
3.1.3
Increases for Employee Contributions:
Employee Contributions and Interest credited to a Participant are not paid as an accrued benefit, but rather may be withdrawn by the Participant at any time pursuant to Section 5.2 hereof. However, if a Participant does not elect to withdraw the Employee Contributions and Interest credited to the Participant either at the time of Retirement or before, pursuant to the terms of Section 5.2 hereof, a Participant’s Normal Retirement Benefit shall be increased $1 for each $120.00 of unwithdrawn Employee Contributions credited to the Participant.
3.1.4
Reductions for Certain Benefits:
A Participant’s Normal Retirement Benefit shall be reduced by the value of (a) for FMC Participants, the FMC Participant’s vested benefit accrued under the FMC Plan as of November 30, 1985 (to the extent funded by the Aetna nonparticipating annuity contract or the Prudential nonparticipating annuity contract) and (b) any vested benefit payable to the Participant under the FMC Plan, the FMCTI Plan, or any pension, profit sharing or other retirement plan other than the Savings Plan (hereinafter called “Duplicate Benefit Plan”) which is attributable to any period which counts as Credited Service under this Plan. For purposes of determining the amount of any Duplicate Benefit Plan reduction, the vested benefit under the Duplicate Benefit Plan shall be converted to a form which is identical to the form of benefit which is to be paid under this Plan, including any applicable reductions for early commencement as determined under the Plan or the Duplicate Benefit Plan, as applicable. Such values will be determined as of the earlier of the Annuity Starting Date under the Plan, or the date distribution of such vested benefit was made or commenced under the Duplicate Benefit Plan as applicable.
3.2
Early Retirement Benefits
3.2.1
Early Retirement:
A Participant who retires on or after the Early Retirement Date shall be entitled to receive an Early Retirement Benefit determined under Section 3.2.2. Payment of such benefit shall commence as of the first of the month after the Participant retires or, if the Participant elects, as of the first day of any subsequent month. Any such election of a deferred commencement date may be revoked at any time prior to such date and a new date may be elected by giving advance written notice to the Administrator in accordance with rules prescribed by the Administrator.
3.2.2
Calculation of Early Retirement Benefit:
Subject to Sections 3.2.3 and 3.2.4, a Participant’s monthly Early Retirement Benefit shall be equal to the greater of (a) or (b) below:
|
(a)
|
an amount determined pursuant to Section 3.1.2; and
|
|
(b)
|
for an FMC Participant, his or her accrued monthly unreduced Early Retirement Benefit under the FMC Plan as of December 31, 1990 that was transferred to the FMCTI Plan in the FTI Spinoff.
|
3.2.3
Early Retirement Reduction Factor:
The Participant’s Early Retirement Benefit computed pursuant to Section 3.2.2 shall be reduced by 1 /3 of 1% for each 1 month in excess of 36 by which the commencement of the Participant’s Early Retirement Benefit precedes the Participant’s 65
th
birthday.
3.2.4
Adjustments to Early Retirement Benefit:
To the extent applicable, a Participant’s Early Retirement Benefit shall be increased as provided in Section 3.1.3 except that the number of dollars of unwithdrawn Employee Contributions and Interest required to provide $1 of monthly retirement benefits shall be increased by $3 for each full year by which the commencement of the Participant’s Early Retirement Benefit precedes the Participant’s Normal Retirement Date. Partial years shall be prorated on the basis of $0.25 per month.
3.3
Deferred Retirement Benefit
3.3.1
Deferred Retirement:
A Participant who retires after the Normal Retirement Date shall be entitled to receive a Normal Retirement Benefit determined under Section 3.1.2 commencing as of the first day of the month coinciding with or next following the date the Participant actually retires. Each Participant shall accrue additional benefits hereunder after the Participant’s Normal Retirement Date with respect to the portion of the Normal Retirement Benefit which is attributable to contributions by the Company, and the amount, if any, of Employee Contributions and Interest required to provide $1 of monthly retirement benefit under Section 3.1.3 shall be decreased by $3 for each full year by which the commencement of the Normal Retirement Benefit follows the Normal Retirement Date. Partial years shall be prorated on the basis of $0.25 per month. If a Participant who is not employed by the Company or its Affiliates on his or her Normal Retirement Date defers his or her Normal Retirement Benefit will be paid retroactive to the Participant’s Normal Retirement Date as soon as reasonably practicable after the Plan Administrator learns of the deferred benefit.
3.3.2
Distribution Requirements:
Except as hereinafter provided, unless the Participant elects otherwise in accordance with the terms of the Plan, payment of a Participant’s retirement benefits will begin no later than 60 days after the close of the Plan Year in which the latest of the following events occurs:
|
(a)
|
the Participant’s 65th birthday;
|
|
(b)
|
the 10th anniversary of the year in which the Participant commenced participation in the Plan; and
|
|
(c)
|
the Participant terminates employment with the Company and all Affiliates.
|
If the amount of the payment required to commence on the date determined under this Section 3.3.2 cannot be ascertained by such date, or if it is not possible to make such payment on such date because the Administrator cannot locate the Participant after making reasonable efforts to do so, a payment retroactive to such date may be made no later than 60 days after the earliest date on which the amount of such payment can be ascertained under this Plan or the date the Participant is located.
Notwithstanding any other provision of this Plan:
|
(i)
|
the accrued benefit of a Participant who attains age 70-1/2 on or after January 1, 2000 must be distributed or commence to be distributed no later than the April 1 following the later of (1) the calendar year in which the Participant attains age 70-1/2 or (2) the calendar year in which the Participant retires (unless the Participant is a 5% owner, as defined in Code Section 416, of the Company with respect to the Plan Year in which the Participant attains age 70-1/2, in which case this Subsection (2) shall not apply); and
|
|
(ii)
|
the accrued benefit of a Participant who attains age 70-1/2 prior to January 1, 2000 must be distributed or commence to be distributed no later than the April 1 following the calendar year in which the Participant attains age 70-1/2 unless the Participant is not a 5% owner (as defined in Subsection (i)) and elects to defer distribution to the calendar year in which the Participant retires.
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All Plan distributions will comply with Code Section 401(a)(9), including Department of Treasury Regulation Section 1.401(a)(9)-2. With respect to distributions made under the Plan for Plan Years beginning on or after January 1, 2003, all Plan distributions will comply with Code Section 401(a)(9), including Department of Treasury Regulation Section 1.401(a)(9)-2 through 1.401(a)(9)-9, as promulgated under Final and Temporary Regulations published in the Federal Register on April 17, 2002 (the ‘401(a)(9) Regulations’), with respect to minimum distributions under Code Section 401(a)(9). In addition, the benefit payments distributed to any Participant on or after January 1, 2003, will satisfy the incidental death benefit provisions under Code Section 401(a)(9)(G) and Department of Treasury Regulation Section 1.401(a)(9)-5(d), as promulgated in the 401(a)(9) Regulations. To the extent required by Coe Section 401(a)(9)(C)(iii), or any other applicable guidance issued thereunder, with respect to a Participant who retires in a calendar year after the calendar year in which the Participant attains age 70 ½, the actuarial increase in such Participant’s accrued benefit mandated by Code Section 401(a)(9)(C)(iii) shall be implemented notwithstanding any suspension of benefits provision applicable to such Participant pursuant to ERISA 203(a)(3)(B), Code Section 411(a)(3)(B) and the terms of the Plan.
3.4
Suspension of Benefits
3.4.1
Prior to Normal Retirement Date:
If a Participant receives retirement benefits under the Plan following a termination of his employment prior to the Participant’s Normal Retirement Date and again becomes an Employee prior to the Participant’s Normal Retirement Date, no retirement benefits shall be paid during such later period of employment and up to the Participant’s Normal Retirement Date. Any benefits payable under the Plan to or on behalf of the Participant at the time of the Participant’s subsequent termination of employment shall be reduced by the actuarial equivalent (based on the assumptions in Exhibit E-4) of any benefits paid to the Participant after the Participant earlier termination and prior to his Normal Retirement Date.
3.4.2
After Normal Retirement Date:
If (a) a Participant whose employment terminates again becomes an Employee after the Participant’s Normal Retirement Date, or again becomes an Employee prior to the Participant’s Normal Retirement Date and continues in employment beyond the Participant’s Normal Retirement Date, or (b) a Participant continues in employment with the Company and Affiliates after his Normal Retirement Date without a prior termination, the following provisions of this Section 3.4.2 shall become applicable to the Participant as of the Participant’s Normal Retirement Date or, if later, the Participant’s date of reemployment.
|
(i)
|
For purposes of this Section 3.4.2, the following definitions shall apply:
|
|
(1)
|
Postretirement Date Service
means each calendar month after a Participant’s Normal Retirement Date and subsequent to the time that:
|
|
(A)
|
payment of retirement benefits commenced to the Participant if the Participant returned to employment with the Company and Affiliates, or
|
|
(B)
|
payment of retirement benefits would have commenced to him if the Participant had not remained in employment with the Company and Affiliates, if in either case the Participant receives pay from the Company and Affiliates for any Hours of Service performed on each of 8 or more days (or separate work shifts) in such calendar month.
|
|
(2)
|
Suspendable Amount
means the monthly retirement benefits otherwise payable in a calendar month in which the Participant is engaged in Postretirement Date Service.
|
|
(i)
|
Payment shall be permanently withheld of a portion of a Participant’s retirement benefits, not in excess of the Suspendable Amount, for each calendar month during which the Participant is employed in Postretirement Date Service. If payments have been suspended pursuant to Subsection (ii) above, such payments shall resume no later than the first day of the third calendar month after the calendar month in which the Participant ceases to be employed in Postretirement Date Service; provided, however, that no payments shall resume until the Participant has complied with the requirements set forth in Subsection (vi) below. The initial payment upon resumption shall include the payment scheduled to occur in the calendar month when payments resume and any amounts withheld during the period between the cessation of Postretirement Date Service and the resumption of payment, less any amounts that are subject to offset pursuant to Subsection (iv) below.
|
|
(ii)
|
Retirement benefits made subsequent to Postretirement Date Service shall be reduced by (1) the actuarial equivalent (based on the assumptions in Exhibit E-4) of any benefits paid to the Participant prior to the time the Participant is reemployed after the Participant’s Normal Retirement Date; and (2) the amount of any payments previously made during those calendar months in which the Participant was engaged in Postretirement Date Service; provided, however, that such reduction under (Subsection (2)) shall not exceed, in any one month, 25% percent of that month’s total retirement benefits (excluding amounts described in Subsection (ii) above) that would have been due but for the offset.
|
|
(iii)
|
Any Participant whose retirement benefits are suspended pursuant to Subsection (ii) of this Section 3.4.2 shall be notified (by personal delivery or certified or registered mail) during the first calendar month in which payments are withheld that the Participant’s retirement benefits are suspended. Such notification shall include:
|
|
(1)
|
a description of the specific reasons for the suspension of payments;
|
|
(2)
|
a general description of the Plan provisions relating to the suspension;
|
|
(3)
|
a copy of the provisions;
|
|
(4)
|
a statement to the effect that applicable Department of Labor Regulations may be found at Section 2530.203-3 of Title 29 of the Code of Federal Regulations;
|
|
(5)
|
the procedure for appealing the suspension, which procedure shall be governed by Section 12.11; and
|
|
(6)
|
the procedure for filing a benefits resumption notification pursuant to Subsection (vi) below.
|
If payments subsequent to the suspension are to be reduced by an offset pursuant to Subsection (iv) above, the notification shall specifically identify the periods of employment for which the amounts to be offset were paid, the Suspendable Amounts subject to offset, and the manner in which the Plan intends to offset such Suspendable Amounts.
|
(iv)
|
Payments shall not resume as set forth in Subsection (iii) above until a Participant performing Postretirement Date Service notifies the Administrator in writing of the cessation of such Service and supplies the Administrator with such proof of the cessation as the Administrator may reasonably require.
|
|
(v)
|
A Participant may request, pursuant to the procedure contained in Section 12.11, a determination whether specific contemplated employment will constitute Postretirement Date Service.
|
3.5
Benefit Limitations
3.5.1
Limitation on Accrued Benefit: N
otwithstanding any other provision of the Plan, the annual benefit payable under the Plan to a Participant, when expressed as a monthly benefit commencing at the Participant’s Social Security Retirement Age (as defined in Code Section 415(b)(8)), shall not exceed the lesser of (a) $13,333.33 or (b) the highest average of the Participant’s monthly compensation for 3 consecutive calendar years, subject to the following:
|
(i)
|
The maximum shall apply to the Individual Life Annuity computed under Section 3.1, 3.2, 3.3 or Article IV and to that portion of the Accrued Benefit (as adjusted as required under Code Section 415) payable in the form elected to the Participant during the Participant’s lifetime.
|
|
(ii)
|
If a Participant has fewer than 10 years of participation in the Plan, the maximum dollar limitation of Subsection (a) above shall be multiplied by a fraction of which the numerator is the Participant’s actual years of participation in the Plan (computed to fractional parts of a year) and the denominator is 10. If a Participant has fewer than 10 Years of Vesting Service, the maximum compensation limitation in Subsection (b) above shall be multiplied by a fraction of which the numerator is the Years of Vesting Service (computed to fractional parts of a year) and the denominator is 10. Provided, however, that in no event shall such dollar or compensation limitation, as applicable, be less than 1/10th of such limitation determined without regard to any adjustment under this Subsection (ii).
|
|
(iii)
|
As of January 1 of each year, the dollar limitation as adjusted by the Commissioner of Internal Revenue for that calendar year to reflect increases in the cost of living shall become effective as the maximum dollar limitation in Subsection (a) above for the Plan Year ending within that calendar year for Participants terminating in or after such Plan Year.
|
|
(iv)
|
If the benefit of a Participant begins prior to age 62, the defined benefit dollar limitation applicable to the Participant at such earlier age is an annual benefit payable in the form of a Life Annuity beginning at the earlier age that is the Actuarial Equivalent of the dollar limitation under Subsection (a) above applicable to the Participant at age 62. The defined benefit dollar limitation applicable at an age prior to age 62 is determined by using the lesser of the effective Early Retirement reduction, as determined under the Plan, or 5% per year. The mortality basis for determining Actuarial Equivalence for terminations on or after December 31, 2002, as applicable, shall be the 1994 Group Annuity Reserving Table (weighted 50% male, 50% female and projected to 2002 using Scale AA), which is the table prescribed in Rev. Rul. 2001-62, (or the applicable mortality table, prescribed under Section 417(e)(3) of the Code or other guidance of general applicability issued thereunder).
|
For periods prior to January 1, 2002, the dollar limitation under Code Section 415 in effect for the applicable Plan Year above shall be modified as follows to reflect commencement of retirement benefits on a date other than the Participant’s Social Security Retirement Age:
|
(1)
|
if the Participant’s Social Security Retirement Age is 65, the dollar limitation for benefits commencing on or after age 62 is determined by reducing the dollar limitation under Subsection (a) above by 5/9ths of 1% for each month by which benefits commence before the month in which the Participant attains age 65;
|
|
(2)
|
if the Participant’s Social Security Retirement Age is greater than 65, the dollar limitation for benefits commencing on or after age 62 is determined by reducing the dollar limitation under Subsection (a) above by 5/9ths of 1% for each of the first 36 months and by 5/12ths of 1% for each of the additional months by which benefits commence before the month in which the Participant attains the Participant’s Social Security Retirement Age;
|
|
(3)
|
if the Participant’s benefit commences prior to age 62, the dollar limitation shall be the actuarial equivalent of Subsection (a) above, payable at age 62, as determined above, reduced for each month by which benefits commence before the month in which the Participant attains age 62. The interest rate for determining Actuarial Equivalence shall be the greater of the interest rate assumption under the Plan for determining early retirement benefits or 5% per year. The mortality basis for determining Actuarial Equivalence for terminations on or after January 1, 1995 shall be the 1983 Group Annuity Mortality Table (weighted 50% male and 50% female);
|
|
(v)
|
Notwithstanding the foregoing, the maximum as applied to any FMC Participant on April 1, 1987 shall in no event be less than the FMC Participant’s “current accrued benefit” as of March 31, 1987, under the FMC Plan, as that term is defined in Section 1106 of the Tax Reform Act of 1986.
|
|
(vi)
|
The maximum shall apply to the benefits payable to a Participant under the Plan and all other tax-qualified defined benefit plans of the Company and Affiliates (whether or not terminated), and benefits shall be reduced, if necessary, in the reverse of the chronological order of participation in such plans.
|
|
(vii)
|
For purposes of this Section 3.5.1, effective January 1, 2002, the term “compensation” means compensation as defined in Code Section 415(c)(3) and the term “monthly compensation” means compensation divided by 12.
|
3.5.2
Multiple Plan Reduction:
With respect to each FMC Participant who did not have 1 Hour of Service after December 31, 1999 and who is (or has been) a participant in any defined contribution plan (whether or not terminated) maintained by FMC, FMCTI, the Company or an Affiliate, the sum of the FMC Participant’s defined benefit plan fraction (as defined under Code Section 415(e)(2)) and defined contribution plan fraction (as defined under Code Section 415(e)(3)) shall not exceed 1. If such sum exceeds 1, the FMC Participant’s defined benefit plan fraction shall be reduced until such sum equal 1.
3.5.3
Annual Compensation Limit:
The accrued benefit of each “Section 401(a)(17) employee” under this Plan will be the greater of the accrued benefit determined for the Employee under (a) or (b) below:
|
(a)
|
the Employee’s accrued benefit determined with respect to the benefit formula applicable for the Plan Year beginning on or after January 1, 1994, as applied to the Employee’s total Years of Credited Service, or
|
|
(i)
|
the Employee’s accrued benefit as of the last day of the last Plan Year beginning before January 1, 1994, frozen in accordance with section 1.401(a)(4)-13 of the regulations under the Code, and the Employee’s accrued benefit determined under the benefit formula applicable for the Plan Year beginning on or after January 1, 1994, as applied to the Employee’s Years of Credited Service credited to the Employee for Plan Years beginning on or after January 1, 1994.
|
A “Section 401(a)(17) employee” means an Employee whose current accrued benefit as of a date on or after the first day of the first Plan Year beginning on or after January 1, 1994, is based on Earnings for a year beginning prior to January 1, 1994 that exceeded $150,000.
3.5.4
Incorporation of Section 415 of the Code
: The provisions set forth in Article III are intended to comply with the requirements of Section 415 of the Code and shall be interpreted, applied and if and to the extent necessary, deemed modified without formal language so as to satisfy solely the minimum requirements of Section 415.
3.6
FMC Participants’ and FMCTI Participants’ Benefits
The Normal Retirement Benefit, Early Retirement Benefit and Termination Benefit for each FMC Participant who is not an Employee and who does not complete an Hour of Service on or after May 1, 2001 shall, notwithstanding the provisions of Sections 3.1, 3.2, 3.3 or 4.2 hereof, equal the accrued benefit of such FMC Participant as transferred from the FMC Plan in the FTI Spinoff.
The Normal Retirement Benefit, Early Retirement Benefit and Termination Benefit for each FMCTI Participant who is not an Employee and who does not complete an Hour of Service on or after June 1, 2008 shall, notwithstanding the provisions of Sections 3.1, 3.2, 3.3 or 4.2 hereof, equal the accrued benefit of such FMCTI Participant as transferred from the FMCTI Plan in the JBT Spinoff.
ARTICLE IV
Termination Benefits
4.1
Termination of Service
Except as otherwise provided in the applicable Supplement, a Participant who has 5 Years of Vesting Service but who ceases to be an Employee before the Participant’s Early Retirement Date for any reason other than death, shall be entitled to receive a “Termination Benefit” determined under Section 4.2. Except as otherwise provided in the applicable Supplement, unless the Participant elects otherwise subject to Section 3.3.2, payment of such benefit shall commence as of the first day of the month coincident with or next following the Participant’s Normal Retirement Date or, if the Participant elects, as of the first day of any month before such Normal Retirement Date and coincident with or following the Participant’s 55th birthday. Any such election of the earlier Annuity Starting Date shall be made by giving advance written notice to the Administrator in accordance with rules prescribed by the Administrator. Except as provided in Article V and Article VII, no benefits shall be payable to any person if the Participant dies prior to the Annuity Starting Date. A terminated Participant who has no vested interest in the Participant’s accrued benefit shall be deemed to have received a distribution of the Participant’s entire vested benefit. The Committee or its delegatee may, in its discretion, fully vest a Participant in the Participant’s accrued benefit in the event the Participant’s employment with the Company is affected by a transaction undertaken by the Company.
4.2
Amount of Termination Benefit
Except as otherwise provided in the applicable Supplement or in Section 3.6, a Participant’s monthly Termination Benefit shall be determined pursuant to Sections 3.1.2 and 3.1.3 as in effect on the date the Participant terminates employment, except that the following adjustments shall be made if payment of the Participant’s Termination Benefit is to commence before the Normal Retirement Date:
|
(a)
|
the amount computed pursuant to Section 3.1.2 shall be reduced by 1/2 of 1% for each month between the Annuity Starting Date and the Normal Retirement Date;
|
|
(b)
|
the amount of Employee Contributions and Interest required to provide $1 of monthly retirement benefit under Section 3.1.3 shall be increased by $3 for each full year by which the Annuity Starting Date precedes the Normal Retirement Date, and partial years shall be prorated on the basis of $0.25 per month;
|
|
(c)
|
notwithstanding Subsection (a) of this Section 4.2, the amounts computed pursuant to Section 3.1.2 shall be reduced by 1/3 of 1% for each month in excess of 36 by which the Annuity Starting Date precedes the Participant’s 65
th
birthday if:
|
|
(i)
|
the Participant’s combined age and Years of Vesting Service equal at least 65, and the Participant ceases to be an Employee (1) because of the permanent shutdown of a single site of employment or one or more facilities or operating units within a single site of
employment or (2) in connection with a permanent reduction in force; or
|
|
(ii)
|
the Participant has Years of Vesting Service attributable to employment with FMC before January 1, 1989, has attained age 40, and permanently ceases to be an Employee because of the permanent shutdown of a single site of employment, resulting in the termination of employment of not more than 20 Participants at that employment site.
|
|
(d)
|
If a Participant ceases to be an Employee (1) because of the permanent shut down of a single site of employment of one or more facilities or operating units within a single site of employment, or (2) in connection with a permanent reduction in force, solely for purposes of determining a Participant’s eligibility for Early Retirement, a Participant with 10 Years of Credited Service shall have added to his or her age the number of weeks of pay he or she receives that are attributable to severance pay, unused vacation pay and accrued vacation pay.
|
|
(e)
|
Notwithstanding anything herein to the contrary, for purposes of determining a Participant’s total combined age and Years of Vesting Service under Section 4.2(c) and 4.2(d), a partial month of age or Period of Service shall be counted as a whole month, and fractional years of age and Years of Vesting Service shall be taken into account.
|
ARTICLE V
Refund of Employee Contributions
5.1
Employee Contributions
No Employee Contributions are permitted to be made to this Plan. However, Employee Contributions which were transferred from the FMC Plan are held under this Plan for the FMC Participants. All Employee Contributions transferred from the FMC Plan are fully vested and nonforfeitable and will be paid in accordance with the terms of Sections 5.2, 5.3 or 5.4 or in accordance with the terms of Section 3.1.3, 3.2.4, or 3.3.1, as applicable.
5.2
Withdrawal of Employee Contributions
A FMC Participant may withdraw all of the FMC Participant’s Employee Contributions, plus Interest thereon to the date of withdrawal, at any time before payment of a monthly retirement benefit commences by giving advance written notice to the Administrator in accordance with procedures prescribed by the Administrator. No partial withdrawal of Employee Contributions and Interest shall be permitted.
Payment of the FMC Participant’s Employee Contributions plus Interest shall be in the normal form of benefit (50% Joint and Survivor’s Annuity for a married FMC Participant, Individual Life Annuity for an unmarried FMC Participant) unless the FMC Participant waives such annuity (with the consent of the FMC Participant’s spouse, if the FMC Participant is married, in accordance with Section 6.3) and elects payment in a single sum.
5.3
Refund Upon Death Before Annuity Starting Date
If a FMC Participant dies before the Annuity Starting Date, the FMC Participant’s Beneficiary shall receive in a lump sum a refund of the FMC Participant’s unwithdrawn Employee Contributions and Interest. The refund shall be made as soon as reasonably practicable after the date of the FMC Participant’s death, and Interest shall be computed to the date when the refund is paid.
5.4
Refund After Annuity Starting Date
If a FMC Participant dies after the Annuity Starting Date, there shall be paid to his or her Beneficiary the difference, if any, between such FMC Participant’s Employee Contributions and Interest as of the Annuity Starting Date and:
|
(a)
|
if the FMC Participant elected an Individual Life Annuity or a Level Income Option, the portion of the benefits which the FMC Participant has received which are attributable to Employee Contributions and Interest;
|
|
(b)
|
if the FMC Participant elected any other form of benefit, the portion of the benefits received by the FMC Participant and the FMC Participant’s Joint Annuitant which are attributable to Employee Contributions and Interest.
|
Any payment pursuant to (a) above shall be made as soon as reasonably practicable after the FMC Participant’s death. Any payment pursuant to (b) above shall be made as soon as reasonably practicable after all other benefit payments to the Joint Annuitant have ceased.
ARTICLE VI
Payment of Retirement Benefits
6.1
Normal Form of Benefit
Except as otherwise provided in the applicable Supplement, a Participant’s benefit shall be paid in the form of a 50% Joint and Survivor’s Annuity, with the Participant’s spouse as Joint Annuitant if the Participant is married on the Annuity Starting Date, and in the form of an Individual Life Annuity if the Participant is not married on the Annuity Starting Date, unless the Participant elects with spousal consent not to receive payments pursuant to this 6.1 and to receive payments in one of the optional forms permitted under Section 6.2. An election not to receive the normal form of benefit and to receive payment in any optional form shall satisfy the applicable requirements of Section 6.3.
6.2
Available Forms of Benefits
A Participant may elect with spousal consent and in accordance with Section 6.3, to receive the Participant’s benefits in any one of the forms of benefits described in this Section 6.2.
6.2.1
Individual Life Annuity
: An Individual Life Annuity is an immediate annuity which provides equal monthly payments for the Participant’s life only.
6.2.2
50% Joint and Survivor’s Annuity:
A 50% Joint and Survivor’s Annuity is an immediate annuity which is the actuarial equivalent of an Individual Life Annuity (determined in accordance with Exhibit E-1) (effective February 1, 2006, the Actuarial Equivalent of an Individual Life Annuity), but which provides a smaller monthly annuity for the Participant’s life than an Individual Life Annuity.
6.2.3
100% Joint and Survivor’s Annuity:
A 100% Joint and Survivor’s Annuity is an immediate annuity which is the actuarial equivalent of an Individual Life Annuity (determined in accordance with Exhibit E-2) (effective February 1, 2006, the Actuarial Equivalent of an Individual Life Annuity), but which provides a smaller monthly annuity for the Participant’s life than an Individual Life Annuity.
6.2.4
Level Income Option:
The Level Income Option provides greater monthly annuity payments prior the Participant’s 62
nd
birthday (determined in accordance with Exhibit E-3 (effective February 1, 2006, determined in accordance with the definition of Actuarial Equivalence in Article I)) and after such birthday provides reduced monthly annuity payments in an amount which, when added to the Primary Social Security Benefits which the Participant could elect to receive, approximately equals the amount of the monthly annuity paid prior to the Participant’s 62
nd
birthday. A Participant who is entitled to an Early Retirement Benefit under Section 3.2 and who elects to have such benefit commence prior to age 62 may elect the Level Income Option, unless the Primary Social Security Benefits which the Participant could elect to receive at age 62 would equal or exceed the amount of the monthly annuity payments prior to age 62 or unless the Participant is receiving Social Security disability benefits. Such election shall be subject to the approval of the Participant’s spouse, given in accordance with the requirements for spousal consent under Section 6.3.
6.2.5
Qualified Optional Survivor Annuity
: Effective for Plan Years beginning on or after January 1, 2008, a Participant may elect a Qualified Optional Survivor Annuity which is an immediate annuity for the life of the Participant with a survivor annuity for the life of the Participant’s surviving spouse that equals 75% of the amount of the annuity which is payable during the joint lives of the Participant and the Participant’s spouse.
6.3
Election of Benefits
6.3.1 The Administrator shall provide each Participant with a written notice containing the following information:
|
(a)
|
a general description of the normal form of benefit payable under the Plan;
|
|
(b)
|
the Participant’s right to make and the effect of an election to waive the normal form of benefit;
|
|
(c)
|
the right of the Participant’s spouse not to consent to the Participant’s election under Section 6.1;
|
|
(d)
|
the right of Participant to revoke such election, and the effect of such revocation;
|
|
(e)
|
the optional forms of benefits available under the Plan; and
|
|
(f)
|
the Participant’s right to request in writing information on the particular financial effect of an election by the Participant to receive an optional form of benefit in lieu of the normal form of benefit.
|
6.3.2 The notice under Section 6.3.1 shall be provided to the Participant at each of the following times as shall be applicable to him:
|
(a)
|
not more than 90 (effective January 1, 2008, 180) days and not less than 30 days after a Participant who is in the employ of the Company or an Affiliate gives notice of the Participant’s intention to terminate employment and commence receipt of the Participant’s retirement benefits under the Plan; or
|
|
(b)
|
not more than 90 (effective January 1, 2008, 180) days and not less than 30 days prior to the attainment of age 65 of a Participant (whether or not the Participant has terminated employment) who has not previously commenced receiving retirement benefits.
|
The election period in Section 6.3.3 for a Participant who requests additional information during the election period will be extended until 90 days after the additional information is mailed or personally delivered. Any such request shall be made only within 90 days after the date the information described in Section 6.3.1 is given to the Participant, and the Administrator shall not be obligated to comply with more than one such request. Any information provided pursuant to this Section 6.3.2 will be given to the Participant within 30 days after the date of the Participant’s request and will be based upon the estimated benefits to which the Participant will be entitled as of the later of the first day on which such benefits could commence or the last day of the Plan Year in which the Participant’s request is received. If a Participant files an election (or revokes an election) pursuant to this Section 6.3 less than 60 days prior to the Annuity Starting Date, such Participant’s initial payments may be delayed for administrative reasons. In such event, the payments shall begin as soon as practicable and shall be made retroactively to such date. Notwithstanding the above to the contrary, effective January 1, 2004, in the event a Participant elects a Retroactive Annuity Starting Date as provided in Section 6.6, the notice under 6.3.1 shall be provided to the Participant on or about the date that the Participant files an election for a Retroactive Annuity Starting Date.
6.3.3 A Participant may make the election provided in Section 6.3 by filing the prescribed form with the Administrator at any time during the election period. The election period shall begin 90 (effective January 1, 2008, 180) days prior to the Participant’s Annuity Starting Date. Such election shall be subject to the written consent of the Participant’s spouse, acknowledging the effect of the election and witnessed by a Plan representative or a notary public. Such spousal consent shall not be required if the Participant establishes to the satisfaction of the Administrator that the consent of the spouse may not be obtained because there is no spouse or the spouse cannot be located. A spouse’s consent shall be irrevocable. The election in Section 6.3 may be revoked or changed at any time during the election period but shall be irrevocable thereafter.
6.3.4 Notwithstanding Section 6.3.3:
|
(a)
|
distribution of benefits may commence less than 30 days after the notice required pursuant to Section 6.3.1 is provided if:
|
|
(i)
|
the Participant elects to waive the requirement that notice be given at least 30 days prior to the Annuity Starting Date; and
|
|
(ii)
|
the distribution commences more than 7 days after such notice is provided.
|
|
(b)
|
The notice described in Section 6.3.1 may be provided after the Annuity Starting Date, in which case the applicable election period shall not end before the 30th day after the date on which such notice is provided, unless the Participant elects to waive the 30-day notice requirements pursuant to Subsection (a) above.
|
6.3.5 Notwithstanding the foregoing provisions in Section 6.3, effective January 1, 2004, a Participant may elect a Retroactive Annuity Starting Date (as defined in Treas. Reg. 1.417(e)-1(b)(3)(iv)(B)), pursuant to Section 6.6. In the event that the notice information described in Section 6.3 is provided to the Participant after the Participant’s Annuity Starting Date (as defined in Section 417(f)(2) of the Code) or Retroactive Annuity Starting Date, the Participant shall have at least 30 days after the date the notification is provided to make the election described in Section 6.3. The Participant may waive this 30 day period pursuant to the provisions of Section 6.3.4.
6.4
Joint Annuitants
A Participant who elects a joint and survivor’s annuity shall designate a Joint Annuitant when making such an election. A Participant may designate any individual as the Joint Annuitant; provided, however, that the Joint Annuitant shall be the Participant’s spouse unless the Participant’s spouse consents to the designation of another individual in accordance with the requirements for spousal consent under Section 6.3.3. A designation of a Joint Annuitant may be revoked or changed at any time during the applicable election period described in Section 6.3.3 but shall become irrevocable thereafter. If the Joint Annuitant dies on or after the Annuity Starting Date the Participant shall continue to receive the reduced monthly annuity.
6.5
FMC Participants and FMCTI Participants in Pay Status
Notwithstanding any provision in the Plan to the contrary, each FMC Participant who had elected to receive and/or was receiving their normal retirement benefit, early retirement benefit, deferred retirement benefit or termination benefit under the FMC Plan and under the FMCTI Plan prior to the Effective Date shall on and after the Effective Date continue to receive such benefits in the same form, and in the same amount as such FMC Participant and/or, as applicable, FMC Joint Annuitant, was receiving or would have received under the FMC Plan and the FMCTI Plan prior to the Effective Date as if such benefits were paid by the FMC Plan. In addition, each FMC Beneficiary who was receiving benefits under the FMC Plan and the FMCTI Plan on behalf of an FMC Participant prior to the Effective Date shall continue to receive such benefits from this Plan after the Effective Date in the same form and in the same amount as if such benefits were paid by the FMC Plan.
Notwithstanding any provision in the Plan to the contrary, each FMCTI Participant who had elected to receive and/or was receiving their normal retirement benefit, early retirement benefit, deferred retirement benefit or termination benefit under the FMCTI Plan prior to the Effective Date shall on and after the Effective Date continue to receive such benefits in the same form, and in the same amount as such FMCTI Participant and/or, as applicable, FMCTI Joint Annuitant, was receiving or would have received under the FMCTI Plan prior to the Effective Date as if such benefits were paid by the FMCTI Plan. In addition, each FMCTI Beneficiary who was receiving benefits under the FMCTI Plan on behalf of an FMCTI Participant prior to the Effective Date shall continue to receive such benefits from this Plan after the Effective Date in the same form and in the same amount as if such benefits were paid by the FMCTI Plan.
6.6
Election of Retroactive Annuity Starting Date
Effective January 1, 2004, a Participant may elect a “Retroactive Annuity Starting Date” (as defined in Treas. Reg. 1.417(e)-1(b)(3)(iv)(B)), that occurs on or before the date the notice information described in Section 6.3 is provided to the Participant, provided the following conditions are satisfied:
|
(a)
|
The Participant’s spouse (including an alternate payee who is treated as the spouse under a qualified domestic relations order), determined as if the date distributions commence were the Participant’s Annuity Starting Date (as defined in Section 417(f)(2) of the Code), consents to the Participant’s election of a Retroactive Annuity Starting Date. The spousal consent requirement of this Section 6.6(a) is satisfied if such consent satisfies the conditions of Section 6.3.3 above.
|
|
(b)
|
If the date distribution commences is more than 12 months from the Retroactive Annuity Starting Date, the distribution provided based on the Retroactive Annuity Starting Date shall satisfy Section 415 of the Code as though the date distribution commences is substituted for the annuity starting date for all purposes, including for purposes of determining the applicable interest rate and applicable mortality table (as defined in Article I).
|
|
(c)
|
If the distribution is payable as a lump sum, the distribution amount shall not be less than the present value of the Participant’s accrued benefit, determined (i) using the applicable mortality table and applicable interest rate as of the distribution date or (ii) using the applicable mortality table and applicable interest rate as of the Participant’s Retroactive Annuity Starting Date. For purposes of this paragraph (c) applicable mortality table and applicable interest rate are defined in Article I.
|
If a Participant elects a Retroactive Annuity Starting Date the following provisions shall apply:
|
(a)
|
future periodic payments shall be the same as the future periodic payments, if any, that would have been paid with respect to the Participant had payments actually commenced on the Retroactive Annuity Starting Date;
|
|
(b)
|
the Participant shall receive a make-up payment to reflect any missed payment or payments for the period from the Retroactive Annuity Starting Date to the date of actual make-up payment (with appropriate adjustment for interest from the date the missed payment or payments would have been made to the date of the actual make-up payment);
|
|
(c)
|
the benefit determined as of the Retroactive Annuity Starting Date shall satisfy Section 417(e)(3) of the Code, if applicable, and Section 415 with the applicable interest rate and applicable mortality table (as defined in Article I) determined as of that date; and the Retroactive Annuity Starting Date shall not precede the date the Participant could have otherwise started receiving benefits under the Plan.
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ARTICLE VII
Survivor’s Benefits
7.1
Preretirement Survivor’s Benefit
7.1.1
Eligibility:
If a Participant who continues to be employed by the Company at any time on or after attaining age 55 and 10 Years of Credited Service dies (whether or not so employed on the date of death) before the Annuity Starting Date, then such Participant’s surviving Joint Annuitant (if any) shall be entitled to receive a survivor’s benefit for life, determined under Section 7.2. Payment of such benefit shall commence as of the first day of the month coincident with or next following the date of the Participant’s death.
7.1.2
Amount of Preretirement Survivor’s Benefit:
The preretirement survivor’s benefit under this Section 7.1 shall be computed as follows:
|
(a)
|
If the Participant’s Period of Service has not terminated before the Participant’s death, the survivor’s benefit shall be equal to the benefit which would have been paid to the Participant’s Joint Annuitant if the Participant’s Period of Service had terminated on the date of death, benefits in the form of a 50% Joint and Survivor’s Annuity commenced as of the first day of the next following month, and the Participant died on such day.
|
|
(b)
|
If the Participant’s Period of Service has terminated before the Participant’s death but the Participant has deferred the commencement of the Early Retirement Benefit, the survivor’s benefit shall be equal to the benefit which the Participant’s Joint Annuitant would have been paid if the Participant had elected a 50% Joint and Survivor’s benefit commencing as of the first day of the month next following the date of the Participant’s death.
|
|
(c)
|
The survivor’s benefit payable pursuant to this Section 7.1.2 shall exclude any retirement benefit based upon Employee Contributions and Interest (which will be refunded upon the Participant’s death, to the extent provided in Article V).
|
7.1.3
Designation of Joint Annuitant
Other Than Spouse:
A participant may elect at any time during the Election Period (as defined in Section 7.1.5) to waive the Preretirement Survivor Annuity and to revoke any such election at any time during the Election Period. Any election by a Participant to waive the Preretirement Survivor Annuity shall not take effect unless the Participant’s spouse consents in writing to such election, such consent acknowledges the effect of such an election and the consent is witnessed by a representative of the Plan or a notary public, unless the Participant establishes to the satisfaction of the Committee that such consent may not be obtained because there is no spouse, the spouse cannot be located or because of such other circumstances as the Secretary of the Treasury may by regulations prescribe. The consent by a spouse shall be irrevocable and shall be effective only with respect to that spouse.
7.1.4
Explanation of Preretirement Survivor’s Benefit:
The Committee shall provide each Participant with a written explanation with respect to the Preretirement Survivor Annuity as soon as administratively feasible after the Participant attains age 55. The explanation shall include:
|
(a)
|
the terms and conditions of the Preretirement Survivor Annuity,
|
|
(b)
|
the Participant’s right to make, and the effect of, an election to waive the Preretirement Survivor Annuity,
|
|
(c)
|
the rights of the Participant’s spouse in connection therewith, and
|
|
(d)
|
the right to make, and the effect of, the revocation of an election to waive the Preretirement Survivor Annuity.
|
7.1.5
Election Period:
For purposes of this Section 7.1.5, the term “Election Period” means the period that begins on the Participant’s 55th birthday and ends on the date of the Participant’s death.
7.2
Surviving Spouse’s Benefit
If a Participant who has 5 or more Years of Vesting Service but does not meet the requirements for the preretirement survivor’s benefit under Section 7.1 dies before the Annuity Starting Date, then such Participant’s surviving spouse (if any) shall be entitled to receive a survivor’s benefit for life. The amount of such survivor’s benefit shall be determined pursuant to Section 4.2 based upon the Participant’s age and Years of Credited Service on the date of the Participant’s death and paid in the form of a 50% Joint and Survivor’s Annuity as if the Participant had died on the date such benefits commenced. The survivor’s benefit payable pursuant to this Section 7.2 shall exclude any retirement benefit based upon Employee Contributions and Interest (which will be refunded upon the Participant’s death to the extent provided in Article V). Payment of the survivor’s benefit shall commence on the first day of the month coincident with or next following the later of the Participant’s 55th birthday or his death, unless the Participant’s spouse elects to commence payment of benefits as of the first day of any subsequent month, but not later than the Participant’s Normal Retirement Date.
7.3
Certain Former Employees
FMC Participants who have 10 Years of Vesting Service but who have not been credited with an Hour of Service on or after August 23, 1984 and are not receiving benefits on that date shall be entitled to elect survivor’s benefits only as follows:
|
(a)
|
If the FMC Participant was credited with an Hour of Service under the FMC Plan or a predecessor plan on or after September 2, 1974, but is not otherwise credited with an Hour of Service in a Plan Year beginning on or after January 1, 1976, under the FMC Plan, the FMCTI Plan or this Plan, the Participant shall be afforded an opportunity to elect payment of benefits in the form of a 50% Joint and Survivor’s Annuity.
|
|
(b)
|
If the Participant is credited with an Hour of Service under this Plan, the FMCTI Plan, the FMC Plan or a predecessor plan in a Plan Year beginning after December 31, 1975, the Participant shall be afforded the opportunity to elect a Surviving Spouse’s Benefit under Section 7.2.
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ARTICLE VIII
Fiduciaries
8.1
Named Fiduciaries
8.1.1 The Company is the Plan sponsor and a “named fiduciary” with respect to control over and management of the Plan’s assets only to the extent that it (a) shall appoint the members of the Committee which administers the Plan at the Administrator’s direction; (b) shall delegate its authorities and duties as “plan administrator,” as defined under ERISA, to the Committee; and (c) shall continually monitor the performance of the Committee.
8.1.2 The Company, as Administrator, and the Committee, which administers the Plan at the Administrator’s direction, are “named fiduciaries” of the Plan, as that term is defined in ERISA Section 402(a)(2), with authority to control and manage the operation and administration of the Plan. The Administrator is also the “administrator” and “plan administrator” of the Plan, as those terms are defined in ERISA Section 3(16)(A) and Code Section 414(g), respectively.
8.1.3 The Trustee is a “named fiduciary” of the Plan, as that term is defined in ERISA Section 402(a)(2), with authority to manage and control all Trust assets, except to the extent that authority is delegated to an Investment Manager or to the extent the Administrator or the Committee directs the allocation of Trust assets among general investment categories.
8.1.4 The Company, the Administrator, and the Trustee are the only named fiduciaries of the Plan.
8.2
Employment of Advisers
A named fiduciary, and any fiduciary appointed by a named fiduciary, may employ one or more persons to render advice regarding any of the named fiduciary’s or fiduciary’s responsibilities under the Plan.
8.3
Multiple Fiduciary Capacities
Any named fiduciary and any other fiduciary may serve in more than one fiduciary capacity with respect to the Plan.
8.4
Payment of Expenses
All Plan expenses, including expenses of the Administrator, the Committee, the Trustee, any Investment Manager and any insurance company, will be paid by the Trust Fund, unless a Participating Employer elects to pay some or all of those expenses.
8.5
Indemnification
To the extent not prohibited by state or federal law, each Participating Employer agrees to, and will indemnify and save harmless the Administrator, any past, present, additional or replacement member of the Committee, and any other employee, officer or director of that Participating Employer, from all claims for liability, loss, damage (including payment of expenses to defend against any such claim) fees, fines, taxes, interest, penalties and expenses which result from any exercise or failure to exercise any responsibilities with respect to the Plan, other than willful misconduct or willful failure to act.
ARTICLE IX
Plan Administration
9.1
Powers, Duties and Responsibilities of the Administrator and the Committee
9.1.1 The Administrator and the Committee have full discretion and power to construe the Plan and to determine all questions of fact or interpretation that may arise under it. Interpretation of the Plan or determination of questions of fact regarding the Plan by the Administrator or the Committee will be conclusively binding on all persons interested in the Plan.
9.1.2 The Administrator and the Committee have the power to promulgate such rules and procedures, to maintain or cause to be maintained such records, and to issue such forms as they deem necessary or proper to administer the Plan.
9.1.3 Subject to the terms of the Plan, the Administrator and/or the Committee will determine the time and manner in which all elections authorized by the Plan must be made or revoked.
9.1.4 The Administrator and the Committee have all the rights, powers, duties and obligations granted or imposed upon them elsewhere in the Plan.
9.1.5 The Administrator and the Committee have the power to do all other acts in the judgment of the Administrator or Committee necessary or desirable for the proper and advantageous administration of the Plan.
9.1.6 The Administrator and the Committee will exercise all responsibilities in a uniform and nondiscriminatory manner.
9.2
Delegation of Administration Responsibilities
The Administrator and the Committee may designate by written instrument one or more actuaries, accountants or consultants as fiduciaries to carry out, where appropriate, their administrative responsibilities, including their fiduciary duties. The Committee may from time to time allocate or delegate to any subcommittee, member of the Committee and others, not necessarily employees of the Company, any of its duties relative to compliance with ERISA, administration of the Plan and other related matters, including those involving the exercise of discretion. The Company’s duties and responsibilities under the Plan shall be carried out by its directors, officers and employees, acting on behalf of and in the name of the Company in their capacities as directors, officers and employees, and not as individual fiduciaries. No director, officer nor employee of the Company shall be a fiduciary with respect to the Plan unless he or she is specifically so designated and expressly accepts such designation.
9.3
Committee Members
The Committee shall consist of not less than three people, who need not be directors, and shall be appointed by the Board of Directors of the Company. Any Committee member may resign and the Board of Directors may remove any Committee member, with or without cause, at any time. A majority of the members of the Committee shall constitute a quorum for the transaction of business and the act of a majority of the Committee members at a meeting at which a quorum is present shall be the act of the Committee. The Committee can act by written consent signed by all of its members. Any members of the Committee who are Employees shall not receive compensation for their services for the Committee. No Committee member shall be entitled to act on or decide any matter relating solely to his or her status as a Participant.
ARTICLE X
Funding of the Plan
10.1
Appointment of Trustee
The Committee or its authorized delegatee will appoint the Trustee and either may remove it. The Trustee accepts its appointment by executing the Trust Agreement. A Trustee will be subject to direction by the Committee or its authorized delegatee or, to the extent specified by the Company, by an Investment Manager, and will have the degree of discretion to manage and control Plan assets specified in the Trust Agreement. Neither the Company nor any other Plan fiduciary will be liable for any act or omission to act of a Trustee, as to duties delegated to the Trustee.
10.2
Actuarial Cost Method
The Committee or its authorized delegatee shall determine the actuarial cost method to be used in determining costs and liabilities under the Plan pursuant to Section 301 et seq., of ERISA, and Section 412 of the Code. The Committee or its authorized delegatee shall review such actuarial cost method from time to time, and if it determines from review that such method is no longer appropriate, then it shall petition the Secretary of the Treasury for approval of a change of actuarial cost method.
10.3
Cost of the Plan
Annually the Committee or its authorized delegatee shall determine the normal cost of the Plan for the Plan Year and the amount (if any) of the unfunded past service cost on the basis of the actuarial cost method established for the Plan using actuarial assumptions which, in the aggregate, are reasonable. The Committee or its authorized delegatee shall also determine the contributions required to be made for each Plan Year by the Participating Employers in order to satisfy the minimum funding standard (or alternative minimum funding standard) for such Plan Year determined pursuant to Sections 302 through 305 of ERISA and Section 412 of the Code.
10.4
Funding Policy
The Participating Employers shall cause contributions to be made to the Plan for each Plan Year in the amount necessary to satisfy the minimum funding standard (or alternative minimum funding standard) for such Plan Year; provided, however, that this obligation shall cease when the Plan is terminated. In the case of a partial termination of the Plan, this obligation shall cease with respect to those Participants, Joint Annuitants and Beneficiaries who are affected by such partial termination. Each contribution is conditioned upon its deductibility under Section 404 of the Code and shall be returned to the Participating Employers within one year after the disallowance of the deduction (to the extent disallowed). Upon the Company’s written request, a contribution that was made by a mistake of fact shall be returned to the Participating Employer within one year after the payment of the contribution.
10.5
Cash Needs of the Plan
The Committee or its authorized delegatee from time to time shall estimate the benefits and administrative expenses to be paid out of the Plan during the period for which the estimate is made and shall also estimate the contributions to be made to the Plan during such period by the Participating Employers. The Committee or its authorized delegatee shall inform the Trustees of the estimated cash needs of and contributions to the Plan during the period for which such estimates are made. Such estimates shall be made on an annual, quarterly, monthly or other basis, as the Committee shall determine.
10.6
Public Accountant
The Committee or its authorized delegatee shall engage an independent qualified public accountant to conduct such examinations and to render such opinions as may be required by Section 103(a)(3) of ERISA. The Committee or its authorized delegatee in its discretion may remove and discharge the person so engaged, but in such case it shall engage a successor independent qualified public accountant to perform such examinations and to render such opinions.
10.7
Enrolled Actuary
The Committee or its authorized delegatee shall engage an enrolled actuary to prepare the actuarial statement described in Section 103(d) of ERISA and to render the opinion described in Section 103(a)(4) of ERISA. The Committee or its authorized delegatee in its discretion may remove and discharge the person so engaged, but in such event it shall engage a successor enrolled actuary to perform such examination and render such opinion.
10.8
Basis of Payments to the Plan
All contributions to the Plan shall be made by the Participating Employers, and no contributions shall be required of or permitted by Participants. From time to time the Participating Employers shall make such contributions to the Plan as the Company determines to be necessary or desirable in order to fund the benefits provided by the Plan, and any expenses thereof which are paid out of the Trust Fund and in order to carry out the obligations of the Participating Employers set forth in Section 10.3. All contributions to the Plan shall be held by the Trustee in accordance with the Trust Agreement.
10.9
Basis of Payments from the Plan
All benefits payable under the Plan shall be paid by the Trustee out of the Trust Fund pursuant to the directions of the Administrator or the Committee and the terms of the Trust Agreement. The Trustee shall pay all proper expenses of the Plan and the Trust Fund out of the Trust Fund, except to the extent paid by the Participating Employers.
10.10 Funding Based Benefit Restrictions
This Section 10.10 shall apply to Plan Years beginning on or after January 1, 2008. Notwithstanding anything in this Section 10.10 to the contrary, Section 436 of the Code, applicable U.S. Department of Treasury regulations and other IRS guidance promulgated under or with respect to Section 436 of the Code shall be incorporated herein by reference.
|
(a)
|
Unpredictable Contingent Event Benefits
|
|
(1)
|
In General
. If a Participant is entitled to an “unpredictable contingent event benefit” during any Plan Year, then such benefit may not be provided if the “adjusted funding target attainment percentage” for such Plan Year: (A) is less than sixty percent (60%); or (B) would be less than sixty percent (60%) percent taking into account such event.
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|
(2)
|
Exception
. Section 10.10(a)(1) shall not apply with respect to any Plan Year, effective as of the first day of the Plan Year, upon payment by the Participating Employer of a contribution (in addition to any minimum required contribution under Section 430 of the Code) equal to:
|
|
(A)
|
in the case of Section 10.10(a)(1)(A) above, the amount of the increase in the funding target of the Plan (under Section 430 of the Code) for the Plan Year that is attributable to the unpredictable contingent event; and
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|
(B)
|
in the case of Section 10.10(a)(1)(B) above, the amount sufficient to result in an adjusted funding target attainment percentage of sixty percent (60%).
|
|
(3)
|
Unpredictable contingent event benefit defined
. For purposes of this Section 10.10, the term “unpredictable contingent event benefit” means any benefit payable solely by reason of:
|
|
(A)
|
a plant shutdown (or similar event, as determined by the Secretary of the U.S. Department of Treasury), or
|
|
(B)
|
an event other than death, disability, the attainment of any age, performance of any service, or receipt of any compensation.
|
|
(b)
|
Limitations on Plan Amendments Increasing Benefits Liability
|
|
(1)
|
In general
. No amendment which has the effect of increasing liabilities of the Plan by reason of increases in benefits, establishment of new benefits, changing the rate of benefit accrual, or changing the rate at which benefits become nonforfeitable may take effect during any Plan Year if the “adjusted funding target attainment percentage” for such Plan Year is:
|
|
(A)
|
less than eighty percent (80%), or
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|
(B)
|
would be less than eighty percent (80%) taking into account such amendment.
|
|
(2)
|
Exception
. Section 10.10(b)(1) above shall cease to apply with respect to any Plan Year, effective as of the first day of the Plan Year (or if later, the effective date of the amendment), upon payment by the Participating Employer of a contribution (in addition to any minimum required contribution under Section 430 of the Code) equal to:
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|
(A)
|
in the case of Section 10.10(b)(1)(A) above, the amount of the increase in the funding target of the Plan (under Section 430 of the Code) for the Plan Year attributable to the amendment, and
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|
(B)
|
in the case of Section 10.10(b)(1)(B) above, the amount sufficient to result in an “adjusted funding target attainment percentage” of eighty percent (80%).
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(3)
|
Exception for certain benefit increases
. Section 10.10(b)(1) shall not apply to any amendment which provides for an increase in benefits under a formula which is not based on a Participant’s compensation, but only if the rate of such increase is not in excess of the contemporaneous rate of increase in average wages of Participants covered by the amendment.
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(c)
|
Limitations on Accelerated Benefit Distributions
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|
(1)
|
Funding percentage less than sixty percent (60%). If the Plan’s “adjusted funding target attainment percentage” for a Plan Year is less than sixty percent (60%), then the Plan may not pay any “prohibited payment” after the valuation date for the Plan Year.
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(2)
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Bankruptcy. During any period in which the Participating Employer is a debtor in a case under Title 11, United States Code, or similar Federal or State law, the Plan may not pay any “prohibited payment.” The preceding sentence shall not apply on or after the date on which the enrolled actuary of the Plan certifies that the “adjusted funding target attainment percentage” of the Plan is not less than one hundred percent (100%).
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|
(3)
|
Limited payment if percentage at least sixty percent (60%) but less than eighty percent (80%) percent.
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|
(A)
|
In general. If the Plan’s “adjusted funding target attainment percentage” for a Plan Year is sixty percent (60%) or greater but less than eighty percent (80%), then the Plan may not pay any “prohibited payment” after the valuation date for the Plan Year to the extent the amount of the payment exceeds the lesser of:
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|
(i)
|
fifty percent (50%) of the amount of the payment which could be made without regard to this subsection, or
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(ii)
|
the present value (determined under guidance prescribed by the Pension Benefit Guaranty Corporation, using the interest and mortality assumptions under Section 417(e) of the Code) of the maximum guarantee with respect to the Participant under ERISA Section 4022.
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(B)
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One-time application.
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(i)
|
In general. Only one “prohibited payment” meeting the requirements of Section 10.10(c)(3) may be made with respect to any Participant during any period of consecutive Plan Years to which the limitations under either Section 10.10(c)(1), (2) or (3) applies.
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(ii)
|
Treatment of Beneficiaries. For purposes of this subparagraph, a Participant and any Beneficiary (including an alternate payee, as defined in Section 414(p)(8) of the Code) shall be treated as one Participant. If the accrued benefit of a Participant is allocated to such an alternate payee and one or more other persons, the amount under Section 10.10(c)(3)(A) shall be allocated among such persons in the same manner as the accrued benefit is allocated unless the qualified domestic relations order (as defined in Section 414(p)(1)(A) of the Code) provides otherwise.
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(4)
|
Exception. This subsection shall not apply for any Plan Year if the terms of the Plan (as in effect for the period beginning on September 1, 2005, and ending with such Plan Year) provide for no benefit accruals with respect to any Participant during such period.
|
|
(5)
|
“Prohibited payment.” For purposes of this subsection, the term “prohibited payment” means:
|
|
(A)
|
any payment, in excess of the monthly amount paid under a single life annuity (plus any Social Security supplements described in the last sentence of Section 411(a)(9) of the Code), to a Participant or Beneficiary whose Annuity Starting Date occurs during any period in which a limitation under Section 10.10(c)(1) or (2) is in effect,
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|
(B)
|
any payment for the purchase of an irrevocable commitment from an insurer to pay benefits, and
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|
(C)
|
any other payment specified by the Secretary of the U.S. Department of Treasury by U.S. Department of Treasury regulations.
|
Such term shall not include the payment of a benefit which under Section 411(a)(11) of the Code may be immediately distributed without the consent of the Participant.
|
(d)
|
Benefit Accrual Limits for Plans with Severe Funding Shortfalls
|
|
(1)
|
In general
. If the Plan’s “adjusted funding target attainment percentage” for a Plan Year is less than sixty percent (60%), benefit accruals under the Plan shall cease as of the valuation date for the Plan Year.
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|
(2)
|
Exception. Section 10.10(d)(1) shall cease to apply with respect to any Plan Year, effective as of the first day of the Plan Year, upon payment by the Participating Employer of a contribution (in addition to any minimum required contribution under Section 430 of the Code) equal to the amount sufficient to result in an “adjusted funding target attainment percentage” of sixty percent (60%).
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|
(3)
|
Temporary modification of limitation. In the case of the first Plan Year beginning during the period beginning on October 1, 2008, and ending on September 30, 2009, the provisions of Section 10.10(d)(1) above shall be applied by substituting the Plan’s “adjusted funding target attainment percentage” for the preceding Plan Year for such percentage for such Plan Year, but only if the “adjusted funding target attainment percentage” for the preceding year is greater.
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|
(e)
|
Contributions Required to Avoid Benefit Limitations
|
|
(1)
|
Security may be provided:
|
|
(A)
|
In general. For purposes of this section, the “adjusted funding target attainment percentage” shall be determined by treating as an asset of the Plan any security provided by the Participating Employer in a form meeting the requirements of Section 10.10(e)(1)(B).
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|
(B)
|
Form of security. The security required under Section 10.10(e)(1)(A) shall consist of:
|
|
(i)
|
a bond issued by a corporate surety company that is an acceptable surety for purposes of ERISA Section 412,
|
|
(ii)
|
cash, or United States obligations which mature in three (3) years or less, held in escrow by a bank or similar financial institution, or
|
|
(iii)
|
such other form of security as is satisfactory to the Secretary of the U.S. Department of Treasury and the parties involved.
|
|
(C)
|
Enforcement. Any security provided under Section 10.10(e)(1)(A) may be perfected and enforced at any time after the earlier of:
|
|
(i)
|
the date on which the Plan terminates,
|
|
(ii)
|
if there is a failure to make a payment of the minimum required contribution for any Plan Year beginning after the security is provided, the due date for the payment under Section 430(j) of the Code, or
|
|
(iii)
|
if the “adjusted funding target attainment percentage” is less than sixty percent (60%) for a consecutive period of 7 years, the valuation date for the last year in the period.
|
|
(D)
|
Release of security. The security shall be released (and any amounts thereunder shall be refunded together with any interest accrued thereon) at such time as the Secretary of the U.S. Department of Treasury may prescribe in U.S. Department of Treasury regulations, including U.S. Department of Treasury regulations for partial releases of the security by reason of increases in the “adjusted funding target attainment percentage.”
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|
(2)
|
Prefunding balance or funding standard carryover balance may not be used. No prefunding balance or funding standard carryover balance under Section 430(f) of the Code may be used under Section 10.10(a), (b), or (d) to satisfy any payment a Participating Employer may make under any such subsection to avoid or terminate the application of any limitation under such subsection.
|
|
(3)
|
Deemed reduction of funding balances:
|
|
(A)
|
In general. Subject to Section 10.10(e)(3)(C), in any case in which a benefit limitation under Section 10.10(a), (b), (c), or (d) would (but for this subparagraph and determined without regard to Section 10.10(a)(2), (b)(2), or (d)(2)) apply to such Plan for the Plan Year, the Participating Employer shall be treated for purposes of this title as having made an election under Section 430(f) of the Code to reduce the prefunding balance or funding standard carryover balance by such amount as is necessary for such benefit limitation to not apply to the Plan for such Plan Year.
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|
(B)
|
Exception for insufficient funding balances. Section 10.10(e)(3)(A) shall not apply with respect to a benefit limitation for any Plan Year if the application of Section 10.10(e)(3)(A) would not result in the benefit limitation not applying for such Plan Year.
|
|
(C)
|
Restrictions of certain rules to collectively bargained plans. With respect to any benefit limitation under Section 10.10(a), (b) or (d), Section 10.10(e)(3)(A) shall only apply in the case of a plan maintained pursuant to one or more collectively bargained agreements between employer representatives and one or more employers.
|
|
(f)
|
Presumed Underfunding for Purposes of Benefit Limitations
|
|
(1)
|
Presumption of continued underfunding. In any case in which a benefit limitation under Section 10.10(a), (b), (c), or (d) has been applied to a Plan with respect to the Plan Year preceding the current Plan Year, the “adjusted funding target attainment percentage” of the Plan for the current Plan Year shall be presumed to be equal to the “adjusted funding target attainment percentage” of the Plan for the preceding Plan Year until the enrolled actuary of the Plan certifies the actual “adjusted funding target attainment percentage” of the Plan for the current Plan Year.
|
|
(2)
|
Presumption of underfunding after 10th month. In any case in which no certification of the “adjusted funding target attainment percentage” for the current Plan Year is made with respect to the Plan before the first day of the 10th month of such year, for purposes of Sections 10.10(a), (b), (c), and (d), such first day shall be deemed, for purposes of such subsection, to be the valuation date of the Plan for the current Plan Year and the Plan’s “adjusted funding target attainment percentage” shall be conclusively presumed to be less than sixty percent (60%) as of such first day.
|
|
(3)
|
Presumption of underfunding after 4th month for nearly underfunded plans. In any case in which:
|
|
(A)
|
a benefit limitation under Section 10.10(a), (b), (c), or (d) did not apply to a Plan with respect to the Plan Year preceding the current Plan Year, but the “adjusted funding target attainment percentage” of the Plan for such preceding Plan Year was not more than ten (10) percentage points greater than the percentage which would have caused such subsection to apply to the Plan with respect to such preceding Plan Year, and
|
|
(B)
|
as of the first day of the 4th month of the current Plan Year, the enrolled actuary of the Plan has not certified the actual “adjusted funding target attainment percentage” of the Plan for the current Plan Year, until the enrolled actuary so certifies, such first day shall be deemed, for purposes of such subsection, to be the valuation date of the Plan for the current Plan Year and the “adjusted funding target attainment percentage” of the Plan as of such first day shall, for purposes of such subsection, be presumed to be equal to ten (10) percentage points less than the “adjusted funding target attainment percentage” of the Plan for such preceding Plan Year.
|
|
(g)
|
Treatment of Plan as of Close of Prohibited or Cessation Period. The following provisions apply for purposes of applying this Section
.
|
|
(1)
|
Operation of Plan after period. Payments and accruals will resume effective as of the day following the close of the period for which any limitation of payment or accrual of benefits under Section 10.10(e) or (f) applies.
|
|
(2)
|
Treatment of affected benefits. Nothing in this subsection shall be construed as affecting the Plan’s treatment of benefits which would have been paid or accrued but for this Section.
|
|
(1)
|
The term “funding target attainment percentage” has the same meaning given such term by Section 430(d)(2) of the Code, except as otherwise provided herein. However, in the case of Plan Years beginning in 2008, the “funding target attainment percentage” for the preceding Plan Year may be determined using such methods of estimation as the Secretary of the U.S. Department of Treasury may provide.
|
|
(2)
|
The term “adjusted funding target attainment percentage” means the “funding target attainment percentage” which is determined under Section 10.10(h)(1) by increasing each of the amounts under subparagraphs (A) and (B) of Section 430(d)(2) of the Code by the aggregate amount of purchases of annuities for employees other than highly compensated employees (as defined in Code Section 414(q)) which were made by the Plan during the preceding two (2) Plan Years.
|
|
(3)
|
Application to plans which are fully funded without regard to reductions for funding balances.
|
|
(A)
|
In general. In the case of a Plan for any Plan Year, if the “funding target attainment percentage” is one hundred percent (100%) or more (determined and without regard to the reduction in the value of assets under Section 430(f)(4) of the Code), the “funding target attainment percentage” for purposes of Sections 10.10(h)(1) and (2) shall be determined without regard to such reduction.
|
|
(B)
|
Transition rule. Section 10.10(h)(3)(A) shall be applied to Plan Years beginning after 2007 and before 2011 by substituting for “one hundred percent (100%)” the applicable percentage determined in accordance with the following table:
|
In the case of a Plan Year beginning in calendar year:
|
The applicable percentage is:
|
2008
|
92%
|
2009
|
94%
|
2010
|
96%
|
|
(C)
|
Section 10.10(h)(3)(B) shall not apply with respect to any Plan Year beginning after 2008 unless the “funding target attainment percentage” (determined without regard to the reduction in the value of assets under Section 430(f)(4) of the Code) of the Plan for each preceding Plan Year beginning after 2007 was not less than the applicable percentage with respect to such preceding Plan Year determined under Section 10.10(h)(3(B).
|
|
(i)
|
Compliance with Section 436 of the Code
. The provisions of this Section 10.10 shall be interpreted in a manner consistent with Section 436 of the Code, applicable U.S. Department of Treasury regulations and other IRS guidance promulgated under or with respect to Section 436 of the Code and, as stated above, such regulations and guidance, together with Section 436 of the Code, are incorporated herein by reference.
|
ARTICLE XI
Plan Amendment or Termination
11.1
Plan Amendment or Termination
The Company may amend, modify or terminate the Plan at any time by resolution of the Board or by resolution of or other action recorded in the minutes of the Administrator or the Committee. Execution and delivery by the Chairman of the Board, the President, any Vice President of the Company or the Committee of an amendment to the Plan is conclusive evidence of the amendment, modification or termination.
11.2
Limitations on Plan Amendment
No Plan amendment can:
|
(a)
|
authorize any part of the Trust Fund to be used for, or diverted to, purposes other than the exclusive benefit of Participants or their Joint Annuitants and Beneficiaries;
|
|
(b)
|
decrease the accrued benefits of any Participant or his or her Joint Annuitant or Beneficiary under the Plan; or
|
|
(c)
|
except to the extent permitted by law, eliminate or reduce an early retirement benefit or retirement-type subsidy (as defined in Code Section 411) or an optional form of benefit with respect to service prior to the date the amendment is adopted or effective, whichever is later.
|
11.3
Effect of Plan Termination
Upon termination of the Plan, each Participant’s rights to benefits accrued hereunder shall be vested and nonforfeitable, and the Trust shall continue until the Trust Fund has been distributed as provided in Section 11.4. Any other provision hereof notwithstanding, the Participating Employers shall have no obligation to continue making contributions to the Plan after termination of the Plan. Except as otherwise provided in ERISA, neither the Participating Employers nor any other person shall have any liability or obligation to provide benefits hereunder after such termination in excess of the value of the Trust Fund. Upon such termination, Participants, Joint Annuitants, and Beneficiaries shall obtain benefits solely from the Trust Fund. Upon partial termination of the Plan, this Section 11.3 shall apply only with respect to such Participants, Joint Annuitants and Beneficiaries as are affected by such partial termination.
11.4
Allocation of Trust Fund on Termination
On termination of the Plan, the Trust Fund shall be allocated by the Administrator on an actuarial basis among Participants, Joint Annuitants and Beneficiaries in the manner prescribed by Section 4044 of ERISA. Any residual assets of the Trust Fund remaining after such allocation shall be distributed to the Company if (a) all liabilities of the Plan to Participants, Joint Annuitants and Beneficiaries have been satisfied and (b) such a distribution does not contravene any provision of law. The foregoing notwithstanding, if any remaining assets of the Plan are attributable to Employee Contributions, such assets shall be equitably distributed to the FMC Participants who made such contributions (or to their Beneficiaries) in accordance with their rate of contribution. The benefit of any highly compensated employee or former employee (determined in accordance with section 414(g) of the Code and regulations thereunder) shall be limited to a benefit that is nondiscriminatory under section 401(a)(4) of the Code. In the event of a partial termination of the Plan, the Administrator shall arrange for the division of the Trust Fund, on a nondiscriminatory basis to the extent required by section 401 of the Code, into the portion attributable to those Participants, Joint Annuitants and Beneficiaries who are not affected by such partial termination and the portion attributable to such persons who are so affected. The portion of the Trust Fund attributable to persons who are so affected shall be allocated in the manner prescribed by section 4044 of ERISA.
ARTICLE XII
Miscellaneous Provisions
12.1
Subsequent Changes
All benefits to which any Participant, Joint Annuitant, or Beneficiary may be entitled hereunder shall be determined under the Plan in effect when the Participant ceases to be an Eligible Employee (or under the FMC Plan, as of the date each FMC Participant who is not an Employee ceased being an eligible employee under the FMC Plan or the FMCTI Plan) (or under the FMCTI Plan, as of the date each FMCTI Participant who is not an Employee under the FMCTI Plan) ceased being an eligible employee under the and shall not be affected by any subsequent change in the provisions of the Plan, unless the Participant again becomes an Eligible Employee.
12.2
Plan Mergers
The Plan shall not be merged or consolidated with any other plan, and no assets or liabilities of the Plan shall be transferred to any other plan, unless each Participant would receive a benefit immediately after such merger, consolidation or transfer (if the Plan then terminated) which is equal to or greater than the benefit such Participant would have been entitled to receive immediately before such merger, consolidation or transfer (if the Plan had then been terminated). A list of plans which were merged into the FMC Plan since May 27, 1994, whose assets were transferred to the FMCTI Plan in connection with the FTI Spinoff and whose assets were transferred to this Plan in connection with the JBT Spinoff is attached hereto and made a part hereof as Exhibit C.
12.3
No
Assignment of Property Rights
The interest or property rights of any person in the Plan, in the Trust Fund or in any payment to be made under the Plan shall not be assignable nor be subject to alienation or option, either by voluntary or involuntary assignment or by operation of law, including (without limitation) bankruptcy, garnishment, attachment or other creditor’s process, and any act in violation of this Section 12.3 shall be void. This provision shall not apply to a “qualified domestic relations order” defined in Code Section 414(p). The Company shall establish a written procedure to determine the qualified status of domestic relations orders and to administer distributions under such qualified orders.
In addition, the prohibition of this Section 12.3 will not apply to any offset of a Participant’s benefit under the Plan against an amount the Participant is ordered or required to pay to the Plan under a judgment, order, decree or settlement agreement that meets the requirements as set forth in this Section 12.3. The Participant must be ordered or required to pay the Plan under a judgment of conviction for a crime involving the Plan, under a civil judgment (including a consent order or decree) entered by a court in an action brought in connection with a violation (or alleged violation) of part 4 of subtitle B of title I of ERISA, or pursuant to a settlement agreement between the Secretary of Labor and the Participant in connection with a violation (or alleged violation) of that part 4. This judgment, order, decree or settlement agreement must expressly provide for the offset of all or part of the amount that must be paid to the Plan against the Participant’s benefit under the Plan. In addition, if a Participant is entitled to receive a 50% Joint and Survivor Annuity under Section 6.1 of the Plan or a Survivor’s Benefit under Article VII of the Plan, and the Participant is married at the time at which the offset is to be made, the Participant’s spouse must consent to the offset in accordance with the spousal consent requirements of Section 6.3.3 of the Plan, an election to waive the right of the spouse to the 50% Joint and Survivor Annuity (made in accordance with Section 6.3 of the Plan) or to the Survivor’s Benefit (made in accordance with Article VII of the Plan) must be in effect, the spouse is ordered or required in the judgment, order, decree, or settlement to pay an amount to the Plan in connection with a violation of Part 4 of subtitle B or ERISA Title I, or the spouse retains in the judgment, order, decree, or settlement the right to receive the survivor annuity under the 50% Joint and Survivor Annuity or under the Survivor’s Benefit, determined in the following manner: the Participant terminated employment on the date of the offset, there was no offset, the Plan permitted the commencement of benefits only on or after Normal Retirement Age, the Plan provided only the minimum-required qualified joint and survivor annuity, and the amount of the Survivor’s Benefit under the Plan is equal to the amount of the survivor annuity payable under the minimum-required qualified joint and survivor annuity. For purposes of this Section 12.3 the term “minimum-required qualified joint and survivor annuity” means a qualified joint and survivor annuity which is the actuarial equivalent of the Participant’s accrued benefit and under which the survivor’s annuity is 50% of the amount of the annuity which is payable during the joint lives of the Participant and the Participant’s spouse.
12.4
Beneficiary
The Beneficiary of a Participant shall be the person or persons so designated by such Participant. If no Beneficiary has been designated or if the designated Beneficiary is not living when a Plan Benefit is to be distributed, the Beneficiary shall be such Participant’s spouse if then living or, if not, such Participant’s then living children in equal shares or, if there are no children, such Participant’s estate. A Participant may revoke and change a designation of a Beneficiary at any time. A designation of a Beneficiary, or any revocation and change thereof, shall be effective only if it is made in writing in a form acceptable to the Administrator and is received by it prior to the Participant’s death.
12.5
Benefits Payable to Minors, Incompetents and Others
If any benefit is payable to a minor, an incompetent, or a person otherwise under a legal disability, or to a person the Administrator reasonably believes to be physically or mentally incapable of handling and disposing of his or her property, whether because of his or her advanced age, illness, or other physical or mental impairment, the Administrator has the power to apply all or any part of the benefit directly to the care, comfort, maintenance, support, education, or use of the person, or to pay all or any part of the benefit to the person’s parent, guardian, committee, conservator, or other legal representative, wherever appointed, to the individual with whom the person is living or to any other individual or entity having the care and control of the person. The Plan, the Administrator and any other Plan fiduciary will have fully discharged all responsibilities to the Participant, Joint Annuitant or Beneficiary entitled to a payment by making payment under the preceding sentence.
12.6
Employment Rights
Nothing in the Plan shall be deemed to give any person a right to remain in the employ of the Company and Affiliates or affect any right of the Company or any Affiliate to terminate a person’s employment with or without cause.
12.7
Proof of Age and Marriage
Participants and Joint Annuitants shall furnish proof of age and marital status satisfactory to the Administrator at such time or times as it shall prescribe. The Administrator may delay the disbursement of any benefits under the Plan until all pertinent information with respect to age or marital status has been furnished and then make payment retroactively.
12.8
Small Annuities
If the sum of (a) the lump sum Actuarial Equivalent value of a Normal, Early, or Deferred Retirement Benefit under Article III, Termination Benefit (payable at the Participant’s Normal Retirement Date) under Article IV, or Survivor’s Benefit under Article VII, excluding any Aetna or Prudential nonparticipating annuity; and (b) the lump sum Actuarial Equivalent value of any Aetna or Prudential nonparticipating annuity is equal to $5,000 (effective January 1, 2005, $1,000) (or such other amount as may be prescribed in or under the Code) or less, such amounts shall be paid in a lump sum as soon as administratively practicable following the Participant’s retirement, termination of employment or death.
For lump sum distributions paid on or after January 1, 2003, if the Participant is thereafter reemployed by the Company, the Participant’s subsequent benefit will be reduced by the lump sum Actuarial Equivalent value of the lump sum distribution previously paid to the Participant. For lump sum distributions paid prior to January 1, 2003, if a Participant who has received such a lump sum distribution is thereafter reemployed by the Company, the Participant shall have the option to repay to the Plan the amount of such distribution, together with interest at the rate of 5% per annum (or such other rate as may be prescribed pursuant to section 411(c)(2)(C)(III) of the Code), compounded annually from the date of the distribution to the date of repayment. If a reemployed Participant does not make such repayment, no part of the Period of Service with respect to which the lump sum distribution was made shall count as Years of Vesting Service or Years of Credited Service.
12.9
Controlling Law
The Plan and all rights thereunder shall be interpreted and construed in accordance with ERISA and, to the extent that state law is not preempted by ERISA, the law of the State of Illinois.
12.10
Direct Rollover Option
Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee’s election under this Section 12.10, a distributee may elect, at the time and in the manner prescribed by the 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.
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(a)
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As used in this Section 12.10, an “eligible rollover distribution” means 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 10 years or more; any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; 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); and any other distribution(s) that is reasonably expected to total less than $200 during a year.
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A portion of a distribution shall not fail to be an eligible rollover distribution because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in Section 408(a) or (b) of the Code, or to a qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
Notwithstanding the preceding to the contrary, effective for Plan Years beginning on or after January 1, 2007, a Participant may also elect to make a direct rollover of after-tax employee contributions to a qualified plan or to a 403(b) plan that agrees to separately account for such amounts.
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(b)
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As used in this Section 12.10, an “eligible retirement plan” means an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, a qualified trust described in Section 401(a) of the Code, that accepts the distributee’s eligible rollover distribution and an annuity contract described in Section 403(b) of the Code or an eligible retirement plan under Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or an agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this Plan. The definition of “eligible retirement plan” shall also apply in the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code. For distributions made on or after January 1, 2008, an “eligible retirement plan” shall also include a Roth IRA defined in Section 408A(b) of the Code.
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(c)
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As used in this Section 12.10, 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 Code, are distributees with regard to the interest of the spouse or former spouse.
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Effective January 1, 2010, and notwithstanding any provision herein to the contrary, with respect to any portion of a distribution from the Plan of a deceased Employee, an individual who is the designated Beneficiary (as defined by Code Section 401(a)(9)(E)) of the Employee and who is not the surviving spouse of the Employee shall be permitted to make a direct trustee-to-trustee transfer of the distribution to an individual retirement plan described in Code Section 402(c)(8)(B)(i) or (ii) established for the purposes of receiving the distribution on behalf of such designated Beneficiary. In such event, the transfer shall be treated as an “eligible rollover distribution,” the individual retirement plan shall be treated as an inherited individual retirement account or individual retirement annuity (within the meaning of Code Section 408(d)(3)(C)) and Code Section 401(a)(9)(B) (other than clause (iv) thereof) shall apply to such individual retirement plan.
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(d)
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As used in this Section 12.10, a “direct rollover” is a payment by the Plan to the eligible retirement plan specified by the distributee.
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12.11
Claims Procedure
12.11.1 Any application for benefits under the Plan and all inquiries concerning the Plan shall be submitted to the Company at such address as may be announced to Participants from time to time. Applications for benefits shall be in the form and manner prescribed by the Company and shall be signed by the Participant or, in the case of a benefit payable after the death of the Participant, by the Participant’s Surviving Spouse or Beneficiary, as the case may be.
12.11.2 The Plan Administrator shall give written or electronic notice of its decision on any application to the applicant within 90 days of receipt of the application. Electronic notification may be used, at the discretion of the Plan Administrator (or Review Panel, as discussed below). If special circumstances require a longer period of time, the Plan Administrator shall provide notice to the applicant within the initial 90-day period, explaining the special circumstances requiring the extension of time and the date by which the Plan expects to render a benefit determination. A decision will be given as soon as possible, but no later than 180 days after receipt of the application. In the event any application for benefits is denied in whole or in part, the Plan Administrator shall notify the applicant in writing or electronic notification of the right to a review of the denial. Such notice shall set forth, in a manner calculated to be understood by the applicant: the specific reasons for the denial; the specific references to the Plan provisions on which the denial is based; a description of any information or material necessary to perfect the application and an explanation of why such material is necessary; and a description of the Plan’s review procedures and the applicable time limits to such procedures, including a statement of the applicant’s right to bring a civil action under ERISA Section 502(a) following a denial on review.
12.11.3 The Company shall appoint a “Review Panel,” which shall consist of three or more individuals who may (but need not) be employees of the Company. The Review Panel shall be the named fiduciary that has the authority to act with respect to any appeal from a denial of benefits under the Plan, and shall hold meetings at least quarterly, as needed. The Review Panel shall have the authority to further delegate its responsibilities to two or more individuals who may (but need not) be employees of the Company.
12.11.4 Any person (or his authorized representative) whose application for benefits is denied in whole or in part may appeal the denial by submitting to the Review Panel a request for a review of the application within 60 days after receiving notice of the denial. The Review Panel shall give the applicant or such representative the opportunity to submit written comments, documents, and other information relating to the claim; and an opportunity to review, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other relevant information (other than legally privileged documents) in preparing such request for review. The request for review shall be in writing and addressed as follows: “Review Panel of the Employee Welfare Benefits Plan Committee, 1803 Gears Road, Houston, TX 77067-4097.” The request for review shall set forth all of the grounds on which it is based, all facts in support of the request and any other matters that the applicant deems pertinent. The Review Panel may require the applicant to submit such additional facts, documents, or other material as it may deem necessary or appropriate in making its review. The Review Panel will consider all comments, documents, and other information submitted by the applicant regardless of whether such information was submitted or considered during the initial benefit determination.
12.11.5 The Review Panel shall act upon each request for review within 60 days after receipt thereof. If special circumstances require a longer period of time, the Review Panel shall so notify the applicant within the initial 60 days, explaining the special circumstances requiring the extension of time and the date by which the Review Panel expects to render a benefit determination. A decision will be given as soon as possible, but no later than 120 days after receipt of the request for review. The Review Panel shall give notice of its decision to the Company and the applicant. In the event the Review Panel confirms the denial of the application for benefits in whole or in part, such notice shall set forth in a manner calculated to be understood by the applicant, the specific reasons for such denial and specific references to the Plan provisions on which the decision is based. If such an extension of time for review is required because of special circumstances, the Plan Administrator shall provide the applicant with written notice of the extension, describing the special circumstances and the date as of which the benefit determination will be made, prior to the commencement of the extension. In the event the Review Panel confirms the denial of the application for benefits in whole or in part, such notice shall set forth in a manner calculated to be understood by the applicant: the specific reasons for such denial; the specific references to the Plan provisions on which the decision is based; the applicant’s right, upon request and free of charge, to receive reasonable access to, and copies of, all documents and other relevant information (other than legally-privileged documents and information); and a statement of the applicant’s right to bring a civil action under ERISA Section 502(a).
12.11.6 The Review Panel shall establish such rules and procedures, consistent with ERISA and the Plan, as it may deem necessary or appropriate in carrying out its responsibilities under this Section 12.11.
12.11.7 To the extent an application for benefits as a result of a Disability requires the Plan Administrator or the Review Panel, as applicable, to make a determination of Disability under the terms of the Plan, such determination shall be subject to all of the general rules described in this Section 12.11, except as they are expressly modified by this Section 12.11.7.
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(a)
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If the applicant’s claim is for benefits as a result of Disability, then the initial decision on a claim for benefits will be made within 45 days after the Plan receives the applicant’s claim, unless special circumstances require additional time, in which case the Plan Administrator will notify the applicant before the end of the initial 45-day period of an extension of up to 30 days. If necessary, the Plan Administrator may notify the applicant, prior to the end of the initial 30-day extension period, of a second extension of up to 30 days. If an extension is due to the applicant’s failure to supply the necessary information, the notice of extension will describe the additional information and the applicant will have 45 days to provide the additional information. Moreover, the period for making the determination will be delayed from the date the notification of extension was sent out until the applicant responds to the request for additional information. No additional extensions may be made, except with the applicant’s voluntary consent. The contents of the notice shall be the same as described in Section 12.11.12 above. If a benefit claim as a result of Disability is denied in whole or in part, the applicant (or his authorized representative) will receive written or electronic notification, as described in Section 12.11.2.
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(b)
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If an internal rule, guideline, protocol or similar criterion is relied upon in making the adverse determination, then the notice to the applicant of the adverse decision will either set forth the internal rule, guideline, protocol or similar criterion, or will state that such was relied upon and will be provided free of charge to the applicant upon request (to the extent not legally-privileged) and if the applicant’s claim was denied based on a medical necessity or experimental treatment of similar exclusion or limit, then the applicant will be provided a statement either explaining the decision or indicating that an explanation will be provided to the applicant free of charge upon request.
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(c)
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The Review Panel, as described above in Section 12.11.3 shall be the named fiduciary with the authority to act on any appeal from a denial of benefits as a result of Disability under the Plan. Any applicant (or his authorized representative) whose application for benefits as a result of Disability is denied in whole or in part may appeal the denial by submitting to the Review Panel a request for a review of the application within 180 days after receiving notice of the denial. The request for review shall be in the form and manner prescribed by the Review Panel and addressed as follows: “Review Panel of the Employee Welfare Benefits Plan Committee, 1803 Gears Road, Houston, TX 77067-4097.” In the event of such an appeal for review, the provisions of Section 12.11.4 regarding the applicant’s rights and responsibilities shall apply. Upon request, the Review Panel will identify any medical or vocational expert whose advice was obtained on behalf of the Review Panel in connection with an adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination. The entity or individual appointed by the Review Panel to review the claim will consider the appeal de novo, without any deference to the initial benefit denial. The review will not include any person who participated in the initial benefit denial or who is the subordinate of a person who participated in the initial benefit denial.
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(d)
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If the initial benefit denial was based in whole or in part on a medical judgment, then the Review Panel will consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment, and who was neither consulted in connection with the initial benefit determination nor is the subordinate of any person who was consulted in connection with that determination; and upon notifying the applicant of an adverse determination on review, include in the notice either an explanation of the clinical basis for the determination, applying the terms of the Plan to the applicant’s medical circumstances, or a statement that such explanation will be provided free of charge upon request.
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(e)
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A decision on review shall be made promptly, but not later than 45 days after receipt of a request for review, unless special circumstances require an extension of time for processing. If an extension is required, the applicant will be notified before the end of the initial 45-day period that an extension of time is required and the anticipated date that the review will be completed. A decision will be given as soon as possible, but not later than 90 days after receipt of a request for review. The Review Panel shall give notice of its decision to the applicant; such notice shall comply with the requirements set forth in Section 12.11.5. In addition, if the applicant’s claim was denied based on a medical necessity or experimental treatment or similar exclusion, the applicant will be provided a statement explaining the decision, or a statement providing that such explanation will be furnished to the applicant free of charge upon request. The notice shall also contain the following statement: “You and your Plan may have other voluntary alternative dispute resolution options, such as mediation. One way to find out what may be available is to contact your local U.S. Department of Labor Office and your State insurance regulatory agency.”
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12.11.8 No legal or equitable action for benefits under the Plan shall be brought unless and until the applicant (a) has submitted a written application for benefits in accordance with Section 12.11.1 (or 12.11.7(a), as applicable), (b) has been notified by the Plan Administrator that the application is denied, (c) has filed a written request for a review of the application in accordance with Section 12.11.4 (or 12.11.7(c), as applicable); and (d) has been notified that the Review Panel has affirmed the denial of the application; provided that legal action may be brought after the Review Panel has failed to take any action on the claim within the time prescribed in Section 12.11.5 (or 12.11.7(e), as applicable). An applicant may not bring an action for benefits in accordance with this Section 12.11.8 later than 90 days after the Review Panel denies the applicant’s application for benefits.
12.12
Participation in the Plan by an Affiliate
12.12.1 With the consent of the Board, any Affiliate, by appropriate action of its board of directors, a general partner or the sole proprietor, as the case may be, may adopt the Plan and determine the classes of its Employees that will be Eligible Employees.
12.12.2 A Participating Employer will have no power with respect to the Plan except as specifically provided herein.
12.13
Action by Participating Employers
Any action required to be taken by the Company pursuant to any Plan provisions will be evidenced in the manner set forth in Section 11.1. Any action required to be taken by a Participating Employer will be evidenced by a resolution of the Participating Employer’s board of directors (or an authorized committee of that board). Participating Employer action may also be evidenced by a written instrument executed by any person or persons authorized to take the action by the Participating Employer’s board of directors, any authorized committee of that board, or the stockholders. A copy of any written instrument evidencing the action by the Company or Participating Employer must be delivered to the secretary or assistant secretary of the Company or Participating Employer.
ARTICLE XIII
Top Heavy Provisions
13.1
Top Heavy Definitions
For purposes of this Article XIII and any amendments to it, the terms listed in this Section 13.1 have the meanings ascribed to them below.
Aggregate Account
means the value of all accounts maintained on behalf of a Participant, whether attributable to Company or employee contributions, determined under applicable provisions of the defined contribution plan used in determining Top Heavy Plan status.
Aggregation Group
means the group of plans in a Mandatory Aggregation Group, if any, that includes the Plan, unless including additional Related Plans in the group would prevent the Plan for being a Top Heavy Plan, in which case Aggregation Group means the group of plans in a Permissive Aggregation Group, if any, that includes the Plan.
Compensation
means compensation as defined in Code Section 415(c)(3) and Treasury regulations thereunder. For purposes of determining who is a Key Employee, Compensation will be applied by taking into account amounts paid by Affiliates who are not Participating Employers, as well as amounts paid by Participating Employers, and without applying the exclusions for amounts paid by a Participating Employer to cover an Employee’s nonqualified deferred compensation FICA tax obligations and for gross-up payments on such FICA tax payments.
Determination Date
means, for a Plan Year, the last day of the preceding Plan Year. If the Plan is part of an Aggregation Group, the Determination Date for each other plan will be, for any Plan Year, the Determination Date for that other plan that falls in the same calendar year as the Determination Date for the Plan.
Key Employee
means an employee described in Code Section 416(i)(1), the regulations promulgated thereunder and other guidance of general applicability issued thereunder. Generally, a Key Employee is an Employee or former Employee who, at any time during the Plan Year containing the Determination Date is:
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(a)
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an officer of the Company or an Affiliate with annual Compensation greater than $130,000 (as adjusted under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002);
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(b)
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a 5% owner of the Company or an Affiliate; or
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(c)
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a 1% owner of the Company or an Affiliate with annual Compensation from the Company and all Affiliates of more than $150,000.
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Mandatory Aggregation Group
means each plan (considering the Plan and Related Plans) that, during the Plan Year that contains the Determination Date or any of the 4 preceding Plan Years:
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(a)
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had a participant who was a Key Employee; or
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(b)
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was required to be considered with a plan in which a Key Employee participated in order to enable the plan in which the Key Employee participated to meet the requirements of Code Section 401(a)(4) or 410(b).
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Non-Key Employee
means an Employee or former Employee who is not a Key Employee.
Permissive Aggregation Group
means the group of plans consisting of the plans in a Mandatory Aggregation Group with the Plan, plus any other Related Plan or Plans that, when considered as a part of the Aggregation Group, does not cause the Aggregation Group to fail to satisfy the requirements of Code Section 401(a)(4) or 410(b).
Present Value of Accrued Benefits
means, in the case of a defined benefit plan, a Participant’s present value of accrued benefits determined as follows:
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(a)
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as of the most recent “Actuarial Valuation Date,” which is the most recent valuation date within a 12-month period ending on the Determination Date.
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(b)
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as if the Participant terminated service as of the actuarial valuation date; and
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(c)
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the Actuarial Valuation Date must be the same date used for computing the defined benefit plan minimum funding costs, regardless of whether a valuation is performed that Plan Year.
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Present Value
means, in calculating a Participant’s present value of accrued benefits as of a Determination Date, the sum of:
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(a)
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the present value of accrued benefits using the actuarial assumptions of Exhibit E-4;
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(b)
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any Plan distributions made within the Plan Year that includes the Determination Date, provided however, in the case of a distribution made for a reason other than separation from service (effective January 1, 2002, severance from employment), death or disability, this provision shall also include distributions made within the 4 preceding Plan Years. In the case of distributions made after the valuation date and prior to the Determination Date, such distributions are not included as distributions for top heavy purposes to the extent that such distributions are already included in the Participant’s present value of accrued benefits as of the valuation date. Notwithstanding anything herein to the contrary, all distributions, including distributions under a terminated plan which if it had not been terminated would have been required to be included in an Aggregation Group, will be counted;
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(c)
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any Employee Contributions, whether voluntary or mandatory. However, amounts attributable to tax deductible Qualified Voluntary Employee Contributions shall not be considered to be a part of the Participant’s present value of accrued benefits;
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(d)
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with respect to unrelated rollovers and plan-to-plan transfers (ones which are both initiated by the Participant and made from a plan maintained by one employer to a plan maintained by another employer), if this Plan provides for rollovers or plan-to-plan transfers, it shall always consider such rollover or plan-to-plan transfer as a distribution for the purposes of this Section 13.1. If this Plan is the plan accepting such rollovers or plan to-plan transfers, it shall not consider such rollovers or plan-to-plan transfers, as part of the Participant’s present value of accrued benefits;
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(e)
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with respect to related rollovers and plan-to-plan transfers (ones either not initiated by the Participant or made to a plan maintained by the same employer), if this Plan provides the rollover or plan-to-plan transfer, it shall not be counted as a distribution for purposes of this Section. If this Plan is the plan accepting such rollover or plan-to-plan transfer, it shall consider such rollover or plan-to-plan transfer as part of the Participant’s present value of accrued benefits, irrespective of the date on which such rollover or plan-to-plan transfer is accepted; and
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(f)
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if an individual has not performed services for a Participating Employer within the Plan Year that includes the Determination Date, any accrued benefit for such individual shall not be taken into account.
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Related Plan
means any other defined contribution plan (a “Related Defined Contribution Plan”) or defined benefit plan (a “Related Defined Benefit Plan”) (both as defined in Code Section 415(k), maintained by the Company or an Affiliate.
A Super Top Heavy Aggregation Group
exists in any Plan Year for which, as of the Determination Date, the sum of the present value of accrued benefits and the Aggregate Accounts of Key Employees under all plans in the Aggregation Group exceeds 90% of the sum of the present value of accrued benefits and the Aggregate Accounts of all employees under all plans in the Aggregation Group. In determining the sum of the Present Value of Accrued Benefits and/or Aggregate Accounts for all employees, the present value of accrued benefits and/or Aggregate Accounts for any Non-key Employee who was a Key Employee for any Plan Year preceding the Plan Year that contains the Determination Date will be excluded.
Super Top Heavy Plan
means the Plan when it is described in the second sentence of Section 13.2.
A Top Heavy Aggregation Group
exists in any Plan Year for which, as of the Determination Date, the sum of the Present Value of Accrued Benefits for Key Employees under all plans in the Aggregation Group exceeds 60% of the sum of the Present Value of Accrued Benefits for all employees under all plans in the Aggregation Group. In determining the sum of the Present Value of Accrued Benefits for all employees, the Present Value of Accrued Benefits for any Non-key Employee who was a Key Employee for any Plan Year preceding the Plan Year that contains the Determination Date will be excluded.
Top Heavy Plan
means the Plan when it is described in the first sentence of Section 13.2.
13.2
Determination of Top Heavy Status
This Plan is a Top Heavy Plan in any Plan Year in which it is a member of a Top Heavy Aggregation Group, including a Top Heavy Aggregation Group that includes only the Plan. The Plan is a Super Top Heavy Plan in any Plan Year in which it is a member of a Super Top Heavy Aggregation Group, including a Super Top Heavy Aggregation Group that includes only the Plan.
13.3
Minimum Benefit Requirement for Top Heavy Plan
13.3.1
Minimum Accrued Benefit:
The minimum accrued benefit (expressed as an Individual Life Annuity commencing at Normal Retirement Date) derived from Company contributions to be provided under this Section for each Non-key Employee who is a Participant for any Plan Year in which this Plan is a Top Heavy Plan shall equal the product of (a) 1/12th of “416 Compensation” averaged over 5 the consecutive Plan Years (or actual number of Plan Years if less) which produce the highest average and (b) the lesser of (i) 2% multiplied by Years of Vesting Service or (ii) 20%.
13.3.2 For purposes of providing the minimum benefit under Code Section 416, a Non-key Employee who is not a Participant solely because (a) his compensation is below a stated amount or (b) he declined to make mandatory contributions to the Plan will be considered to be a Participant.
13.3.3 For purposes of this Section 13.3, Years of Vesting Service for any Plan Year during which the Plan was not a Top Heavy Plan shall be disregarded.
13.3.4 For purposes of this Section 13.3, 416 Compensation for any Plan Year subsequent to the last Plan Year during which the Plan is a Top Heavy Plan shall be disregarded.
13.3.5 For the purposes of this Section 13.3, “416 Compensation” shall mean W-2 wages for the calendar year ending with or within the Plan Year, plus any elective deferral (as defined in Code section 402(g)), any amounts contributed to a plan described in Code Section 125 and any amounts contributed to a plan described in Code Section 132. 416 Compensation shall be limited to $200,000 (as adjusted for cost-of-living in accordance with Section 401(a)(17)(B) of the Code in Top Heavy Plan Years).
13.3.6 If payment of the minimum accrued benefit commences at a date other than Normal Retirement Date, or if the form of benefit is other than an Individual Life Annuity, the minimum accrued benefit shall be the actuarial equivalent of the minimum accrued benefit expressed as an Individual Life Annuity commencing at Normal Retirement Date pursuant to Exhibits E-1, E-2, E-3 and E-4, except, effective February 1, 2006, with respect to the optional form of benefit conversion, the minimum accrued benefit shall be determined pursuant to the definition of Actuarial Equivalent.
13.3.7 To the extent required to be nonforfeitable under Section 13.4, the minimum accrued benefit under this Section 13.3 may not be forfeited under Code Section 411(a)(3)(B) or Code Section 411(a)(3)(D).
13.3.8 In determining Years of Service, any service shall be disregarded to the extent such service occurs during a Plan Year when the Plan benefits (within the meaning of Code Section 410(b)) no Key Employee or Former Key Employee.
13.4
Vesting Requirement for Top Heavy Plan
13.4.1 Notwithstanding any other provision of this Plan, for any Top Heavy Plan Year, the vested portion of any Participant’s accrued benefit shall be determined on the basis of the Participant’s number of Years of Vesting Service according to the following schedule:
Years of Service
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Percentage Vested
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1-2
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0%
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|
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3
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100%
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If in any subsequent Plan Year, the Plan ceases to be a Top Heavy Plan, the Company may, in its sole discretion, elect to continue to apply this vesting schedule in determining the vested portion of any Participant’s accrued benefit, or revert to the vesting schedule in effect before this Plan became a Top Heavy Plan. Any such reversion shall be treated as a Plan amendment.
13.4.2 The computation of the nonforfeitable percentage of the Participant’s interest in the Plan shall not be reduced as the result of any direct or indirect amendment to this Plan. In the event that this Plan is amended to change or modify any vesting schedule, a Participant with at least 3 Years of Service as of the expiration date of the election period may elect to have the Participant’s nonforfeitable percentage computed under the Plan without regard to such amendment. If a Participant fails to make such election, then such Participant shall be subject to the new vesting schedule. The Participant’s election period shall commence on the adoption date of the amendment and shall end 60 days after the latest of:
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(a)
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the adoption date of the amendment,
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(b)
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the effective date of the amendment, or
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(c)
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the date the Participant receives written notice of the amendment from the Company.
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IN WITNESS WHEREOF, the undersigned and duly authorized Committee member has executed this Plan this ____ day of May, 2012 to be effective as of January 1, 2012, except as otherwise expressly provided herein.
John Bean Technologies Corporation
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By:
_____________________________
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Member, Employee Welfare Benefits Plan Committee
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EXHIBIT A
CREDITED SERVICE
Any service acquired as a participant under any of the plans listed herein shall not be counted as Credited Service for purposes of this Plan.
1. Frigoscandia Inc. Money Purchase Pension Plan
2. Frigoscandia Inc. Retirement Plan: Pension Plan/401(k) Plan
To the extent applicable to any FMC Participant, any service acquired as a participant under any of the plans listed below shall not be counted as Credited Service for purposes of this Plan.
1. Stearns Electric Company Profit Sharing Plan
2. Fritzke & Icke Employees Savings and Profit Sharing Plan
3. Employees Profit Sharing Plan of Industrial Brush Company
4. Wayne Manufacturing Company Profit Sharing Plan
5. P.E. Van Pelt, Inc. Profit Sharing Plan
6. Mojonnier Bros. Co. Salaried Employees Profit Sharing Plan
7. Lithium Corporation of America Retirement Plan
8. Elf Acquitaine, Inc. Pension Plan
EXHIBIT B
INACTIVE LOCATIONS
The following is a list of former locations of FMC which have been sold or closed. As a result of the FTI Spinoff and the JBT Spinoff, the Plan retains the assets and liabilities with respect to certain Participants formerly employed by FMC at such locations:
LOCATION
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DATE SOLD/CLOSED
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Invalco
|
February 26, 1999
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Houston Fluid Control
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January 1, 1984
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EXHIBIT C
MERGED PLANS
The following is a list of other plans which were merged into the FMC Plan on and after May 27, 1994, the assets of which are retained by the FMCIT Plan as a result of the FTI Spinoff and the Plan as a result of the JBT Spinoff.
PLAN NAME
|
EFFECTIVE
DATE OF
MERGER
|
SUPPLEMENT
NUMBER
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|
|
|
|
|
|
Pneumo Abex Corporation Retirement Income Plan
(Jetway Equipment Division)
|
May 27, 1994
|
1
|
Retirement Plan for Employees of Stein
|
June 1, 1997
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2
|
Moorco International, Inc. Retirement Income Plan
|
July 1, 1997
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3
|
Smith Meter, Inc. Salaried Retirement Plan
|
July 1, 1997
|
4
|
SUPPLEMENT 1.
JETWAY SYSTEMS DIVISION
The terms of this Supplement apply only to individuals who are current or former salaried and nonunion hourly employees of the FMC Technologies, Inc., Jetway Systems Division (effective June 1, 2008, the JBT Corporation Jetway Systems Division) and who were participants in the Pneumo Abex Corporation Retirement Income Plan (“Prior Plan”) before May 27, 1994 (the “Merger Date”) who had not received a full distribution of their benefit under such plan, or the FMC Plan, as of the Effective Date (“Participant”). On the Merger Date the benefits of such participants were spun off from the Prior Plan and merged into the FMC Plan.
1-2
|
Calculation of Normal Retirement Benefit
|
A Participant’s monthly Normal Retirement Benefit shall be no less than the normal retirement benefit to which the Participant would have been entitled under the Prior Plan if the Participant had terminated employment immediately prior to the Merger Date.
1-3
|
Early Retirement Date
|
Early Retirement Date
means the earlier of: (a) a Participant’s Early Retirement Date under the Plan or (b) the date the Participant has a Severance from Service before Normal Retirement Date for a reason other than death (i) if the Participant is at least age 55 and has at least 10 Years of Vesting Service, (ii) if the Participant was hired before age 35 and before January 1, 1989 and the sum of the Participant’s age and Years of Vesting Service is at least 75, or (iii) if the Participant was entitled to an early retirement benefit under the Prior Plan.
If a Participant has a Severance from Service before Early or Normal Retirement Date for a reason other than death and had accrued at least 10 Years of Vesting Service, the Participant may begin to receive the Participant’s Plan benefit, subject to the Plan’s reduction for early retirement, as early as the date the Participant reaches age 55.
1-5
|
Years of Vesting Service
|
A Participant is fully vested in the Participant’s benefit under the Prior Plan. A Participant’s Employment Commencement Date will be the date the Participant was first employed by the Company or an Affiliate, or any earlier date from which the Participant was granted vesting service under the FMC Plan, the FMCTI Plan or the Prior Plan. In no event will a Participant be credited with fewer Years of Vesting Service under the Plan than the Participant would have been credited with under the vesting rules of the Prior Plan.
1-6
|
Available Forms of Benefits
|
In addition to the optional forms of benefit described in the Plan, a Participant may elect to receive his benefit under the Prior Plan in the following form of benefit:
Life and 10 Year Certain Annuity:
A Life and 10 Year Certain Annuity is an immediate annuity which is the Actuarial Equivalent of an Individual Life Annuity, but which provides a smaller monthly annuity for the Participant’s life than an Individual Life Annuity. After the Participant’s death, if the monthly annuity has been paid for a period shorter than 10 years, it will continue in the same amount as during the Participant’s life, for the remainder of the 10 year term certain. The Participant’s Joint Annuitant will receive any payments due after the Participant’s death.
1-7
|
Special Provisions for Participants in the Retirement Plan for Salaried Employees of Abex Corporation
|
In addition to the special provisions of the preceding sections, a Participant who participated in the Retirement Plan for Employees of Abex Corporation before January 1, 1989 will be subject to the following provision with respect to the Participant’s Prior Plan benefit accrued before May 27, 1994.
Special Rule of 75 Benefit
:
Participants who were hired before age 35 and before January 1, 1989, and who accrue total years of age and Vesting Service at Early Retirement equal to at least 75 will be
entitled
to a monthly benefit at their Early Retirement Date reduced by 1/3 of 1% for each month payments are made before the Participant reaches age 65.
SUPPLEMENT 2.
STEIN
The terms of this Supplement apply only to individuals who were participants in the Retirement Plan for Employees of Stein (the “Prior Plan”) prior to June 1, 1997 (the “Merger Date”) and who had not received a full distribution of their benefit under such Prior Plan, the FMC Plan, or the FMCTI Plan as of the Effective Date (“Participant”).
2-2
|
Calculation of Normal Retirement Benefit
|
A Participant’s Normal Retirement Benefit shall be no less than the normal retirement benefit to which the Participant would have been entitled under the Prior Plan if the Participant had permanently terminated employment immediately prior to the Merger Date.
2-3
|
Years of Vesting Service
|
A Participant is fully vested in the Participant’s benefit under the Prior Plan. A Participant’s Employment Commencement Date will be the date the Participant was first employed by the Company or an Affiliate, or any earlier date from which the Participant was granted vesting service under the FMC Plan, the FMCTI Plan or the Prior Plan. In no event will a Participant be credited with fewer Years of Vesting Service under the Plan than the Participant would have been credited with under the vesting rules of the Prior Plan.
2-4
|
Available Forms of Benefits
|
In addition to the optional forms of benefit described in the Plan, a Participant may elect to receive the Participant’s benefit under the Prior Plan in the following form of benefit:
Life and 10 Year Certain Annuity
:
A Life and 10 Year Certain Annuity is an immediate annuity which is the Actuarial Equivalent of an Individual Life Annuity, but which provides a smaller monthly annuity for the Participant’s life than an Individual Life Annuity. After the Participant’s death, if the monthly annuity has been paid for a period shorter than 120 months, it will continue, in the same amount as during the Participant’s life, for the remainder of the 120-month term certain. The Participant’s Joint Annuitant will receive any payments due after the Participant’s death.
SUPPLEMENT 3.
MOORCO INTERNATIONAL INC. RETIREMENT INCOME PLAN
The terms of this Supplement apply only to individuals who were participants in the Moorco International Inc. Retirement Income Plan (the “Prior Plan”) prior to July 1, 1997 (the “Merger Date”) and who had not yet received a full distribution of their benefit under such Prior Plan, the FMC Plan or the FMCTI Plan as of the Effective Date (“Participant”).
3-2
|
Calculation of Normal Retirement Benefit
|
A Participant’s Normal Retirement Benefit shall be no less than the normal retirement benefit to which the Participant would have been entitled if the Participant had terminated employment immediately prior to the Merger Date.
3-3
|
Early Retirement Date
|
Early Retirement Date
means the earlier of: (a) Early Retirement Date under the Plan; or (b) the date the Participant has a Severance from Service before Normal Retirement Date for a reason other than death, if the Participant is at least age 55 and has at least 10 Years of Vesting Service or if the Participant was entitled to an early retirement benefit under the Geosource Inc. Retirement Income Plan.
3-4
|
Years of Vesting Service
|
A Participant is fully vested in the Participant’s benefits under the Prior Plan. A Participant’s Employment Commencement Date will be the date the Participant was first employed by the Company or an Affiliate, or any earlier date from which the Participant was first granted vesting service under the FMC Plan, the FMCTI Plan or the Prior Plan. Each Participant will be credited with the number of full years of vesting service with which the Participant was credited under the Prior Plan plus the greater of: (a) 6 months of Vesting Service; and (b) if the Participant accrued 1,000 hours of service under the Prior Plan during the period from January 1, 1997 through June 30, 1997, 1 Year of Vesting Service. In no event will a Participant be credited with fewer Years of Vesting Service under the Plan than the Participant would have been credited with under the vesting rules of the Prior Plan.
(a)
Early Retirement Reductions for No Service after June 30, 1997.
A Participant who did not have an Hour of Service after June 30, 1997, will be subject to the following early retirement reductions upon commencement of the Participant’s Prior Plan benefit prior to Normal Retirement Age, calculating actuarial equivalence by using the UP-1984 Mortality Table and an interest rate of 4.0%:
(i) A Participant who was employed with Moorco International Inc. until the attainment of age 55 and 10 years of Vesting Service will have his or her vested benefits reduced by 0.25% for each of the first 60 months, and by 0.5% for each subsequent month by which the Participant’s benefit commencement date precedes the Participant’s 65
th
birthday.
(ii) A Participant who terminated their employment with Moorco International, Inc. prior to the attainment of age 55 and 10 years of Vesting Service will have his or her vested benefits reduced actuarially for commencement prior to the Participant’s 65
th
birthday.
(iii)
Available Forms of Benefits.
In addition to the optional forms of benefit described in the Plan, a Participant may elect to receive the Participant’s benefit under the Prior Plan in the following form of a Life and Term Certain Annuity as described below. A Life and Term Certain Annuity is an immediate annuity which is the Actuarial Equivalent of an Individual Life Annuity, but which provides a smaller monthly annuity for the Participant’s life than an Individual Life Annuity. After the Participant’s death, if the monthly annuity has been paid for a period shorter than the term chosen by the Participant, it will continue, in the same amount as during the Participant’s life, for the remainder of the term certain. The Participant’s Joint Annuitant will receive any payments due after the Participant’s death. The Participant may choose a term certain of 60, 120, 180 or 240 months, so long as the term certain does not exceed the joint life expectancies of the Participant and the Joint Annuitant. For purposes of converting the Prior Plan benefit from the normal form of payment into an optional form of payment, actuarial equivalence shall be calculated based upon the UP-1984 Mortality Table and an interest rate of 4.0%.
(b)
Early Retirement Reductions for Service after June 30, 1997.
A Participant who has an Hour of Service after June 30, 1997, will have the option to receive the Prior Plan benefit in the form of a Life and Term Certain Annuity as described in (a)(iii)
Available Forms of Benefits
above. If so elected, the Prior Plan benefit shall be adjusted for early retirement in accordance with the reductions described in (a)
Early Retirement Reductions for No Service after June 30, 1997
above. The remainder of the Participant’s Plan benefit shall be available in any of the optional payment forms described under the Plan and subject to any early retirement reductions as apply under Sections 3.2 and 4.2 of the Plan.
3-6
|
Non-Spouse Death Benefit
|
If the Preretirement Survivor’s Benefit is not payable to the spouse of a deceased Participant, and if the Participant dies on or after the Participant’s Early Retirement Date, the Participant’s Beneficiary will be entitled to a death benefit consisting of monthly payments made for a period of 60 months, beginning as of the first day of the month coincident with or next following the month in which the Participant dies. The amount of the monthly payment will be equal to the monthly payment to which the Participant would have been entitled if the Participant had retired on the day before his death, and had elected to receive only the Participant’s Prior Plan benefit in the form of an immediate Life and Term Certain Annuity with a term certain of 60 months.
SUPPLEMENT 4.
SMITH METER, INC. SALARIED RETIREMENT PLAN
The terms of this Supplement apply only to individuals who were participants in the Smith Meter, Inc. Salaried Retirement Plan (“Prior Plan”) prior to July 1, 1997 (the “Merger Date”) and who had not yet received a full distribution of their benefit under the FMC Plan, the FMCTI Plan or the Prior Plan as of the Effective Date (“Participant”).
4-2
|
Calculation of Normal Retirement Benefit
|
A Participant’s Normal Retirement Benefit shall be no less than the normal retirement benefit to which the Participant would have been entitled if the Participant had permanently terminated employment with FMC and all of its Affiliates (as defined in the FMC Plan) on the Merger Date.
4-3
|
Early Retirement Date
|
Early Retirement Date
means the earlier of: (a) the Participant’s Early Retirement Date under the Plan, or (b) the date the Participant has a Severance from Service before Normal Retirement Date for a reason other than death (i) if the Participant is at least age 57 and has at least 10 Years of Vesting Service or (ii) if the Participant was entitled to an early retirement benefit under the Geosource Inc. Smith Meter Systems Division Salaried Retirement Income Plan.
4-4
|
Normal Retirement Date
|
Normal Retirement Date means the earlier of: (a) the Participant’s Normal Retirement Date under the Plan, or (b) the date the Participant has a Severance from Service with at least 10 Years of Vesting Service at or after age 62.
4-5
|
Years of Vesting Service
|
A Participant is fully vested in the Participant’s benefits under the Prior Plan. A Participant’s Employment Commencement Date will be the date the Participant was first employed by the Company or any Affiliate, or any earlier date from which he was granted vesting service under the FMC Plan, the FMCTI Plan or the Prior Plan. Each Participant will be credited with the number of full years of vesting service with which the Participant was credited under the Prior Plan plus the greater of: (a) 6 months of Vesting Service, or (b) if the Participant accrued 1,000 hours of service under the Prior Plan during the period from January 1, 1997 through June 30, 1997, 1 Year of Vesting Service. In no event will a Participant be credited with fewer Years of Vesting Service under the Plan than the Participant would have been credited with under the vesting rules of the Prior Plan.
(a)
Early Retirement Reductions for No Service after June 30, 1997.
A Participant who did not have an Hour of Service after June 30, 1997, will be subject to the following early retirement reductions upon commencement of the Participant’s Prior Plan benefit prior to Normal Retirement Age, calculating actuarial equivalence by using the UP-1984 Mortality Table and an interest rate of 4.0%:
(i) Participant who was employed with Smith Meter, Inc. until the attainment of age 57 and 10 years of Vesting Service will have his or her vested benefits reduced by 1/180 for each complete month between the date of the Participant’s benefit commencement and the Participant’s 62
nd
birthday.
(ii) A Participant who terminated their employment with Smith Meter, Inc. prior to the attainment of age 57 and 10 years of Vesting Service will have his or her vested benefits reduced actuarially for commencement prior to the Participant’s 62
nd
birthday.
(iii)
Available Forms of Benefits.
In addition to the optional forms of benefit described in the Plan, a Participant may elect to receive the Participant’s benefit under the Prior Plan in the following form of a Life and Term Certain Annuity as described below. A Life and Term Certain Annuity is an immediate annuity which is the Actuarial Equivalent of an Individual Life Annuity, but which provides a smaller monthly annuity for the Participant’s life than an Individual Life Annuity. After the Participant’s death, if the monthly annuity has been paid for a period shorter than the term chosen by the Participant, it will continue, in the same amount as during the Participant’s life, for the remainder of the term certain. The Participant’s Joint Annuitant will receive any payments due after the Participant’s death. The Participant may choose a term certain of 60, 120, 180 or 240 months, so long as the term certain does not exceed the joint life expectancies of the Participant and the Joint Annuitant. For purposes of converting the Prior Plan benefit from the normal form of payment into an optional form of payment, actuarial equivalence shall be calculated based upon the UP-1984 Mortality Table and an interest rate of 4.0%.
(b)
Early Retirement Reductions for Service after June 30, 1997.
A Participant who has an Hour of Service after June 30, 1997, will have the option to receive the Prior Plan benefit in the form of a Life and Term Certain Annuity as described in (a)(iii)
Available Forms of Benefits
above. If so elected, the Prior Plan benefit shall be adjusted for early retirement in accordance with the reductions described in (a)
Early Retirement Reductions for No Service after June 30, 1997
above. The remainder of the Participant’s Plan benefit shall be available in any of the optional payment forms described under the Plan and subject to any early retirement reductions as apply under Sections 3.2 and 4.2 of the Plan.
4-7
|
Payment to Active Participant After Normal Retirement Date
|
A Participant who continues to be employed by the Company or a Participating Employer after reaching Normal Retirement Date may begin receiving the Participant’s Prior Plan benefit at or after Normal Retirement Date.
4-8
|
Non-Spouse Death Benefit
|
If the Preretirement Survivor’s Benefit is not payable to the spouse of a deceased Participant, and if the Participant dies on or after the Participant’s Early Retirement Date, the Participant’s Beneficiary will be entitled to a death benefit consisting of monthly payments made for a period of 60 months, beginning as of the first day of the month coincident with or next following the month in which the Participant dies. The amount of the monthly payment will be equal to the monthly payment to which the Participant would have been entitled if he had retired on the day before his death, and had elected to receive only his Prior Plan benefit in the form of an immediate Life and Term Certain Annuity with a term certain of 60 months.
JOHN BEAN TECHNOLOGIES CORPORATION
EMPLOYEES’ RETIREMENT PROGRAM
PART II
UNION HOURLY EMPLOYEES’ RETIREMENT PLAN
(As Amended and Restated Effective as of January 1, 2012)
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|
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Page
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Introduction
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1
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ARTICLE I Definitions
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2
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Actuarial Equivalent
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2
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Administrator
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3
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Affiliate
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3
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Annuity Starting Date
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4
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Beneficiary
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4
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Board
|
4
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Benefits Agreement
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4
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Code
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4
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Collective Bargaining Agreement
|
4
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Committee
|
4
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Company
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4
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Early Retirement Benefit
|
4
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Early Retirement Date
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4
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Effective Date
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4
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Eligible Employee
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5
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Employee
|
5
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Employment Commencement Date
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5
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ERISA
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5
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50% Joint and Survivor’s Annuity
5
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5
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FMC
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5
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FMC Beneficiary
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5
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FMC Joint Annuitant
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5
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FMC Participant
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6
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FMC Plan
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6
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FMCTI Beneficiary
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6
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FMCTI Joint Annuitant
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6
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FMCTI Participant
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6
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FMCTI
|
6
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Table of Contents
(CONTINUED)
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Page
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FMCTI Plan
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6
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FTI Spinoff
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6
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Hour of Service
|
6
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Individual Life Annuity
|
7
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Investment Manager
|
7
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JBT Spinoff
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7
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Leased Employee
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7
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Normal Retirement Benefit
|
7
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Normal Retirement Date
|
7
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100% Joint and Survivor’s Annuity
7
|
7
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One-Year Period of Severance
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7
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Participant
|
7
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Participating Employer
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7
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Period of Service
|
8
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Period of Severance
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8
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Plan
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8
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Plan Year
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8
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Reemployment Commencement Date
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8
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Severance From Service Date
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8
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Supplement
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9
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Total and Permanent Disability
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9
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Trust
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9
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Trust Fund
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9
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Year of Credited Service
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9
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Year of Vesting Service
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10
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ARTICLE II
Participation
|
11
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2.1
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Eligibility and Commencement of Participation
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11
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2.2
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Provision of Information
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11
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2.3
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Termination of Participation
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11
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2.4
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Special Rules Relating to Veterans’ Reemployment Rights
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11
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Table of Contents
(CONTINUED)
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Page
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ARTICLE III
Normal, Early and Deferred Retirement Benefits
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12
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3.1
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Normal Retirement Benefits
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12
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3.2
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Early Retirement Benefits
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12
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3.3
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Deferred Retirement Benefits
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13
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3.4
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Suspension of Benefits
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14
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3.5
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Benefit Limitations
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17
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3.6
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FMC Participants’ and FMCTI Participants’ Benefits
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19
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ARTICLE IV
Termination Benefits
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19
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4.1
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Termination of Service
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19
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4.2
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Amount of Termination Benefit
|
20
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ARTICLE V
Disability Retirement Benefits
|
20
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5.1
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Disability Retirement
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20
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5.2
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Amount of Disability Retirement Benefit
|
20
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ARTICLE VI
Payment of Retirement Benefits
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21
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6.1
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Normal Form of Benefit
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21
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6.2
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Optional Forms of Benefit
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21
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6.3
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Election of Benefits
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21
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6.4
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FMC Participants and FMCTI Participants in Pay Status
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23
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6.5
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Election of Retroactive Annuity Starting Date
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24
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ARTICLE VII
Survivor’s Benefits
|
25
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7.1
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Surviving Spouse’s Benefit
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25
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7.2
|
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Certain Former Employees
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25
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ARTICLE VIII Fiduciaries
|
26
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8.1
|
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Named Fiduciaries
|
26
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8.2
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Employment of Advisers
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26
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8.3
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Multiple Fiduciary Capacities
|
26
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8.4
|
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Payment of Expenses
|
26
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8.5
|
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Indemnification
|
27
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Table of Contents
(CONTINUED)
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Page
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ARTICLE IX
Plan Administration
|
27
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9.1
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Powers, Duties and Responsibilities of the Administrator and the Committee
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27
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9.2
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Delegation of Administration Responsibilities
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27
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9.3
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Committee Members
|
28
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ARTICLE X
Funding of the Plan
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28
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10.1
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Appointment of Trustee
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28
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10.2
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Actuarial Cost Method
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28
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10.3
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Cost of the Plan
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28
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10.4
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Funding Policy
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29
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10.5
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Cash Needs of the Plan
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29
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10.6
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Public Accountant
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29
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10.7
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Enrolled Actuary
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29
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10.8
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Basis of Payments to the Plan
|
30
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10.9
|
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Basis of Payments from the Plan
|
30
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ARTICLE XI
Plan Amendment or Termination
|
30
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11.1
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Plan Amendment or Termination
|
30
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11.2
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Limitations on Plan Amendment
|
30
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11.3
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Effect of Plan Termination
|
31
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11.4
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Allocation of Trust Fund on Termination
|
31
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ARTICLE XII
Miscellaneous Provisions
|
31
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12.1
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Subsequent Changes
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31
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12.2
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Plan Mergers
|
32
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12.3
|
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No Assignment of Property Rights
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32
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12.4
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Beneficiary
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33
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12.5
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Benefits Payable to Minors, Incompetents and Others
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33
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12.6
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Employment Rights
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33
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12.7
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Proof of Age and Marriage
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33
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12.8
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Small Annuities
|
34
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12.9
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Controlling Law
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34
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12.10
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Direct Rollover Option
|
34
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Table of Contents
(CONTINUED)
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Page
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12.11
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Claims Procedure
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35
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12.12
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Participation in the Plan by an Affiliate
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39
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12.13
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Action by Participating Employers
|
39
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ARTICLE XIII
Top Heavy Provisions
|
40
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13.1
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Top Heavy Definitions
|
40
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13.2
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Determination of Top Heavy Status
|
43
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13.3
|
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Minimum Benefit Requirement for Top Heavy Plan
|
43
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13.4
|
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Vesting Requirement for Top Heavy Plan
|
44
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SUPPLEMENTAL 1
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JETWAY SYSTEMS DIVISION, OGDEN, UTAH
|
46
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SUPPLEMENTAL 2
|
PACKAGING MACHINERY DIVISION, GREEN BAY, WISCONSIN
|
50
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SUPPLEMENTAL 3
|
SMITH METER PLANT, ERIE, PENNSYLVANIA
|
52
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SUPPLEMENTAL 4
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FOOD PROCESSING MACHINERY DIVISION, HOOPESTON, ILLINOIS
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58
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SUPPLEMENTAL 5
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AIRLINE EQUIPMENT DIVISION, SAN JOSE, CALIFORNIA
|
61
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SUPPLEMENTAL 6
|
FOOD PROCESSING MACHINERY DIVISION, SAN JOSE, CALIFORNIA
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63
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JOHN BEAN TECHNOLOGIES CORPORATION
EMPLOYEES’ RETIREMENT PROGRAM
PART II
UNION HOURLY EMPLOYEES’ RETIREMENT PLAN
INTRODUCTION
WHEREAS, the John Bean Technologies Corporation Employees’ Retirement Program (“Program”) was established effective as of June 1, 2008, in connection with a spinoff of assets and liabilities from the FMC Technologies, Inc. Employees’ Retirement Program (the “FMCTI Plan”), which spinoff complied with the requirements of Code Section 414(l); and
WHEREAS, the FMCTI Plan was established effective May 1, 2001, in connection with a spinoff of assets and liabilities from the FMC Corporation Employees’ Retirement Program (“the FMC Plan”); and
WHEREAS, the Program consists of two parts, Part I Salaried and Nonunion Hourly Employees’ Retirement Plan and Part II Union Hourly Employees’ Retirement Plan, which are contained in two separate plan documents; and
WHEREAS, supplements to Part I and Part II of the Program contain provisions which apply only to a specific group of Employees or Participants as specified therein and override any contrary provision of the Program or either Part I or Part II; and
WHEREAS, this document is Part II Union Hourly Employees’ Retirement Plan (“Plan”) and covers certain eligible union hourly employees as provided in Article II Participation; and
WHEREAS, the Plan shall not be construed to affect an FMC Participant’s accrued benefit under the FMC Plan or to alter in any way the rights of an FMC Participant, FMC Joint Annuitant, or FMC Beneficiary thereof who has retired, died or with respect to whom there has been a severance from service date under the FMC Plan; and
WHEREAS, the Plan shall not be construed to affect the FMCTI Participant’s accrued benefit under the FMCTI Plan or to alter in any way the rights of an FMCTI Participant, FMCTI Joint Annuitant, or FMCTI Beneficiary thereof who has retired, died, or with respect to whom there has been a severance from service date under the FMCTI Plan; and
WHEREAS, the Plan is intended to be qualified under Code Section 401(a), and its associated trust is intended to be tax exempt under Code Section 501(a). The Plan is intended also to meet the requirements of ERISA and shall be construed wherever possible to comply with the terms of the Code and ERISA. The Plan is intended to provide a regular monthly retirement benefit for employees who meet the eligibility requirements; and
WHEREAS, the Company desires to amend and restate the Plan, effective January 1, 2012, and submit the Plan to the Internal Revenue Service for a favorable determination letter.
NOW, THEREFORE, effective January 1, 2012, the Company hereby amends and restates the Plan to provide as follows:
ARTICLE I
Definitions
For purposes of this Plan and any amendments to it, the following terms have the meanings ascribed to them below.
Actuarial Equivalent
means a benefit determined to be of equal value to another benefit, on the basis of either (a) the UP-1984 Mortality Table and 8-1/2% interest compounded annually or (b) the mortality table and interest rate described in the applicable Supplement.
Notwithstanding the above to the contrary, for purposes of Section 12.8, Actuarial Equivalent value shall be determined as follows: (and effective February 1, 2006, for purposes of optional form of benefit conversions (including optional form of benefit conversions described in Supplements 2, 3, 4, 5 and 6, but excluding optional form of benefit conversions described in Supplement 1), Actuarial Equivalent means a benefit determined to be of equal value to another benefit on the basis of the greater of (1) either (a) the actuarial equivalent, computed using the UP-1984 Mortality Table and 8-1/2% interest compounded annually, of the accrued benefit as of February 1, 2006 or (b) the actuarial equivalent, computed using the mortality table and interest rate described in the applicable Supplement, of the accrued benefit as of February 1, 2006, or (2) the actuarial equivalent, computed using the RP-2000 Combined Healthy Participant Table (RP2000CH), weighted 80% male/20% female and 6% interest compounded annually, of the accrued benefit as of the date of determination on or after February 1, 2006).
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(i)
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with respect to FMC Participants whose Annuity Starting Dates occurred prior to June 1, 1995, based on the actuarial assumptions described above; provided that the interest rate shall not exceed the immediate rate used by the Pension Benefit Guaranty Corporation for lump sum distributions occurring on the first day of the Plan Year that contains the Annuity Starting Date;
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(ii)
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with respect to FMC Participants with Annuity Starting Dates occurring on or after June 1, 1995, and who had an Hour of Service prior to August 31, 1999, based on the 1983 Group Annuity Mortality Table (weighted 50% male and 50% female) (or the applicable mortality table prescribed under Section 417(e)(3) of the Code) and the lesser of the interest rate described above or the applicable interest rate prescribed under Section 417(e)(3) of the Code for the November preceding the Plan Year that contains the Annuity Starting Date;
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(iii)
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for Annuity Starting Dates occurring on or after August 31, 1999, with respect to any Participant who did not have an Hour of Service prior to August 31, 1999, based on the 1983 Group Annuity Mortality Table (weighted 50% male and 50% female) (or the applicable mortality table, prescribed under Section 417(e)(3) of the Code) and the applicable interest rate prescribed under Section 417(e)(3) of the Code for the November preceding the Plan Year that contains the Annuity Starting Date;
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(iv)
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For Annuity Starting Dates occurring on or after December 31, 2002, using the applicable interest rate as described above, based on the 1994 Group Annuity Reserving Table (weighted 50% male, 50% female and projected to 2002 using Scale AA), which is the applicable mortality table prescribed in Rev. Rul. 2001-62 (or the applicable mortality table, prescribed under Section 417(e)(3) of the Code or other guidance of general applicability issued thereunder); and
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(v)
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Effective January 1, 2008, and solely for purposes of the determination of the present value of benefits pursuant to Code Section 417(e): (1) the applicable interest rate shall mean the applicable interest rate described in Code Section 417(e)(3)(C), which is the adjusted first, second and third segment rates (defined in Code Section 417(e)(3)(D)) applied under rules similar to the rules of Code Section 430(h)(2)(C) for the month of November preceding the first day of the Plan Year which includes the date of distribution, and (2) the applicable mortality table shall mean the applicable mortality table described in Code Section 417(e)(3)(B), Revenue Ruling 2007-67 and subsequent guidance (including regulations) issued by the Internal Revenue Service.
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Administrator
means the Company. The Plan is administered by the Company through the Committee. The Administrator and the Committee have the responsibilities specified in Article IX.
Affiliate
means any corporation, partnership, or other entity that is:
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(a)
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a member of a controlled group of corporations of which the Company is a member (as described in Code Section 414(b));
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(b)
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a member of any trade or business under common control with the Company (as described in Code Section 414(c));
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(c)
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a member of an affiliated service group that includes the Company (as described in Code Section 414(m));
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(d)
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an entity required to be aggregated with the Company pursuant to regulations promulgated under Code Section 414(o); or
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(e)
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a leasing organization that provides Leased Employees to the Company or an Affiliate (as determined under paragraphs (a) through (d) above), unless (i) the Leased Employees constitute less than 20% of the nonhighly compensated workforce of the Company and Affiliates (as determined under paragraphs (a) through (d) above; and (ii) the Leased Employees are covered by a plan described Code Section 414(n)(5).
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“Leasing organization” has the meaning ascribed to it in the definition of “Leased Employee” below.
For purposes of Section 3.5, the 80% thresholds of Code Sections 414(b) and (c) are deemed to be “more than 50%,” rather than “at least 80%.”
Annuity Starting Date
means the first day of the first period for which an amount is paid in an annuity or other form of benefit. In the case of a lump sum distribution, the Annuity Starting Date is the date payment is actually made.
Beneficiary
means the person or persons determined pursuant to Section 12.4.
Board
means the board of directors of the Company.
Benefits Agreement
means the Employee Benefits Agreement by and between FMC and the Company.
Code
means the Internal Revenue Code of 1986, as amended from time to time. Reference to a specific provision of the Code includes that provision, any successor to it and any valid regulation promulgated under the provision or successor provision.
Collective Bargaining Agreement
means the collective bargaining agreement referred to in the applicable Supplement.
Committee
means the JBT Corporation Employee Welfare Benefits Plan Committee as described in Section 9.3, its authorized delegatee and any successor to the Committee.
Company
means John Bean Technologies Corporation and any successor to it. Prior to June 1, 2008, Company meant FMC Technologies, Inc.
Early Retirement Benefit
means the benefits determined pursuant to Section 3.2.
Early Retirement Date
means the later of the Participant’s 55th birthday and the date he or she acquires 10 Years of Credited Service.
Effective Date
means (i) June 1, 2008, or if later, an Employee’s Employment Commencement Date or Reemployment Commencement Date, whichever is applicable, (ii) with respect to each FMC Participant, June 1, 2008 or, if later, the date such FMC Participant’s accrued benefit under the FMC Plan is deemed transferred to this Plan under the Benefits Agreement, or (iii) with respect to each FMCTI Participant, June 1, 2008 or, if later, the date such FMCTI Participant’s accrued benefit under the FMCTI Plan is deemed transferred to this Plan.
Eligible Employee
means an Employee of a Participating Employer, other than a Leased Employee, who is employed on an hourly basis and covered by the applicable Collective Bargaining Agreement which specifically provides for Plan participation, or to whom coverage under the Plan is extended by the Company.
Employee
means a common law employee or Leased Employee of the Company or an Affiliate, subject to the following rules:
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(a)
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a person who is not a Leased Employee and who is engaged as an independent contractor is not an Employee;
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(b)
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only individuals who are paid as employees from the payroll of the Company or an Affiliate and treated as employees are Employees under the Plan; and
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(c)
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any person retroactively found to be a common law employee shall not be eligible to participate in the Plan for any period he was not an Employee under the Plan.
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Employment Commencement Date
means the date on which the Employee first performs an Hour of Service.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a specific provision of ERISA includes the provision, any successor provision and any valid regulation promulgated under the provision or successor provision.
50% Joint and Survivor’s Annuity
means an immediate annuity which is the Actuarial Equivalent of an Individual Life Annuity, but which provides a smaller monthly annuity for the Participant’s life than an Individual Life Annuity. After the Participant’s death, 50% of such reduced annuity will be paid to the Participant’s surviving spouse for such spouse’s life.
FMC
means FMC Corporation, a Delaware corporation.
FMC Beneficiary
means an individual who was receiving benefits under the FMC Plan as a result of the death of an FMC Participant and whose benefit was transferred to the FMCTI Plan pursuant to the FTI Spinoff.
FMC Joint Annuitant
means an individual who was designated as a joint annuitant of an FMC Participant under the FMC Plan, the benefits of such FMC Participant which were transferred to the FMCTI Plan pursuant to the FTI Spinoff.
FMC Participant
means any participant in Part II Union Hourly Employee’s - Retirement Plan of the FMC Plan who had their accrued benefit, years of credited service and years of vesting service under the FMC Plan transferred to the FMCTI Plan, pursuant to the FTI Spinoff.
FMC Plan
means the FMC Corporation Employees’ Retirement Program.
FMCTI Beneficiary
means an individual who was receiving benefits under the FMCTI Plan as a result of the death of an FMCTI Participant and whose benefit was transferred to this Plan pursuant to the JBT Spinoff.
FMCTI Joint Annuitant
means an individual who was designated as a joint annuitant of an FMCTI Participant under the FMCTI Plan, the benefits of such FMCTI Participant which were transferred to this Plan pursuant to the JBT Spinoff.
FMCTI Participant
means any participant (including an FMC Participant) in Part II Union Hourly Employee’s – Retirement Plan of the FMCTI Plan who had their accrued benefit, years of credited service and years of vesting service under the FMCTI Plan transferred to this Plan, pursuant to the JBT Spinoff.
FMCTI
means FMC Technologies, Inc., a Delaware corporation.
FMCTI Plan
means the FMC Technologies, Inc. Employees’ Retirement Program.
FTI Spinoff
means the transfer of assets and liabilities attributable to FMC Participants from the FMC Plan to the FMCTI Plan pursuant to the Benefits Agreement.
Hour of Service
means each hour (a) for which an Employee is directly or indirectly paid or entitled to payment by the Company or an Affiliate for the performance of duties, (b) for each FMC Participant, each hour of service credited to such individual under the FMC Plan and FMCTI Plan as of the date prior to the Effective Date for such FMC Participant, and (c) for each FMCTI Participant, each hour of service credited to such individual under the FMCTI Plan as of the date prior to the Effective Date for such FMCTI Participant. Hours of Service will be credited to the Employee for the computation period in which the duties are performed. To the extent required by law, Hour of Service will include each hour for which an Employee is paid, or entitled to payment, by the Company or an Affiliate on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence. No more than 501 Hours of Service will be credited for any single continuous period (whether or not such period occurs in a single computation period). Hours of Service for these purposes will be calculated and credited pursuant to section 2530.200b-2 of the Department of Labor Regulations which is incorporated herein by this reference. Also to the extent required by law, Hours of Service will include each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Company or an Affiliate, provided, however, the same hours of service will not be credited. These hours will be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made.
Individual Life Annuity
means an immediate annuity which provides equal monthly payments for the Participant’s life only.
Investment Manager
means a person who is an “investment manager” as defined in section 3(38) of ERISA.
JBT Spinoff
means the transfer of assets and liabilities attributable to FMCTI Participants from the FMCTI Plan to this Plan.
Leased Employee
means an individual who performs services for the Company or an Affiliate on a substantially full-time basis for a period of at least 1 year, under the primary direction or control of the Company or an Affiliate, and under an agreement between the Company or Affiliate and a leasing organization. The leasing organization can be a third party or the Leased Employee himself.
Normal Retirement Benefit
means the benefits determined pursuant to Section 3.1.
Normal Retirement Date
means the Participant’s 65th birthday, except as otherwise provided in the applicable Supplement.
100% Joint and Survivor’s Annuity
means an immediate annuity which is the Actuarial Equivalent of an Individual Life Annuity, but which provides a smaller monthly annuity for the Participant’s life than a 50% Joint and Survivor Annuity. After the Participant’s death, 100% of such reduced annuity will continue to be paid to the Participant’s surviving spouse for such spouse’s life.
One-Year Period of Severance
means a 12-consecutive-month period commencing on an Employee’s Severance From Service Date in which the Employee is not credited with an Hour of Service.
Participant
means an Eligible Employee who has begun, but not ended, his or her participation in the Plan pursuant to the provisions of Article II and, unless specifically indicated otherwise, shall include each FMC Participant and each FMCTI Participant. If a Participant who is vested in the Participant’s accrued benefit on his or her Severance from Service Date is subsequently reemployed after his or her Severance from Service Date, he or she will become a Participant immediately upon reemployment. If a Participant who is not vested in the Participant’s accrued benefit on his or her Severance from Service Date is subsequently reemployed after his or her Severance from Service Date, he or she will become a Participant immediately upon reemployment, unless his or her Period of Severance is greater than or equal to five One-Year Periods of Severance.
Participating Employer
means the Company and each other Affiliate that adopts the Plan with the consent of the Board, as provided in Section 12.12.
Period of Service
means the period commencing on the Effective Date and ending on the Severance From Service Date including, for each FMC Participant and each FMCTI Participant, periods of service credited under the FMC Plan or the FMCTI Plan, as applicable, as of the date immediately prior to the relevant Effective Date for such FMC Participant or FMCTI Participant. All Periods of Service (whether or not consecutive) shall be aggregated. For a Participant who is not immediately eligible to participate in the Plan under the terms of Section 2.1 hereof, Period of Service shall include service from and after the Participant’s date of hire by the Company or its Affiliates. Notwithstanding the foregoing, if an Employee incurs a One-Year Period of Severance at a time when he or she has no vested interest under the Plan and the Employee does not perform an Hour of Service within 5 years after the beginning of the One-Year Period of Severance, the Period of Vesting Service prior to such One-Year Period of Severance shall not be aggregated.
Period of Severance
means the period commencing on the Severance From Service Date and ending on the date on which the Employee again performs an Hour of Service.
Plan
means Part II Union Hourly Employees’ Retirement Plan of the John Bean Technologies Corporation Employees’ Retirement Program.
Plan Year
means the period beginning June 1, 2008 and ending December 31, 2008 and thereafter the 12-month period beginning on January 1 and ending the next December 31.
Reemployment Commencement Date
means the first date following a Period of Severance which is not required to be taken into account for purposes of an Employee’s Period of Vesting Service on which the Employee performs an Hour of Service.
Severance From Service Date
means the earliest of:
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(a)
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the date on which an Employee voluntarily terminates, retires, is discharged or dies; the first anniversary of the first date of a period in which an Employee remains absent from service (with or without pay) with the Company and Affiliates for any reason other than voluntary termination, retirement, discharge or death; or
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(b)
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the second anniversary of the date an Employee is absent pursuant to a maternity or paternity leave of absence; provided, however, that the period between the first and second anniversaries of the first date of such absence shall be neither a Period of Service nor a One-Year Period of Severance.
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Notwithstanding the foregoing, a Severance From Service Date shall not be considered to have occurred under the following circumstances:
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(i)
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during a leave of absence, vacation or holiday with pay;
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(ii)
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during a leave of absence without pay granted by reason of disability or under the Family and Medical Leave Act of 1993;
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(iii)
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during a period of qualified military service, provided the Employee makes application to return within 90 days after completion of active an Eligible Employee and after he has become a Participant divided by 12. A partial month in such Period of Service counts as a whole month, and fractional Years of Credited Service shall service and returns to active employment as an Employee while reemployment rights are protected by law. If the Employee does not so return, the Employee shall have a Severance From Service Date on the first anniversary of the date of entry into military service.
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If the Employee violates the terms of a leave of absence, the Employee shall be deemed to have voluntarily terminated as of the date of such violation. In the case of a leave in excess of 12 months, if the Employee fails to return to active employment immediately after such leave, the Employee shall be deemed to have voluntarily terminated as of the last day of the 12th month of the leave.
A “maternity or paternity leave of absence” means an absence from work by reason of the Employee’s pregnancy, birth of the Employee’s child, placement of a child with the Employee in connection with the adoption of such child, or any absence for the purpose of caring for such child for a period immediately following such birth or placement.
Supplement
means the provisions of the Plan which apply only to a specific group of Employees or Participants as detailed in such Supplement and which override any contrary provision of the Plan.
Total and Permanent Disability
has the meaning assigned thereto in the applicable Supplement.
Trust
means the trust established by the Trust Agreement. “Trust Agreement” means the trust agreement or agreements, as amended from time to time, entered into by the Company and the Trustee pursuant to Section 8.1. “Trustee” means the trustee or trustees at any time appointed by the Company pursuant to Section 8.1.
Trust Fund
means the trust fund established and maintained by the Trustee to hold all assets of the Plan pursuant to the Trust Agreement.
Year of Credited Service
means (a) for an FMC Participant, his or her years of credited service under the FMC Plan and FMCTI Plan prior to such FMC Participant’s Effective Date (b) for an FMCTI Participant, his or her years of credited service under the FMCTI Plan prior to such FMCTI Participant’s Effective Date, and (c) the total number of calendar months during the Employee’s Period of Service while the Employee is be taken into account in determining a Participant’s benefits. Year of Credited Service shall also include such other periods as the Company recognizes as a Year of Credited Service, pursuant to written and nondiscriminatory rules.
Notwithstanding the foregoing, Credited Service shall not include: (i) any leave of absence without pay unless the Employee returns to active employment as an Employee immediately after such leave and abides by all the terms of the leave, (ii) any maternity or paternity leave of absence unless the Employee returns to active employment as an Employee within 12 months after the first day of such leave, or (iii) any period of service with respect to which such Eligible Employee accrues a benefit under the FMC Plan on or after May 1, 2001, the FMCTI Plan on or after June 1, 2008, or any pension, profit sharing or other retirement plan listed on Exhibit A.
Year of Vesting Service
means (a) for an FMC Participant, his or her years of service and years of vesting service credited under the FMC Plan and FMCTI Plan prior to such FMC Participant’s Effective Date, (b) for an FMCTI Participant, his or her years of service and years of vesting service credited under the FMCTI Plan prior to such FMCTI Participant’s Effective Date, and (c) the total number of calendar months during the Employee’s Period of Service divided by 12, determined in accordance with the following rules:
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(i)
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a partial month in the Employee’s Period of Service counts as a whole month;
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(ii)
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if the Employee has a Severance From Service Date by reason of a voluntary termination, discharge or retirement and the Employee then performs 1 Hour of Service within 12 months of the Severance From Service Date, such Period of Severance is included in the Period of Service. If the Employee has a Severance From Service Date by reason of a voluntary termination, discharge or retirement during an absence from service of 12 months or less for any reason other than a voluntary termination, discharge or retirement, and then performs 1 Hour of Service within 12 months of the date on which the Employee was first absent from service, such Period of Severance is included in the Period of Service;
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(iii)
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period of Service also includes the following:
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(1)
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a period of employment with an employer substantially all of the equity interest or assets of which have been acquired by the Company or an Affiliate, but only to the extent that the Company expressly recognizes such period as a Period of Service pursuant to written and nondiscriminatory rules; and
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(2)
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such other periods as the Company recognizes as a Period of Service pursuant to written and nondiscriminatory rules.
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ARTICLE II
Participation
2.1
Eligibility and Commencement of Participation
Each FMC Participant and each FMCTI Participant shall automatically became a Participant in the Plan on such FMC Participant’s or FMCTI Participant’s Effective Date. Except as otherwise provided in the applicable Supplement, each other Employee shall automatically become a Participant in the Plan as of the date he or she satisfies all of the following requirements:
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(a)
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the Employee is an Eligible Employee; and
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(b)
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the Employee either (i) is a regular, full-time employee, or (ii) has completed not less than 1,000 Hours of Service in a 12-month period beginning on the Employee’s Employment Commencement Date or any anniversary thereof.
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2.2
Provision of Information
Each Participant must make available to the Administrator any information it reasonably requests. As a condition of participation in the Plan, an Employee agrees, on his or her own behalf and on behalf of all persons who may have or claim any right by reason of the Employee’s participation in the Plan, to be bound by all provisions of the Plan.
2.3
Termination of Participation
A Participant ceases to be a Participant when he or she dies or, if earlier, when his or her entire vested benefit accrued under the Plan has been paid to him or her.
2.4
Special Rules Relating to Veterans’ Reemployment Rights
Notwithstanding any provision of this Plan to the contrary, with respect to an Eligible Employee or Participant who is reemployed in accordance with the reemployment provisions of the Uniformed Services Employment and Reemployment Rights Act following a period of qualifying military service (as determined under such Act), contributions, benefits and service credit will be provided in accordance with Section 414(u) of the Code. Notwithstanding the preceding, effective January 1, 2009, unless an earlier date is specifically set forth in this Section 2.4, the following shall apply:
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(a)
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General Rule
. Notwithstanding any provisions of this 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 Code. “Qualified military service” means any service in the uniformed services (as defined in chapter 43 of title 38 of the United States Code) by any individual if such individual is entitled to reemployment rights under such chapter with respect to such service.
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(b)
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Differential Wage Payments
. An individual receiving a differential wage payment, as defined by Section 3401(h)(2) of the Code, is treated as an Employee of the Participating Employer making the payment and the differential wage payment is treated as earnings under the Plan.
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The Plan is not treated as failing to meet the requirements of any provision described in Section 414(u)(1)(C) of the Code due to any contribution or benefit which is based on the differential wage payment provided that all Employees of the Participating Employer are entitled to receive differential wage payments, and to make contributions based on such payments, on reasonably equivalent terms.
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(c)
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Death During Qualified Military Service
.
In the case of a death occurring on or after January 1, 2007, if a Participant dies while performing qualified military service (as defined in Section 414(u) of the Code), the survivors of the Participant are entitled to any additional benefits (other than benefit accruals relating to the period of qualified military service) provided under the Plan as if the Participant had resumed and then terminated employment on account of death.
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ARTICLE III
Normal, Early and Deferred Retirement Benefits
3.1
Normal Retirement Benefits
3.1.1
Normal Retirement
: A Participant who retires on the Normal Retirement Date shall be entitled to receive a Normal Retirement Benefit determined under Section 3.1.2. Payment of such benefit shall commence as of the first day of the month coincident with or next following the Participant’s Normal Retirement Date, unless the Participant elects to defer commencement subject to Section 3.3.2.
3.1.2
Amount of Normal Retirement Benefit
: A Participant’s monthly Normal Retirement Benefit shall be equal to the amount determined in accordance with the applicable Supplement.
3.1.3
Reductions for Certain Benefits
: A Participant’s Normal Retirement Benefit shall be reduced by the value of any vested benefit payable to the Participant under the FMC Plan, the FMCTI Plan, or any pension, profit sharing or other retirement plan other than the Savings Plan (hereinafter called “Duplicate Benefit Plan”) which is attributable to any period which counts as Credited Service under this Plan. For purposes of determining the amount of any Duplicate Benefit Plan reduction, the vested benefit under the Duplicate Benefit Plan shall be converted to a form which is identical to the form of benefit which is to be paid under this Plan, including any applicable reductions for early commencement as determined under the Plan or the Duplicate Benefit Plan, as applicable. Such values will be determined as of the earlier of the Annuity Starting Date under the Plan, or the date distribution of such vested benefit was made or commenced under the Duplicate Benefit Plan, as applicable.
3.2
Early Retirement Benefits
3.2.1
Early Retirement
: A Participant who retires on or after the Early Retirement Date shall be entitled to receive an Early Retirement Benefit determined under Section 3.2.2. Payment of such benefit shall commence as of the first of the month coincident with or next following the Participant’s Early Retirement Date or, if the Participant elects, as of the first day of any subsequent month, but not later than the Normal Retirement Date. Any such election of a deferred commencement date may be revoked at any time prior to such date and a new date may be elected by giving advance written notice to the Administrator in accordance with rules prescribed by the Administrator.
3.2.2
Amount of Early Retirement Benefit
: Subject to Section 3.2.3, a Participant’s monthly Early Retirement Benefit shall be equal to an amount determined pursuant to Section 3.1.2 as in effect on the date the Participant’s Years of Credited Service terminate, based on the Participant’s Years of Credited Service as of such date.
3.2.3
Early Retirement Reduction Factor
: If a Participant’s Early Retirement Benefit commences prior to the Participant’s Normal Retirement Date, the Participant’s Early Retirement Benefit computed pursuant to Section 3.2.2 shall be reduced in accordance with the applicable Supplement.
3.3
Deferred Retirement Benefits
3.3.1
Deferred Retirement
: A Participant who retires after the Normal Retirement Date shall be entitled to receive a Normal Retirement Benefit determined under Section 3.1.2 commencing as of the first day of the month coinciding with or next following the date the Participant actually retires. Each Participant shall accrue additional benefits hereunder after the Participant’s Normal Retirement Date with respect to the portion of the Normal Retirement Benefit which is attributable to contributions by the Company. If a Participant who is not employed by the Company or its Affiliates on his or her Normal Retirement Date defers his or her Normal Retirement Benefit beyond his or her Normal Retirement Date, the Normal Retirement Benefit will be paid retroactive to the Participant’s Normal Retirement Date as soon as reasonably practicable after the Plan Administrator learns of the deferred benefit.
3.3.2
Distribution Requirements
: Except as hereinafter provided, unless the Participant elects otherwise in accordance with the terms of the Plan, payment of a Participant’s retirement benefits will begin no later than 60 days after the close of the Plan Year in which the latest of the following events occurs:
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(a)
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the Participant’s 65th birthday;
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(b)
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the 10th anniversary of the year in which the Participant commenced participation in the Plan; and
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(c)
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the Participant terminates employment with the Company and all Affiliates.
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If the amount of the payment required to commence on the date determined under this Section 3.3.2 cannot be ascertained by such date, or if it is not possible to make such payment on such date because the Administrator cannot locate the Participant after making reasonable efforts to do so, a payment retroactive to such date may be made no later than 60 days after the earliest date on which the amount of such payment can be ascertained under this Plan or the date the Participant is located.
Notwithstanding any other provision of this Plan:
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(i)
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the accrued benefit of a Participant who attains age 70-1/2 on or after January 1, 2000 must be distributed or commence to be distributed no later than the April 1 following the later of (1) the calendar year in which the Participant attains age 70-1/2 or (2) the calendar year in which the Participant retires (unless the Participant is a 5% owner, as defined in Code Section 416, of the Company with respect to the Plan Year in which the Participant attains age 70-1/2, in which case this Subsection (2) shall not apply); and
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(ii)
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the accrued benefit of a Participant who attains age 70-1/2 prior to January 1, 2000 must be distributed or commence to be distributed no later than the April 1 following the calendar year in which the Participant attains age 70-1/2 unless the Participant is not a 5% owner (as defined in Subsection (i)) and elects to defer distribution to the calendar year in which the Participant retires.
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All Plan distributions will comply with Code Section 401(a)(9), including Department of Treasury Regulation Section 1.401(a)(9)-2. With respect to distributions made under the Plan for Plan Years beginning on or after January 1, 2003, all Plan distributions will comply with Code Section 401(a)(9), including Department of Treasury Regulation Section 1.401(a)(9)-2 through 1.401(a)(9)-9, as promulgated under Final and Temporary Regulations published in the Federal Register on April 17, 2002 (the ‘401(a)(9) Regulations’), with respect to minimum distributions under Code Section 401(a)(9). In addition, the benefit payments distributed to any Participant on or after January 1, 2003, will satisfy the incidental death benefit provisions under Code Section 401(a)(9)(G) and Department of Treasury Regulation Section 1.401(a)(9)-5(d), as promulgated in the 401(a)(9) Regulations. To the extent required by Code Section 401(a)(9)(C)(iii), or any other applicable guidance issued thereunder, with respect to a Participant who retires in a calendar year after the calendar year in which the Participant attains age 70 ½, the actuarial increase in such Participant’s accrued benefit mandated by Code Section 401(a)(9)(C)(iii) shall be implemented notwithstanding any suspension of benefits provision applicable to such Participant pursuant to ERISA 203(a)(3)(B), Code Section 411(a)(3)(B) and the terms of the Plan.
3.4
Suspension of Benefits
3.4.1
Prior to Normal Retirement Date
: If a Participant receives retirement benefits under the Plan following a termination of employment prior to the Participant’s Normal Retirement Date and again becomes an Employee prior to Normal Retirement Date, no retirement benefits shall be paid during such later period of employment and up to Normal Retirement Date. Any benefits payable under the Plan to or on behalf of the Participant at the time of the Participant’s subsequent termination of employment shall be reduced by the Actuarial Equivalent of any benefits paid to the Participant after the Participant’s earlier termination and prior to the Participant’s Normal Retirement Date.
3.4.2
After Normal Retirement Date
: If (a) a Participant whose employment terminates again becomes an Employee after the Participant’s Normal Retirement Date, or again becomes an Employee prior to the Participant’s Normal Retirement Date and continues in employment beyond the Participant’s Normal Retirement Date, or (b) a Participant continues in employment with the Company and Affiliates after the Participant’s Normal Retirement Date without a prior termination, the following provisions of this Section 3.4.2 shall apply to the Participant as of the Participant’s Normal Retirement Date or, if later, the Participant’s date of reemployment.
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(i)
|
For purposes of this Section 3.4.2, the following definitions shall apply:
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|
(1)
|
Postretirement Date Service
means each calendar month after a Participant’s Normal Retirement Date and subsequent to the time that:
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(A)
|
payment of retirement benefits commenced to the Participant if the Participant returned to employment with the Company and Affiliates, or
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|
(B)
|
payment of retirement benefits would have commenced to the Participant if the Participant had not remained in employment with the Company and Affiliates,
|
if in either case the Participant receives pay from the Company and Affiliates for any Hours of Service performed on each of 8 or more days (or separate work shifts) in such calendar month.
|
(2)
|
Suspendable Amount
means the monthly retirement benefits otherwise payable in a calendar month in which the Participant is engaged in Postretirement Date Service Payment shall be permanently withheld on a portion of a Participant’s retirement benefits, not in excess of the Suspendable Amount, for each calendar month during which the Participant is employed in Postretirement Date Service.
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(ii)
|
If payments have been suspended pursuant to Subsection (ii) above, such payments shall resume no later than the first day of the third calendar month after the calendar month in which the Participant ceases to be employed in Postretirement Date Service; provided, however, that no payments shall resume until the Participant has complied with the requirements set forth in Subsection (vi) below. The initial payment upon resumption shall include the payment scheduled to occur in the calendar month when payments resume and any amounts withheld during the period between the cessation of Postretirement Date Service and the resumption of payment, less any amounts that are subject to offset pursuant to Subsection (iv) below.
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|
(iii)
|
Retirement benefits made subsequent to Postretirement Date Service shall be reduced by (1) the Actuarial Equivalent of any benefits paid to the Participant prior to the time the Participant is reemployed after the Participant’s Normal Retirement Date; and (2) the amount of any payments previously made during those calendar months in which the Participant was engaged in Postretirement Date Service; provided, however, that such reduction under Subsection (2) shall not exceed, in any one month, 25% percent of that month’s total retirement benefits (excluding amounts described in Subsection (ii) above) that would have been due but for the offset.
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|
(iv)
|
Any Participant whose retirement benefits are suspended pursuant to Subsection (ii) of this Section 3.4.2 shall be notified (by personal delivery or certified or registered mail) during the first calendar month in which payments are withheld that the Participant’s retirement benefits are suspended. Such notification shall include:
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|
(1)
|
a description of the specific reasons for the suspension of payments;
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(2)
|
a general description of the Plan provisions relating to the suspension;
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|
(3)
|
a copy of the provisions;
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|
(4)
|
a statement to the effect that applicable Department of Labor Regulations may be found at Section 2530.203-3 of Title 29 of the Code of Federal Regulations;
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(5)
|
the procedure for appealing the suspension, which procedure shall be governed by Section 12.11; and
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|
(6)
|
the procedure for filing a benefits resumption notification pursuant to Subsection (vi) below.
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If payments subsequent to the suspension are to be reduced by an offset pursuant to Subsection (iv) above, the notification shall specifically identify the periods of employment for which the amounts to be offset were paid, the Suspendable Amounts subject to offset, and the manner in which the Plan intends to offset such Suspendable Amounts.
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(v)
|
Payments shall not resume as set forth in Subsection (iii) above until a Participant performing Postretirement Date Service notifies the Administrator in writing of the cessation of such Service and supplies the Administrator with such proof of the cessation as the Administrator may reasonably require.
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|
(vi)
|
A Participant may request, pursuant to the procedure contained in Section 12.11, a determination whether specific contemplated employment will constitute Postretirement Date Service.
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3.5
Benefit Limitations
3.5.1
Limitation on Accrued Benefit
: Notwithstanding any other provision of the Plan, the annual benefit payable under the Plan to a Participant, when expressed as a monthly benefit commencing at the Participant’s Social Security Retirement Age (as defined in Code Section 415(b)(8)), shall not exceed the lesser of (a) $13,333.33 or (b) the highest average of the Participant’s monthly compensation for 3 consecutive calendar years, subject to the following:
|
(i)
|
The maximum shall apply to the Individual Life Annuity and to that portion of the Accrued Benefit (as adjusted as required under Code Section 415) payable in the form elected by the Participant during his lifetime.
|
|
(ii)
|
If a Participant has fewer than 10 years of participation in the Plan, the maximum dollar limitation of Subsection (a) above shall be multiplied by a fraction of which the numerator is the Participant’s actual years of participation in the Plan (computed to fractional parts of a year) and the denominator is 10. If a Participant has fewer than 10 Years of Vesting Service, the maximum compensation limitation in Subsection (b) above shall be multiplied by a fraction of which the numerator is the Years of Vesting Service (computed to fractional parts of a year) and the denominator is 10. Provided, however, that in no event shall such dollar or compensation limitation, as applicable, be less than 1/10th of such limitation determined without regard to any adjustment under this Subsection (ii).
|
|
(iii)
|
As of January 1 of each year, the dollar limitation as determined by the Commissioner of Internal Revenue for that calendar year to reflect increases in the cost of living, shall become effective as the maximum dollar limitation in Subsection (a) above for the Plan Year ending within that calendar year for Participants terminating in or after such Plan Year.
|
|
(iv)
|
If the benefit of a Participant begins prior to age 62, the defined benefit dollar limitation applicable to the Participant at such earlier age is an annual benefit payable in the form of a Life Annuity beginning at the earlier age that is the Actuarial Equivalent of the dollar limitation under Subsection (a) above applicable to the participant at age 62. The defined benefit dollar limitation applicable at an age prior to age 62 is determined by using the lesser of the effective Early Retirement reduction, as determined under the Plan, or 5% per year. The mortality basis for determining Actuarial Equivalence for terminations on or after December 31, 2002, as applicable, shall be the 1994 Group Annuity Reserving Table (weighted 50% male, 50% female and projected to 2002 using Scale AA), which is the table prescribed in Rev. Rul. 2001-62, (or the applicable mortality table, prescribed under Section 417(e)(3) of the Code or other guidance of general applicability issued thereunder).
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For periods prior to January 1, 2002, the dollar limitation under Code Section 415 in effect for the applicable Plan year shall be modified as follows to reflect commencement of retirement benefits on a date other than the Participant’s Social Security Retirement Age:
|
(1)
|
if the Participant’s Social Security Retirement Age is 65, the dollar limitation for benefits commencing on or after age 62 is determined by reducing the dollar limitation under Subsection (a) above by 5/9ths of 1% for each month by which benefits commence before the month in which the Participant attains age 65;
|
|
(2)
|
if the Participant’s Social Security Retirement Age is greater than 65, the dollar limitation for benefits commencing on or after age 62 is determined by reducing the dollar limitation under Subsection (a) above by 5/9ths of 1% for each of the first 36 months and by 5/12ths of 1% for each of the additional months by which benefits commence before the month in which the Participant attains Social Security Retirement Age;
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|
(3)
|
if the Participant’s benefit commences prior to age 62, the dollar limitation shall be the actuarial equivalent of Subsection (a) above, payable at age 62, as determined above, reduced for each month by which benefits commence before the month in which the Participant attains age 62. Actuarial equivalence shall be determined using the greater of the interest rate assumption under the Plan for determining early retirement benefits or 5% per year. The mortality basis for determining Actuarial Equivalence for terminations prior to January 1, 1995 shall be the 1971 Group Annuity Mortality Table (weighted 95% male and 5% female). The mortality basis for determining Actuarial Equivalence for any terminations on or after January 1, 1995 shall be the 1983 Group Annuity Mortality Table (weighted 50% male and 50% female);
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|
(v)
|
Notwithstanding the foregoing, the maximum as applied to any FMC Participant on April 1, 1987 shall in no event be less than the FMC Participant’s “current accrued benefit” under the FMC Plan as of March 31, 1987, as that term is defined in Section 1106 of the Tax Reform Act of 1986.
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(vi)
|
The maximum shall apply to the benefits payable to a Participant under the Plan and all other tax-qualified defined benefit plans of the Company and Affiliates (whether or not terminated), and benefits shall be reduced, if necessary, in the reverse of the chronological order of participation in such plans.
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(vii)
|
For purposes of this Section 3.5.1, effective January 1, 2002, the term “compensation” means compensation as defined in Code Section 415(c)(3) and the term “monthly compensation” means compensation divided by 12.
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3.5.2
Multiple Plan Reduction
: With respect to a FMC Participant who did not have 1 Hour of Service after December 31, 1999 and who is (or has been) a participant in any defined contribution plan (whether or not terminated) maintained by FMC, FMCTI, the Company or an Affiliate, the sum of the FMC Participant’s defined benefit plan fraction (as defined under Code Section 415(e)(2)) and defined contribution plan fraction (as defined under Code Section 415(e)(3)) shall not exceed 1. If such sum exceeds 1, the FMC Participant’s defined benefit plan fraction shall be reduced until such sum equal 1.
3.5.3
Incorporation of Section 415 of the Code
: The provisions set forth in Article III are intended to comply with the requirements of Section 415 of the Code and shall be interpreted, applied and if and to the extent necessary, deemed modified without formal language so as to satisfy solely the minimum requirements of Section 415.
3.6
FMC Participants’ and FMCTI Participants’ Benefits
The Normal Retirement Benefit, Early Retirement Benefit Termination Benefit, and Disability Retirement Benefit for each FMC Participant who is not an Employee and who does not complete an Hour of Service on or after May 1, 2001 shall, notwithstanding the provisions of Sections 3.1, 3.2, 3.3, 4.2 or 5.2 hereof, equal the accrued benefit of such FMC Participant as transferred from the FMC Plan in the FTI Spinoff.
The Normal Retirement Benefit, Early Retirement Benefit Termination Benefit, and Disability Retirement Benefit for each FMCTI Participant who is not an Employee and who does not complete an Hour of Service on or after June 1, 2008, shall, notwithstanding the provisions of Sections 3.1, 3.2, 3.3, 4.2 or 5.2 hereof, equal the accrued benefit of such FMCTI Participant as transferred from the FMCTI Plan in the JBT Spinoff.
ARTICLE IV
Termination Benefits
4.1
Termination of Service
Except as provided in the applicable Supplement, a Participant who has 5 Years of Vesting Service but who ceases to be an Employee before the Participant’s Early Retirement Date for any reason other than death shall be entitled to receive a “Termination Benefit” determined under Section 4.2. Except as provided in the applicable Supplement, payment of such benefit shall commence as of the first day of the month coincident with or next following the Participant’s Normal Retirement Date, unless the Participant elects to defer commencement subject to Section 3.3.2. Except as provided in the applicable Supplement, if the Participant satisfies the age requirement for an Early Retirement Benefit, the Participant may elect payment of the Actuarial Equivalent of the Participant’s Termination Benefit to commence as of the first day of any month before such Normal Retirement Date and coincident with or following the Participant’s Early Retirement Date. Any such election of the earlier Annuity Starting Date shall be made by giving advance written notice to the Administrator in accordance with rules prescribed by the Administrator. Except as provided in Article V and Article VII, no benefits shall be payable to any person if the Participant dies prior to the Annuity Starting Date. A terminated Participant who has no vested interest in the Participant’s accrued benefit shall be deemed to have received a distribution of the Participant’s entire vested benefit. The Committee or its delegatee may, in its discretion, vest a Participant in the Participant’s accrued benefit in the event the Participant’s employment with the Company is affected by a transaction undertaken by the Company.
4.2
Amount of Termination Benefit
Except as provided in the applicable Supplement or Section 3.6, a Participant’s monthly Termination Benefit shall be determined pursuant to Section 3.1.2 as in effect on the date his Years of Vesting Service terminate based on the Participant’s Years of Vesting Service as of such date. Except as provided in the applicable Supplement, if payment of the Participant’s Termination Benefit commences before the Normal Retirement Date, the amount of the monthly benefit shall be reduced to an Actuarial Equivalent to reflect such earlier commencement.
ARTICLE V
Disability Retirement Benefits
5.1
Disability Retirement
To the extent provided in the applicable Supplement, a Participant who is an Employee and who satisfies the requirements for Disability Retirement in the applicable Supplement shall be entitled to receive a Disability Retirement Benefit determined under Section 5.2. If a Participant’s Total and Permanent Disability ceases, the payment of the Participant’s Disability Retirement Benefit shall cease.
5.2
Amount of Disability Retirement Benefit
A Participant’s Disability Retirement Benefit shall be determined pursuant to the applicable Supplement as in effect on the date the Participant’s Years of Credited Service terminate.
ARTICLE VI
Payment of Retirement Benefits
6.1
Normal Form of Benefit
Except as otherwise provided in the applicable Supplement, a Participant’s benefit shall be paid in the form of a 100% Joint and Survivor’s Annuity, with the Participant’s spouse as joint annuitant if the Participant is married on the Annuity Starting Date, and in the form of an Individual Life Annuity if the Participant is not married on the Annuity Starting Date, unless the Participant elects not to receive payments pursuant to this Section 6.1 and to receive payments in one of the optional forms permitted under Section 6.2. An election not to receive the normal form of benefit and to receive payment in an optional form shall satisfy the applicable requirements of Section 6.3.
6.2
Optional Forms of Benefit
Except as otherwise provided in the applicable Supplement, a married Participant may elect, with spousal consent and in accordance with Section 6.3, to receive the Participant’s benefits in the form of an Individual Life Annuity. Effective for Plan Years beginning on or after January 1, 2009, and notwithstanding any provision set forth in the Plan or any Supplement to the Plan to the contrary, a Participant may elect a Qualified Optional Survivor Annuity, which is an immediate annuity for the life of the Participant with a survivor annuity for the life of the Participant’s surviving spouse that equals either 50% or 75% (as elected by the Participant) of the amount of the annuity which is payable during the joint lives of the Participant and the Participant’s spouse.
6.3
Election of Benefits
6.3.1 The Administrator shall provide each Participant with a written notice containing the following information:
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(a)
|
a general description of the normal form of benefit payable under the Plan;
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|
(b)
|
the Participant’s right to make and the effect of an election to waive the normal form of benefit;
|
|
(c)
|
the right of the Participant’s spouse not to consent to the Participant’s election under Section 6.1;
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(d)
|
the right of Participant to revoke such election, and the effect of such revocation;
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(e)
|
the optional forms of benefits available under the Plan; and
|
|
(f)
|
the Participant’s right to request in writing information on the particular financial effect of an election by the Participant to receive an optional form of benefit in lieu of the normal form of benefit.
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6.3.2 The notice under Section 6.3.1 shall be provided to the Participant at each of the following times as shall be applicable to him
|
(a)
|
not more than 90 (effective January 1, 2008, 180) days and not less than 30 days after a Participant who is in the employ of the Company or an Affiliate gives notice of the Participant’s intention to terminate employment and commence receipt of the Participant’s retirement benefits under the Plan; or
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|
(b)
|
not more than 90 (effective January 1, 2008, 180) days and not less than 30 days prior to the attainment of age 65 of a Participant (whether or not the Participant has terminated employment) who has not previously commenced receiving retirement benefits.
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The election period in Section 6.3.3 for a Participant who requests additional information during the election period will be extended until 90 days after the additional information is mailed or personally delivered. Any such request shall be made only within 90 days after the date the information described in Section 6.3.1 is given to the Participant, and the Administrator shall not be obligated to comply with more than one such request. Any information provided pursuant to this Section 6.3.2 will be given to the Participant within 30 days after the date of the Participant’s request and will be based upon the estimated benefits to which the Participant will be entitled as of the later of the first day on which such benefits could commence or the last day of the Plan Year in which the Participant’s request is received. If a Participant files an election (or revokes an election) pursuant to this Section 6.3 less than 60 day shall be made retroactively to such date. Notwithstanding the above to the contrary, effective January 1, 2004, in the event a Participant elects a Retroactive Annuity Starting Date as provided in Section 6.5, the notice under 6.3.1 shall be provided to the Participant on or about the date that the Participant files an election for a Retroactive Annuity Starting Date.
6.3.3 A Participant may make the election provided in Section 6.1 by filing the prescribed form with the Administrator at any time during the election period. The election period shall begin 90 (effective January 1, 2008, 180) days prior to the Participant’s Annuity Starting Date. Such election shall be subject to the written consent of the Participant’s spouse, acknowledging the effect of the election and witnessed by a Plan representative or a notary public. Such spousal consent shall not be required if the Participant establishes to the satisfaction of the Administrator that the consent of the spouse may not be obtained because there is no spouse or the spouse cannot be located. A spouse’s consent shall be irrevocable. The election in Section 6.1 may be revoked or changed at any time during the election period but shall be irrevocable thereafter.
6.3.4 Notwithstanding Section 6.3.3:
|
(a)
|
distribution of benefits may commence less than 30 days after the
|
|
(i)
|
the Participant elects to waive the requirement that notice be given at least 30 days prior to the Annuity Starting Date; and
|
|
(ii)
|
the distribution commences more than 7 days after such notice is provided.
|
|
(b)
|
The notice described in Section 6.3.1 may be provided after the Annuity Starting Date, in which case the applicable election period shall not end before the 30th day after the date on which such notice is provided, unless the Participant elects to waive the 30-day notice requirements pursuant to Subsection (a) above.
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6.3.5 Notwithstanding the foregoing provisions in Section 6.3, effective January 1, 2004, a Participant may elect a Retroactive Annuity Starting Date (as defined in Treas. Reg. 1.417(e)-1(b)(3)(iv)(B)), pursuant to Section 6.5. In the event that the notice information described in Section 6.3 is provided to the Participant after the Participant’s Annuity Starting Date (as defined in Section 417(f)(2) of the Code) or Retroactive Annuity Starting Date, the Participant shall have at least 30 days after the date the notification is provided to make the election described in Section 6.3. The Participant may waive this 30 day period pursuant to the provisions of Section 6.3.4.
6.4
FMC Participants and FMCTI Participants in Pay Status
Notwithstanding any provision in the Plan to the contrary, each FMC Participant who had elected to receive and/or was receiving their normal retirement benefit, early retirement benefit, deferred retirement benefit, disability retirement benefit or termination benefit under the FMC Plan and under the FMCTI Plan prior to the Effective Date shall on and after the Effective Date continue to receive such benefits in the same form, and in the same amount as such FMC Participant and/or, as applicable, FMC Joint Annuitant, was receiving or would have received under the FMC Plan and under the FMCTI Plan prior to the Effective Date as if such benefits were paid by the FMC Plan. In addition, each FMC Beneficiary who was receiving benefits under the FMC Plan and under the FMCTI Plan on behalf of an FMC Participant prior to the Effective Date shall continue to receive such benefits from this Plan after the Effective Date in the same form and in the same amount as if such benefits were paid by the FMC Plan.
Notwithstanding any provision in the Plan to the contrary, each FMCTI Participant who had elected to receive and/or was receiving their normal retirement benefit, early retirement benefit, deferred retirement benefit, disability retirement benefit or termination benefit under the FMCTI Plan prior to the Effective Date shall on and after the Effective Date continue to receive such benefits in the same form, and in the same amount as such FMCTI Participant and/or, as applicable, FMCTI Joint Annuitant, was receiving or would have received under the FMCTI Plan prior to the Effective Date as if such benefits were paid by the FMCTI Plan. In addition, each FMCTI Beneficiary who was receiving benefits under the FMCTI Plan on behalf of an FMCTI Participant prior to the Effective Date shall continue to receive such benefits from this Plan after the Effective Date in the same form and in the same amount as if such benefits were paid by the FMCTI Plan.
6.5
Election of Retroactive Annuity Starting Date
Effective January 1, 2004, a Participant may elect a “Retroactive Annuity Starting Date” (as defined in Treas. Reg. 1.417(e)-1(b)(3)(iv)(B)), that occurs on or before the date the notice information described in Section 6.3 is provided to the Participant, provided the following conditions are satisfied:
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(a)
|
The Participant’s spouse (including an alternate payee who is treated as the spouse under a qualified domestic relations order), determined as if the date distributions commence were the Participant’s Annuity Starting Date (as defined in Section 417(f)(2) of the Code), consents to the Participant’s election of a Retroactive Annuity Starting Date. The spousal consent requirement of this Section 6.5(a) is satisfied if such consent satisfies the conditions of Section 6.3.3 above.
|
|
(b)
|
If the date distribution commences is more than 12 months from the Retroactive Annuity Starting Date, the distribution provided based on the Retroactive Annuity Starting Date shall satisfy Section 415 of the Code as though the date distribution commences is substituted for the annuity starting date for all purposes, including for purposes of determining the applicable interest rate and applicable mortality table (as defined in Article I).
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|
(c)
|
If the distribution is payable as a lump sum, the distribution amount shall not be less than the present value of the Participant’s accrued benefit, determined (i) using the applicable mortality table and applicable interest rate as of the distribution date or (ii) using the applicable mortality table and applicable interest rate as of the Participant’s Retroactive Annuity Starting Date. For purposes of this paragraph (c) applicable mortality table and applicable interest rate are defined in Article I.
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If a Participant elects a Retroactive Annuity Starting Date the following provisions shall apply:
|
(a)
|
future periodic payments shall be the same as the future periodic payments, if any, that would have been paid with respect to the Participant had payments actually commenced on the Retroactive Annuity Starting Date;
|
|
(b)
|
the Participant shall receive a make-up payment to reflect any missed payment or payments for the period from the Retroactive Annuity Starting Date to the date of actual make-up payment (with appropriate adjustment for interest from the date the missed payment or payments would have been made to the date of the actual make-up payment);
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|
(c)
|
the benefit determined as of the Retroactive Annuity Starting Date shall satisfy Section 417(e)(3) of the Code, if applicable, and Section 415 with the applicable interest rate and applicable mortality table (as defined in Article I) determined as of that date; and the Retroactive Annuity Starting Date shall not precede the date the Participant could have otherwise started receiving benefits under the Plan.
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ARTICLE VII
Survivor’s Benefits
7.1
Surviving Spouse’s Benefit
If a Participant who has 5 or more Years of Vesting Service dies before the Annuity Starting Date and leaves a surviving spouse to whom the Participant has been married for at least 12 months, the Participant’s surviving spouse shall be entitled to receive a survivor’s benefit for life. Except as otherwise provided in the applicable Supplement, the amount of such survivor’s benefit shall be determined pursuant to Section 4.2 based upon the Participant’s age and Years of Credited Service on the date of the Participant’s death and paid in the form of a 50% Joint and Survivor’s Annuity as if the Participant had died on the day before such benefits commence. Except as otherwise provided in the applicable Supplement, payment of the survivor’s benefit shall commence on the first day of the month coincident with or next following the later of the first date the Participant could have commenced an Early Retirement Benefit or the Participant’s death, unless the Participant’s spouse elects to commence payment of benefits as of the first day of any subsequent month, but not later than the Participant’s Normal Retirement Date.
7.2
Certain Former Employees
FMC Participants who have 10 Years of Vesting Service but who have not been credited with an Hour of Service on or after August 23, 1984 and are not receiving benefits on that date shall be entitled to elect survivor’s benefits only as follows:
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(a)
|
if the FMC Participant is credited with an hour of service under the FMC Plan or a predecessor plan on or after September 2, 1974, but is not otherwise credited with an hour of service under the FMC Plan, the FMCTI Plan or this Plan in a Plan Year beginning on or after January 1, 1976, the Participant shall be afforded an opportunity to elect payment of benefits in the form of a 100% Joint and Survivor’s Annuity; or
|
|
(b)
|
if the Participant is credited with an Hour of Service under this Plan, the FMC Plan, the FMCTI Plan, or a predecessor plan in a Plan Year beginning after December 31, 1975, the Participant shall be afforded the opportunity to elect a Surviving Spouse’s Benefit under Section 7.1.
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ARTICLE VIII
Fiduciaries
8.1
Named Fiduciaries
8.1.1 The Company is the Plan sponsor and a “named fiduciary” with respect to control over and management of the Plan’s assets only to the extent that it (a) shall appoint the members of the Committee which administers the Plan at the Administrator’s direction; (b) shall delegate its authorities and duties as “plan administrator,” as defined under ERISA, to the Committee; and (c) shall continually monitor the performance of the Committee.
8.1.2 The Company, as Administrator, and the Committee, which administers the Plan at the Administrator’s direction, are “named fiduciaries” of the Plan, as that term is defined in ERISA Section 402(a)(2), with authority to control and manage the operation and administration of the Plan. The Administrator is also the “administrator” and “plan administrator” of the Plan, as those terms are defined in ERISA Section 3(16)(A) and Code Section 414(g), respectively.
8.1.3 The Trustee is a “named fiduciary” of the Plan, as that term is defined in ERISA Section 402(a)(2), with authority to manage and control all Trust assets, except to the extent that authority is delegated to an Investment Manager or to the extent the Administrator or the Committee directs the allocation of Trust assets among general investment categories.
8.1.4 The Company, the Administrator, and the Trustee are the only named fiduciaries of the Plan.
8.2
Employment of Advisers
A named fiduciary, and any fiduciary appointed by a named fiduciary, may employ one or more persons to render advice regarding any of the named fiduciary’s or fiduciary’s responsibilities under the Plan.
8.3
Multiple Fiduciary Capacities
Any named fiduciary and any other fiduciary may serve in more than one fiduciary capacity with respect to the Plan.
8.4
Payment of Expenses
All Plan expenses, including expenses of the Administrator, the Committee, the Trustee, any Investment Manager and any insurance company, will be paid by the Trust Fund, unless a Participating Employer elects to pay some or all of those expenses.
8.5
Indemnification
To the extent not prohibited by state or federal law, each Participating Employer agrees to, and will indemnify and save harmless the Administrator, any past, present, additional or replacement member of the Committee, and any other employee, officer or director of that Participating Employer, from all claims for liability, loss, damage (including payment of expenses to defend against any such claim) fees, fines, taxes, interest, penalties and expenses which result from any exercise or failure to exercise any responsibilities with respect to the Plan, other than willful misconduct or willful failure to act.
ARTICLE IX
Plan Administration
9.1
Powers, Duties and Responsibilities of the Administrator and the Committee
9.1.1 The Administrator and the Committee have full discretion and power to construe the Plan and to determine all questions of fact or interpretation that may arise under it. Interpretation of the Plan or determination of questions of fact regarding the Plan by the Administrator or the Committee will be conclusively binding on all persons interested in the Plan.
9.1.2 The Administrator and the Committee have the power to promulgate such rules and procedures, to maintain or cause to be maintained such records, and to issue such forms as it deems necessary or proper to administer the Plan.
9.1.3 Subject to the terms of the Plan, the Administrator and/or the Committee will determine the time and manner in which all elections authorized by the Plan must be made or revoked.
9.1.4 The Administrator and the Committee have all the rights, powers, duties and obligations granted or imposed upon them elsewhere in the Plan.
9.1.5 The Administrator and the Committee have the power to do all other acts in the judgment of the Administrator or the Committee necessary or desirable for the proper and advantageous administration of the Plan.
9.1.6 The Administrator and the Committee will exercise all responsibilities in a uniform and nondiscriminatory manner.
9.2
Delegation of Administration Responsibilities
The Administrator and the Committee may designate by written instrument one or more actuaries, accountants or consultants as fiduciaries to carry out, where appropriate, the administrative responsibilities, including their fiduciary duties. The Committee may from time to time allocate or delegate to any subcommittee, member of the Committee and others, not necessarily employees of the Company, any of its duties relative to compliance with ERISA, administration of the Plan and related matters, including involving the exercise of discretion. The Company’s duties and responsibilities under the Plan shall be carried out by its directors, officers and employees, acting on behalf of and in the name of the Company in their capacities as directors, officers and employees, and not as individual fiduciaries. No director, officer nor employee of the Company shall be a fiduciary with respect to the Plan unless he or she is specifically so designated and expressly accepts such designation.
9.3
Committee Members
The Committee shall consist of not less than 3 people, who need not be directors, and shall be appointed by the Board of Directors of the Company. Any Committee member may resign and the Board of Directors may remove any Committee member, with or without cause, at any time. A majority of the members of the Committee shall constitute a quorum for the transaction of business and the act of a majority of the Committee members at a meeting at which a quorum is present shall be the act of the Committee. The Committee can act by written consent signed by all of its members. Any members of the Committee who are Employees shall not receive compensation for their services for the Committee. No Committee member shall be entitled to act on or decide any matter relating solely to his or her status as a Participant.
ARTICLE X
Funding of the Plan
10.1
Appointment of Trustee
The Committee or its authorized delegatee will appoint the Trustee and either may remove it. The Trustee accepts its appointment by executing the Trust Agreement. A Trustee will be subject to direction by the Committee or its authorized delegatee or, to the extent specified by the Company, by an Investment Manager, and will have the degree of discretion to manage and control Plan assets specified in the Trust Agreement. Neither the Company nor any other Plan fiduciary will be liable for any act or omission to act of a Trustee, as to duties delegated to the Trustee.
10.2
Actuarial Cost Method
The Committee or its authorized delegatee shall determine the actuarial cost method to be used in determining costs and liabilities under the Plan pursuant to Section 301 et seq., of ERISA and Section 412 of the Code. The Committee or its authorized delegatee shall review such actuarial cost method from time to time, and if it determines from review that such method is no longer appropriate, then it shall petition the Secretary of the Treasury for approval of a change of actuarial cost method.
10.3
Cost of the Plan
Annually the Committee or its authorized delegatee shall determine the normal cost of the Plan for the Plan Year and the amount (if any) of the unfunded past service cost on the basis of the actuarial cost method established for the Plan using actuarial assumptions which, in the aggregate, are reasonable. The Committee or its authorized delegatee shall also determine the contributions required to be made for each Plan Year by the Participating Employers in order to satisfy the minimum funding standard (or alternative minimum funding standard) for such Plan Year determined pursuant to Sections 302 through 305 of ERISA and Section 412 of the Code.
10.4
Funding Policy
The Participating Employers shall cause contributions to be made to the Plan for each Plan Year in the amount necessary to satisfy the minimum funding standard (or alternative minimum funding standard) for such Plan Year; provided, however, that this obligation shall cease when the Plan is terminated. In the case of a partial termination of the Plan, this obligation shall cease with respect to those Participants, Joint Annuitants and Beneficiaries who are affected by such partial termination. Each contribution is conditioned upon its deductibility under Section 404 of the Code and shall be returned to the Participating Employers within one year after the disallowance of the deduction (to the extent disallowed). Upon the Company’s written request, a contribution that was made by a mistake of fact shall be returned to the Participating Employer within one year after the payment of the contribution.
10.5
Cash Needs of the Plan
The Committee or its authorized delegatee from time to time shall estimate the benefits and administrative expenses to be paid out of the Plan during the period for which the estimate is made and shall also estimate the contributions to be made to the Plan during such period by the Participating Employers. The Committee or its authorized delegatee shall inform the Trustees of the estimated cash needs of and contributions to the Plan during the period for which such estimates are made. Such estimates shall be made on an annual, quarterly, monthly or other basis, as the Committee shall determine.
10.6
Public Accountant
The Committee or its authorized delegatee shall engage an independent qualified public accountant to conduct such examinations and to render such opinions as may be required by Section 103(a)(3) of ERISA. The Committee or its authorized delegatee in its discretion may remove and discharge the person so engaged, but in such case it shall engage a successor independent qualified public accountant to perform such examinations and to render such opinions.
10.7
Enrolled Actuary
The Committee or its authorized delegatee shall engage an enrolled actuary to prepare the actuarial statement described in Section 103(d) of ERISA and to render the opinion described in Section 103(a)(4) of ERISA. The Committee or its authorized delegatee in its discretion may remove and discharge the person so engaged, but in such event it shall engage a successor enrolled actuary to perform such examination and render such opinion.
10.8
Basis of Payments to the Plan
All contributions to the Plan shall be made by the Participating Employers and no contributions shall be required of or permitted by Participants. From time to time the Participating Employers shall make such contributions to the Plan as the Company determines to be necessary or desirable in order to fund the benefits provided by the Plan and any expenses thereof which are paid out of the Trust Fund and in order to carry out the obligations of the Participating Employers set forth in Section 10.3. All contributions to the Plan shall be held by the Trustee in accordance with the Trust Agreement.
10.9
Basis of Payments from the Plan
All benefits payable under the Plan shall be paid by the Trustee out of the Trust Fund pursuant to the directions of the Committee or its authorized delegatee and the terms of the Trust Agreement. The Trustee shall pay all proper expenses of the Plan and the Trust Fund out of the Trust Fund, except to the extent paid by the Participating Employers.
10.10
Funding Based Benefit Restrictions
This Section 10.10 shall apply to Plan Years beginning on or after January 1, 2010. Notwithstanding anything in this Section 10.10 to the contrary, Section 436 of the Code, applicable U.S. Department of Treasury regulations and other IRS guidance promulgated under or with respect to Section 436 of the Code shall be incorporated herein by reference.
(a)
Unpredictable Contingent Event Benefits
(1)
In General
. If a Participant is entitled to an “unpredictable contingent event benefit” during any Plan Year, then such benefit may not be provided if the “adjusted funding target attainment percentage” for such Plan Year: (A) is less than sixty percent (60%); or (B) would be less than sixty percent (60%) percent taking into account such event.
(2)
Exception
. Section 10.10(a)(1) shall not apply with respect to any Plan Year, effective as of the first day of the Plan Year, upon payment by the Participating Employer of a contribution (in addition to any minimum required contribution under Section 430 of the Code) equal to:
(A) in the case of Section 10.10(a)(1)(A) above, the amount of the increase in the funding target of the Plan (under Section 430 of the Code) for the Plan Year that is attributable to the unpredictable contingent event; and
(B) in the case of Section 10.10(a)(1)(B) above, the amount sufficient to result in an adjusted funding target attainment percentage of sixty percent (60%).
(3)
Unpredictable contingent event benefit defined
. For purposes of this Section 10.10, the term “unpredictable contingent event benefit” means any benefit payable solely by reason of:
(A) a plant shutdown (or similar event, as determined by the Secretary of the U.S. Department of Treasury), or
(B) an event other than death, disability, the attainment of any age, performance of any service, or receipt of any compensation.
(b)
Limitations on Plan Amendments Increasing Benefits Liability
(1)
In general
. No amendment which has the effect of increasing liabilities of the Plan by reason of increases in benefits, establishment of new benefits, changing the rate of benefit accrual, or changing the rate at which benefits become nonforfeitable may take effect during any Plan Year if the “adjusted funding target attainment percentage” for such Plan Year is:
(A) less than eighty percent (80%), or
(B) would be less than eighty percent (80%) taking into account such amendment.
(2)
Exception
. Section 10.10(b)(1) above shall cease to apply with respect to any Plan Year, effective as of the first day of the Plan Year (or if later, the effective date of the amendment), upon payment by the Participating Employer of a contribution (in addition to any minimum required contribution under Section 430 of the Code) equal to:
(A) in the case of Section 10.10(b)(1)(A) above, the amount of the increase in the funding target of the Plan (under Section 430 of the Code) for the Plan Year attributable to the amendment, and
(B) in the case of Section 10.10(b)(1)(B) above, the amount sufficient to result in an “adjusted funding target attainment percentage” of eighty percent (80%).
(3)
Exception for certain benefit increases
. Section 10.10(b)(1) shall not apply to any amendment which provides for an increase in benefits under a formula which is not based on a Participant’s compensation, but only if the rate of such increase is not in excess of the contemporaneous rate of increase in average wages of Participants covered by the amendment.
(c)
Limitations on Accelerated Benefit Distributions
(1) Funding percentage less than sixty percent (60%). If the Plan’s “adjusted funding target attainment percentage” for a Plan Year is less than sixty percent (60%), then the Plan may not pay any “prohibited payment” after the valuation date for the Plan Year.
(2) Bankruptcy. During any period in which the Participating Employer is a debtor in a case under Title 11, United States Code, or similar Federal or State law, the Plan may not pay any “prohibited payment.” The preceding sentence shall not apply on or after the date on which the enrolled actuary of the Plan certifies that the “adjusted funding target attainment percentage” of the Plan is not less than one hundred percent (100%).
(3) Limited payment if percentage at least sixty percent (60%) but less than eighty percent (80%) percent.
(A) In general. If the Plan’s “adjusted funding target attainment percentage” for a Plan Year is sixty percent (60%) or greater but less than eighty percent (80%), then the Plan may not pay any “prohibited payment” after the valuation date for the Plan Year to the extent the amount of the payment exceeds the lesser of:
(i) fifty percent (50%) of the amount of the payment which could be made without regard to this subsection, or
(ii) the present value (determined under guidance prescribed by the Pension Benefit Guaranty Corporation, using the interest and mortality assumptions under Section 417(e) of the Code) of the maximum guarantee with respect to the Participant under ERISA Section 4022.
(B) One-time application.
(i) In general. Only one “prohibited payment” meeting the requirements of Section 10.10(c)(3) may be made with respect to any Participant during any period of consecutive Plan Years to which the limitations under either Section 10.10(c)(1), (2) or (3) applies.
(ii) Treatment of Beneficiaries. For purposes of this subparagraph, a Participant and any Beneficiary (including an alternate payee, as defined in Section 414(p)(8) of the Code) shall be treated as one Participant. If the accrued benefit of a Participant is allocated to such an alternate payee and one or more other persons, the amount under Section 10.10(c)(3)(A) shall be allocated among such persons in the same manner as the accrued benefit is allocated unless the qualified domestic relations order (as defined in Section 414(p)(1)(A) of the Code) provides otherwise.
(4) Exception. This subsection shall not apply for any Plan Year if the terms of the Plan (as in effect for the period beginning on September 1, 2005, and ending with such Plan Year) provide for no benefit accruals with respect to any Participant during such period.
(5) “Prohibited payment.” For purposes of this subsection, the term “prohibited payment” means:
(A) any payment, in excess of the monthly amount paid under a single life annuity (plus any Social Security supplements described in the last sentence of Section 411(a)(9) of the Code), to a Participant or Beneficiary whose Annuity Starting Date occurs during any period in which a limitation under Section 10.10(c)(1) or (2) is in effect,
(B) any payment for the purchase of an irrevocable commitment from an insurer to pay benefits, and
(C) any other payment specified by the Secretary of the U.S. Department of Treasury by U.S. Department of Treasury regulations.
Such term shall not include the payment of a benefit which under Section 411(a)(11) of the Code may be immediately distributed without the consent of the Participant.
(d)
Benefit Accrual Limits for Plans with Severe Funding Shortfalls
(1) In general. If the Plan’s “adjusted funding target attainment percentage” for a Plan Year is less than sixty percent (60%), benefit accruals under the Plan shall cease as of the valuation date for the Plan Year.
(2) Exception. Section 10.10(d)(1) shall cease to apply with respect to any Plan Year, effective as of the first day of the Plan Year, upon payment by the Participating Employer of a contribution (in addition to any minimum required contribution under Section 430 of the Code) equal to the amount sufficient to result in an “adjusted funding target attainment percentage” of sixty percent (60%).
(3) Temporary modification of limitation. In the case of the first Plan Year beginning during the period beginning on October 1, 2008, and ending on September 30, 2009, the provisions of Section 10.10(d)(1) above shall be applied by substituting the Plan’s “adjusted funding target attainment percentage” for the preceding Plan Year for such percentage for such Plan Year, but only if the “adjusted funding target attainment percentage” for the preceding year is greater.
(e)
Contributions Required to Avoid Benefit Limitations
(1) Security may be provided:
(A) In general. For purposes of this section, the “adjusted funding target attainment percentage” shall be determined by treating as an asset of the Plan any security provided by the Participating Employer in a form meeting the requirements of Section 10.10(e)(1)(B).
(B) Form of security. The security required under Section 10.10(e)(1)(A) shall consist of:
(i) a bond issued by a corporate surety company that is an acceptable surety for purposes of ERISA Section 412,
(ii) cash, or United States obligations which mature in three (3) years or less, held in escrow by a bank or similar financial institution, or
(iii) such other form of security as is satisfactory to the Secretary of the U.S. Department of Treasury and the parties involved.
(C) Enforcement. Any security provided under Section 10.10(e)(1)(A) may be perfected and enforced at any time after the earlier of:
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(i)
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the date on which the Plan terminates,
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(ii) if there is a failure to make a payment of the minimum required contribution for any Plan Year beginning after the security is provided, the due date for the payment under Section 430(j) of the Code, or
(iii) if the “adjusted funding target attainment percentage” is less than sixty percent (60%) for a consecutive period of 7 years, the valuation date for the last year in the period.
(D) Release of security. The security shall be released (and any amounts thereunder shall be refunded together with any interest accrued thereon) at such time as the Secretary of the U.S. Department of Treasury may prescribe in U.S. Department of Treasury regulations, including U.S. Department of Treasury regulations for partial releases of the security by reason of increases in the “adjusted funding target attainment percentage.”
(2)
Prefunding balance or funding standard carryover balance may not be used. No prefunding balance or funding standard carryover balance under Section 430(f) of the Code may be used under Section 10.10(a), (b), or (d) to satisfy any payment a Participating Employer may make under any such subsection to avoid or terminate the application of any limitation under such subsection.
(3) Deemed reduction of funding balances:
(A) In general. Subject to Section 10.10(e)(3)(C), in any case in which a benefit limitation under Section 10.10(a), (b), (c), or (d) would (but for this subparagraph and determined without regard to Section 10.10(a)(2), (b)(2), or (d)(2)) apply to such Plan for the Plan Year, the Participating Employer shall be treated for purposes of this title as having made an election under Section 430(f) of the Code to reduce the prefunding balance or funding standard carryover balance by such amount as is necessary for such benefit limitation to not apply to the Plan for such Plan Year.
(B) Exception for insufficient funding balances. Section 10.10(e)(3)(A) shall not apply with respect to a benefit limitation for any Plan Year if the application of Section 10.10(e)(3)(A) would not result in the benefit limitation not applying for such Plan Year.
(C) Restrictions of certain rules to collectively bargained plans. With respect to any benefit limitation under Section 10.10(a), (b) or (d), Section 10.10(e)(3)(A) shall only apply in the case of a plan maintained pursuant to one or more collectively bargained agreements between employer representatives and one or more employers.
(f)
Presumed Underfunding for Purposes of Benefit Limitations
(1) Presumption of continued underfunding. In any case in which a benefit limitation under Section 10.10(a), (b), (c), or (d) has been applied to a Plan with respect to the Plan Year preceding the current Plan Year, the “adjusted funding target attainment percentage” of the Plan for the current Plan Year shall be presumed to be equal to the “adjusted funding target attainment percentage” of the Plan for the preceding Plan Year until the enrolled actuary of the Plan certifies the actual “adjusted funding target attainment percentage” of the Plan for the current Plan Year.
(2) Presumption of underfunding after 10th month. In any case in which no certification of the “adjusted funding target attainment percentage” for the current Plan Year is made with respect to the Plan before the first day of the 10th month of such year, for purposes of Sections 10.10(a), (b), (c), and (d), such first day shall be deemed, for purposes of such subsection, to be the valuation date of the Plan for the current Plan Year and the Plan’s “adjusted funding target attainment percentage” shall be conclusively presumed to be less than sixty percent (60%) as of such first day.
(3) Presumption of underfunding after 4th month for nearly underfunded plans. In any case in which:
(A) a benefit limitation under Section 10.10(a), (b), (c), or (d) did not apply to a Plan with respect to the Plan Year preceding the current Plan Year, but the “adjusted funding target attainment percentage” of the Plan for such preceding Plan Year was not more than ten (10) percentage points greater than the percentage which would have caused such subsection to apply to the Plan with respect to such preceding Plan Year, and
(B) as of the first day of the 4th month of the current Plan Year, the enrolled actuary of the Plan has not certified the actual “adjusted funding target attainment percentage” of the Plan for the current Plan Year, until the enrolled actuary so certifies, such first day shall be deemed, for purposes of such subsection, to be the valuation date of the Plan for the current Plan Year and the “adjusted funding target attainment percentage” of the Plan as of such first day shall, for purposes of such subsection, be presumed to be equal to ten (10) percentage points less than the “adjusted funding target attainment percentage” of the Plan for such preceding Plan Year.
(g)
Treatment of Plan as of Close of Prohibited or Cessation Period.
The following provisions apply for purposes of applying this Section.
(1) Operation of Plan after period. Payments and accruals will resume effective as of the day following the close of the period for which any limitation of payment or accrual of benefits under Section 10.10(e) or (f) applies.
(2) Treatment of affected benefits. Nothing in this subsection shall be construed as affecting the Plan’s treatment of benefits which would have been paid or accrued but for this Section.
(h)
Definitions
.
(1) The term “funding target attainment percentage” has the same meaning given such term by Section 430(d)(2) of the Code, except as otherwise provided herein. However, in the case of Plan Years beginning in 2008, the “funding target attainment percentage” for the preceding Plan Year may be determined using such methods of estimation as the Secretary of the U.S. Department of Treasury may provide.
(2) The term “adjusted funding target attainment percentage” means the “funding target attainment percentage” which is determined under Section 10.10(h)(1) by increasing each of the amounts under subparagraphs (A) and (B) of Section 430(d)(2) of the Code by the aggregate amount of purchases of annuities for employees other than highly compensated employees (as defined in Code Section 414(q)) which were made by the Plan during the preceding two (2) Plan Years.
(3) Application to plans which are fully funded without regard to reductions for funding balances.
(A) In general. In the case of a Plan for any Plan Year, if the “funding target attainment percentage” is one hundred percent (100%) or more (determined and without regard to the reduction in the value of assets under Section 430(f)(4) of the Code), the “funding target attainment percentage” for purposes of Sections 10.10(h)(1) and (2) shall be determined without regard to such reduction.
(B) Transition rule. Section 10.10(h)(3)(A) shall be applied to Plan Years beginning after 2007 and before 2011 by substituting for “one hundred percent (100%)” the applicable percentage determined in accordance with the following table:
In the case of a Plan Year
beginning in calendar year:
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The applicable percentage is:
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2008
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92%
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2009
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94%
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2010
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96%
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(c) Section 10.10(h)(3)(B) shall not apply with respect to any Plan Year beginning after 2008 unless the “funding target attainment percentage” (determined without regard to the reduction in the value of assets under Section 430(f)(4) of the Code) of the Plan for each preceding Plan Year beginning after 2007 was not less than the applicable percentage with respect to such preceding Plan Year determined under Section 10.10(h)(3(B).
(i)
Compliance with Section 436 of the Code
.
The provisions of this Section 10.10 shall be interpreted in a manner consistent with Section 436 of the Code, applicable U.S. Department of Treasury regulations and other IRS guidance promulgated under or with respect to Section 436 of the Code and, as stated above, such regulations and guidance, together with Section 436 of the Code, are incorporated herein by reference.
ARTICLE XI
Plan Amendment or Termination
11.1
Plan Amendment or Termination
The Company may, subject to any applicable Collective Bargaining Agreement, amend, modify or terminate the Plan at any time by resolution of the Board or by resolution of or other action recorded in the minutes of the Administrator or Committee. Execution and delivery by the Administrator or the Committee or by the Chairman of the Board, the President, or any Vice President of the Company of an amendment to the Plan is conclusive evidence of the amendment, modification or termination. The Committee in any event shall have the authority to amend the Plan at any time to the extent that such amendments are required in order to obtain a favorable determination letter from the Internal Revenue Service regarding the Plan’s qualification under the Code or to conform the Plan to such regulations and rulings as may be issued by the Internal Revenue Service or the United States Department of Labor.
11.2
Limitations on Plan Amendment
No Plan amendment can:
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(a)
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authorize any part of the Trust Fund to be used for, or diverted to, purposes other than the exclusive benefit of Participants or their Beneficiaries;
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(b)
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decrease the accrued benefits of any Participant or his or her Beneficiary under the Plan; or
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(c)
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except to the extent permitted by law, eliminate or reduce an early retirement benefit or retirement-type subsidy (as defined in Code Section 411) or an optional form of benefit with respect to service prior to the date the amendment is adopted or effective, whichever is later.
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11.3
Effect of Plan Termination
Upon termination of the Plan, each Participant’s rights to benefits accrued hereunder shall be vested and nonforfeitable, and the Trust shall continue until the Trust Fund has been distributed as provided in Section 11.4. Any other provision hereof notwithstanding, the Participating Employers shall have no obligation to continue making contributions to the Plan after termination of the Plan. Except as otherwise provided in ERISA, neither the Participating Employers nor any other person shall have any liability or obligation to provide benefits hereunder after such termination in excess of the value of the Trust Fund. Upon such termination, Participants and Beneficiaries shall obtain benefits solely from the Trust Fund. Upon partial termination of the Plan, this Section 11.3 shall apply only with respect to such Participants and Beneficiaries as are affected by such partial termination.
11.4
Allocation of Trust Fund on Termination
On termination of the Plan, the Trust Fund shall be allocated by the Administrator on an actuarial basis among Participants and Beneficiaries in the manner prescribed by Section 4044 of ERISA. Any residual assets of the Trust Fund remaining after such allocation shall be distributed to the Company if (a) all liabilities of the Plan to Participants and Beneficiaries have been satisfied and (b) such a distribution does not contravene any provision of law. The foregoing notwithstanding, if any remaining assets of the Plan are attributable to Employee Contributions, such assets shall be equitably distributed to the Participants who made such contributions (or to their Beneficiaries) in accordance with their rate of contribution. Effective January 1, 1989, the benefit of any highly compensated employee or former employee (determined in accordance with section 414(g) of the Code and regulations thereunder) shall be limited to a benefit that is nondiscriminatory under section 401(a)(4) of the Code. In the event of a partial termination of the Plan, the Administrator shall arrange for the division of the Trust Fund, on a nondiscriminatory basis to the extent required by section 401 of the Code, into the portion attributable to those Participants and Beneficiaries who are not affected by such partial termination and the portion attributable to such persons who are so affected. The portion of the Trust Fund attributable to persons who are so affected shall be allocated in the manner prescribed by section 4044 of ERISA.
ARTICLE XII
Miscellaneous Provisions
12.1
Subsequent Changes
All benefits to which any Participant may be entitled hereunder shall be determined under the Plan in effect when the Participant ceases to be an Eligible Employee (or under the FMC Plan, as of the date each FMC Participant who is not an Employee ceased to be an eligible employee under the FMC Plan or the FMCTI Plan) (or under the FMCTI Plan, as of the date each FMCTI Participant who is not an Employee ceased to be an eligible employee under the FMCTI Plan) and shall not be affected by any subsequent change in the provisions of the Plan, unless the Participant again becomes an Eligible Employee.
12.2
Plan Mergers
The Plan shall not be merged or consolidated with any other plan, and no assets or liabilities of the Plan shall be transferred to any other plan, unless each Participant would receive a benefit immediately after such merger, consolidation or transfer (if the Plan then terminated) which is equal to or greater than the benefit such Participant would have been entitled to receive immediately before such merger, consolidation or transfer (if the Plan had then been terminated). A list of other plans which have been merged into the FMC Plan, the FMCTI Plan, or this Plan is attached hereto and made a part hereof as Exhibit A.
12.3
No Assignment of Property Rights
The interest or property rights of any person in the Plan, in the Trust Fund or in any payment to be made under the Plan shall not be assignable nor be subject to alienation or option, either by voluntary or involuntary assignment or by operation of law, including (without limitation) bankruptcy, garnishment, attachment or other creditor’s process, and any act in violation of this Section 12.3 shall be void. This provision shall not apply to a “qualified domestic relations order” defined in Code Section 414(p). The Company shall establish a written procedure to determine the qualified status of domestic relations orders and to administer distributions under such qualified orders.
In addition, the prohibition of this Section 12.3 will not apply to any offset of a Participant’s benefit under the Plan against an amount the Participant is ordered or required to pay to the Plan under a judgment, order, decree or settlement agreement that meets the requirements as set forth in this Section 12.3. The Participant must be ordered or required to pay the Plan under a judgment of conviction for a crime involving the Plan, under a civil judgment (including a consent order or decree) entered by a court in an action brought in connection with a violation (or alleged violation) of part 4 of subtitle B of title I of ERISA, or pursuant to a settlement agreement between the Secretary of Labor and the Participant in connection with a violation (or alleged violation) of that part 4. This judgment, order, decree or settlement agreement must expressly provide for the offset of all or part of the amount that must be paid to the Plan against the Participant’s benefit under the Plan. In addition, if a Participant is entitled to receive a 100% Joint and Survivor Annuity under Section 6.1 of the Plan or a Surviving Spouse’s Benefit under Section 7.1 of the Plan, and the Participant is married at the time at which the offset is to be made, the Participant’s spouse must consent to the offset in accordance with the spousal consent requirements of Section 6.3.3 of the Plan, an election to waive the right of the spouse to the 100% Joint and Survivor Annuity (made in accordance with Section 6.3 of the Plan) or the Surviving Spouse’s Benefit under Section 7.1 of the Plan, must be in effect, the spouse is ordered or required in the judgment, order, decree, or settlement to pay an amount to the Plan in connection with a violation of Part 4 of subtitle B or ERISA Title I, or the spouse retains in the judgment, order, decree, or settlement the right to receive the survivor annuity under the 100% Joint and Survivor Annuity or under the Surviving Spouse’s Benefit, determined in the following manner: the Participant terminated employment on the date of the offset, there was no offset, the Plan permitted the commencement of benefits only on or after Normal Retirement Age, the Plan provided only the minimum-required qualified joint and survivor annuity, and the amount of the Surviving Spouse’s Benefit under the Plan is equal to the amount of the survivor annuity payable under the minimum-required qualified joint and survivor annuity. For purposes of this Section 12.3 the term “minimum-required qualified joint and survivor annuity” means a qualified joint and survivor annuity which is the Actuarial Equivalent of the Participant’s accrued benefit and under which the survivor’s annuity is 50% of the amount of the annuity which is payable during the joint lives of the Participant and the Participant’s spouse.
12.4
Beneficiary
To the extent permitted by the applicable Supplement, the Beneficiary of a Participant shall be the person or persons so designated by such Participant with spousal consent and in accordance with Section 6.3. A Participant may revoke and change a designation of a Beneficiary at any time. A designation of a Beneficiary, or any revocation and change thereof, shall be effective only if it is made in writing in a form acceptable to the Administrator and is received by it prior to the Participant’s death.
12.5
Benefits Payable to Minors, Incompetents and Others
If any benefit is payable to a minor, an incompetent, or a person otherwise under a legal disability, or to a person the Administrator reasonably believes to be physically or mentally incapable of handling and disposing of his or her property, whether because of his or her advanced age, illness, or other physical or mental impairment, the Administrator has the power to apply all or any part of the benefit directly to the care, comfort, maintenance, support, education, or use of the person, or to pay all or any part of the benefit to the person’s parent, guardian, committee, conservator, or other legal representative, wherever appointed, to the individual with whom the person is living or to any other individual or entity having the care and control of the person. The Plan, the Administrator and any other Plan fiduciary will have fully discharged all responsibilities to the Participant or Beneficiary entitled to a payment by making payment under the preceding sentence.
12.6
Employment Rights
Nothing in the Plan shall be deemed to give any person a right to remain in the employ of the Company and Affiliates or affect any right of the Company or any Affiliate to terminate a person’s employment with or without cause.
12.7
Proof of Age and Marriage
Participants and Beneficiaries shall furnish proof of age and marital status satisfactory to the Administrator at such time or times as it shall prescribe. The Administrator may delay the disbursement of any benefits under the Plan until all pertinent information with respect to age or marital status has been furnished and then make payment retroactively.
12.8
Small Annuities
If the sum of (a) the lump sum Actuarial Equivalent value of a Normal, Early, or Deferred Retirement Benefit under Article III, Termination Benefit (payable at the Participant’s Normal Retirement Date) under Article IV or Survivor’s Benefit under Article VII, excluding any Aetna or Prudential nonparticipating annuity; and (b) the lump sum Actuarial Equivalent value of any Aetna or Prudential nonparticipating annuity is equal to $5,000 (effective January 1, 2005, $1,000) (or such other amount as may be prescribed in or under the Code) or less, such amounts shall be paid in a lump sum as soon as administratively practicable following the Participant’s retirement, termination of employment or death.
For lump sum distributions paid on or after January 1, 2003, if the Participant is thereafter reemployed by the Company, the Participant’s subsequent benefit will be reduced by the lump sum Actuarial Equivalent value of the lump sum distribution previously paid to the Participant. For lump sum distributions paid prior to January 1, 2003, if a Participant who has received such a lump sum distribution is thereafter reemployed by the Company, the Participant shall have the option to repay to the Plan the amount of such distribution, together with interest at the rate of 5% per annum (or such other rate as may be prescribed pursuant to section 411(c)(2)(C)(III) of the Code), compounded annually from the date of the distribution to the date of repayment. If a reemployed Participant does not make such repayment, no part of the Period of Service with respect to which the lump sum distribution was made shall count as Years of Vesting Service or Years of Credited Service.
12.9
Controlling Law
The Plan and all rights thereunder shall be interpreted and construed in accordance with ERISA and, to the extent that state law is not preempted by ERISA, the law of the State of Illinois.
12.10
Direct Rollover Option
Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee’s election under this Section 12.10, a distributee may elect, at the time and in the manner prescribed by the 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.
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(a)
|
As used in this Section 12.10, an “eligible rollover distribution” means 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 10 years or more; any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; 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); and any other distribution(s) that is reasonably expected to total less than $200 during a year. Notwithstanding the preceding to the contrary, effective for Plan Years beginning on or after January 1, 2007, a Participant may also elect to make a direct rollover of after-tax employee contributions to a qualified plan or to a 403(b) plan that agrees to separately account for such amounts.
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A portion of a distribution shall not fail to be an eligible rollover distribution because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in Section 408(a) or (b) of the Code, or to a qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
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(b)
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As used in this Section 12.10, an “eligible retirement plan” means an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, a qualified trust described in Section 401(a) of the Code that accepts the distributee’s eligible rollover distribution, an annuity contract described in Section 403(b) of the Code or an eligible retirement plan under Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or an agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this Plan. The definition of ‘eligible retirement plan’ shall apply in the case of a distribution to a surviving spouse or to a spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code. For distributions made on or after January 1, 2008, an “eligible retirement plan” shall also include a Roth IRA defined in Section 408A(b) of the Code.
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As used in this Section 12.10, 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 Code, are distributees with regard to the interest of the spouse or former spouse. Effective January 1, 2010, and notwithstanding any provision herein to the contrary, with respect to any portion of a distribution from the Plan of a deceased Employee, an individual who is the designated Beneficiary (as defined by Code Section 401(a)(9)(E)) of the Employee and who is not the surviving spouse of the Employee shall be permitted to make a direct trustee-to-trustee transfer of the distribution to an individual retirement plan described in Code Section 402(c)(8)(B)(i) or (ii) established for the purposes of receiving the distribution on behalf of such designated Beneficiary. In such event, the transfer shall be treated as an “eligible rollover distribution,” the individual retirement plan shall be treated as an inherited individual retirement account or individual retirement annuity (within the meaning of Code Section 408(d)(3)(C)) and Code Section 401(a)(9)(B) (other than clause (iv) thereof) shall apply to such individual retirement plan.
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(c)
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As used in this Section 12.10, a “direct rollover” is a payment by the Plan to the eligible retirement plan specified by the distributee.
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12.11
Claims Procedure
12.11.1 Any application for benefits under the Plan and all inquiries concerning the Plan shall be submitted to the Company at such address as may be announced to Participants from time to time. Applications for benefits shall be in the form and manner prescribed by the Company and shall be signed by the Participant or, in the case of a benefit payable after the death of the Participant, by the Participant’s Surviving Spouse or Beneficiary, as the case may be.
12.11.2 The Plan Administrator shall give written or electronic notice of its decision on any application to the applicant within 90 days of receipt of the application. Electronic notification may be used, at the discretion of the Plan Administrator (or Review Panel, as discussed below). If special circumstances require a longer period of time, the Plan Administrator shall provide notice to the applicant within the initial 90-day period, explaining the special circumstances requiring the extension of time and the date by which the Plan expects to render a benefit determination. A decision will be given as soon as possible, but no later than 180 days after receipt of the application. In the event any application for benefits is denied in whole or in part, the Plan Administrator shall notify the applicant in writing or electronic notification of the right to a review of the denial. Such notice shall set forth, in a manner calculated to be understood by the applicant: the specific reasons for the denial; the specific references to the Plan provisions on which the denial is based; a description of any information or material necessary to perfect the application and an explanation of why such material is necessary; and a description of the Plan’s review procedures and the applicable time limits to such procedures, including a statement of the applicant’s right to bring a civil action under ERISA Section 502(a) following a denial on review.
12.11.3 The Company shall appoint a “Review Panel,” which shall consist of three or more individuals who may (but need not) be employees of the Company. The Review Panel shall be the named fiduciary that has the authority to act with respect to any appeal from a denial of benefits under the Plan, and shall hold meetings at least quarterly, as needed. The Review Panel shall have the authority to further delegate its responsibilities to two or more individuals who may (but need not) be employees of the Company.
12.11.4 Any person (or his authorized representative) whose application for benefits is denied in whole or in part may appeal the denial by submitting to the Review Panel a request for a review of the application within 60 days after receiving notice of the denial. The Review Panel shall give the applicant or such representative the opportunity to submit written comments, documents, and other information relating to the claim; and an opportunity to review, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other relevant information (other than legally privileged documents) in preparing such request for review. The request for review shall be in writing and addressed as follows: “Review Panel of the Employee Welfare Benefits Plan Committee, 1803 Gears Road, Houston, Texas 77067-4097.” The request for review shall set forth all of the grounds on which it is based, all facts in support of the request and any other matters that the applicant deems pertinent. The Review Panel may require the applicant to submit such additional facts, documents, or other material as it may deem necessary or appropriate in making its review. The Review Panel will consider all comments, documents, and other information submitted by the applicant regardless of whether such information was submitted or considered during the initial benefit determination.
12.11.5 The Review Panel shall act upon each request for review within 60 days after receipt thereof. If special circumstances require a longer period of time, the Review Panel shall so notify the applicant within the initial 60 days, explaining the special circumstances requiring the extension of time and the date by which the Review Panel expects to render a benefit determination. A decision will be given as soon as possible, but no later than 120 days after receipt of the request for review. The Review Panel shall give notice of its decision to the Company and the applicant. In the event the Review Panel confirms the denial of the application for benefits in whole or in part, such notice shall set forth in a manner calculated to be understood by the applicant, the specific reasons for such denial and specific references to the Plan provisions on which the decision is based. If such an extension of time for review is required because of special circumstances, the Plan Administrator shall provide the applicant with written notice of the extension, describing the special circumstances and the date as of which the benefit determination will be made, prior to the commencement of the extension. In the event the Review Panel confirms the denial of the application for benefits in whole or in part, such notice shall set forth in a manner calculated to be understood by the applicant: the specific reasons for such denial; the specific references to the Plan provisions on which the decision is based; the applicant’s right, upon request and free of charge, to receive reasonable access to, and copies of, all documents and other relevant information (other than legally-privileged documents and information); and a statement of the applicant’s right to bring a civil action under ERISA Section 502(a).
12.11.6 The Review Panel shall establish such rules and procedures, consistent with ERISA and the Plan, as it may deem necessary or appropriate in carrying out its responsibilities under this Section 12.11.
12.11.7 To the extent an application for benefits as a result of a Disability requires the Plan Administrator or the Review Panel, as applicable, to make a determination of Disability under the terms of the Plan, such determination shall be subject to all of the general rules described in this Section 12.11, except as they are expressly modified by this Section 12.11.7.
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(a)
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If the applicant’s claim is for benefits as a result of Disability, then the initial decision on a claim for benefits will be made within 45 days after the Plan receives the applicant’s claim, unless special circumstances require additional time, in which case the Plan Administrator will notify the applicant before the end of the initial 45-day period of an extension of up to 30 days. If necessary, the Plan Administrator may notify the applicant, prior to the end of the initial 30-day extension period, of a second extension of up to 30 days. If an extension is due to the applicant’s failure to supply the necessary information, the notice of extension will describe the additional information and the applicant will have 45 days to provide the additional information. Moreover, the period for making the determination will be delayed from the date the notification of extension was sent out until the applicant responds to the request for additional information. No additional extensions may be made, except with the applicant’s voluntary consent. The contents of the notice shall be the same as described in Section 12.11.2 above. If a benefit claim as a result of Disability is denied in whole or in part, the applicant (or his authorized representative) will receive written or electronic notification, as described in Section 12.11.2.
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(b)
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If an internal rule, guideline, protocol or similar criterion is relied upon in making the adverse determination, then the notice to the applicant of the adverse determination will either set forth the internal rule, guideline, protocol or similar criterion, or will state that such was relied upon and will be provided free of charge to the applicant upon request (to the extent not legally-privileged) and if the applicant’s claim was denied based on a medical necessity or experimental treatment or similar exclusion or limit, then the applicant will be provided a statement either explaining the decision or indicating that an explanation will be provided to the applicant free of charge upon request.
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(c)
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The Review Panel, as described above in Section 12.11.3 shall be the named fiduciary with the authority to act on any appeal from a denial of benefits as a result of Disability under the Plan. Any applicant (or his authorized representative) whose application for benefits as a result of Disability is denied in whole or in part may appeal the denial by submitting to the Review Panel a request for a review of the application within 180 days after receiving notice of the denial. The request for review shall be in the form and manner prescribed by the Review Panel and addressed as follows: “Review Panel of the Employee Welfare Benefits Plan Committee, 1803 Gears Road, Houston, Texas 77067-4097.” In the event of such an appeal for review, the provisions of Section 12.11.4 regarding the applicant’s rights and responsibilities shall apply. Upon request, the Review Panel will identify any medical or vocational expert whose advice was obtained on behalf of the Review Panel in connection with an adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination. The entity or individual appointed by the Review Panel to review the claim will consider the appeal de novo, without any deference to the initial benefit denial. The review will not include any person who participated in the initial benefit denial or who is the subordinate of a person who participated in the initial benefit denial.
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(d)
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If the initial benefit denial was based in whole or in part on a medical judgment, then the Review Panel will consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment, and who was neither consulted in connection with the initial benefit determination nor is the subordinate of any person who was consulted in connection with that determination; and upon notifying the applicant of an adverse determination on review, include in the notice either an explanation of the clinical basis for the determination, applying the terms of the Plan to the applicant’s medical circumstances, or a statement that such explanation will be provided free of charge upon request.
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(e)
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A decision on review shall be made promptly, but not later than 45 days after receipt of a request for review, unless special circumstances require an extension of time for processing. If an extension is required, the applicant will be notified before the end of the initial 45-day period that an extension of time is required and the anticipated date that the review will be completed. A decision will be given as soon as possible, but not later than 90 days after receipt of a request for review. The Review Panel shall give notice of its decision to the applicant; such notice shall comply with the requirements set forth in Section 12.11.5. In addition, if the applicant’s claim was denied based on a medical necessity or experimental treatment or similar exclusion, the applicant will be provided a statement explaining the decision, or a statement providing that such explanation will be furnished to the applicant free of charge upon request. The notice shall also contain the following statement: “You and your Plan may have other voluntary alternative dispute resolution options, such as mediation. One way to find out what may be available is to contact your local U.S. Department of Labor Office and your State insurance regulatory agency.”
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12.11.8 No legal or equitable action for benefits under the Plan shall be brought unless and until the applicant (a) has submitted a written application for benefits in accordance with Section 12.11.1 (or 12.11.7(a), as applicable), (b) has been notified by the Plan Administrator that the application is denied, (c) has filed a written request for a review of the application in accordance with Section 12.11.4 (or 12.11.7(c), as applicable); and (d) has been notified that the Review Panel has affirmed the denial of the application; provided that legal action may be brought after the Review Panel has failed to take any action on the claim within the time prescribed in Section 12.11.5 (or 12.11.7(e), as applicable). An applicant may not bring an action for benefits in accordance with this Section 12.11.8 later than 90 days after the Review Panel denies the applicant’s application for benefits.
12.12
Participation in the Plan by an Affiliate
12.12.1 With the consent of the Board, any Affiliate, by appropriate action of its board of directors, a general partner or the sole proprietor, as the case may be, may adopt the Plan and determine the classes of its Employees that will be Eligible Employees.
12.12.2 A Participating Employer will have no power with respect to the Plan except as specifically provided herein.
12.13
Action by Participating Employers
Any action required to be taken by the Company pursuant to any Plan provisions will be evidenced in the manner set forth in Section 11.1. Any action required to be taken by a Participating Employer will be evidenced by a resolution of the Participating Employer’s board of directors (or an authorized committee of that board). Participating Employer action may also be evidenced by a written instrument executed by any person or persons authorized to take the action by the Participating Employer’s board of directors, any authorized committee of that board, or the stockholders. A copy of any written instrument evidencing the action by the Company or Participating Employer must be delivered to the secretary or assistant secretary of the Company or Participating Employer.
ARTICLE XIII
Top Heavy Provisions
13.1
Top Heavy Definitions
For purposes of this Article XIII and any amendments to it, the terms listed in this Section 13.1 have the meanings ascribed to them below.
Aggregate Account
means the value of all accounts maintained on behalf of a Participant, whether attributable to Company or employee contributions, determined under applicable provisions of the defined contribution plan used in determining Top Heavy Plan status.
Aggregation Group
means the group of plans in a Mandatory Aggregation Group, if any, that includes the Plan, unless including additional Related Plans in the group would prevent the Plan for being a Top Heavy Plan, in which case Aggregation Group means the group of plans in a Permissive Aggregation Group, if any, that includes the Plan.
Compensation
means compensation as defined in Code Section 415(c)(3) and Treasury regulations thereunder. For purposes of determining who is a Key Employee, Compensation will be applied by taking into account amounts paid by Affiliates who are not Participating Employers, as well as amounts paid by Participating Employers, and without applying the exclusions for amounts paid by a Participating Employer to cover an Employee’s nonqualified deferred compensation FICA tax obligations and for gross-up payments on such FICA tax payments.
Determination Date
means, for a Plan Year, the last day of the preceding Plan Year. If the Plan is part of an Aggregation Group, the Determination Date for each other plan will be, for any Plan Year, the Determination Date for that other plan that falls in the same calendar year as the Determination Date for the Plan.
Key Employee
means an employee described in Code Section 416(i)(1), the regulations promulgated thereunder, and other guidance of general applicability issued thereunder. Generally, a Key Employee is an Employee or former Employee who, at any time during the Plan Year containing the Determination Date is:
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(a)
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an officer of the Company or an Affiliate with annual Compensation greater than $130,000 (as adjusted under Code Section 416(i)(1) for Plan years beginning after December 31, 2002);
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(b)
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a 5% owner of the Company or an Affiliate; or
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(c)
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a 1% owner of the Company or an Affiliate with annual Compensation from the Company and all Affiliates of more than $150,000.
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Mandatory Aggregation Group
means each plan (considering the Plan and Related Plans) that, during the Plan Year that contains the Determination Date or any of the 4 preceding Plan Years:
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(a)
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had a participant who was a Key Employee; or
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(b)
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was required to be considered with a plan in which a Key Employee participated in order to enable the plan in which the Key Employee participated to meet the requirements of Code Section 401(a)(4) or 410(b).
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Non-key Employee
means an Employee or former Employee who is not a Key Employee.
Permissive Aggregation Group
means the group of plans consisting of the plans in a Mandatory Aggregation Group with the Plan, plus any other Related Plan or Plans that, when considered as a part of the Aggregation Group, does not cause the Aggregation Group to fail to satisfy the requirements of Code Section 401(a)(4) or 410(b).
Present Value of Accrued Benefits
means, in the case of a defined benefit plan, a Participant’s present value of accrued benefits determined as follows:
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(a)
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as of the most recent “Actuarial Valuation Date,” which is the most recent valuation date within a 12-month period ending on the Determination Date;
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(b)
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as if the Participant terminated service as of the actuarial valuation date; and
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(c)
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the Actuarial Valuation Date must be the same date used for computing the defined benefit plan minimum funding costs, regardless of whether a valuation is performed that Plan Year.
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Present Value
means, in calculating a Participant’s present value of accrued benefits as of a Determination Date, the sum of:
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(a)
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the Actuarial Equivalent present value of accrued benefits;
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(b)
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any Plan distributions made within the Plan Year that includes the Determination Date; provided, however, in the case of a distribution made for a reason other than separation from service (effective January 1, 2002, severance from employment), death or disability, this provision shall also include distributions made within the 4 preceding Plan Years. In the case of distributions made after the valuation date and prior to the Determination Date, such distributions are not included as distributions for top heavy purposes to the extent that such distributions are already included in the Participant’s present value of accrued benefits as of the valuation date. Notwithstanding anything herein to the contrary, all distributions, including distributions under a terminated plan which if it had not been terminated would have been required to be included in an Aggregation Group, will be counted;
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(c)
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any Employee Contributions, whether voluntary or mandatory. However, amounts attributable to tax deductible Qualified Voluntary Employee Contributions shall not be considered to be a part of the Participant’s present value of accrued benefits;
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(d)
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with respect to unrelated rollovers and plan-to-plan transfers (ones which are both initiated by the Participant and made from a plan maintained by one employer to a plan maintained by another employer), if this Plan provides for rollovers or plan-to-plan transfers, it shall always consider such rollover or plan-to-plan transfer as a distribution for the purposes of this Section 13.1. If this Plan is the plan accepting such rollovers or plan-to-plan transfers, it shall not consider such rollovers or plan-to-plan transfers, as part of the Participant’s present value of accrued benefits;
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(e)
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with respect to related rollovers and plan-to-plan transfers (ones either not initiated by the Participant or made to a plan maintained by the same employer), if this Plan provides the rollover or plan-to-plan transfer, it shall not be counted as a distribution for purposes of this Section. If this Plan is the plan accepting such rollover or plan-to-plan transfer, it shall consider such rollover or plan-to-plan transfer as part of the Participant’s present value of accrued benefits, irrespective of the date on which such rollover or plan-to-plan transfer is accepted; and
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(f)
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if an individual has not performed services for a Participating Employer within the Plan Year that includes the Determination Date, any accrued benefit for such individual shall not be taken into account.
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Related Plan
means any other defined contribution plan (a “Related Defined Contribution Plan”) or defined benefit plan (a “Related Defined Benefit Plan”) (both as defined in Code Section 415(k), maintained by the Company or an Affiliate.
A Super Top Heavy Aggregation Group
exists in any Plan Year for which, as of the Determination Date, the sum of the present value of accrued benefits and the Aggregate Accounts of Key Employees under all plans in the Aggregation Group exceeds 90% of the sum of the present value of accrued benefits and the Aggregate Accounts of all employees under all plans in the Aggregation Group. In determining the sum of the Present Value of Accrued Benefits and/or Aggregate Accounts for all employees, the present value of accrued benefits and/or Aggregate Accounts for any Non-key Employee who was a Key Employee for any Plan Year preceding the Plan Year that contains the Determination Date will be excluded.
Super Top Heavy
Plan means the Plan when it is described in the second sentence of Section 13.2.
A Top Heavy Aggregation Group
exists in any Plan Year for which, as of the Determination Date, the sum of the Present Value of Accrued Benefits for Key Employees under all plans in the Aggregation Group exceeds 60% of the sum of the Present Value of Accrued Benefits for all employees under all plans in the Aggregation Group. In determining the sum of the Present Value of Accrued Benefits for all employees, the Present Value of Accrued Benefits for any Non-key Employee who was a Key Employee for any Plan Year preceding the Plan Year that contains the Determination Date will be excluded.
Top Heavy Plan
means the Plan when it is described in the first sentence of Section 13.2.
13.2
Determination of Top Heavy Status
This Plan is a Top Heavy Plan in any Plan Year in which it is a member of a Top Heavy Aggregation Group, including a Top Heavy Aggregation Group that includes only the Plan. The Plan is a Super Top Heavy Plan in any Plan Year in which it is a member of a Super Top Heavy Aggregation Group, including a Super Top Heavy Aggregation Group that includes only the Plan.
13.3
Minimum Benefit Requirement for Top Heavy Plan
13.3.1
Minimum Accrued Benefit
: The minimum accrued benefit (expressed as an Individual Life Annuity commencing at Normal Retirement Date) derived from Company contributions to be provided under this Section for each Non-key Employee who is a Participant for any Plan Year in which this Plan is a Top Heavy Plan shall equal the product of (a) 1/12th of “416 Compensation” averaged over 5 the consecutive Plan Years (or actual number of Plan Years if less) which produce the highest average and (b) the lesser of (i) 2% multiplied by Years of Vesting Service or (ii) 20%.
13.3.2 For purposes of providing the minimum benefit under Code Section 416, a Non-key Employee who is not a Participant solely because (a) his compensation is below a stated amount or (b) he declined to make mandatory contributions to the Plan will be considered to be a Participant.
13.3.3 For purposes of this Section 13.3, Years of Vesting Service for any Plan Year during which the Plan was not a Top Heavy Plan shall be disregarded.
13.3.4 For purposes of this Section 13.3, 416 Compensation for any Plan Year during which the Plan is a Top Heavy Plan shall be disregarded.
13.3.5 For the purposes of this Section 13.3, “416 Compensation” shall mean W-¬2 wages for the calendar year ending with or within the Plan Year, plus any elective deferral (as defined in Code section 402(g)), any amounts contributed to a plan described in Code Section 125 and any amounts contributed to a plan described in Code Section 132. 416 Compensation shall be limited to $200,000 (as adjusted for cost-of-living in accordance with Section 401(a)(17)(B) of the Code) in Top Heavy Plan Years.
13.3.6 If payment of the minimum accrued benefit commences at a date other than Normal Retirement Date, or if the form of benefit is other than on Individual Life Annuity, the minimum accrued benefit shall be the Actuarial Equivalent of the minimum accrued benefit expressed as an Individual Life Annuity commencing at Normal Retirement Date.
13.3.7 To the extent required to be nonforfeitable under Section 13.4, the minimum accrued benefit under this Section 13.3 may not be forfeited under Code Section 411(a)(3)(B) or Code Section 411(a)(3)(D).
13.3.8 In determining Years of Service, any service shall be disregarded to the extent such service occurs during a Plan Year when the Plan benefits (within the meaning of Code Section 410(b)) no Key Employee or Former Key Employee.
13.4
Vesting Requirement for Top Heavy Plan
13.4.1 Notwithstanding any other provision of this Plan, for any Top Heavy Plan Year, the vested portion of any Participant’s accrued benefit shall be determined on the basis of the Participant’s number of Years of Vesting Service according to the following schedule:
Years of Service
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Percentage Vested
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1 - 2
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0%
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3
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100%
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If in any subsequent Plan Year, the Plan ceases to be a Top Heavy Plan, the Company may, in its sole discretion, elect to continue to apply this vesting schedule in determining the vested portion of any Participant’s accrued benefit, or revert to the vesting schedule in effect before this Plan became a Top Heavy Plan. Any such reversion shall be treated as a Plan amendment.
13.4.2 The computation of the nonforfeitable percentage of the Participant’s interest in the Plan shall not be reduced as the result of any direct or indirect amendment to this Plan. In the event that this Plan is amended to change or modify any vesting schedule, a Participant with at least 3 Years of Service as of the expiration date of the election period may elect to have the Participant’s nonforfeitable percentage computed under the Plan without regard to such amendment. If a Participant fails to make such election, then such Participant shall be subject to the new vesting schedule. The Participant’s election period shall commence on the adoption date of the amendment and shall end 60 days after the latest of:
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(a)
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the adoption date of the amendment,
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(b)
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the effective date of the amendment, or
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(c)
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the date the Participant receives written notice of the amendment from the Company.
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IN WITNESS WHEREOF, the undersigned and duly authorized Committee member has executed the Plan, this ___ day of May, 2012, to be effective, as amended and restated as of January 1, 2012, except as otherwise expressly provided herein.
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JOHN BEAN TECHNOLOGIES CORPORATION
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By:_______________________________
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Member, Employee Welfare Benefits Plan Committee
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JETWAY SYSTEMS DIVISION, OGDEN, UTAH
1-1
Eligible Employees
The terms of this Supplement apply only to Eligible Employees of the FMC Corporation Jetway Systems Division or, effective, June 1, 2008, the JBT Corporation Jetway Systems Division who work in Ogden, Utah and are covered by the Collective Bargaining Agreement between the Company and the United Steelworkers of America Local Union 6162.
1-2
Actuarial Equivalent
Actuarial Equivalent
, other than for purposes of Section 12.8 of the Plan, shall be determined based on the UP-1983 Group Annuity Mortality table for males set back 1 year for the Participant and 5 years for the Beneficiary, and 8% interest compounded annually.
1-3
Average Monthly Earnings
Average Monthly Earnings
means the average for each Participant determined by dividing total Considered Compensation during the Participant’s 9-year Period of Service ending on his retirement or Severance from Service Date by 108. The denominator of 108 shall be reduced to the number of months actually worked if the Participant was not employed by the Company during that entire 9-year period. The denominator shall also be reduced in the case of Disability Retirement by the number of months without pay because of Disability in the last 6 months before retirement, and in all other cases shall be reduced by the greater of the number of months without pay (a) in excess of 3, during each absence, or (b) in excess of 12.
1-4
Considered Compensation
Considered Compensation
means the Base Pay paid to an individual by the Company and/or any Affiliate during a Plan Year while that individual is a Participant. “Base Pay” means a Participant’s regular hourly wage and does not include bonuses, amounts paid in lieu of regular vacation, overtime or other premium pay, deferred compensation, stock options, and other amounts that receive special tax treatment.
The annual amount of Considered Compensation taken into account for a Participant must not exceed $160,000 (as adjusted by the Internal Revenue Service for cost-of living increases in accordance with Code Section 40l (a)(17)(B)); provided, however in determining benefit accruals after December 31, 2001, the annual amount of Considered Compensation taken into account for a Participant must not exceed $200,000 (as adjusted by the Internal Revenue Service, for cost of living increases in accordance with Code Section 401(a)(17)(B)). For the purposes of determining benefit accruals in any Plan Year after December 31, 2001, Considered Compensation for any prior Plan Year shall be subject to the applicable limit on Earnings for that prior year.
1-5
Normal Retirement Date
Normal Retirement Date
means the first day of the month coinciding with or next following the Participant’s 65th birthday.
1-6
Normal Retirement Benefit
A Participant’s monthly Normal Retirement Benefit shall be the greater of (a) or (b):
|
(a)
|
1.025% of Average Monthly Earnings multiplied by the Participant’s Years of Credited Service.
|
|
(b)
|
The product of the benefit rate provided below in effect at the termination of the Participant’s Years of Credited Service multiplied by the
|
Participant’s Years of Credited Service.
Termination Date
|
|
Benefit Rate
|
On or after September 1, 1998
but before August 31, 1999
|
|
$21.50
|
|
|
|
On or after September 1, 1999
|
|
$22.50
|
Effective October 8, 2000, each Participant’s monthly Normal Retirement Benefit accrued under the formula described above shall be calculated and maintained as a frozen benefit (“Prior Formula Accrued Benefit”). With respect to a Termination Date occurring on or after October 9, 2000, but before September 1, 2008, a Participant’s Normal Retirement Benefit shall be equal to the greater of the Prior Formula Accrued Benefit, if any, and the product of the benefit rate of $30.00 multiplied by the Participant’s Years of Credited Service. With respect to a Termination Date occurring on or after September 1, 2008, but before September 1, 2011, a Participant’s Normal Retirement Benefit shall be equal to the greater of the Prior Formula Accrued Benefit, if any, and the product of the benefit rate of $31.50 multiplied by the Participant’s Years of Credited Service. With respect to a Termination Date occurring on or after September 1, 2011, a Participant’s Normal Retirement Benefit shall be equal to the greater of the Prior Formula Accrued Benefit, if any, and the product of the benefit rate of $33.00 multiplied by the Participant’s Years of Credited Service.
1-7
Early Retirement Date
Early Retirement Date means the later of the Participant’s 55th birthday and the date the Participant acquires 15 (effective September 1, 2005, 10) years of Credited Service.
1-8
Early Retirement Reduction Factor
If a Participant’s Early Retirement Benefit commences prior to age 65, the Participant’s Early Retirement Benefit shall be paid according to the reduced percentage provided below.
Age Benefits
Begin
|
Reduced
Percentage
|
65
|
00.00%
|
64
|
93.00%
|
63
|
86.53%
|
62
|
80.60%
|
61
|
75.20%
|
60
|
70.33%
|
59
|
66.00%
|
58
|
62.20%
|
57
|
58.93%
|
56
|
56.20%
|
55
|
54.00%
|
Notwithstanding the preceding to the contrary, effective September 1, 2005, the following reduced percentages shall apply:
Age Benefits Begin
|
Reduced Percentage
|
65
|
0%
|
64
|
96%
|
63
|
92%
|
62
|
88%
|
61
|
84%
|
60
|
80%
|
59
|
75%
|
58
|
70%
|
57
|
65%
|
56
|
60%
|
55
|
55%
|
1-9
Disability Retirement
A Participant who has completed 10 Years of Vesting Service, has a Total and Permanent Disability for a period of at least 26 weeks and who retires due to Total and Permanent Disability shall be eligible for a Disability Retirement Benefit.
Total and Permanent Disability
means a total and permanent mental or physical disability of a Participant and confirmed by medical examination of a physician selected by the Company or the Participant, and confirmed by medical examination of a physician selected by the other party, whether or not such disability arose out of or during the course of employment, of a nature preventing such Participant from engaging in any occupation for compensation for the balance of the Participant’s life.
1-10
Disability Retirement Benefit
If the Participant is eligible for unreduced Social Security benefits, the Participant’s Disability Retirement Benefit shall be determined pursuant to Section 3.1.2, without reduction for early commencement, but shall be no less than $100 per month. If the Participant is not eligible for unreduced Social Security benefits, the Participant’s Disability Retirement Benefit shall be determined according to the preceding sentence, then increased by $100 per month.
1-11
Normal Form of Benefit
A Participant’s benefit shall be paid in the form of a 50% Joint and Survivor’s Annuity, with the Participant’s spouse as joint annuitant if the Participant is married on the Annuity Starting Date, and in the form of an Individual Life Annuity if the Participant is not married on the Annuity Starting Date, unless the Participant elects, in accordance with Section 6.3, not to receive payment in the normal form and to receive payment in one of the permitted optional forms.
1-12
Optional Forms of Benefit
A Participant may elect, in accordance with Section 6.3, to receive the Participant’s benefits in one of the following optional forms:
|
(a)
|
an Individual Life Annuity; or
|
|
(b)
|
a 50% or 100% joint and survivor annuity, with the Participant’s Beneficiary as the survivor.
|
1-13
Surviving Spouse’s Benefit
The surviving spouse’s benefit shall be equal to 60% of 90% of the amount the Participant would have received if the Participant had retired on the day before death and commenced payments on the Participant’s earliest early retirement date, unless the Participant waived such benefit with spousal consent, in which case the surviving spouse’s benefit shall be eliminated.
Payment of the survivor’s benefit shall commence on the first day of the month next following the later of the Participant’s 55
th
birthday or the Participant’s death, unless the Participant’s spouse elects to commence payment of benefits as of the first day of any subsequent month, but not later than the Participant’s Normal Retirement Date.
PACKAGING MACHINERY DIVISION, GREEN BAY, WISCONSIN
2-1
Eligible Employees
The terms of this Supplement apply only to individuals participating in the FMC Corporation Retirement Plan for Hourly Employees - Packaging Machinery Division, Green Bay, Wisconsin (“Prior Plan”) on the Freeze Date who had not yet received a full distribution of their benefit under such Prior Plan, the FMC Plan, or the FMCTI Plan as of the Effective Date (“Participant”).
2-2
Freeze Date
Effective March 22, 1995 (“Freeze Date”) the union group covering the Participants was decertified and the Prior Plan was frozen. No new participants entered the Prior Plan after the Freeze Date, and no benefits accrued under the Prior Plan after the Freeze Date.
2-3
Actuarial Equivalent
Actuarial Equivalent
, other than for purposes of Section 12.8 of the Plan, shall be determined based on the 1971 Group Annuity Table (weighted 95% male, 5% female) and 6% interest compounded annually.
2-4
Normal Retirement Date
Normal Retirement Date
means the first day of the month coinciding with or next following the Participant’s 65th birthday.
2-5
Normal Retirement Benefit
A Participant’s monthly Normal Retirement Benefit shall be the Participant’s monthly normal retirement benefit accrued under the Prior Plan as of the Freeze Date.
2-6
Early Retirement Date
Early Retirement Date
means the later of the Participant’s 55th birthday and the date the Participant acquires 15 Years of Credited Service.
2-7
Early Retirement Reduction Factor
The Participant’s Early Retirement Benefit shall be reduced by 4% per year for each year between the Participant’s Annuity Starting Date and the Participant’s 65th birthday.
2-8
Surviving Spouse’s Benefit
The amount of the surviving spouse’s benefit shall be determined pursuant to this Supplement as if the Participant had retired on the later of the Participant’s 55th birthday or the date of the Participant’s death. Payment of the survivor’s benefit shall commence on the first day of the month next following the later of the Participant’s 55th birthday or the Participant’s death, unless the Participant’s spouse elects to commence payment of benefits as of the first day of any subsequent month, but not later than the Participant’s Normal Retirement Date.
2-9
Participants who were Salaried Employees
Participants who prior to the Freeze Date became salaried employees and as a result became covered under the FMC Corporation Salaried Employees’ Retirement Plan (“Salaried Plan”), or its predecessor plan, were given certain distribution rights as described in Section 6.2.5 of the Salaried Plan that applied to benefits payable under the Plan and the Salaried Plan.
SMITH METER PLANT, ERIE, PENNSYLVANIA
3-1
Eligible Employees
The terms of this Supplement apply only to Eligible Employees of the FMC Corporation Smith Meter Plan who work in Erie, Pennsylvania and who are covered by the Collective Bargaining Agreement between the Company and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America Local No. 714.
3-2
Actuarial Equivalent
Actuarial Equivalent
, other than for purposes of Section 12.8 of the Plan, shall be determined based on the UP-1984 Mortality Table (for nondisabled participants) and the 1965 Railroad Board Total Disabled Annuitants Mortality Table - Ultimate Rates (for disabled participants) and the interest rate used by the Pension Benefit Guaranty Corporation for lump sum distributions occurring on the first day of the Plan Year that contains the Annuity Starting Date.
3-3
Service
Break-In-Service
occurs when a nonvested Employee does not accrue at least 170 Hours of Service during a calendar year. Any such break shall cause a forfeiture of prior Years of Vesting Service if the total years of consecutive Breaks-in-Service equals or exceeds the greater of five or the number of Years of Vesting Service.
If the number of consecutive Breaks-in-Service do not operate to cause a forfeiture of prior Years of Vesting Service, the prior Years of Vesting Service shall be reinstated after the Employee is again credited with 1/10th Year of Vesting Service. Further, if an Employee becomes eligible for a Disability Retirement Benefit and recovers prior to his 65th birthday, he shall retain his Years of Vesting Service upon return to active employment with the Company within 30 days after Disability Retirement Benefits cease.
Hour of Service
means:
|
(a)
|
Each hour during an applicable computation period for which an Employee is directly or indirectly paid or entitled to payment as an Employee for services performed, including back pay, irrespective of mitigation of damages, or such hours directly or indirectly paid for reasons other than the performance of duties during the applicable computation period, such as vacation, holidays, paid sick or funeral leaves, and similar paid periods of nonworking time, or periods of absence because of jury duty, military leaves and other Company approved leaves of absence. The number of Hours of Service to be credited to an Employee as a result of payment for other than duties performed shall be computed in accordance with such Employee’s hourly rate of pay during that computation period for which payment is made.
|
|
(b)
|
Such Hours of Service which are paid for other than at the time they accrued shall be deemed accumulated for all purposes herein during the period for which they accrued irrespective of when payment is made.
|
|
(c)
|
The number of Hours of Service to be credited to an Employee for any computation period shall be governed by Sections 2530.200b-2(b) and (c) of the Labor Department Regulations relating to ERISA.
|
|
(d)
|
Anything contained herein to the contrary notwithstanding and solely for purposes of determining whether a Break-in-Service has occurred for purposes of Years of Vesting Service, an Employee who is absent from work for maternity or paternity reasons shall receive credit for the Hours of Service which would otherwise have been credited to such Employee but for such absence, or in any case in which Hours of Service cannot be determined, 8 Hours of Service per day of such absence. The total number of Hours of Service credited under this paragraph for any single continuous period shall not exceed 501 hours. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence, (i) by reason of the pregnancy of the individual, (ii) by reason of a 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. The Hours of Service credited under this paragraph shall be credited in the Plan Year in which the absence begins if such crediting is required to prevent a Break-in-Service in such Plan Year, or (in all other cases) in the following Plan Year.
|
One Year Break-In-Service
means any calendar year during which an Employee completes less than 170 Hours of Service.
Year of Credited Service
means (A) the Employee’s Years of Credited Service prior to the Effective Date, and (B) the Employee’s Years of Vesting Service while the Employee is an Eligible Employee and after the Employee becomes a Participant. Notwithstanding the foregoing, benefit payments under this Plan for periods of service credited under any other retirement plans sponsored by the Company or an Affiliate as certified by the Administrator shall be reduced (but not below zero) by the amount of any benefit payments under such other plan for the same period of time.
Year of Vesting Service
means (A) the Employee’s Years of Service prior to the Effective Date, and (B) the total number of calendar years in which the Employee is credited with 1000 or more Hours of Service, or, subject to the provisions of this Supplement on Break-In-Service, a proportionate credit for 1/10th of a Year of Vesting Service for each 100 Hours of Service credited during such calendar year if the Employee is credited with less than 1000 Hours of Service during such calendar year.
3-4
Normal Retirement Date
Normal Retirement Date
means the earlier of (a) the first date the Participant has attained age 62 and completed 10 years of Vesting Service, or (b) the Participant’s 65th birthday.
3-5
Normal Retirement Benefit
A Participant’s monthly Normal Retirement Benefit shall be determined by multiplying the fixed rate provided below in effect on the date the Participant’s Years of Credited Service terminate, multiplied by the Participant’s Years of Credited Service:
Termination Date
|
Benefit Rate
|
On or after January 1, 1999
|
$25.00
|
but prior to January 1, 2001
|
|
|
|
On or after January 1, 2001
|
$26.00
|
But prior to January 1, 2002
|
|
|
|
On or after January 1, 2002
|
$27.00
|
but prior to January 1, 2003
|
|
|
|
On or after January 1, 2003
|
$28.00
|
but prior to January 1, 2004
|
|
|
|
On or after January 1, 2004
|
$29.00
|
but prior to January 1, 2005
|
|
|
|
On of after January 1, 2005
|
$29.00
|
but prior to January 1, 2006
|
|
|
|
On or after January 1, 2006
|
$30.00
|
but prior to January 1, 2007
|
|
|
|
On or after January 1, 2007
|
$31.00
|
but prior to January 1, 2008
|
|
|
|
On or after January 1, 2008
|
$32.00
|
but prior to January 1, 2009
|
|
|
|
On or after January 1, 2009
|
$33.00
|
but prior to January 1, 2010
|
|
|
|
On or after January 1, 2010
|
$33.00
|
Each Participant whose Years of Credited Service terminates after January 1, 2001, but prior to January 1, 2004 as a result of Normal Retirement, Early Retirement, Disability Retirement or Deferred Retirement, but not including a Participant whose employment terminates prior to Early Retirement eligibility, shall have their Normal, Early, Disability or Deferred Retirement benefit, as applicable, recalculated effective January 1, 2004 using a monthly benefit rate of $29.00, provided that any such recalculation shall not increase the amount of Normal, Early, Disability or Deferred Retirement benefit, as applicable, already paid to such Participant, but shall be applied solely to any Normal, Early, Disability or Deferred Retirement benefit, as applicable, payable after January 1, 2004. A Participant’s monthly Normal, Early, Disability or Deferred Retirement benefit, as applicable shall be increased by $20.00 per month after the Participant attains age 65, and by an additional $20.00 per month after the Participant’s spouse attains age 65.
Effective January 1, 2009, each Participant whose Years of Credited Service terminates on or after April 3, 2006, but prior to January 1, 2009 as a result of Normal Retirement, Early Retirement, Disability Retirement or Deferred Retirement, but not including a Participant whose employment terminates prior to Early Retirement eligibility, shall have their Normal, Early, Disability or Deferred Retirement benefit, as applicable, recalculated effective on the Participant’s retirement anniversary date occurring in 2009 using a monthly benefit rate of $33.00, provided that any such recalculation shall not increase the amount of Normal, Early, Disability or Deferred Retirement benefit, as applicable, already paid to such Participant, but shall be applied solely to any Normal, Early, Disability or Deferred Retirement benefit, as applicable, payable after January 1, 2009.
3-6
Early Retirement Date
Early Retirement Date
means the later of the Participant’s 57th birthday and the date the Participant acquires 10 Years of Credited Service.
3-7
Early Retirement Reduction Factor
If a Participant’s Early Retirement Benefit commences prior to age 62, the Participant’s Early Retirement Benefit shall be reduced by a percentage equal to 4% multiplied by the number of years (prorated for any fraction of a year) from the Annuity Starting Date to the first day of the month following the Participant’s 62nd birthday. The same reduction factor shall apply to a terminated Participant who is not Early Retirement eligible if the Participant has 10 Years of Vesting Service.
3-8
Disability Retirement
A Participant who has completed 10 Years of Credited Service and suffers a Total and Permanent Disability while he is an Employee and before he has attained age 62 shall be eligible for a Disability Retirement Benefit.
Total and Permanent Disability
means total disability by bodily injury or disease, physical or mental, or both, sufficient to prevent the Employee from engaging in any regular occupation or employment for remuneration or profit, which disability will be permanent and continuous during the remainder of the Employee’s life; provided, however, that no Employee shall be deemed to be totally and permanently disabled for the purposes of the Plan if his incapacity consists of chronic alcoholism or addiction to narcotics, or if such incapacity was contracted, suffered or incurred while he was engaged in a felonious enterprise or resulted therefrom or resulted from an intentionally self-inflicted injury or resulted from service in the armed forces of any country. The existence of total and permanent disability shall be determined by the Committee on the basis of medical evidence satisfactory to it.
3-9
Disability Retirement Benefit
The Participant’s Disability Retirement Benefit shall be determined by multiplying the fixed rate provided below in effect on the date his Total and Permanent Disability commences, multiplied by the Participant’s Years of Credited Service as of such date:
Termination Date
|
Benefit Rate
|
On or after January 1, 1999 and prior to January 1, 2001
|
$50.00
|
On or after January 1, 2001 and prior to January 1, 2002
|
$52.00
|
On or after January 1, 2002 and prior to January 1, 2003
|
$54.00
|
On or after January 1, 2003 and prior to January 1, 2004
|
$56.00
|
On or after January 1, 2004 and prior to January 1, 2005
|
$58.00
|
On or after January 1, 2005
|
$58.00
|
All disability retirement benefits shall be reduced by the amount of (a) worker’s compensation benefits; and (b) any present or future payments on account of injury, disease or disability under the Federal Social Security Act, as amended, or any other Federal or State law under which the Company contributes through taxes or otherwise to benefits for injury, disease or disability of Employees whether occupational or non-occupational; provided however, that the provisions of this Section 3-9 shall not operate to reduce the disability retirement benefits to less than the retirement benefits to which the Participant would have been entitled had the Participant reached the Participant’s 62nd birthday at time of disability retirement.
3-10
Normal Form of Benefit
The normal form of benefit shall be a 50% Joint and Survivor’s Annuity with the Participant’s spouse as joint annuitant if he is married on the Annuity Starting Date, and an Individual Life Annuity if he is not married on the Annuity Starting Date.
3-11
Optional Forms of Benefit
A Participant who is eligible for an Early or Normal Retirement Benefit may, with spousal consent and in accordance with Section 6.3, waive the normal form of benefit and elect one of the optional forms which shall be the Actuarial Equivalent of the normal form of benefit.
|
(a)
|
an Individual Life Annuity, if the Participant is married;
|
|
(b)
|
a 100% or 66 - 2/3% Joint and Survivor’s Annuity; or
|
|
(c)
|
a joint and survivor’s annuity pursuant to which, upon the Participant’s death 50% of the amount paid to the Participant (reduced by 1% for each full year exceeding 10 by which the spouse is younger than the Participant) is paid to the Participant’s spouse until the earlier of (i) the spouse’s death; (ii) remarriage; or (iii) a total of 120 payments have been made to the Participant and spouse. No benefit shall be paid to the Participant’s spouse if the Participant and spouse were married less than 12 months at the time of the Participant’s death.
|
3-12
Surviving Spouse’s Benefit
If the Participant had attained Early Retirement Date, the amount of the surviving spouse’s benefit shall be 50% of the benefit the Participant would have received if the Participant had elected an Individual Life Annuity commencing on the day before the Participant’s death.
If the Participant had not attained Early Retirement Date, the amount of the surviving spouse’s benefit shall be equal to the survivor’s benefit under the 50% Joint and Survivor’s Annuity the Participant would have received if the Participant had elected such annuity commencing at age 57 or the day before the Participant’s death, if later.
Monthly surviving spouse benefits payable under this Section 3-12 shall be reduced by 1% for each full year exceeding 10 years by which the surviving spouse is younger than the Participant.
FOOD PROCESSING MACHINERY DIVISION, HOOPESTON, ILLINOIS
4-1
Eligible Employees
The terms of this Supplement apply only to Eligible Employees of the FMC Corporation Food Processing Machinery Division who work in Hoopeston, Illinois and who are covered by the Collective Bargaining Agreement between the Company and the Allied Industrial Workers of America, AFL-CIO Local 985.
4-2
Actuarial Equivalent
Actuarial Equivalent
, other than for purposes of Section 12.8 of the Plan, shall be determined based on the 1971 Group Annuity Table (weighted 95% male, 5% female) and 6% interest compounded annually.
4-3
Commencement of Participation
An Eligible Employee shall become a Participant as of the date the Participant completes 1 year of Credited Service.
4-4
Normal Retirement Date
Normal Retirement Date
means the first day of the month coinciding with or next following the Participant’s 65th birthday.
4-5
Normal Retirement Benefit
A Participant’s monthly Normal Retirement Benefit shall be determined by multiplying the fixed rate provided below in effect on the date the Participant’s Years of Credited Service terminate, multiplied by his Years of Credited Service:
Termination Date
|
Benefit Rate
|
On or after December 1, 1998
|
$26.00
|
On or after December 1, 1999
|
$30.00
|
On or after December 1, 2002
|
$33.00
|
4-6
Early Retirement Reduction Factor
If a Participant’s Early Retirement Benefit commences prior to age 65, the Participant’s Early Retirement Benefit shall be reduced by 4% for each full year between the Annuity Starting Date and the Participant’s 65th birthday.
4-7
Optional Form of Benefits
|
(a)
|
A married Participant may elect, with spousal consent and in accordance with Section 6.3, to receive the Participant’s benefits in one of the following forms:
|
|
(i)
|
an Individual Life Annuity;
|
|
(ii)
|
a 50% joint and survivor’s annuity with the Participant’s Beneficiary as survivor; or
|
|
(iii)
|
a 100% joint and survivor’s annuity with the Participant’s Beneficiary as survivor.
|
|
(b)
|
An unmarried Participant who is eligible for Normal Retirement, Early Retirement or Disability Retirement Benefits may elect, in accordance with Section 6.3, to receive the Participant’s benefits in one of the following forms:
|
|
(i)
|
a 50% joint and survivor’s annuity with the Participant’s Beneficiary as survivor; or
|
|
(ii)
|
a 100% joint and survivor’s annuity with the Participant’s Beneficiary as survivor.
|
4-8
Disability Retirement
A Participant who has completed 15 Years of Credited Service as of the date Total and Permanent Disability has endured for a period of 13 weeks shall be eligible for a Disability Retirement Benefit.
Total and Permanent Disability means a total and permanent mental or physical disability of a Participant and confirmed by medical examination of a physician selected by the Company or the Participant, and confirmed by medical examination of a physician selected by the other party, whether or not such disability arose out of or during the course of employment, of a nature preventing such Participant from engaging in any occupation for compensation for the balance of the Participant’s life.
4-9
Disability Retirement Benefit
The Participant’s Disability Retirement Benefit shall be determined pursuant to Section 3.1.2, based on the Participant’s Years of Credited Service to the date of the Participant’s Disability Retirement.
The Disability Retirement payment shall commence with the first day of the month immediately following the expiration of the 13-week period described in Section 4-8 of this Supplement or medical certification of disability, whichever shall be later.
Such payment shall also take into account and have deducted therefrom any benefits paid or payable, now or in the future, to the Participant by way of (a) Worker’s Compensation payments; (b) public pension payments (except Social Security Disability and Military pension payments); and (c) 1/2 of any accident or health insurance benefit payment as may be provided by any program as now or in the future made available by the Company or placed in effect by any governmental authority for the benefit of Participants; however, any lump sum award under (a) and (c) above shall not be deducted. Any Participant who shall receive a Disability Retirement Benefit shall be subject to reexamination by a physician of the Company at any time the Company may so request and if, in the opinion of the Company, the Total and Permanent Disability of the Participant shall no longer continue to exist, such Participant’s right to a continuance of Disability Retirement Benefit payment shall cease. Failure or refusal of a Participant to submit to medical examination as requested by the Company shall be cause of cancellation of the Disability Retirement Benefit. Such disabled Participant shall, however, be entitled to Early or Normal Retirement benefit payments upon qualification by the Participant under the requirements set forth in Section 3.1 and Section 3.2. In no event, however, shall any Participant be entitled to receive both a Disability Retirement Benefit and an Early or Normal Retirement Benefit, it being intended that there should be no duplication of retirement benefits.
AIRLINE EQUIPMENT DIVISION, SAN JOSE, CALIFORNIA
5-1
Eligible Employees
The terms of this Supplement apply only to individuals participating in the FMC Corporation Retirement Plan for San Jose Commercial Segment Hourly Employees (“Prior Plan”) on the Freeze Date who were a part of the Airline Equipment Division and who have not yet received a full distribution of their benefit under such Prior Plan as of the Effective Date (“Participant”).
5-2
Freeze Date
Effective July 28, 1982 (“Freeze Date”), the Participants had their benefits in the Prior Plan frozen as a result of the closure of the Airline Equipment Division in San Jose, California. No new Participants entered the Prior Plan after the Freeze Date, and no benefits accrued to Participants under the Prior Plan after the Freeze Date.
5-3
Actuarial Equivalent
Actuarial Equivalent, other than for purposes of Section 12.8 of the Plan, shall be determined based on the 1951 Group Annuity Mortality Table and 3.5% interest compounded annually.
5-4
Normal Retirement Date
Normal Retirement Date means the first day of the month coinciding with or next following the Participant’s 65th birthday.
5-5
Normal Retirement Benefit
A Participant’s monthly Normal Retirement Benefit shall be the Participant’s monthly normal retirement benefit accrued under the Prior Plan as of the Freeze Date.
5-6
Early Retirement Date
Early Retirement Date means the later of the Participant’s 55th birthday and the date the Participant acquires 10 Years of Vesting Service.
5-7
Early Retirement Reduction Factor
If a Participant’s Early Retirement Benefit commences prior to age 65, the Participant’s Early Retirement Benefit shall be reduced by 5/12 of 1% for each month between his Annuity Starting Date and the Participant’s 65th birthday.
5-8
5-8 T
ermination Benefits Reduction Factor
If a Participant’s Termination Benefit commences prior to age 65, the Participant’s Termination Benefit shall be reduced to the Actuarial Equivalent of the Participant’s basic benefit in accordance with Tables A or B attached hereto.
Based on Age of Participant on Commencement of Early Retirement Benefit
MALE PARTICIPANT (Table A)
|
|
MONTHS
|
|
YEARS
|
0
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
11
|
55
|
44.74%
|
45.01%
|
45.28%
|
45.56%
|
45.83%
|
46.10% o
|
46.37%
|
46.64%
|
46.91%
|
47.19%
|
47.46%
|
47.73%
|
56
|
48.00
|
48.30
|
48.60
|
48.90
|
49.20
|
49.50
|
49.80
|
50.09
|
50.39
|
50.69
|
50.99
|
51.29
|
57
|
51.59
|
51.92
|
52.25
|
52.58
|
52.91
|
53.24
|
53.57
|
53.91
|
54.24
|
54.57
|
54.90
|
55.23
|
58
|
55.56
|
55.93
|
56.30
|
56.66
|
57.03
|
57.40
|
57.77
|
58.13
|
58.50
|
58.87
|
59.24
|
59.60
|
59
|
59.97
|
60.38
|
60.79
|
61.19
|
61.60
|
62.01
|
62.42
|
62.83
|
63.24
|
63.64
|
64.05
|
64.46
|
60
|
64.87
|
65.33
|
65.78
|
66.24
|
66.69
|
67.15
|
67.60
|
68.06
|
68.52
|
68.97
|
69.43
|
69.88
|
61
|
70.34
|
70.85
|
71.36
|
71.88
|
72.39
|
72.90
|
73.41
|
73.92
|
74.43
|
74.95
|
75.46
|
75.97
|
62
|
76.48
|
77.06
|
77.63
|
78.21
|
78.78
|
79.36
|
79.93
|
80.51
|
81.08
|
81.66
|
82.23
|
82.81
|
63
|
83.38
|
84.03
|
84.68
|
85.32
|
85.97
|
86.62
|
87.27
|
87.92
|
88.57
|
89.21
|
89.86
|
90.51
|
64
|
91.16
|
91.90
|
92.63
|
93.37
|
94.11
|
94.84
|
95.58
|
96.32
|
97.05
|
97.79
|
98.53
|
99.26
|
FEMALE PARTICIPANT (Table B)
|
|
MONTHS
|
|
YEARS
|
0
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
11
|
55
|
49.50%
|
49.76%
|
50.03%
|
50.29%
|
50.56%
|
50.82%
|
51.09%
|
51.35%
|
51.61%
|
51.88%
|
52.14%
|
52.41%
|
56
|
52.67
|
52.96
|
53.25
|
53.54
|
53.83
|
54.12
|
54.41
|
54.69
|
54.98
|
55.27
|
55.56
|
55.85
|
57
|
56.14
|
56.46
|
56.77
|
57.09
|
57.40
|
57.72
|
58.03
|
58.35
|
58.66
|
58.98
|
59.29
|
59.61
|
58
|
59.92
|
60.27
|
60.61
|
60.96
|
61.31
|
61.65
|
62.00
|
62.35
|
62.69
|
63.04
|
63.39
|
63.73
|
59
|
64.08
|
64.46
|
64.84
|
65.22
|
65.60
|
65.98
|
66.36
|
66.74
|
67.12
|
67.50
|
67.88
|
68.26
|
60
|
68.64
|
69.06
|
69.48
|
69.90
|
70.32
|
70.74
|
71.16
|
71.57
|
71.99
|
72.41
|
72.83
|
73.25
|
61
|
73.67
|
74.13
|
74.60
|
75.06
|
75.53
|
75.99
|
76.46
|
76.92
|
77.38
|
77.85
|
78.31
|
78.78
|
62
|
79.24
|
79.76
|
80.27
|
80.79
|
81.30
|
81.82
|
82.33
|
82.85
|
83.36
|
83.88
|
84.39
|
84.91
|
63
|
85.42
|
85.99
|
86.57
|
87.14
|
87.72
|
88.29
|
88.87
|
89.44
|
90.01
|
90.59
|
91.16
|
91.74
|
64
|
92.31
|
92.95
|
93.59
|
94.23
|
94.87
|
95.51
|
96.15
|
96.80
|
97.44
|
98.08
|
98.72
|
99.36
|
SUPPLEMENTAL 6
FOOD PROCESSING MACHINERY DIVISION, SAN JOSE, CALIFORNIA
6-1
Eligible Employees
The terms of this Supplement apply only to individuals participating in the FMC Corporation Retirement Plan for San Jose Commercial Segment Hourly Employees (“Prior Plan”) on the Freeze Date who were a part of the Food Processing Division and who have not yet received a full distribution of their benefit under such Prior Plan as of the Effective Date (“Participant”).
6-2
Freeze Date
Effective December 31, 1980 (“Freeze Date”), the Participants had their benefits in the Prior Plan frozen. No new Participants entered the Prior Plan after the Freeze Date, and no benefits accrued to any Participants under the Prior Plan after the Freeze Date.
6-3
Actuarial Equivalent
Actuarial Equivalent
, other than for purposes of Section 12.8 of the Plan, shall be determined based on the 1951 Group Annuity Mortality Table and 3.5% interest compounded annually.
6-4
Normal Retirement Date
Normal Retirement D
ate means the first day of the month coinciding with or next following the Participant’s 65th birthday.
6-5
Normal Retirement Benefit
A Participant’s monthly Normal Retirement Benefit shall be the Participant’s monthly normal retirement benefit accrued under the Prior Plan as of the Freeze Date.
6-6
Early Retirement Date
Early Retirement Date
means the later of the Participant’s 55th birthday and the date the Participant acquires 15 Years of Vesting Service.
6-7
Early Retirement Reduction Factor
If a Participant’s Early Retirement Benefit commences prior to age 65, the Participant’s Early Retirement Benefit shall be reduced to the Actuarial Equivalent of the Participant’s Normal Retirement Benefit in accordance with Tables A or B attached hereto.
6-8
Termination Benefits Reduction Factor
Based on Age of Participant on Commencement of Early Retirement Benefit
MALE PARTICIPANT (Table A)
|
|
MONTHS
|
|
YEARS
|
0
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
11
|
55
|
44.74%
|
45.01%
|
45.28%
|
45.56%
|
45.83%
|
46.10% o
|
46.37%
|
46.64%
|
46.91%
|
47.19%
|
47.46%
|
47.73%
|
56
|
48.00
|
48.30
|
48.60
|
48.90
|
49.20
|
49.50
|
49.80
|
50.09
|
50.39
|
50.69
|
50.99
|
51.29
|
57
|
51.59
|
51.92
|
52.25
|
52.58
|
52.91
|
53.24
|
53.57
|
53.91
|
54.24
|
54.57
|
54.90
|
55.23
|
58
|
55.56
|
55.93
|
56.30
|
56.66
|
57.03
|
57.40
|
57.77
|
58.13
|
58.50
|
58.87
|
59.24
|
59.60
|
59
|
59.97
|
60.38
|
60.79
|
61.19
|
61.60
|
62.01
|
62.42
|
62.83
|
63.24
|
63.64
|
64.05
|
64.46
|
60
|
64.87
|
65.33
|
65.78
|
66.24
|
66.69
|
67.15
|
67.60
|
68.06
|
68.52
|
68.97
|
69.43
|
69.88
|
61
|
70.34
|
70.85
|
71.36
|
71.88
|
72.39
|
72.90
|
73.41
|
73.92
|
74.43
|
74.95
|
75.46
|
75.97
|
62
|
76.48
|
77.06
|
77.63
|
78.21
|
78.78
|
79.36
|
79.93
|
80.51
|
81.08
|
81.66
|
82.23
|
82.81
|
63
|
83.38
|
84.03
|
84.68
|
85.32
|
85.97
|
86.62
|
87.27
|
87.92
|
88.57
|
89.21
|
89.86
|
90.51
|
64
|
91.16
|
91.90
|
92.63
|
93.37
|
94.11
|
94.84
|
95.58
|
96.32
|
97.05
|
97.79
|
98.53
|
99.26
|
FEMALE PARTICIPANT (Table B)
|
|
MONTHS
|
|
YEARS
|
0
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
11
|
55
|
49.50%
|
49.76%
|
50.03%
|
50.29%
|
50.56%
|
50.82%
|
51.09%
|
51.35%
|
51.61%
|
51.88%
|
52.14%
|
52.41%
|
56
|
52.67
|
52.96
|
53.25
|
53.54
|
53.83
|
54.12
|
54.41
|
54.69
|
54.98
|
55.27
|
55.56
|
55.85
|
57
|
56.14
|
56.46
|
56.77
|
57.09
|
57.40
|
57.72
|
58.03
|
58.35
|
58.66
|
58.98
|
59.29
|
59.61
|
58
|
59.92
|
60.27
|
60.61
|
60.96
|
61.31
|
61.65
|
62.00
|
62.35
|
62.69
|
63.04
|
63.39
|
63.73
|
59
|
64.08
|
64.46
|
64.84
|
65.22
|
65.60
|
65.98
|
66.36
|
66.74
|
67.12
|
67.50
|
67.88
|
68.26
|
60
|
68.64
|
69.06
|
69.48
|
69.90
|
70.32
|
70.74
|
71.16
|
71.57
|
71.99
|
72.41
|
72.83
|
73.25
|
61
|
73.67
|
74.13
|
74.60
|
75.06
|
75.53
|
75.99
|
76.46
|
76.92
|
77.38
|
77.85
|
78.31
|
78.78
|
62
|
79.24
|
79.76
|
80.27
|
80.79
|
81.30
|
81.82
|
82.33
|
82.85
|
83.36
|
83.88
|
84.39
|
84.91
|
63
|
85.42
|
85.99
|
86.57
|
87.14
|
87.72
|
88.29
|
88.87
|
89.44
|
90.01
|
90.59
|
91.16
|
91.74
|
64
|
92.31
|
92.95
|
93.59
|
94.23
|
94.87
|
95.51
|
96.15
|
96.80
|
97.44
|
98.08
|
98.72
|
99.36
|
Exhibit 10.12F
JOHN BEAN TECHNOLOGIES CORPORATION
SAVINGS AND INVESTMENT PLAN
(As Amended and Restated, Effective as of January 1, 2012
)
ARTICLE I
DEFINITIONS
|
1
|
|
Account
|
1
|
|
Administrator
|
2
|
|
Affiliate
|
2
|
|
After-Tax Contribution
|
2
|
|
After-Tax Contribution Account
|
2
|
|
After-Tax Contribution Election
|
2
|
|
Annuity Starting Date
|
2
|
|
Basic Contributions .
|
2
|
|
Beneficiary
|
3
|
|
Board
|
3
|
|
Break in Service
|
3
|
|
Catch-Up Contribution
|
3
|
|
Code
|
3
|
|
Committee
|
3
|
|
Company
|
3
|
|
Company Safe Harbor Nonelective Contributions
|
3
|
|
Company Safe Harbor Nonelective Contribution Account
|
3
|
|
Company Contributions
|
3
|
|
Company Contribution Account
|
4
|
|
Company Stock
|
4
|
|
Company Stock Fund
|
4
|
|
Compensation
|
4
|
|
Contingent Account
|
5
|
|
Direct Rollover
|
6
|
|
Disability
|
6
|
|
Distributee
|
6
|
|
Distribution Date
|
6
|
|
Effective Date
|
6
|
|
Eligible Employee
|
6
|
Table of Contents
(continued)
Page
|
Eligible Retirement Plan
|
7
|
|
Eligible Rollover Distribution
|
7
|
|
Employee
|
8
|
|
Employment Commencement Date
|
8
|
|
ERISA
|
8
|
|
FMC
|
8
|
|
FMC Matched Plan
|
8
|
|
FMC Plans
|
8
|
|
FMC Stock
|
8
|
|
FMC Stock Fund
|
8
|
|
FMC Unmatched Plan
|
8
|
|
FMCTI
|
8
|
|
FMCTI Plan
|
8
|
|
Forfeiture
|
9
|
|
Funding Agent
|
9
|
|
Highly Compensated Employee
|
9
|
|
Hour of Service
|
9
|
|
Investment Fund
|
10
|
|
Leased Employee
|
10
|
|
Matched Participant
|
10
|
|
Nonhighly Compensated Employee
|
10
|
|
Participant
|
10
|
|
Participating Employer
|
10
|
|
Period of Separation
|
10
|
|
Plan
|
11
|
|
Plan Year
|
11
|
|
Pre-Tax Contribution
|
11
|
|
Pre-Tax Contribution Account
|
11
|
|
Pre-Tax Contribution Election
|
11
|
|
Required Beginning Date
|
11
|
Table of Contents
(continued)
Page
|
Rollover Contribution
|
11
|
|
Rollover Contribution Account
|
12
|
|
Roth Elective Contribution
|
12
|
|
Roth Elective Contribution Account
|
12
|
|
Roth Elective Contribution Election
|
12
|
|
Safe Harbor 401(k) Plan
|
12
|
|
Safe Harbor Notice
|
12
|
|
Supplemental Contributions
|
13
|
|
Surviving Spouse
|
13
|
|
Trust
|
13
|
|
Trust Fund
|
13
|
|
Trustee
|
13
|
|
Valuation Date
|
13
|
|
Year of Service
|
13
|
ARTICLE II
PARTICIPATION
|
13
|
|
|
2.1
|
Admission as a Participant
|
13
|
|
|
2.2
|
Admission as a Matched Participant
|
14
|
|
|
2.3
|
Rehires
|
14
|
|
|
2.4
|
Provision of Information
|
14
|
|
|
2.5
|
Termination of Participation
|
15
|
|
|
2.6
|
Special Rules Relating to Veterans’ Reemployment Rights
|
15
|
|
|
2.7
|
Direct Transfer
|
17
|
ARTICLE III
CONTRIBUTIONS AND ACCOUNT ALLOCATIONS
|
18
|
|
|
3.1
|
Pre-Tax Contributions and Roth Elective Contributions
|
18
|
|
|
3.2
|
After-Tax Contributions
|
19
|
|
|
3.3
|
Rules Applicable to Both Pre-Tax Roth Elective and After-Tax Contributions
|
19
|
|
|
3.4
|
Company Contributions
|
21
|
|
|
3.4A Company Safe Harbor Nonelective Contributions
|
23
|
|
|
3.4B Safe Harbor 401(k) Plan Status
|
23
|
Table of Contents
(continued)
Page
|
|
3.5
|
Rollover Contributions
|
24
|
|
|
3.6
|
Establishment of Accounts
|
24
|
|
|
3.7
|
Limitation on Annual Additions to Accounts
|
24
|
|
|
3.8
|
Reduction of Annual Additions
|
25
|
|
|
3.9
|
Limitations on Pre-Tax Contributions, Roth Elective Contributions, After-Tax Contributions and Company Contributions – Definitions
|
26
|
|
|
3.10
|
Maximum Amount of Pre-Tax Contributions
|
31
|
|
|
3.11
|
Correction of Excess Pre-Tax Contributions and Excess Roth Elective Contributions
|
31
|
|
|
3.12
|
Actual Deferral Percentage Test
|
33
|
|
|
3.13
|
Actual Contribution Percentage Test
|
36
|
ARTICLE IV
VESTING
|
38
|
|
|
4.1
|
Vesting in After-Tax, Company Safe Harbor Nonelective, Pre-Tax, Roth Elective and Rollover Contributions Accounts
|
38
|
|
|
4.2
|
Vesting in Company Contribution and Contingent Accounts
|
38
|
|
|
4.3
|
Forfeitures
|
39
|
ARTICLE V
TIMING OF DISTRIBUTIONS TO PARTICIPANTS
|
40
|
|
|
5.1
|
Separation from Service
|
40
|
|
|
5.2
|
Start of Benefit Payments
|
40
|
|
|
5.3
|
Distribution of Amounts held in a Participant’s Company Safe Harbor Nonelective Contribution Account, Pre-Tax Contribution Account and Roth Elective Contribution Account.
|
42
|
ARTICLE VI
FORM OF BENEFIT, IN-SERVICE WITHDRAWALS AND LOANS
|
47
|
|
|
6.1
|
Cashout of Small Amounts
|
47
|
|
|
6.2
|
Medium of Distribution
|
48
|
|
|
6.3
|
Forms of Benefit
|
48
|
|
|
6.4
|
Change in Form, Timing or Medium of Benefit Payment
|
49
|
|
|
6.5
|
Direct Rollover of Eligible Rollover Distributions
|
49
|
|
|
6.6
|
In-service and Hardship Withdrawals
|
49
|
|
|
6.7
|
Loans
|
52
|
Table of Contents
(continued)
Page
ARTICLE VII
DEATH BENEFIT
|
54
|
|
|
7.1
|
Payment of Account Balance
|
54
|
|
|
7.2
|
Failure to Name a Beneficiary
|
54
|
|
|
7.3
|
Waiver of Spousal Beneficiary Rights
|
54
|
ARTICLE VIII
SPECIAL FORMS OF BENEFIT AND DEATH BENEFIT TERMS FOR CERTAIN PARTICIPANTS PRIOR TO 2002
|
55
|
|
|
8.1
|
Applicability
|
55
|
|
|
8.2
|
Forms of Benefit for Certain Transferred Participants
|
55
|
|
|
8.3
|
Change in Form, Timing or Medium of Benefit Payment for Certain Transferred Participants
|
57
|
|
|
8.4
|
Waiver of Normal Form of Benefit for Certain Transferred Participants
|
57
|
|
|
8.5
|
Payment of Account Balances of Certain Transferred Participants Who Die Before Payment Begins
|
59
|
|
|
8.6
|
Failure to Name a Beneficiary for Certain Transferred Participants
|
59
|
|
|
8.7
|
Waiver of Preretirement Survivor Annuity for Certain Transferred Participants
|
60
|
ARTICLE IX
FIDUCIARIES
|
61
|
|
|
9.1
|
Named Fiduciaries
|
61
|
|
|
9.2
|
Employment of Advisers
|
62
|
|
|
9.3
|
Multiple Fiduciary Capacities
|
62
|
|
|
9.4
|
Payment of Expenses
|
62
|
|
|
9.5
|
Indemnification
|
62
|
ARTICLE X
PLAN ADMINISTRATION
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62
|
|
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10.1
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Powers, Duties and Responsibilities of the Administrator and the Committee
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62
|
|
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10.2
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Investment Powers, Duties and Responsibilities of the Administrator and the Committee
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63
|
|
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10.3
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Investment of Accounts
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63
|
|
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10.4
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Valuation of Accounts
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64
|
|
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10.5
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The Insurance Company
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64
|
|
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10.6
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Compensation
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64
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Table of Contents
(continued)
Page
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10.7
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Delegation of Responsibility
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65
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|
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10.8
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Committee Members
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65
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ARTICLE XI
APPOINTMENT OF TRUSTEE
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65
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ARTICLE XII
PLAN AMENDMENT OR TERMINATION
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65
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|
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12.1
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Plan Amendment or Termination
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65
|
|
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12.2
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Limitations on Plan Amendment
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66
|
|
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12.3
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Right to Terminate Plan or Discontinue Contributions
|
66
|
|
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12.4
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Bankruptcy
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66
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
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66
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|
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13.1
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Subsequent Changes
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66
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|
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13.2
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Merger or Transfer of Assets
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67
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|
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13.3
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Benefits Not Assignable
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67
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|
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13.4
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Exclusive Benefit of Participants
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67
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|
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13.5
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Benefits Payable to Minors, Incompetents and Others
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68
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|
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13.6
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Plan Not A Contract of Employment
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68
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|
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13.7
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Source of Benefits
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68
|
|
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13.8
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Proof of Age and Marriage
|
68
|
|
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13.9
|
Controlling Law
|
69
|
|
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13.10
|
Income Tax Withholding
|
69
|
|
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13.11
|
Claims Procedure
|
69
|
|
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13.12
|
Participation in the Plan by An Affiliate
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72
|
|
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13.13
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Action by Participating Employers
|
73
|
|
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13.14
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Dividends
|
73
|
ARTICLE XIV
TOP HEAVY PROVISIONS
|
73
|
|
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14.1
|
Top Heavy Definitions
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73
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|
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14.2
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Determination of Top Heavy Status
|
76
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|
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14.3
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Minimum Allocation for Top Heavy Plan
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76
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INTRODUCTION
WHEREAS, the JOHN BEAN TECHNOLOGIES Corporation Savings and Investment Plan (“Plan”) was established effective as of June 1, 2008, in connection with a spin-off of assets and liabilities from the FMC Technologies, Inc. Savings and Investment Plan (“FMCTI Plan”), which spin-off complied with the requirements of Code Section 414(l); and
WHEREAS, the FMCTI Plan was established effective as of September 28, 2001, in connection with a spin-off of assets and liabilities from the FMC Corporation Savings and Investment Plan and the FMC Corporation Savings and Investment Plan for Bargaining Unit Employees (“FMCTI Plans”); and
WHEREAS, the Company or its delegate may amend the Plan to meet applicable rules and regulations of the Internal Revenue Service and the United States Department of Labor, or, subject to the terms of any applicable collective bargaining agreements, for other reasons the Company or its delegate deems necessary or desirable; and
WHEREAS, the Plan is intended to be qualified under Code Section 401(a) and its associated trust is intended to be tax exempt under Code Section 501(a) and the Plan is intended also to meet the requirements of ERISA, and will be interpreted, wherever possible, to comply with the terms of the Code and ERISA; and
WHEREAS, the Company desires to amend and restate the Plan, effective January 1, 2012, and submit the Plan to the Internal Revenue Service for the issuance of a favorable determination letter.
NOW, THEREFORE, effective January 1, 2012, the Company hereby amends and restates the Plan to provide as follows:
ARTICLE I
Definitions
For purposes of the Plan, the following terms have the meanings described below.
Account
means any Pre-Tax Contribution Account, Roth Elective Contribution Account (effective January 1, 2011), After-Tax Contribution Account, Company Contribution Account, Company Safe Harbor Nonelective Contribution Account (effective January 1, 2010), Contingent Account and Rollover Contribution Account established on behalf of a Participant.
Account Balance
means the value of the Account maintained on behalf of a Participant, determined as of any Valuation Date.
Administrator
means the Company. The Plan is administered by the Company through the Committee. The Administrator and the Committee have the responsibilities specified in Article X.
Affiliate
means any corporation, partnership, or other entity that is:
(a) a member of a controlled group of corporations of which the Company is a member (as described in Code Section 414(b));
(b) a member of any trade or business under common control with the Company (as described in Code Section 414(c));
(c) a member of an affiliated service group that includes the Company (as described in Code Section 414(m));
(d) an entity required to be aggregated with the Company pursuant to regulations promulgated under Code Section 414(o); or
(e) a leasing organization that provides Leased Employees to the Company or an Affiliate (as determined under paragraphs (a) through (d) above), unless: (i) the Leased Employees make up no more than 20% of the nonhighly compensated workforce of the Company and Affiliates (as determined under paragraphs (a) through (d) above); and (ii) the Leased Employees are covered by a plan described in Code Section 414(n)(5).
“Leasing organization” has the meaning ascribed to it in the definition of “Leased Employee” below.
For purposes of Section 3.7, the 80% thresholds of Code Sections 414(b) and (c) are deemed to be “more than 50%,” rather than “at least 80%.”
After-Tax Contribution
means the amount a Participant contributes in accordance with Section 3.2. A Matched Participant’s After-Tax Contribution may be made up of Basic Contributions, Supplemental Contributions or both.
After-Tax Contribution
Account
means the Account established for a Participant pursuant to Section 3.6.2.
After-Tax Contribution Election
means a Participant’s election to make After-Tax Contributions in accordance with Section 3.3.1.
Annuity Starting Date
means the first day of the first period for which an amount is paid in an annuity or other form of benefit. In the case of a lump sum distribution, the Annuity Starting Date is the date payment is actually made.
Basic Contributions
means a Matched Participant’s Pre-Tax Contributions, Roth Elective Contributions (effective January 1, 2011) and After-Tax Contributions not in excess of five percent of his or her annualized Compensation.
Beneficiary
means any person designated or deemed designated by a Participant to receive any payment of Plan benefits due after the Participant’s death. A married Participant may name a primary Beneficiary other than his or her Surviving Spouse only if the Surviving Spouse consents to the election in the time frame and manner required by Section 7.3.
Board
means the board of directors of the Company
Break in Service
means a Period of Separation that lasts for at least 12 consecutive months, provided that, a Period of Separation beginning on the first date of a maternity or paternity leave of absence and ending on the 12-month anniversary of such date will not constitute a Break in Service. For purposes of this section, a “maternity or paternity leave of absence” means an absence from work for any period by reason of (a) the Employee’s pregnancy, (b) birth of the Employee’s child or (c) care of a child for a period immediately following the birth or placement with the Employee.
Catch-Up Contribution
means, effective July 1, 2002, a Pre-Tax Contribution or, effective January 1, 2011, a Roth Elective Contribution made by a Participant who has attained or will attain age fifty (50) before the close of the Plan Year, subject to the limitations of Code Section 414(v). A Roth Elective Contribution may only be characterized as a Catch-Up Contribution on a Plan Year basis.
Code
means the Internal Revenue Code of 1986, as amended from time to time. Reference to a specific provision of the Code includes that provision, any successor to it and any valid regulation promulgated under the provision or successor provision.
Committee
means the JBT Corporation Employee Welfare Benefits Plan Committee as described in Section 10.8, its authorized delegate and any successor to the JBT Corporation Employee Welfare Benefits Plan Committee.
Company
means JOHN BEAN TECHNOLOGIES Corporation and any successor to it. Prior to June 1, 2008, Company meant FMC Technologies, Inc.
Company Safe Harbor Nonelective Contributions
means, effective January 1, 2010, the contributions made by the Participating Employer to eligible Participants under Section 3.4A of the Plan.
Company Safe Harbor Nonelective Contribution Account
means, effective January 1, 2010, the account maintained as to each eligible Participant, to which Company Safe Harbor Nonelective Contributions are made for each eligible Participant, and to which all earnings and losses attributable thereto it, are allocated.
Company Contributions
means the contributions made by the Participating Employer to Matched Participants under Section 3.4.
Company Contribution Account
means an account maintained as to each Matched Participant, to which the Matched Participant’s share of Company contributions, FMCTI contributions made under the FMCTI Plan, FMC contributions made under the FMC Matched Plan for periods after March 31, 1982, and all earnings and losses attributable thereto it, are allocated.
Company Stock
means the common stock of the Company.
Company Stock Fund
means an Investment Fund established and maintained by the Trustee as part of the Trust Fund to invest in Company Stock. All Plan contributions placed in or directed to the Company Stock Fund and all dividends, other earnings and appreciation on those contributions must be invested in Company Stock, except as and to the extent it is deemed necessary or advisable to maintain cash and cash equivalents to meet the Company Stock Fund’s liquidity needs. The Company Stock Fund is subject to investment restrictions as detailed in Section 10.3.
Compensation
means the total compensation paid by the Company or a Participating Employer to an Eligible Employee for each Plan Year that is currently includible in gross income for federal income tax purposes:
|
(a)
|
including: overtime, administrative and discretionary bonuses (including completion bonuses, gainsharing bonuses and performance related bonuses); sales incentive bonuses; field premiums; back pay and sick pay; plus the Employee’s Pre-Tax Contributions, Roth Elective Contributions (effective January 1, 2011) and amounts contributed to a plan described in Code Section 125 or 132; and the incentive compensation (effective prior to January 1, 2007, 9/12 of the incentive compensation) (including management incentive bonuses paid in both cash and restricted stock and local incentive bonuses) paid during the Plan Year for services rendered in the preceding Plan Year, and the incentive compensation (effective prior to January 1, 2007, 3/12 of the incentive compensation) (of the same types) paid during the preceding Plan Year for services rendered in the Plan Year preceding the preceding Plan Year (unless, the Participant elects all such incentive compensation paid for prior Plan Years to be included in Compensation for the prior Plan Years, or unless the Participant elects that no such incentive compensation will be included in his or her Compensation); and
|
|
(b)
|
but excluding: hiring bonuses; referral bonuses; stay bonuses; retention bonuses; awards (including safety awards, “Gutbuster” awards and other similar awards); amounts received as deferred compensation; disability payments from insurance or the Company’s long-term disability plan; workers’ compensation benefits; state disability benefits; flexible credits (i.e., wellness awards and payments for opting out of benefit coverage); expatriate premiums; grievance or settlement pay; pay in lieu of notice; severance pay; incentives for reduction in force accrued (but not earned) vacation; other special payments such as reimbursements, relocation or moving expense allowances; stock options or other stock-based compensation (except as provided above); any gross-up paid by a Participating Employer on any amount paid that is Compensation (as defined herein); other distributions that receive special tax benefits; any amounts paid by a Participating Employer to cover an Employee’s FICA tax obligation as to amounts deferred or accrued under any nonqualified retirement plan of a Participating Employer; and any gross-up paid by a Participating Employer on any amount paid that is not Compensation (as defined herein).
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Notwithstanding anything herein to the contrary, no amounts paid to a Participant more than 30 days after his or her termination of employment with the Company or a Participating Employer will be considered Compensation.
The annual amount of Compensation taken into account for a Participant must not exceed $200,000 (as adjusted by Internal Revenue Service for cost-of-living increases in accordance with Code Section 401(a)(17)(B). A Participant’s Compensation will be conclusively determined according to the Company’s records.
Notwithstanding the preceding to the contrary, for purposes of determining compensation for compliance with the Code Section 415 annual addition limitation, effective for limitation years beginning on or after July 1, 2007, the determination of “415 Compensation” shall include for a given limitation year payments made by the later of 2 and ½ months after severance from employment or the end of the limitation year that includes the date of severance from employment if, absent a severance from employment, such payments would have been paid to the Participant while the Participant continued in employment with the Company or a Participating Employer and are regular compensation for services during the Participant’s regular working hours, compensation for services outside the Participant’s regular working hours (such as overtime or shift differential) commissions, bonuses, or other similar compensation.
Notwithstanding anything herein to the contrary, effective for Plan Years beginning on and after January 1, 2009, Compensation shall include differential wage payments as described in Section 2.6.7 of the Plan.
Contingent Account
means an account maintained as to each applicable Participant, to which the Participant’s share of any FMC contributions made under the FMC Matched Plan for periods before April 1, 1982, and all earnings and losses attributable to it, are maintained and allocated.
Direct Rollover
means a payment by the Plan to the Eligible Retirement Plan specified by a Distributee.
Disability
means a medically determinable physical or mental impairment that makes the Participant unable to engage in any substantial gainful activity, can be expected to result in death or be of long and indefinite duration, or has lasted or can be expected to last for a continuous period of at least 12 months. For purposes of the Plan, a Participant will be considered to have a Disability at any time only if he or she is then eligible to receive Social Security disability benefits.
Distributee
means 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 under Code Section 414(p), are Distributees as to their Plan interests.
Distribution Date
means the date FMC distributes its interest in the Company.
Effective Date
means June 1, 2008.
Eligible Employee
means an Employee of a Participating Employer, other than:
|
(b)
|
a member of a bargaining unit covered by a collective bargaining agreement that does not specifically provide for participation in the Plan by members of the bargaining unit, or that is not listed in Appendix A;
|
|
(c)
|
an Employee who is a nonresident alien of the United States; or
|
|
(d)
|
an individual working for a Participating Employer under a contract that designates him or her as an independent contractor.
|
An employee who works for a non-US Affiliate, and who would be an Eligible Employee if the non-US Affiliate were a Participating Employer, will be an Eligible Employee during the period in which the employee has U.S. taxable income, and the Company will be deemed to be the Employee’s employer for Plan purposes.
An individual’s status as an Eligible Employee or not will be conclusively determined by the Administrator, subject to the claims review procedure described in Section 13.11.
The bargaining units whose members are covered by the Plan, and the effective dates of that coverage, are listed in Appendix A.
Notwithstanding any provisions of the Plan to the contrary, effective September 16, 2009, an Employee who (1) is on the United States payroll of the Company or a Participating Employer which is incorporated in, and has its principal place of business in the United States and (2) is a resident of Guam and who lives in and works in Guam, shall be an Eligible Employee for all purposes under the Plan except, prior to January 1, 2011, for eligibility to make Pre-Tax Contributions under the Plan.
Notwithstanding any provision of the Plan to the contrary, any Employee who (i) (a) becomes employed or re-employed by the Company in the Airport Services business unit on or after January 1, 2011 at one of the Company’s Airport Services division locations listed in Appendix D, (b) effective on and after January 1, 2012, is employed in such business unit in a non-exempt position and (c) is not a “prevailing wage” employee or “living wage” employee; (ii) is employed by the Company in the Airport Services business unit of the Company under Prevailing or Responsible Wage conditions on or after January 1, 2011 at one of the Company’s Airport Services division locations listed in Appendix D (a “prevailing wage” employee); or (iii) is employed by the Company in the Airport Services business unit of the Company under Living Wage conditions on or after January 1, 2011 at one of the Company’s Airport Services division locations listed in Appendix D (a “living wage” employee), shall not be an Eligible Employee.
Eligible Retirement Plan
means an individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b), an annuity plan described in Code Section 403(a), a plan described in Code Section 401(a), an annuity contract described in Code Section 403(b) and an eligible plan under Code Section 457(b) that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state. The definition of Eligible Retirement Plan shall also apply in the case of an Eligible Rollover Distribution paid to a Surviving Spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p). For distributions made on or after January 1, 2008, an Eligible Retirement Plan shall also include a Roth IRA defined in Section 408(A)(b) of the Code. Effective January 1, 2009, if any portion of an Eligible Rollover Distribution is attributable to payments or distributions from a designated Roth account described in Section 402(A) of the Code, an “eligible retirement plan” with respect to such portion shall include only another designated Roth account and a Roth IRA.
Eligible Rollover Distribution
means any distribution of all or any portion of the balance to the credit of the Distributee, other than (a) a distribution that is one of a series of substantially equal periodic payments made (no less frequently than annually) for the life (or life expectancy) of the Distributee and the Distributee’s Beneficiary, or for a specified period of ten years or more; (b) the portion of a distribution that is required to be made under Code Section 401(a)(9); (c) the portion of a distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation for employer securities); provided however, a portion of the distribution shall not fail to be an Eligible Rollover Distribution merely because the portion consists of After-Tax Contributions that are not includible in gross income, but only if such portion is transferred to an individual retirement account or annuity described in Code Section 408(a) or (b), or to a qualified defined contribution plan described in Code Section 401(a) or 403(a) that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible in gross income; or (d) a “hardship distribution” within the meaning of Code Section 402(c)(4). Notwithstanding the preceding to the contrary, effective for Plan Years beginning on or after January 1, 2007, a Participant may also elect to make a direct rollover of after-tax employee contributions to a qualified plan or a 403(b) plan that agrees to separately account for such amounts. Effective January 1, 2011, a portion of a distribution shall not fail to be an Eligible Rollover Distribution merely because the portion consists of Roth Elective Contributions which are not included in gross income. However, such portion may be transferred only to another Roth elective deferral account under an applicable retirement plan described in Section 402A(e)(1) of the Code or to a Roth IRA described in Section 408A of the Code, and only to the extent the rollover is permitted under Section 402(c) of the Code.
Employee
means (a) a common law employee of the Company or an Affiliate who is paid as an employee from the payroll of the Company or an Affiliate and treated as an employee, or (b) a Leased Employee.
Employment Commencement Date
means the date on which the Employee first performs an Hour of Service.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from time to time. Reference to a specific provision of ERISA includes the provision, any successor provision and any valid regulation promulgated under the provision or successor provision.
FMC
means FMC Corporation, a Delaware corporation.
FMC Matched Plan
means the FMC Corporation Savings and Investment Plan.
FMC Plans
means the FMC Corporation Savings and Investment Plan and the FMC Corporation Savings and Investment Plan for Bargaining Unit Employees.
FMC Stock
means the common stock of FMC.
FMC Stock Fund
means an Investment Fund established and maintained by the Trustee as part of the Trust Fund to invest in FMC Stock. All Plan Contributions placed in or directed to the FMC Stock Fund and all dividends, other earnings and appreciation on those contributions must be invested only in FMC Stock, except as and to the extent it is deemed necessary or advisable to maintain cash and cash equivalents to meet the FMC Stock Fund’s liquidity needs. The FMC Stock Fund is subject to investment restrictions as detailed in Section 10.3. Notwithstanding anything herein to the contrary, any dividend payable on FMC Stock as a result of FMC’s distribution of its interest in the Company shall not be required to be reinvested in FMC Stock.
FMC Unmatched Plan
means the FMC Corporation Savings and Investment Plan for Bargaining Unit Employees.
FMCTI
means FMC Technologies, Inc.
FMCTI Plan
means the FMC Technologies, Inc. Savings and Investment Plan.
Forfeiture
means any portion of a Matched Participant’s Company Contribution Account that is forfeited under Section 4.3.
Funding Agent
means the Trustee or any legal reserve life insurance company selected by the Administrator or the Committee to receive Plan contributions and pay Plan benefits.
Highly Compensated Employee
means an Employee who:
|
(a)
|
at any time during the Determination Year or the Look-Back Years owns (or is considered under Code Section 318 to own) more than five percent of the Company or an Affiliate; or
|
|
(b)
|
had more than $80,000, as adjusted, in compensation (as defined in Code Section 415(c)(3)) from the Company and the Affiliates during the Look-Back Year.
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The “Determination Year” is the Plan Year for which the determination of who is a Highly Compensated Employee is being made, and the ‘Look-Back year’ is the 12-month period immediately preceding the Determination Year.
A former Employee of the Company or an Affiliate is a Highly Compensated Employee for a given Determination Year if he or she separated from service (or was deemed to have separated) before the Determination Year, performs no services for a Participating Employer during the Determination Year, and was a Highly Compensated Employee for the Plan Year during which he or she separated from service (or was deemed to have separated) or for any Determination Year ending on or after his or her 55th birthday.
The Secretary of the Treasury or its delegate will adjust the $80,000 limit from time to time, to reflect increases in the cost of living. Employees who are nonresident aliens and receive no earned income (within the meaning of Code Section 911(d)(2)) from the Company and its Affiliates that constitutes income from sources within the United States (within the meaning of Code Section 861(a)(3)) are not treated as Employees for purposes of this definition.
Hour of Service
means each hour for which an Employee is directly or indirectly paid or entitled to payment by the Company or an Affiliate:
|
(a)
|
for the performance of duties;
|
|
(b)
|
on account of a period of time during which no duties were performed, provided that Hours of Service will not be credited for payments made or due under a plan maintained solely for the purpose of complying with applicable workers’ compensation, unemployment compensation, or disability insurance laws, or for payments that reimburse an Employee’s for medically related expenses; and
|
|
(c)
|
for which back pay, irrespective of mitigation of damages, is awarded or agreed to by the Company, provided that, the same Hours of Service have not already been credited under (a) or (b) above.
|
No more than 501 Hours of Service will be credited for any single continuous period of time during which the Employee performed no duties. The determination of Hours of Service for reasons other than the performance of duties shall be determined in accordance with the provisions of Labor Department Regulations Section 2530.200b-2(b), which are incorporated herein by reference, and Hours of Service shall be credited to computation periods in accordance with the provisions of Labor Department Regulations Section 2530.200b-2(c), which are incorporated herein by reference.
Investment Fund
means an investment fund, if any, established or selected by the Administrator pursuant to Section 10.3.
Leased Employee
means an individual who performs services for the Company or an Affiliate on a substantially full-time basis, for a period of at least one year, under the primary direction or control of the Company or Affiliate, and under an agreement between the Company or Affiliate and a leasing organization. The leasing organization can be a third party or the Leased Employee himself or herself.
Matched Participant
means a Participant who is eligible to receive Company Contributions under Section 3.4, including, each (a) salaried Participant, (b) non-union hourly Participant and (c) Participant who is a member of a bargaining unit covered by a collective bargaining agreement that specifically provides for a Company Contribution under the Plan to the eligible members of the bargaining unit. The bargaining units whose members are eligible for a Company Contribution under Section 3.4, and the effective dates of eligibility for such contribution, are listed on Appendix B.
Nonhighly Compensated Employee
means an Employee who is not a Highly Compensated Employee.
Participant
means an Eligible Employee who has begun but not ended his or her participation in the Plan pursuant to the provisions of Article II.
Participating Employer
means the Company and each other Affiliate that adopts the Plan with the consent of the Company, as provided in Section 13.12.
Period of Separation
means a continuous period of time when the Employee is not employed by the Company or an Affiliate. A Period of Separation begins on the date an Employee retires, dies, separates from service due to Disability, quits or is discharged, or, if earlier, on the 12-month anniversary of the date the Employee was otherwise first absent from service. Notwithstanding the foregoing, a Period of Separation does not begin if the Employee is:
|
(a)
|
on a leave of absence authorized by the Company or an Affiliate in accordance with standard personnel policies applied in a nondiscriminatory manner to all similarly situated Employees, and returns to active employment with the Company or Affiliates as soon as the leave expires;
|
|
(b)
|
on a military leave while the Employee’s reemployment rights are protected by law, and returns to active employment with the Company or Affiliate within 90 days after his or her discharge or release (or such longer period as may be prescribed by law); or
|
|
(c)
|
on a layoff, and returns to work with the Company or an Affiliate within the period of time and in the manner necessary to maintain seniority according to the rules of the Company or Affiliate in effect at the time of the return.
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Plan
means the JOHN BEAN TECHNOLOGIES Corporation Savings and Investment Plan. The Plan is a single employer plan.
Plan Year
means the 12-month period beginning on each January 1 and ending on the next December 31. The period from the Effective Date through December 31, 2008 is a short Plan Year.
Pre-Tax Contribution
means the amount that otherwise would have been paid as Compensation that is, before taxes, converted to a Participating Employer contribution in accordance with Section 3.1. A Matched Participant’s Pre-Tax Contribution may be made up of Basic Contributions, Supplemental Contributions or both.
Pre-Tax Contribution Account
means the Account established for a Participant pursuant to Section 3.6.1.
Pre-Tax Contribution Election
means the Participant’s election to make Pre-Tax Contributions in accordance with Section 3.3.1.
Required Beginning Date
is defined in Section 5.2.3.
Rollover Contribution
means an amount received from a deferred compensation plan that is qualified under Code Section 401 or 403(a), and which is rolled over to the Plan pursuant to Code Section 402(c). A Rollover Contribution can be either a Direct Rollover or an amount distributed to a Participant and then rolled over. In addition, if an Employee had deposited an Eligible Rollover Distribution into an individual retirement account as defined in Code Section 408, he or she may transfer the amount of the distribution plus earnings from the individual retirement account to the Plan, if the rollover amount is deposited with the Trustee within 60 days after receipt from the individual retirement account, and the rollover meets the other requirements of Code Section 408(d)(3)(A)(ii). A Rollover Contribution also means an amount received from a qualified plan described in Code Section 401(a) or 403(a) attributable to after-tax contributions; from an annuity contract described in Code Section 403(b), including after-tax contributions; or an eligible plan under Code Section 457(b) that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state. To the extent a Rollover Contribution includes after-tax contributions, such amounts shall be credited to an After-Tax Contribution Account created for such individual in accordance with Section 3.6.2. Effective January 1, 2011, the Plan will accept a Direct Rollover to a Roth Elective Contribution Account only if it is a Direct Rollover from another Roth elective deferral account under an applicable retirement plan described in Section 402(A)(e)(1) of the Code and only to the extent the rollover is permitted under Section 402(c) of the Code.
Rollover Contribution Account
means the Account established for a Participant pursuant to Section 3.6.3.
Roth Elective Contribution
means, effective January 1, 2011, an elective deferral that is (a) designated irrevocably by the Participant at the time of the cash or deferred election as a Roth Elective Contribution that is being made in lieu of all or a portion of the Pre-Tax Contributions the Participant is otherwise eligible to make under Section 3.1 of the Plan; (b) treated by the Participating Employer as not excludible from the Participant’s gross income; and (c) maintained by the Plan in the Participant’s Roth Elective Contribution Account.
A Roth Elective Contribution is generally treated as not excludible from gross income if it is treated as includible in gross income by the Participating Employer. If an elective contribution would not have been includible in gross income if the amount had been paid directly to the Participant (rather than being subject to a cash or deferral election), the elective contribution may be designated as a Roth Elective Contribution.
Contributions and withdrawals of Roth Elective Contributions must be credited and debited to the designated Roth Elective Contribution Accounts and the Plan must maintain a record of the Participant’s investment in the contract (i.e., Roth Elective Contributions that have not been distributed) with respect to the designated Roth Elective Contribution Accounts. In addition, all gains, losses and other credits or charges must be separately allocated on a reasonable and consistent basis to the designated Roth Elective Contribution Accounts and other accounts under the Plan. However, Forfeitures may not be allocated to the designated Roth Elective Contribution Accounts and no contributions other than Roth Elective Contributions and rollover contributions described in Section 402A(c)(3)(B) of the Code may be allocated to such accounts. The separate Roth Elective Contribution Account requirement applies at the time the Roth Elective Contribution is contributed to the Plan and must continue to apply until the designated Roth Elective Contribution Account is completely distributed.
Roth Elective Contributions made pursuant to Section 414(u) of the Code by reason of a Participant’s “qualified military service” are not taken into account when applying the ADP test.
Roth Elective Contribution Account
means, effective January 1, 2011, the Account established for a Participant pursuant to Section 3.6.5.
Roth Elective Contribution Election
means, effective January 1, 2011, the Participant’s election to make Roth Elective Contributions in accordance with Section 3.3.1.
Safe Harbor 401(k) Plan
means, effective January 1, 2010, the period during which the Plan satisfies the safe harbor provisions of Section 401(k) and 401(m) and related Treasury regulations and other guidance promulgated by the Internal Revenue Service for purposes of meeting the actual deferral percentage and actual contribution percentage tests.
Safe Harbor Notice
means, effective January 1, 2010, a notice of eligible Participants’ rights and obligations under the Plan, with respect to the Plan’s Safe Harbor 401(k) Plan status, which notice is written in a manner calculated to be understood by the average eligible Participant and which satisfies the requirements Treasury regulations 1.401(k)-3(d).
Supplemental Contributions
means a Matched Participant’s Pre-Tax Contributions, Roth Elective Contributions (effective January 1, 2011) and After-Tax Contributions in excess of five percent of his or her annualized Compensation.
Surviving Spouse
means the person legally married to a Participant on the date of his or her death or on his or her Annuity Starting Date, whichever is earlier.
Trust
means the trust established under the Plan, to which Plan contributions are made and in which Plan assets are held.
Trust Fund
means the assets of the Trust held by or in the name of the Trustee.
Trustee
means the institution appointed as Trustee pursuant to Article XI of the Plan, and any successor Trustee.
Valuation Date
means each business day of the Plan Year.
Year of Service
means the total number of calendar months during which the Employee is employed by the Company or an Affiliate, divided by 12, including any Period of Separation that does not constitute a Break in Service. A partial month of employment counts as a whole month. An Employee’s Years of Service do not include any Breaks in Service.
ARTICLE II
Participation
2.1
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Admission as a Participant
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(a)
|
An Employee becomes a Participant as of the date he or she satisfies all of the following requirements:
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(b)
|
the Employee is an Eligible Employee;
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(c)
|
the Employee either (i) is a permanent, full-time Employee, (ii) is a permanent, part-time employee eligible for benefits, or (iii) has completed at least 1,000 Hours of Service in a 12-month period beginning on his or her Employment Commencement Date or an anniversary of his or her Employment Commencement Date;
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(d)
|
the Employee has filed with the Administrator a Pre-Tax Contribution Election, Roth Elective Contribution Election (effective January 1, 2011) or After-Tax Contribution Election; and
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(e)
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the Employee’s election has become effective according to uniform and nondiscriminatory rules established by the Administrator.
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2.2
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Admission as a Matched Participant
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A Participant becomes a Matched Participant as of the date he or she satisfies all of the following requirements:
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(a)
|
the Participant satisfies one of the conditions for being a Matched Participant;
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(b)
|
the Participant has filed with the Administrator a Pre-Tax Contribution Election, Roth Elective Contribution Election (effective January 1, 2011) or After-Tax Contribution Election; and
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(c)
|
the Participant’s election has become effective according to uniform and nondiscriminatory rules established by the Administrator.
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A Participant or Eligible Employee who is rehired as an Eligible Employee after a Period of Separation becomes an active Participant by filing with the Administrator a Pre-Tax Contribution Election, Roth Elective Contribution Election (effective January 1, 2011) or After-Tax Contribution Election. When the Employee’s election becomes effective, the Participant or Eligible Employee will again become an active Participant. If such a Participant satisfies one of the conditions for being a Matched Participant, the Participant becomes an active Matched Participant by filing with the Administrator a Pre-Tax Contribution Election, Roth Elective Contribution Election (effective January 1, 2011) or After-Tax Contribution Election. When the Pre-Tax Contribution Election, Roth Elective Contribution Election (effective January 1, 2011) or After-Tax Contribution Election becomes effective, the Matched Participant will become an active Matched Participant.
2.4
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Provision of Information
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The Administrator may provide for paper, telephonic or electronic means of enrollment. Each Participant must execute the forms or follow the telephonic or electronic procedures required by the Administrator and make available to the Administrator any information it reasonably requests. As a condition of participating in the Plan, an Employee agrees, on his or her own behalf and on behalf of all persons who may have or claim any right by reason of the Employee’s participation in the Plan, to be bound by all provisions of the Plan and by any agreement entered into pursuant to the Plan, each as interpreted by the Administrator in its uniform and nondiscriminatory discretion.
2.5
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Termination of Participation
|
A Participant ceases to be a Participant when he or she dies or, if earlier, when his or her entire Account Balance has been paid to him or her. A Matched Participant ceases to be a Matched Participant when he or she no longer satisfies one of the conditions for being a Matched Participant.
2.6
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Special Rules Relating to Veterans’ Reemployment Rights
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The following special provisions will apply to an Eligible Employee or Participant who is reemployed in accordance with the reemployment provisions of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) following a period of qualifying military service (as determined under USERRA) and will be interpreted in a manner consistent with Code Section 414(u).
2.6.1 Each period of qualifying military service served by an Eligible Employee or Participant will, upon his or her reemployment as an Eligible Employee, be deemed to constitute service with the Participating Employer for all Plan purposes.
2.6.2 The Participant will be permitted to make up Pre-Tax, Roth Elective (effective January 1, 2011) and/or After-Tax Contributions missed during the period of qualifying military service, so long as he or she does so during the period of time beginning on the date of the Participant’s reemployment with the Participating Employer following his or her period of qualifying military service and extending over the lesser of (a) three times the length of the Participant’s period of qualifying military service, and (b) five years.
2.6.3 The Participating Employer will not credit earnings to a Participant’s Account with respect to any Pre-Tax, Roth Elective (effective January 1, 2011) or After-Tax Contribution before the contribution is actually made.
2.6.4 A reemployed Matched Participant will be entitled to accrued benefits attributable to Pre-Tax, Roth Elective (effective January 1, 2011) or After-Tax Contributions only if they are actually made.
2.6.5 For all Plan purposes, including the Participating Employer’s liability for making contributions on behalf of a reemployed Participant as described above, the Participant will be treated as having received Compensation from the Participating Employer based on the rate of Compensation the Participant would have received during the period of qualifying military service, or if that rate is not reasonably certain, on the basis of the Participant’s average rate of Compensation during the 12-month period immediately preceding the period of qualifying military service.
2.6.6 If a Participant makes a Pre-Tax, Roth Elective (effective January 1, 2011) or After-Tax Contribution in accordance with the foregoing provisions of this Section 2.6:
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(a)
|
those contributions will not be subject to any otherwise applicable limitation under Code Section 402(g), 404(a) or 415, and will not be taken into account in applying those limitations to other contributions under the Plan or any other plan, for the year in which the contributions are made; the contributions will be subject to the above-referenced limitations only for the year to which the contributions relate and only in accordance with regulations prescribed by the Internal Revenue Service; and
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(b)
|
the Plan will not be treated as failing to meet the requirements of Code Section 401(a)(4), 401(a)(26), 401(k)(3), 410(b) or 416 by reason of the contributions.
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2.6.7. Effective January 1, 2009, an individual receiving a differential wage payment, as defined by Section 3401(h)(2) of the Code, is treated as an Employee of the Participating Employer making the payment and the differential wage payment is treated as Compensation under the Plan.
The Plan is not treated as failing to meet the requirements of any provision described in Section 414(u)(1)(C) of the Code due to any contribution or benefit which is based on the differential wage payment provided that all Employees of the Participating Employer are entitled to receive differential wage payments, and to make contributions based on such payments, on reasonably equivalent terms.
2.6.8. Effective January 1, 2009, for purposes of Section 401(k)(2)(B)(i)(I) of the Code, an individual is treated as having been severed from employment during any period in which the individual is performing service in the uniformed services, as described in Section 3401(h)(2)(A) of the Code. If an individual elects to receive a distribution by reason of severance from employment pursuant to this Section 2.6.8, the individual may not make a Pre-Tax Contribution, a Roth Elective Contribution (effective January 1, 2011) or an After-Tax Contribution during the 6-month period beginning on the date of the distribution.
2.6.9. In the case of a death occurring on or after January 1, 2007, if a Participant dies while performing qualified military service (as defined in Section 414(u) of the Code), the survivors of the Participant are entitled to any additional benefits (other than benefit accruals relating to the period of qualified military service) provided under the Plan as if the Participant had resumed and then terminated employment on account of death.
Effective on and after January 1, 2011, with respect to a Participant who ceases to be an Eligible Employee under the Plan due to either (i) a change in the Plan’s eligibility rules or (ii) a transfer of employment to one of the Company’s Airport Services business unit locations listed in Appendix D from another division of the Company or from an Affiliate of the Company and, as a result of such change in eligibility rules or transfer of employment, the Participant becomes a participant in the JBT Airport Services Savings and Investment Plan, the Trustee of the Plan shall “transfer” as a “non-elective” transfer the entire Account (including any outstanding loans) of such Participant to the JBT Airport Services Savings and Investment Plan.
Effective on and after January 1, 2011, with respect to a participant in the JBT Airport Services Savings and Investment Plan who ceases to be an eligible employee under the JBT Airport Services Savings and Investment Plan due to either (i) a change in the eligibility rules under the JBT Airport Services Savings and Investment Plan or (ii) a transfer of employment to (1) a Participating Employer (other than the Company) under the Plan or (2) a division location of the Company other than an Airport Services division location, from one of the Airport Services division locations of the Company listed in Appendix D and, as a result of such change in eligibility rules or transfer, the participant becomes a Participant in the Plan, the Trustee of the Plan shall accept a “non-elective transfer” of the entire account (including any outstanding loans) of such Participant from the JBT Airport Services Savings and Investment Plan.
(c)
Rules Governing Transfers
.
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(i)
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The Trustee of the Plan may not consent to, or be a party to, any transfer of assets or liabilities to the JBT Airport Services Savings and Investment Plan (or from such plan to this Plan) unless immediately after the transfer, the accepting plan provides each participant a benefit equal to or greater in amount than the benefit each participant would have received had the transferring plan terminated immediately prior to the transfer; provided 100% immediate vesting is not required and shall not occur as the result of the transfer.
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(ii)
|
The Trustee of the Plan will hold, administer and distribute the transferred assets as part of the Trust Fund and shall maintain accounts sufficient to reflect the value of the transfer and to preserve protected benefits arising from the transferor plan pursuant to Code Section 411(d)(6) and related Department of Treasury regulations.
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(d)
Definitions
.
A “transfer” for purposes of the Plan means the Trustee’s movement of assets from one plan to another plan directly as between the trustees of such plans and not as a distribution. A “non-elective” transfer for purposes of the Plan is a “transfer” without the consent or election of the affected Participant.
ARTICLE III
Contributions and Account Allocations
3.1
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Pre-Tax Contributions and Roth Elective Contributions
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The Company will transmit to the Funding Agent the Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) for the Participants. To determine the amount it must transmit for each Participant, the Company will multiply the percentage elected by the Participant in his or her Pre-Tax Contribution Election or his Roth Elective Contribution (effective January 1, 2011) by the Participant’s Compensation.
3.1.1 Effective as of July 1, 2002, and for each Plan Year commencing thereafter, all Participants who have attained or will attain age fifty (50) by the close of the taxable year shall be eligible to make Catch-Up Contributions during the Plan Year in accordance with, and subject to the limitations of Code Section 414(v) as follows:
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(a)
|
The Plan shall not be treated as failing to satisfy the requirements of Code Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b) or 416, as applicable, by reason of the making of such Catch-Up Contributions. Catch-Up Contributions shall be disregarded in determining the limitations on Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) as provided in Section 3.9.
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|
(b)
|
Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) (other than Catch-Up Contributions) determined to be Excess Pre-Tax Contributions and/or Excess Roth Elective Contributions (effective January 1, 2011) as provided in Section 3.9.9, or determined to be in excess of the required limitations of Code Section 415 in a Plan Year may be recharacterized as a Catch-Up Contribution (to the extent available under the limitations of Code Section 414(v) as in effect for that Plan Year) for a Participant who is eligible to make Catch-Up Contributions, as described in the first paragraph of this Section 3.1.1.
|
|
(c)
|
Catch-Up Contributions shall not be eligible for Company Contributions made on behalf of a Matched Participant pursuant to Section 3.4.
|
|
(d)
|
Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) determined to be Excess Contributions as provided in Section 3.9.8 may be recharacterized as Catch-Up Contributions for a Participant who is eligible, as described in the first paragraph of this Section 3.1.1, but
|
|
(i)
|
only after the application of Sections 3.12.7 and 3.13.7 regarding the recharacterization of Excess Contributions as After-Tax Contributions, to the extent available, and
|
|
(ii)
|
only to the extent a Catch-Up Contribution amount is available under the limitations of Code Section 414(v) as in effect for that Plan Year.
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3.2
|
After-Tax Contributions
|
The Company will transmit to the Funding Agent the After-Tax Contributions for the Participants. To determine the amount it must transmit for each Participant, the Company will multiply the percentage elected by the Participant in his or her After-Tax Contribution Election by the Participant’s Compensation.
3.3
|
Rules Applicable to Both Pre-Tax, Roth Elective and After-Tax Contributions
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3.3.1 In making his or her Pre-Tax Contribution Election, Roth Elective Contribution Election (effective January 1, 2011) and After-Tax Contribution Election, a Participant may choose to defer or contribute between 0% and 20% of his or her Compensation (effective April 19, 2007, between 0% and 20% or between 0% and 75% if the Participant is a Nonhighly Compensated Employee), in 1% increments. The Participant’s Pre-Tax Contribution Election, Roth Elective Contribution Election (effective January 1, 2011) and After-Tax Contribution Election cannot together total more than 20% of his or her Compensation (effective April 19, 2007, 75% in the case of a Nonhighly Compensated Employee). For certain Participants listed on Appendix C for periods beginning on the Effective Date through December 31, 2001, the minimum deferral or contribution election may be less than 2% under the Participants’ prior election under the FMC Plans. The Administrator may reduce the amount of any Pre-Tax Contribution Election, Roth Elective Contribution Election (effective January 1, 2011) or make such other modifications it deems necessary, so that the Plan complies with the provisions of Code Section 401(k). Pre-Tax, Roth Elective (effective January 1, 2011) and After-Tax Contributions will be made on a payroll deduction basis and in accordance with uniform and nondiscriminatory rules and procedures established by the Administrator. A Participant’s Salary Deferral Election will apply only to Compensation paid to the Participant while he or she is an Eligible Employee.
3.3.2 A Participant may change his or her Pre-Tax, Roth Elective (effective January 1, 2011) or After-Tax Contribution Election percentage or discontinue making Pre-Tax Contributions, Roth Elective Contributions (effective January 1, 2011) or After-Tax Contributions, as frequently as permitted by the Administrator, by completing the form or following any other election change procedure prescribed by the Administrator. An election change will become effective according to the uniform and nondiscriminatory rules established by the Administrator.
3.3.3 Pre-Tax, Roth Elective (effective January 1, 2011) and After-Tax Contributions will be delivered to the Funding Agent as of the earliest date they are known and can reasonably be segregated from the general assets of the Participating Employer. In no event will that date be later than the 15th business day of the month following the month they would have been paid to the Participant if he or she had not chosen to defer their payment or contribute them to the Plan.
3.3.4 Notwithstanding any other provision of the Plan, the amount contributed by the Participating Employers as Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) and by Participants as After-Tax Contributions must not exceed, in the aggregate, 15% of the total Compensation for the Plan Year for those Participants employed by the Participating Employers eligible for an allocation for that Plan Year. In addition, the amount contributed by the Participating Employers to this Plan or any other qualified plan maintained by the Participating Employers pursuant to a Participant’s Pre-Tax Contribution Election and Roth Elective Contribution Election (effective January 1, 2011) must not exceed the Code Section 402(g) limit applicable for that calendar year.
3.3.5 Effective October 1, 2006, a Participant shall direct the investment of his or her Pre-Tax, Roth Elective (effective January 1, 2011) and After-Tax Contributions into any of the Investment Funds selected by the Administrator pursuant to Section 10.3, in accordance with the procedures established by the Administrator.
3.3.6 Notwithstanding anything in this Section 3.3 to the contrary, effective for Plan Years beginning on or after January 1, 2010, a non-union Participant shall have at least 30 days after receipt of the Safe Harbor Notice in which to make or change a salary deferral election.
3.4
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Company Contributions
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3.4.1 For each contribution period, as defined in Section 3.4.2, the Company will make a Company Contribution to the Company Contribution Account of each Matched Participant equal to:
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(a)
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the applicable percentage of all Basic Contributions made by the Matched Participant for that contribution period and initially invested in the Company Stock Fund, or, for periods beginning before the Distribution Date, the FMC Stock Fund; plus
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(b)
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the applicable percentage of all Basic Contributions made by the Matched Participant for that contribution period and initially invested in any Investment Funds other than the Company Stock Fund, or, for periods beginning before the Distribution Date, the FMC Stock Fund; less
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(c)
|
any Forfeitures credited against the Company Contribution for that contribution period.
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No Company Contribution will be made with respect to Supplemental Contributions.
The applicable percentage for a Plan Year will be determined by the Company before the start of the Plan Year. It is currently anticipated that the applicable percentage will be different for Basic Contributions initially invested in the Company Stock Fund, or, for periods beginning before the Distribution Date, the FMC Stock Fund, than for Basic Contributions initially invested in other Investment Funds. The Company will communicate the applicable percentages for each Plan Year as soon as possible after they are determined.
Notwithstanding the above to the contrary, effective January 1, 2004, for each contribution period, as defined in Section 3.4.2, the Company will make a Company Contribution to the Company Contribution Account of each Matched Participant equal to 100% of all Basic Contributions made by the Matched Participant for that contribution period, less any Forfeitures credited against the Company Contribution for that contribution period. No Company Contributions will be made with respect to Supplemental Contributions or Catch-Up Contributions. Notwithstanding the foregoing, the Company reserves the right to reduce or eliminate the Company Contribution for prospective contribution periods.
3.4.2 Effective January 1, 2004, the following shall apply: the Company Contribution for each contribution period will be paid to the Funding Agent as soon as practicable. The Company Contribution will be allocated to the Company Contribution Account for each Matched Participant who made Basic Contributions during the contribution period, by multiplying the Matched Participant’s own Basic Contributions for the contribution period by the Company Contribution percentage as described in Section 3.4.1 for the contribution period. Each calendar week will be a contribution period. Subject to the special provisions of Section 3.13, all Company Contributions for a Plan Year will be allocated to Matched Participants’ Company Contribution Accounts no later than the due date (including all extensions) of the Company’s federal tax return for the fiscal year of the Company ending with or within the Plan Year.
3.4.3 Effective January 1, 2004 through September 30, 2006, it is contemplated that all Company contributions will be invested in the Company Stock Fund, but the Company reserves the right to change the investment of Company Contributions prospectively. Effective October 1, 2006, all Company Contributions made to a Matched Participant’s Company Contribution Account as a result of the Matched Participant’s Basic Contributions shall be invested in the same manner that the Matched Participant has elected pursuant to Section 3.3.5 to invest such Basic Contributions.
3.4.4 Notwithstanding any provisions of this Section 3.4 to the contrary, effective for Plan Years commencing on or after January 1, 2009, for each Plan Year, the Company will make a Company Contribution to the Company Contribution Account for each Matched Participant equal to:
|
(a)
|
the applicable percentage for the Plan Year of all Basic Contributions and Supplemental Contributions made by the Matched Participant during the Plan Year, less
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(b)
|
the aggregate amount of Company Contributions made to the Matched Participant’s Company Contribution Account during the Plan Year pursuant to Section 3.4.1 of the Plan.
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3.4A
Company Safe Harbor Nonelective Contributions
|
(a)
|
General Requirements for Allocation:
Effective January 1, 2010, the Plan shall be maintained as a Safe Harbor 401(k) Plan. For each Plan Year for which the Company has elected to maintain that status by making Company Safe Harbor Nonelective Contributions, then, for each such Plan Year, such Company Safe Harbor Nonelective Contributions shall be allocated to the Company Safe Harbor Nonelective Contribution Account for each non-union Participant who is a Participant at any time during the Plan Year.
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(b)
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Allocation Formula:
Where the provisions of subsection (a) above apply for a Plan Year, the Company Safe Harbor Nonelective Contributions for all otherwise eligible Participants under this portion of the Plan (as determined in accordance with the applicable eligibility provisions of Article II) who have satisfied the eligibility requirements under Section 3.4A for the Plan Year, shall be equal to three percent (3%) of each such eligible Participant’s Compensation for the Plan Year. All Company Safe Harbor Nonelective Contributions for a Plan Year will be allocated to an eligible Participant’s Company Safe Harbor Nonelective Contribution Account no later than the due date (including all extensions) of the Company’s federal tax return for the fiscal year of the Company ending with or within the Plan Year.
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(c)
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Ceasing 401(k) Safe Harbor Nonelective Contribution Status:
The fact that the Company has elected that the Plan be treated as a Safe Harbor 401(k) Plan for a Plan Year shall in no way bind the Plan to continue to maintain such status for future Plan Years. Provided, however, the Plan must be amended to cease to constitute a Safe Harbor 401(k) Plan.
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3.4B
Safe Harbor 401(k) Plan Status
In order to constitute a Safe Harbor 401(k) Plan for a Plan Year, the Company must contribute the Company Safe Harbor Nonelective Contributions on behalf of all Participants eligible for such contributions under Section 3.4A and, within a reasonable period of time (meaning generally at least 30 days, but no more than 90 days, before the beginning of the Plan Year), the Company must cause to be provided to each eligible Participant, a Safe Harbor Notice. Provided however, in the event an Employee becomes eligible to participate in Section 3.4A of the Plan after the 90th day before the beginning of the Plan Year and does not receive the Safe Harbor Notice for that reason, the notice must be provided no later than 90 days before the Employee becomes eligible to participate and not later than the date the Employee becomes eligible.
3.5
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Rollover Contributions
|
With the approval of the Administrator, a Participant or Eligible Employee may make a Rollover Contribution to the Plan. A Participant’s Rollover Contribution will be allocated to his or her Rollover Contribution Account no later than the first day of the month following the month in which the contribution is made. A Rollover Contribution must be made in cash. If an Employee makes a contribution that was intended to be a Rollover Contribution and the Funding Agent later discovers it was not a Rollover Contribution, the Funding Agent will distribute the balance of the Participant’s Rollover Contribution Account to him or her as soon as practicable.
3.6
|
Establishment of Accounts
|
3.6.1 Each Participant to whom Pre-Tax Contributions are allocated will have a Pre-Tax Contribution Account. The Pre-Tax Contribution Account will be credited with the Pre-Tax Contributions allocable to the Participant and the income on those contributions, and will be debited with expenses, losses, withdrawals and distributions chargeable to those contributions.
3.6.2 Each Participant who makes After-Tax Contributions will have an After-Tax Contribution Account. The After-Tax Contribution Account will be credited with the After-Tax Contributions the Participant makes and the income on those contributions, and will be debited with expenses, losses, withdrawals and distributions chargeable to those contributions.
3.6.3 Each Matched Participant who makes Basic Contributions will have a Company Contribution Account. The Company Contribution Account will be credited with any Company Contributions made on behalf of the Matched Participant under Section 3.4, and the income on those contributions, and will be debited with expenses, losses, withdrawals and distributions chargeable to those contributions.
3.6.4 Each Participant who makes a Rollover Contribution to the Plan pursuant to Section 3.5 will have a Rollover Contribution Account. The Rollover Contribution Account will be credited with all Rollover Contributions made by the Participant and the income on those contributions, and will be debited with expenses, losses, withdrawals and distributions chargeable to those contributions.
3.6.5 Effective January 1, 2011, each Participant to whom Roth Elective Contributions are allocated will have a Roth Elective Contribution Account. The Roth Elective Contribution Account will be credited with the Roth Elective Contributions allocable to the Participant and the income on those contributions, and will be debited with expenses, losses, withdrawals and distributions chargeable to those contributions.
3.7
|
Limitation on Annual Additions to Accounts
|
|
(a)
|
For purposes of this Section 3.7, the term ‘annual additions’ includes all Pre-Tax Contributions, After-Tax Contributions, Roth Elective Contributions (effective January 1, 2011, Company Contributions, Company Safe Harbor Nonelective Contributions (effective January 1, 2010) and Forfeitures allocated to the Participant’s Accounts for the Plan Year, but shall not include Catch-Up Contributions pursuant to Code Section 414(v) (as described in Section 3.1.1), and Excess Pre-Tax Contributions and Excess Ross Elective Contributions (effective January 1, 2011) (as described in Section 3.11.4) that are distributed to the Participant by April 15th following the year for which they were contributed to the Plan.
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‘Annual Additions’ also includes any employer and employee contributions and forfeitures allocated for the Plan Year under other defined contribution plans of the Company and the Affiliates, including (i) an individual medical benefit account (as defined in Code Section 415(l)(2)) which is a part of any such plan, or (ii) amounts derived from contributions paid or accrued after December 31, 1985, in taxable years ending after such date, which are attributable to post-retirement medical benefits, allocated to the separate account of a Key Employee (as defined in Code Section 419A(d)(3)) and under a welfare benefit fund (as defined in Code Section 419(e)) maintained by the Company.
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(b)
|
Notwithstanding any provision of the Plan to the contrary, the total annual additions allocated for any Plan Year to the Account of a Participant and to his or her accounts under any other defined contribution plan maintained by the Company or an Affiliate shall not exceed the lesser amount of (a) $40,000, as adjusted in accordance with Code Section 415(d), or (b) 100% of the Participant’s Compensation, except that the compensation limitation described herein shall not apply to any employer contribution for medical benefits (within the meaning of Code Section 401(h) or 419A(f)(2)) which is otherwise treated as an ‘annual addition’ under Code Section 415(l)(1) or 419A(d)(2).
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3.8
|
Reduction of Annual Additions
|
This Section 3.8 shall apply only to limitation years commencing prior to July 1, 2007. If the annual additions allocated to a Participant’s Accounts for the Plan Year exceed the limitation described in Section 3.7, annual additions, with their earnings, will be returned to the Participant in the minimum amount necessary to meet the limitation on annual additions. Supplemental Contributions (both After-Tax Contributions and Pre-Tax Contributions, in that order) will be returned first, and if there are not enough to satisfy the limitation on annual additions, Basic Contributions (both After-Tax Contributions and Pre-Tax Contributions, in that order) will be returned. If, after all of the Participant’s Supplemental and Basic Contributions have been returned, the annual additions allocated to the Participant’s Account for the Plan Year still exceed the limitation described in Section 3.7, the excess amounts attributable to Company Contributions will be held in a suspense account containing the excess amounts attributable to Company Contributions for all Matched Participants, and will be used to reduce the Company Contributions for the following Plan Year (and later Plan Years, if necessary), before any Company Contributions that would be annual additions for the next Plan Year (or later Plan Years, if necessary) are made to the Plan.
3.9
|
Limitations on Pre-Tax Contributions, Roth Elective Contributions, After-Tax Contributions and Company Contributions – Definitions
|
For purposes of Section 3.9 through 3.15, the terms defined below have the meanings
3.9.1
Actual Contribution Percentage
means the sum of any After-Tax Contributions and Company Contributions allocated to the Eligible Participant for the Plan Year, plus any of the Eligible Participant’s Pre-Tax Contributions and/or Roth Elective Contributions (effective January 1, 2011) treated as Company Contributions for the Plan Year, divided by the Eligible Participant’s Plan Year Compensation, and stated as a percentage. All after-tax employee contributions and employer matching contributions made on behalf of a Highly Compensated Employee under all plans of the Company and its Affiliates will be aggregated to determine the Highly Compensated Employee’s Actual Contribution Percentage. A Company Contribution that is treated as a Pre-Tax Contribution under Section 3.13.7 is subject to Section 3.13 and is not taken into account in calculating an Eligible Participant’s Actual Contribution Percentage. A Company Contribution that is forfeited to correct Excess Aggregate Contributions, or because the contribution to which it relates is treated as an Excess Contribution, Excess Pre-Tax Contribution, Excess Roth Elective Contribution (effective January 1, 2011) or Excess Aggregate Contribution is not taken into account in calculating the Eligible Participant’s Actual Contribution Percentage. The Actual Contribution Percentage of an Eligible Participant who does not make a Pre-Tax Contribution Election, Roth Elective Contribution Election (effective January 1, 2011) or an After-Tax Contribution Election is 0.0%.
3.9.2
Actual Deferral Percentage
means the amount of Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) allocated to the Eligible Participant for the Plan Year, divided by his or her Plan Year Compensation, stated as a percentage. In calculating the Actual Deferral Percentage, Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) include Excess Pre-Tax Contributions and Excess Roth Elective Contributions (effective January 1, 2011), respectively, for Highly Compensated Employees (whether they were made under plans of unrelated employers or plans of the same or related employers) but do not include Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011) for Nonhighly Compensated Employees. The Actual Deferral Percentage of an Eligible Participant who does not make a Pre-Tax Contribution Election or a Roth Elective Contribution Election (effective January 1, 2011) is 0.0%.
3.9.3
Aggregate Limit
means the greater of:
|
(i)
|
1.25 times the Average Actual Deferral Percentage or the Average Actual Contribution Percentage of the group, whichever is larger; and
|
|
(ii)
|
two percentage points plus the Average Actual Deferral Percentage or the Average Actual Contribution Percentage of the group, whichever is less, but in no event more than twice the lesser of the group’s Average Actual Deferral Percentage and its Average Actual Contribution Percentage; and
|
|
(i)
|
1.25 times the Average Actual Deferral Percentage or the Average Actual Contribution Percentage of the group, whichever is less; and
|
|
(ii)
|
two percentage points plus the Average Actual Deferral Percentage or the Average Actual Contribution Percentage of the group, whichever is larger, but in no event more than twice the larger of the group’s Average Actual Deferral Percentage and its Average Actual Contribution Percentage.
|
For purposes of this Section 3.10.3, the “group” is the group of Eligible Participants who are Nonhighly Compensated Employees for the preceding Plan Year.
3.9.4
Average Actual Contribution Percentage
means the average of the Actual Contribution Percentages of the Eligible Participants in a group.
3.9.5
Average Actual Deferral Percentage
means the average of the Actual Deferral Percentages of the Eligible Participants in a group.
3.9.6
Eligible Participant
any Employee who is eligible to make a Pre-Tax Contribution Election, a Roth Elective Contribution Election (effective January 1, 2011) or an After-Tax Contribution Election any time during the Plan Year.
3.9.7
Excess Aggregate Contributions
means, for any Plan Year in which the Actual Contribution Percentage Test under Section 3.13 of the Plan is not satisfied, the excess of the Company and After-Tax Contributions (and any Pre-Tax Contributions, Roth Elective Contributions (effective January 1, 2011) or pre-tax salary deferrals under other plans, taken into account in determining the Actual Contribution Percentages) actually made on behalf of Highly Compensated Employees for the Plan Year, over the maximum amount of such contributions permitted under Section 3.13 of the Plan for the Plan Year. The amount of Excess Aggregate Contributions will be determined by first reducing the Company and After-Tax Contributions to the Highly Compensated Employees with the highest Actual Contribution Percentage by the lesser of (a) the amount necessary for the Actual Contribution Percentage of that Highly Compensated Employee to equal the Actual Contribution Percentage of the Highly Compensated Employee with the next highest Actual Contribution Percentage; and (b) the amount necessary for the Plan to satisfy the Actual Contribution Percentage Test under Section 3.13 of the Plan. This process will be repeated until the Plan satisfies the Actual Contribution Percentage Test under Section 3.13 of the Plan. Then, the aggregate amount of such reductions will be distributed by reducing the Company and After-Tax Contributions for the Highly Compensated Employee with the highest combined dollar amount of Company and After-Tax Contributions by the lesser of (a) the amount necessary for the dollar amount of that Highly Compensated Employee’s combined Company and After-Tax Contributions to equal the combined dollar amount of the Company and After-Tax Contributions of the Highly Compensated Employee with the next highest combined dollar amount of Company and After-Tax Contributions; and (b) the amount necessary for the Plan to satisfy the Actual Contribution Percentage Test. For each Highly Compensated Employee’s reductions, the Administrator will begin by making reductions in his or her Company Contributions, and will reduce the Highly Compensated Employee’s After-Tax Contributions only if his or her Company Contributions for the Plan Year have been reduced to zero and it is still necessary to reduce his or her Plan Year contributions. The amount of any Highly Compensated Employee’s Excess Aggregate Contributions is calculated after determining the Excess Contribution to be recharacterized as After-Tax Contributions for the Plan Year. To the extent required, if the Aggregate Limit in Section 3.9.3 of the Plan is exceeded, further reduction of the Actual Deferral Percentage for all Highly Compensated Employees will be made in a similar manner so that the Aggregate Limit is not exceeded.
3.9.8
Excess Contributions
means for any Plan Year in which the Actual Deferral Percentage Test under Section 3.12 of the Plan is not satisfied, the excess of the Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) (and any Company Contributions taken into account in determining the Actual Deferral Percentages) actually made on behalf of Highly Compensated Employees for the Plan Year, over the maximum amount of such contributions permitted under Section 3.12 of the Plan for the Plan Year. The amount of Excess Contributions will be determined by first reducing the Pre-Tax Contributions or Roth Elective Contributions (effective January 1, 2011), as applicable, of the Highly Compensated Employee with the highest Actual Deferral Percentage by the lesser of (a) the amount necessary for the Actual Deferral Percentage of that Highly Compensated Employee to equal the Actual Deferral Percentage of the Highly Compensated Employee with the next highest Actual Deferral Percentage; and (b) the amount necessary for the Plan to satisfy the Actual Deferral Percentage Test under Section 3.13 of the Plan. This process will be repeated until the Plan satisfies the Actual Deferral Percentage Test under Section 3.12 of the Plan. Then, the aggregate amount of such reductions will be distributed by reducing the Pre-Tax Contributions or Roth Elective Contributions (effective January 1, 2011), as applicable, for the Highly Compensated Employee with the highest dollar amount of Pre-Tax Contributions or Roth Elective Contributions (effective January 1, 2011), as applicable, by the lesser of (a) the amount necessary for the dollar amount of that Highly Compensated Employee’s Pre-Tax Contributions or Roth Elective Contributions (effective January 1, 2011), as applicable, to equal the Pre-Tax Contributions of the Highly Compensated Employee with the next highest dollar amount of Pre-Tax Contributions or Roth Elective Contributions (effective January 1, 2011), as applicable; and (b) the amount necessary for the Plan to satisfy the Actual Deferral Percentage Test.
3.9.9
Excess Pre-Tax Contribution
means the amount of Pre-Tax Contributions for a calendar year that are includible in a Participant’s gross income under Code Section 402(g) because the Participant’s elective deferrals exceed the dollar limitation under Code Section 402(g) as determined under Sections 3.11 and 3.12.
3.9.10
Excess Roth Elective Contribution
means, effective January 1, 2011, the amount of Roth Elective Contributions for a calendar year that are includible in a Participant’s gross income under Code Section 402(g) because the Participant’s elective deferrals exceed the dollar limitation under Code Section 402(g) as determined under Sections 3.11 and 3.12.
3.10
|
Maximum Amount of Pre-Tax Contributions
|
The total amount of Pre-Tax Contributions, Roth Elective Contributions (effective January 1, 2011), 401(k) contributions under another qualified plan, and deferrals under a Code Section 403(b) annuity, a simplified employee pension and/or a simple retirement account allocated to a Participant in any calendar year cannot exceed the dollar limitation in effect under Code Section 402(g) for that year.
3.11
|
Correction of Excess Pre-Tax Contributions and Excess Roth Elective Contributions
|
3.11.1 Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable, as adjusted per Section 3.12.2, will be distributed to each Participant on whose behalf they were made no later than the first April 15 following the close of the taxable year of the Participant for which they were allocated. In no event may the amount distributed under this Section 3.12 exceed the Participant’s total Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable (as adjusted under Section 3.12.2 for income and losses allocable to them), for the taxable year for which he or she had Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable.
3.11.2 The Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable, to be distributed to a Participant will be adjusted for income or losses through the close of the Plan Year for which they were made, with such income or losses determined in a nondiscriminatory manner (within the meaning of Code Section 401(a)(4)) consistent with the valuation of Participant Accounts under Section 10.4. Notwithstanding the preceding to the contrary, effective January 1, 2006, the Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable, to be distributed to a Participant will be adjusted for income or losses up to the date of the distribution of such Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable; however, such income or losses may be determined on a date that is not more than 7 days before such distribution. Notwithstanding the preceding to the contrary, effective for Plan Years beginning on or after January 1, 2008, the Plan Administrator shall not calculate and distribute allocable income or losses on Excess Pre-Tax Contributions or Excess Roth Contributions (effective January 1, 2011), as applicable, for the period after the close of the Plan Year in which the Excess Pre-Tax Contributions or Excess Roth Contributions (effective January 1, 2011), as applicable, occurred, prior to the date of distribution.
3.11.3 If a Participant has Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable, but only when taking into account his or her pre-tax contributions under another plan, in order to receive a distribution of Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable, he or she must make a written claim to the Administrator no later than the March 15 following the taxable year of the Participant for which the contributions were made. The claim must specify the amount of the Participant’s Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable, for the preceding taxable year and be accompanied by the Participant’s written statement that if those amounts are not distributed, the Participant’s Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable, when added to amounts deferred under other plans or arrangements described in Code Sections 401(k), 402(h)(1)(B) (a simplified employee pension), 403(b) (an annuity plan) or 408(p)(2)(A)(i) (a simple retirement plan) will exceed the limit imposed on the Participant by Code Section 402(g) for the year in which the deferral occurred.
3.11.4 Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable, distributed prior to the first April 15 following the close of the Participant’s taxable year will not be treated as Annual Additions under Section 3.7 for the preceding Limitation Year.
3.11.5 Any Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011), as applicable, that are properly distributed under Section 3.8 as excess Annual Additions are disregarded in determining if there are any Excess Pre-Tax Contributions.
3.12
|
Actual Deferral Percentage Test
|
3.12.1 The Average Actual Deferral Percentage for Eligible Participants who are Highly Compensated Employees for the Plan Year may not exceed the greater of:
|
(a)
|
the Average Actual Deferral Percentage for Eligible Participants who are Nonhighly Compensated Employees for the Plan Year multiplied by 1.25; and
|
|
(i)
|
the Average Actual Deferral Percentage for Eligible Participants who are Nonhighly Compensated Employees for the Plan Year multiplied by two and
|
|
(ii)
|
the Average Actual Deferral Percentage for Eligible Participants who are Nonhighly Compensated Employees for the Plan Year plus two percentage points.
|
3.12.2 The provisions of Code Section 401(k)(3) are incorporated by reference.
3.12.3 If this Plan satisfies the requirements of Code Sections 401(a)(4), 401(k), and 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of those Code sections only if aggregated with this Plan, then this Section 3.13 is applied by determining the Actual Deferral Percentages of Eligible Participants as if all the plans were a single plan.
3.12.4 The Administrator also may treat one or more plans as a single plan with the Plan whether or not the aggregated plans must be aggregated to satisfy Code Sections 401(a)(4) and 410(b). However, those plans must then be treated as one plan under Code Sections 401(a)(4), 401(k), and 410(b). Plans may be aggregated under this Section 3.13.4 only if they have the same plan year.
3.12.5 Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) may be considered made for a Plan Year if made no later than the end of the 12-month period beginning on the day after the close of the Plan Year.
3.12.6 The determination and treatment of the Pre-Tax Contributions, Roth Elective Contributions (effective January 1, 2011) and Actual Deferral Percentage of any Participant must satisfy all requirements prescribed by the Secretary of the Treasury, including, without limitation, record retention requirements.
3.12.7 The Administrator will limit the election and allocation of Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) in order to avoid the creation of Excess Contributions. If and to the extent necessary or desirable, the Administrator will recharacterize Excess Contributions as After-Tax Contributions, or will distribute Excess Contributions. Recharacterized Excess Contributions will be treated as required in Treasury Regulations Section 1.401(k)-1(f)(3). The Administrator will recharacterize Excess Contributions within two and one-half months after the close of the Plan Year in which they arose. A distribution of Excess Contributions will normally be made within the same time frame. At all events, a corrective distribution of Excess Contributions must be made no later than 12 months after the end of the Plan Year in which they arose, and will include income allocable to the excess Contributions for the Plan Year in which they arose; provided, effective January 1, 2006, such Excess Contributions shall be adjusted for income or losses up to the date of the distribution of such Excess Contributions; however, such income or losses may be determined on a date that is not more than 7 days before such distribution. Notwithstanding the preceding to the contrary, effective for Plan Years beginning on or after January 1, 2008, the Plan Administrator shall not calculate and distribute allocable income or losses on Excess Contributions for the period after the close of the Plan Year in which the Excess Contributions occurred, prior to the date of distribution. The method used to determine the income allocable to Excess Contributions that are distributed will not violate Code Section 401(a)(4), and will be applied consistently for all Participants and all corrective distributions for any Plan Year. Any distribution to a Participant of less than the entire amount of his or her Excess Contributions will be treated as a pro rata distribution of Excess Contributions and income. The Administrator may combine the correction methods described in this Section 3.12.7. The amount of Excess Contributions to be recharacterized or distributed to a Participant under this Section 3.13.7 will be reduced by any Excess Pre-Tax Contributions or Excess Roth Elective Contributions (effective January 1, 2011) previously distributed to the Participant for his or her taxable year ending with or within the Plan Year. Similarly, the amount of Excess Pre-Tax Contributions or Excess Roth Contributions (effective January 1, 2011) to be distributed for a Participant’s taxable year will be reduced by the amount of any Excess Contributions previously distributed or recharacterized as to that Participant for the Plan Year beginning with or within the Participant’s taxable year.
3.12.8 Effective January 1, 2006, for purposes of this Section 3.12, if a Highly Compensated Employee is a Participant under two or more cash or deferred arrangements, all such cash or deferred arrangements shall be treated as one cash or deferred arrangement for the purpose of determining the Average Actual Deferral Percentage with respect to such Highly Compensated Employee. However, if the cash or deferred arrangements have different Plan Years, then all Pre-Tax Contributions or Roth Elective Contributions (effective January 1, 2011) made during the Plan Year being tested under all such cash or deferred arrangements shall be aggregated, without regard to the plan years of the other plans. Notwithstanding the foregoing, plans that are not permitted to be aggregated under Treas. Reg. section 1. 401(k) – 1(b)(4) are not required to be aggregated for purposes of this Section 3.12.8.
3.12.9 Notwithstanding the foregoing paragraphs of Section 3.12, effective for Plan Years beginning on or after January 1, 2010, the test provided in Code Section 401(k)(3) shall be met if the Plan meets the Safe Harbor Notice requirement set forth in Section 3.4B and the following Contribution Requirement.
The Contribution Requirement is met if the Company is required to make the Company Safe Harbor Nonelective Contributions set forth in Section 3.4A on behalf of each Nonhighly Compensated Employee who is eligible to participate in Section 3.4A of the Plan as a non-union Participant without regard to whether such Employee makes a Pre-Tax Contribution or Roth Elective Contribution described in Section 3.1 or an After-Tax Contribution described in Section 3.2.
3.12.10 Notwithstanding any Plan provisions to the contrary, with respect to any Plan Year for which the Plan is a Safe Harbor 401(k) Plan, when performing the Actual Deferral Percentage Test, the current year testing method shall be used and any changes from current year to prior year testing shall be made pursuant to Internal Revenue Service Notice 98-1, the provisions of which are incorporated herein by reference.
3.13
|
Actual Contribution Percentage Test
|
3.13.1 The Average Actual Contribution Percentage for Eligible Participants who are Highly Compensated Employees for the Plan Year may not exceed the greater of:
|
(a)
|
the Average Actual Contribution Percentage for Eligible Participants who are Nonhighly Compensated Employees for the Plan Year multiplied by 1.25; and
|
|
(i)
|
the Average Actual Contribution Percentage for Eligible Participants who are Nonhighly Compensated Employees for the Plan Year multiplied by two; and
|
|
(ii)
|
the Average Actual Contribution Percentage for Eligible Participants who are Nonhighly Compensated Employees for the Plan Year plus two percentage points.
|
3.13.2 The provisions of Code Section 401(m)(2) are incorporated by reference.
3.13.3 If this Plan satisfies the requirements of Code Section 401(a)(4), 401(k) and 410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of those Code sections only if aggregated with this Plan, then this Section 3.14 is applied by determining the Actual Contribution Percentage of Eligible Participants as if all the plans were a single plan.
3.13.4 The Administrator also may treat one or more plans as a single plan with the Plan, whether or not the aggregated plans must be aggregated to satisfy Code Sections 401(a)(4) and 410(b). However, those plans must then be treated as one plan under Code Sections 401(a)(4), 401(m) and 410(b). Plans may be aggregated under this Section 3.14.4 only if they have the same plan year.
3.13.5 An After-Tax Contribution is considered made for a Plan Year if it is deducted from the Participant’s Compensation during the Plan Year and transmitted to the Trustee within a reasonable period after that. A Company Contribution is considered made for a Plan Year if it is allocated to a Matched Participant’s Account as of a date within the Plan Year, is actually paid to the Trust no later than 12 months after the Plan Year, and is made on account of the Matched Participant’s Basic Contributions for the Plan Year. A Pre-Tax Contribution or Roth Elective Contribution (effective January 1, 2011) may be considered made under this Section 3.14 for a Plan Year if it is recharacterized for purposes of Section 3.13, and if it is includible in the gross income of the Participant as of a date during that Plan Year. A recharacterized Pre-Tax Contribution or Roth Elective Contribution (effective January 1, 2011) is includible in a Participant’s gross income as of the date it would have been paid to the Participant, had the Participant not elected to defer it into the Plan.
3.13.6 The determination and treatment of After-Tax and Company Contributions and the Actual Contribution Percentage of any Participant must satisfy all requirements prescribed by the Secretary of Treasury, including, without limitation, record retention requirements.
3.13.7 The Administrator will limit the making of After-Tax Contributions in order to avoid the creation of Excess Aggregate Contributions. If and to the extent necessary or desirable, the Administrator will forfeit any Excess Aggregate Contributions that were Company Contributions and that were not vested, and will distribute to the Participant who made them any Excess Aggregate Contributions that were After-Tax Contributions, and will distribute to the Matched Participant to whom they were allocated any Excess Aggregate Contributions that were Company Contributions and were vested. A distribution of Excess Aggregate Contributions will normally be made within two and one-half months after the close of the Plan Year in which they arose. At all events, a corrective distribution of Excess Aggregate Contributions must be made no later than 12 months after the end of the Plan Year in which they arose, and will be adjusted for income allocable to the Excess Aggregate Contributions for the Plan Year in which they arose; provided, effective January 1, 2006, such Excess Aggregate Contributions shall be adjusted for income or losses up to the date of the distribution of such Excess Aggregate Contributions; however, such income or losses may be determined on a date that is not more than 7 days before such distribution. The method used to determine the income allocable to any Excess Aggregate Contributions that are distributed will not violate Code Section 401(a)(4), and will be applied consistently for all Participants and all corrective distributions for any Plan Year. Any distribution to a Participant of less than the entire amount of his or her Excess Aggregate Contributions will be treated as a pro rata distribution of Excess Aggregate Contributions and income. The Administrator may combine the correction methods described in this Section 3.14.7. Notwithstanding the preceding to the contrary, effective for Plan Years beginning on or after January 1, 2008, the Plan Administrator shall not calculate and distribute allocable income or losses on Excess Aggregate Contributions for the period after the close of the Plan Year in which the Excess Aggregate Contributions occurred, prior to the date of distribution.
3.13.8 Effective January 1, 2006, for purposes of this Section 3.13, if a Highly Compensated Employee is a Participant under two or more cash or deferred arrangements, all such cash or deferred arrangements shall be treated as one cash or deferred arrangement for the purpose of determining the Average Actual Contribution Percentage with respect to such Highly Compensated Employee. However, if the cash or deferred arrangements have different Plan Years, then all After-Tax Contributions and Company Contributions made during the Plan Year being tested under all such cash or deferred arrangements shall be aggregated, without regard to the plan years of the other plans.
3.13.9 Notwithstanding the foregoing paragraphs of Section 3.13, effective for Plan Years beginning on or after January 1, 2010, the test provided in Code Section 401(m)(2) shall be met if the Plan meets the Safe Harbor Notice requirement set forth in Section 3.4B, the Contribution Requirements described in Section 3.12.9, above, and the following Special Limitation on Matching Contributions. The Special Limitation on Matching Contributions is met if (i) Company Contributions described in Section 3.4 on behalf of any Employee may not be made with respect to an Employee’s Pre-Tax, Roth Elective (effective January 1, 2011) and After-Tax Contributions (described in Sections 3.1 and 3.2, respectively) in excess of six percent (6%) of the Employee’s Compensation, (ii) the rate of Company Contributions does not increase as the rate of an Employee’s Pre-Tax, Roth Elective (effective January 1, 2011) and After-Tax Contributions increases, and (iii) the Company Contributions with respect to any Highly Compensated Employee at any rate of Employee Pre-Tax, Roth Elective (effective January 1, 2011) and After-Tax Contributions is not greater than that with respect to a Nonhighly Compensated Employee.
3.13.10 Notwithstanding any Plan provisions to the contrary, with respect to any Plan Year for which the Plan is a Safe Harbor 401(k) Plan, when performing the Actual Contribution Percentage Test, the current year testing method shall be used and any changes from current year to prior year testing shall be made pursuant to Internal Revenue Service Notice 98-1, the provisions of which are incorporated herein by reference.
ARTICLE IV
Vesting
4.1
|
Vesting in After-Tax, Company Safe Harbor Nonelective, Pre-Tax, Roth Elective and Rollover Contributions Accounts
|
A Participant is always 100% vested in the balance of his or her After-Tax Contribution Account, Company Safe Harbor Nonelective Contribution Account (effective January 1, 2010), Pre-Tax Contribution Account, Roth Elective Contribution Account (effective January 1, 2011) and Rollover Contribution Account.
4.2
|
Vesting in Company Contribution and Contingent Accounts
|
4.2.1 A Participant becomes vested in any balance of his or her Company Contribution Account and Contingent Account according to the following Schedule:
Years of Service
|
|
Percent
|
|
Fewer than 2
|
|
|
0
|
%
|
2 but fewer than 3
|
|
|
20
|
%
|
3 but fewer than 4
|
|
|
40
|
%
|
4 but fewer than 5
|
|
|
60
|
%
|
5 or more
|
|
|
100
|
%
|
4.2.2 Notwithstanding the foregoing, a Participant will become 100% vested in the balance of his or her Company Contribution Account and Contingent Account if:
|
(a)
|
he or she reaches age 55 while employed by the Company or one of its Affiliates;
|
|
(b)
|
he or she separates from service due to Disability;
|
|
(c)
|
he or she dies while employed by the Company or one of its Affiliates;
|
|
(d)
|
he or she ceases to be an Employee because of the permanent shutdown of a single site of employment or of one or more facilities or operating unites within a single site of employment; or
|
|
(e)
|
he or she is employed by the Company or one of its Affiliates involved in a transaction and the Committee, in its discretion, fully vests the Participant in connection with the transaction.
|
4.2.3 If a Participant is hired by the Company or one of its Affiliates as a result of an acquisition, the Committee (or its delegate) may, in its discretion, give the Participant and all other Participants hired under the same circumstances as a result of the same acquisition credit for service with a prior employer for purposes of vesting.
4.3.1 A Participant forfeits the non-vested portion of his or her Company Contribution and Contingent Accounts on the earlier of: (a) the date as of which he or she receives a distribution of his or her entire Company Contribution and Contingent Accounts and (b) the date his or her Period of Separation equals five years. The nonvested amount so forfeited is a Forfeiture. If the Participant incurs a Forfeiture under clause (a) above and his or her Period of Separation is shorter than five years, the Forfeiture is restored, and the Period of Separation counts towards the Participant’s Years of Service, along with service before and after the Period of Separation, in determining the Participant’s Years of Service for purposes of Section 4.2. If the Period of Separation is five years or longer, the Forfeiture will not be restored, but the Period of Separation counts towards the Participant’s Years of Service, along with service before and after the Period of Separation, in determining the Participant’s Years of Service for purposes of Section 4.2. If a Participant begins a Period of Separation by way of a maternity or paternity leave, this Section 4.3.1 will be read by substituting the number ‘six’ for the number ‘five’ wherever the latter number appears. A ‘maternity or paternity leave’ is an absence from work because of the Participant’s pregnancy, the birth of a child to or placement of a child for adoption with the Participant, or the need to care for the Participant’s child immediately following its birth to or placement with the Participant.
4.3.2 Amounts that become Forfeitures during a month will be used to restore Forfeitures to rehired Participants as provided in Section 4.3.1. Any remaining Forfeitures during a month will be used to pay the administrative expenses of the Plan in the following order: Trustee’s fees, communications to Participants, nondiscrimination testing, qualified domestic relations order administration, enrollment fees, required minimum distribution fees, auditors’ fees, consulting and legal fees and other similar administrative expenses. Any remaining Forfeitures during a month will be used to reduce the Company’s obligation to make Company Contributions in that month or succeeding months. Any remaining Forfeitures during a month will be used to pay fees associated with Participant communications to Participants involved in an acquisition or divestiture and Participant Account adjustments, as determined by the Committee or its delegate. While awaiting allocation, until such time as the Company applies Forfeitures to the purposes described above, they will be invested in a default fund selected by the Company.
ARTICLE V
Timing of Distributions to Participants
5.1
|
Separation from Service
|
Upon his or her separation from service with the Company and all Affiliates for any reason, a Participant will be entitled to receive the vested portion of his or her Account Balance, determined in accordance with the provisions of Article IV and the valuation rules established for each Investment Fund. The date as of which the Participant’s Account Balance is determined will be the Valuation Date preceding the date of distribution.
5.2
|
Start of Benefit Payments
|
5.2.1 Except as provided in Sections 5.2.2 and 5.2.3, unless a Participant otherwise elects, payment of benefits will begin no later than the 60th day after the close of the Plan Year in which the latest of the following events occurs:
|
(a)
|
the Participant’s 65th birthday;
|
|
(b)
|
the 10th anniversary of the year in which the Participant commenced participation; and
|
|
(c)
|
the Participant’s separation from service.
|
If the amount of benefits payable to or in respect of a Participant cannot be determined by the benefit commencement date described in the preceding sentence, or if the Administrator cannot locate the Participant (or, if the Participant has died, his or her Beneficiary) after making a reasonable effort to do so, benefit payments will begin no later than 60 days after the amount of the Participant’s benefits can first be determined or the Participant (or his or her Beneficiary) is located, in the amount necessary to bring the payments up to date, as if they had begun on the benefit commencement date described in the preceding sentence.
5.2.2 The Participant’s Account Balance will be distributed as soon as practicable after the Participant elects a distribution following the Participant’s separation from service. Effective prior to January 1, 2005, upon separation of service, a Participant may elect to defer distribution of the Participant’s Account Balance until a date that is no later than the Participant’s Required Beginning Date only if such Account Balance exceeds $5,000. Effective January 1, 2005, through September 15, 2009, upon separation from service, the Participant may elect to defer distribution of his or her Account Balance until a date no later than his or her Required Beginning Date. Effective September 16, 2009, and pursuant to Section 6.1, upon severance from employment, a Participant may elect to defer distribution of the Participant’s Account Balance until a date that is no later than the Participant’s Required Beginning Date only if such Account Balance exceeds $5,000. A Participant will be deemed to have elected to defer payment of benefits from the Plan until the date the Participant requests a distribution from the Plan in a manner consistent with the uniform and nondiscriminatory rules established by the Administrator.
5.2.3 Notwithstanding any other provision of this Plan, a Participant must begin to receive his or her benefit no later than his or her Required Beginning Date. The amount to be distributed each year will be the minimum amount required to satisfy Code Section 401(a)(9) and the regulations promulgated thereunder, determined with no recalculation of life expectancy. The Required Beginning Date of a Participant is April 1 of the calendar year following the later of the calendar year in which the Participant reaches age 70½ or, retires. Notwithstanding any other provision of this Section 5.2.3, if a Participant is a five percent owner (as defined in Code Section 416) for the Plan Year ending in the calendar year in which he or she reaches age 70½, his or her Required Beginning Date is April 1 of the following calendar year.
5.2.4 Notwithstanding any other provision of this Plan, all Plan distributions will comply with Code Section 401(a)(9), including Department of Treasury Regulation Section 1.401(a)(9)-2 through 1.401(a)(9)-9, as promulgated under Final and Temporary Regulations published in the Federal Register on April 17, 2002 (the ‘401(a)(9) Regulations’), with respect to minimum distributions under Code Section 401(a)(9). In addition, the benefit payments distributed to any Participant will satisfy the incidental death benefit provisions under Code Section 401(a)(9)(G) and Department of Treasury Regulation Section 1.401(a)(9)-5(d), as promulgated in the 401(a)(9) Regulations.
5.2.5 If the Participant dies after beginning distribution of his or her Account Balance, the remainder of the Account Balance will be payable in accordance with Section 7.1. Notwithstanding the foregoing, the Participant’s Account Balance must continue to be distributed at least as rapidly as under the method of distribution in effect before the Participant died.
5.2.6 If the Participant dies before beginning distribution of his or her Account Balance, the Participant’s Account Balance will be distributed as provided under Section 7.1, but distribution must be completed within five years after the Participant dies. Notwithstanding the foregoing, the Participant’s Beneficiary may receive the Account Balance over his or her life or over a period not extending beyond his or her life expectancy, so long as distribution begins within one year after the Participant dies, or, if the Beneficiary is the Participant’s Surviving Spouse, by the date the Participant would have reached age 70-½. Furthermore, if the Participant’s Surviving Spouse is the Beneficiary and dies before distribution begins, the next Beneficiary to take may receive benefits over his or her life or a period not exceeding his or her life expectancy, so long as distribution begins by the date the Surviving Spouse would have reached age 70-½.
5.3
Distribution of Amounts held in a Participant’s Company Safe Harbor Nonelective Contribution Account, Pre-Tax Contribution Account and Roth Elective Contribution Account.
Notwithstanding any Plan provisions to the contrary, amounts held in a Participant’s Company Safe Harbor Nonelective Contribution Account (effective January 1, 2010), Pre-Tax Contribution Account and Roth Elective Contribution Account (effective January 1, 2011) are not distributable earlier than upon:
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(1)
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the Participant’s severance from employment. Notwithstanding anything herein to the contrary, a severance from employment shall not occur when an individual changes status from an Eligible Employee to a Leased Employee;
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(2)
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the Participant’s death;
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(3)
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the Participant’s Disability;
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(4)
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the Participant’s attainment of age 59 and 1/2;
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(5)
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with respect to a Participant’s Pre-Tax Contribution Account and Roth Elective Contribution Account (effective January 1, 2011) only, the proven financial hardship of the Participant as described in Section 6.3.3; or
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(6)
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the termination of the Plan without the “employer” maintaining an “alternative defined contribution plan” at any time during the period beginning on the date of plan termination and ending 12 months after all assets have been distributed from the Plan. Such a distribution must be made in a “lump sum.” For purposes of this Section, the terms “employer,” “alternative defined contribution plan,” and “lump sum” are as defined under Treasury Regulation Section 1.401(k)-1(d)(4).
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ARTICLE V-A
Required Minimum Distributions For Calendar Years
Beginning On Or After January 1, 2003
Section 5-A.1
General Rules
.
5-A.1.1.
Effective Date
. The provisions of this Article 5-A will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 calendar year, as well as required minimum distributions for the 2002 calendar year that are made on or after January 1, 2002.
5-A.1.2.
Coordination With Minimum Distribution Requirements Previously in Effect
. Required minimum distributions for 2002 under this Article 5-A will be determined as follows. If the total amount of 2002 required minimum distributions under the Plan made to the distributee prior to the effective date of this Article 5-A, equals or exceeds the required minimum distributions determined under this Article 5-A, then no additional distributions will be required to be made for 2002 on or after such date to the distributee. If the total amount of 2002 required minimum distributions under the Plan made to the distributee prior to the effective date of this Article 5-A is less than the amount determined under this Article 5-A, then required minimum distributions for 2002 on or after such date will be determined so that the total amount of required minimum distributions for 2002 made to the distributee will be the amount determined under this Article 5-A.
5-A.1.3.
Precedence
. The requirements of this Article 5-A will take precedence over any inconsistent provisions of the Plan.
5-A.1.4.
Requirements of Treasury Regulations Incorporated
. All distributions required under this Article 5-A will be determined and made in accordance with the Treasury regulations under Section 401(a)(9) of the Code.
5-A.1.5.
TEFRA Section 242(b)(2) Elections
. Notwithstanding the other provisions of this Article 5-A, other than Section 5-A.1.4, distributions may be made under a designation made before January 1, 1984, in accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (“TEFRA”) and the provisions of the Plan that relate to Section 242(b)(2) of TEFRA.
Section 5-A.2
Time and Manner of Distribution
.
5-A.2.1.
Required Beginning Date
. The Participant’s entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant’s required beginning date.
5-A.2.2.
Death of Participant Before Distribution Begin
. If the Participant dies before distributions begin, the Participant’s entire interest will be distributed, or begin to be distributed, no later than as follows:
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(a)
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If the Participant’s Surviving Spouse is the Participant’s sole designated Beneficiary, then distributions to the Surviving Spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the calendar year in which the Participant would have attained age 70-1/2, if later.
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(b)
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If the Participant’s Surviving Spouse is not the Participant’s sole designated Beneficiary, then distributions to the designated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died.
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(c)
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If there is no designated Beneficiary as of September 30 of the year following the year of the Participant’s death, the Participant’s entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.
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(d)
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If the Participant’s Surviving Spouse is the Participant’s sole designated Beneficiary and the Surviving Spouse dies after the Participant but before distributions to the Surviving Spouse begin, this Section 5-A.2.2, other than section 5-A.2.2(a), will apply as if the Surviving Spouse were the Participant.
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For purposes of this Section 5-A.2.2 and Section 5-A.4, unless Section 5-A.2.2(d) applies, distributions are considered to begin on the Participant’s Required Beginning Date. If Section 5-A.2.2(d) applies, distributions are considered to begin on the date distributions are required to begin to the Surviving Spouse under Section 5-A.2.2(a). If distributions under an annuity purchased from an insurance company irrevocably commence to the Participant before the Participant’s Required Beginning Date (or to the Participant’s Surviving Spouse before the date distributions are required to begin to the Surviving Spouse under Section 5-A.2.2(a)), the date distributions are considered to begin is the date distributions actually commence.
5-A.2.3.
Forms of Distribution
. Unless the Participant’s interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the Required Beginning Date, as of the first distribution calendar year distributions will be made in accordance with Sections 5-A.3 and 5-A.4. If the Participant’s interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Section 401(a)(9) of the Code of the Treasury regulations.
Section 5-A.3
Required Minimum Distributions During Participant’s Lifetime
.
5-A.3.1.
Amount of Required Minimum Distribution For Each Distribution Calendar Year
. During the Participant’s lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of:
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(a)
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the quotient obtained by dividing the Participant’s account balance by the distribution period in the Uniform Lifetime Table set forth in Section 1.401(a)(9)-9 of the Treasury regulations using the Participant’s age as of the Participant’s birthday in the distribution calendar year; or
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(b)
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if the Participant’s sole designated Beneficiary for the distribution calendar year is the Participant’s spouse, the quotient obtained by dividing the Participant’s account balance by the number in the Joint and Last Survivor Table set forth in Section 1.4019a)(9)-9 of the Treasury regulations, using the Participant’s and spouse’s attained ages as of the Participant’s and spouse’s birthdays in the distribution calendar year.
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5-A.3.2.
Lifetime Required Minimum Distributions Continue Through Year of Participant’s Death
. Required minimum distributions will be determined under this Section 5-A.3 beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the Participant’s date of death.
Section 5-A.4
Required Minimum Distributions After Participant’s Death
.
5-A.4.1.
Death On or After Date Distributions Begin
.
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(a)
|
Participant Survived by Designated Beneficiary
. If the Participant dies on or after the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s account balance by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant’s designated Beneficiary, determined as follows:
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(1)
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The Participant’s remaining life expectancy is calculated using the age of the Participant in the year of death, reduced by one for each subsequent year.
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(2)
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If the Participant’s Surviving Spouse is the Participant’s sole designated Beneficiary, the remaining life expectancy of the Surviving Spouse is calculated for each distribution calendar year after the year of the Participant’s death using the surviving spouse’s age as of the spouse’s birthday in that year. For distribution calendar years after the year of the Surviving Spouse’s death, the remaining life expectancy of the surviving spouse is calculated using the age of the Surviving Spouse as of the spouse’s birthday in the calendar year of the spouse’s death, reduced by one for each subsequent calendar year.
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(3)
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If the Participant’s Surviving Spouse is not the Participant’s sole designated Beneficiary, the designated Beneficiary’s remaining life expectancy is calculated using the age of the Beneficiary in the year following the year of the Participant’s death, reducing by one for each subsequent year.
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(b)
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No Designated Beneficiary
. If the Participant dies on or after the date distributions begin and there is no designated Beneficiary as of September 30 of the year after the year of the Participant’s death, the minimum amount that will be distributed for each distribution calendar year after the of the Participant’s death is the quotient obtained by dividing the Participant’s account balance by the Participant’s remaining life expectancy calculated using the age of the Participant in the year of death, reduced by one for each subsequent year.
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5-A.4.2.
Death Before Date Distributions Begin
.
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(a)
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Participant Survived by Designated Beneficiary
. If the Participant dies before the date distributions begin and there is a designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s account balance by the remaining life expectancy of the Participant’s designated Beneficiary, determined as provided in Section 5-A.4.1.
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(b)
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No Designated Beneficiary
. If the Participant dies before the date distributions begin and there is no designated Beneficiary as of September 30 of the year following the year of the Participant’s death, distribution of the Participant’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.
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(c)
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Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin
. If the Participant dies before the date distributions begin, the Participant’s Surviving Spouse is the Participant’s sole designated Beneficiary, and the Surviving Spouse dies before distributions are required to begin to the Surviving Spouse under Section 5-A.2.2.(a), this Section 5-A.4.2 will apply as if the Surviving Spouse were the Participant.
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Section 5-A.5
Definitions
.
5-A.5.1.
Designated Beneficiary
. The individual who is designated as the Beneficiary under the Plan and is the designated Beneficiary under Section 401(a)(9) of the Code and Section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations.
5-A.5.2.
Distribution Calendar Year
. A calendar year for which a minimum distribution is required. For distributions beginning before the Participant’s death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Participant’s Required Beginning Date. For distributions beginning after the Participant’s death, the first distribution calendar year is the calendar year in which distributions are required to begin under Section 5-A.2.2. The required minimum distribution for the Participant’s first distribution calendar year will be made on or before the Participant’s Required Beginning Date. The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the Participant’s Required Beginning Date occurs, will be made on or before December 31 of that distribution calendar year.
5-A.5.3.
Life Expectancy
. Life expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)-9 of the Treasury regulations.
5-A.5.4.
Participant’s Account Balance
. The account balance as of the last valuation date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the account balance as of the dates in the valuation calendar year after the valuation date and decreased by distributions made in the valuation calendar year after the valuation date. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year.
5-A.5.5.
Required Beginning Date
. The date specified in Section 5.2.3 of the Plan.
Section 5-A.6
2009 RMD.
Notwithstanding any other provision of the Plan, a Participant or Beneficiary who would have been required to receive required minimum distributions for 2009 but for the enactment of Section 401(a)(9)(H) of the Code (“2009 RMDs”), and who would have satisfied that requirement by receiving distributions that are (1) equal to the 2009 RMDs or (2) one or more payments in a series of substantially equal distributions (that include the 2009 RMDs) made at least annually and expected to last for the life (or life expectancy) of the Participant, the joint lives (or joint life expectancy) of the Participant and the Participant’s Beneficiary, or for a period of at least 10 years (“Extended 2009 RMDs”), shall receive those distributions for 2009.
ARTICLE VI
Form of Benefit, In-Service Withdrawals and Loans
6.1
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Cashout of Small Amounts
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Effective prior to January 1, 2005, and notwithstanding any other Plan provision, if a Participant's Account Balance is not larger than $5,000 the Account Balance will be paid in one lump sum to the Participant as soon as practicable after the Participant’s separation from service, without his or her consent or the consent of his or her spouse. Effective January 1, 2005 through September 15, 2009, this Section 6.1 shall be of no force and effect. Effective September 16, 2009, a Participant’s Account Balance shall be determined without regard to that portion of the Participant’s Account that is attributable to a rollover contribution, and the earnings allocable thereto, within the meaning of Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of the Code. If the Participant’s Account Balance, as so determined, is $5,000 or less, the Plan may distribute the Participant’s entire vested Account without the Participant’s consent or the consent of his or her spouse. Provided, however, with respect to distributions occurring on or after September 16, 2009, in the event such a mandatory distribution exceeds $1,000, determined taking into account, however, all prior rollovers from the other plans on behalf of the Participant, if the Participant does not elect to have such distribution paid directly to an eligible retirement plan specified by a Participant in a direct rollover or to receive a distribution paid directly to the Participant, then the Plan Administrator will cause the distribution to be paid in a direct rollover to an individual retirement plan designated by the Plan Administrator. If such mandatory distribution amount does not exceed $1,000, the Account Balance will be paid in one lump sum to the Participant as soon as practicable after the Participant’s separation from service, without his or her consent or the consent of his or her spouse.
Effective January 1, 2011, for purposes of this Section 6.1 and the determination of whether a Participant’s Account Balance is greater than $1,000, the Participant’s Roth Elective Contribution Account and the Participant’s other accounts comprising the remainder of the Participant’s Account Balance shall be treated as accounts held under two separate plans (within the meaning of Section 414(l) of the Code).
6.2
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Medium of Distribution
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A Participant’s Account Balance will be distributed by check to the Participant or Beneficiary entitled to it (or to his or her designated agent). Alternatively, as to any amount invested in the Company Stock Fund and the FMC Stock Fund at the time of distribution, the Participant or, where applicable, his or her Beneficiary, may request a certificate representing the whole shares of Company Stock and/or FMC Stock held for him or her, and a check representing any fractional share. The Administrator will establish uniform and nondiscriminatory rules governing the timing, content and manner of elections under this Section 6.2.
6.3.1 A Participant or Beneficiary may elect to have his or her Account Balance distributed in any of the forms described below.
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(a)
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Lump Sum
: This form of benefit pays the entire Account Balance in one payment.
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(b)
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Installments for a Fixed Period
: The Participant or Beneficiary may elect to receive annual, quarterly or monthly installments over a fixed period of 20 years or less.
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6.3.2 If the Participant chooses to receive installments, the size of each installment will be calculated by dividing the Account Balance determined as of the date described in Section 5.1 by the total number of installments remaining to be paid.
6.3.3 The Administrator will establish uniform and nondiscriminatory rules governing the timing, content and manner of elections under this Section 6.3.
6.4
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Change in Form, Timing or Medium of Benefit Payment
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Any former Employee, former employee of FMCTI, or former employee of FMC who is a Participant and who has chosen to defer payment of his or her Account Balance may request a change in the form, timing or medium in which his or her Account Balance will be paid, so long as the revised election conforms to Section 6.3. Once benefit payments have begun, no Participant may change the form, timing or medium of payment of his or her Account Balance.
6.5
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Direct Rollover of Eligible Rollover Distributions
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6.5.1 Notwithstanding any provision of the Plan, a Distributee may elect, at the time and in the manner prescribed below, to have any portion of an Eligible Rollover Distribution paid in a Direct Rollover to an Eligible Retirement Plan specified by the Distributee.
6.5.2 At least 30, but no more than 90, days before the Annuity Starting Date, the Administrator will furnish the Participant with a notice containing information regarding his or her right to take distribution directly or to elect a Direct Rollover, and some of the federal tax consequences of the alternative types of distribution. The notice must meet the requirements of Code Section 402(f). The Administrator will give the Participant an election period of at least 30 days to decide whether to elect a Direct Rollover. Notwithstanding the foregoing, the election period may end immediately after the Participant makes an affirmative election as to whether to receive the distribution directly or in the form of a Direct Rollover, so long as the Participant is properly informed of his or her right to a full 30-day election period, and waives the remainder of the election period.
6.5.3 Effective January 1, 2007, and notwithstanding any provision herein to the contrary, with respect to any portion of a distribution from the Plan of a deceased Employee, an individual who is the designated Beneficiary (as defined by Code Section 401(a)(9)(E)) of the Employee and who is not the Surviving Spouse of the Employee shall be permitted to make a direct trustee-to-trustee transfer of the distribution to an individual retirement plan described in Code Section 402(c)(8)(B)(i) or (ii) established for the purposes of receiving the distribution on behalf of such designated Beneficiary. In such event, the transfer shall be treated as an Eligible Rollover Distribution, the individual retirement plan shall be treated as an inherited individual retirement account or individual retirement annuity (within the meaning of Code Section 408(d)(3)(C)) and Code Section 401(a)(9)(B) (other than clause (iv) thereof) shall apply to such individual retirement plan.
6.6
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In-service and Hardship Withdrawals
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6.6.1 An active Participant who has reached age 59½ may elect to withdraw all or any part of his or her Account. The Administrator will establish uniform and nondiscriminatory procedures for requesting, granting and processing in-service withdrawals under this Section 6.6.1, which may include telephonic or electronic procedures, as and to the extent permitted by applicable law or regulation.
6.6.2 An active Participant who has not reached age 59½ may make a withdrawal of the following portions of the Participant’s Account Balance in the order listed below:
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(a)
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all or part of the After-Tax Contributions he or she made to the FMC Plans after March 31, 1986 and before January 1, 1987;
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(b)
|
all earnings or appreciation attributable to After-Tax Contributions he or she made to the FMC Plans after March 31, 1986 and before January 1, 1987;
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(c)
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all or part of the After-Tax Contributions he or she made to the FMC Plans, the FMCTI Plan, or to the Plan after December 31, 1986;
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(d)
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all or part of his or her After-Tax Contributions made to the FMC Plans before April 1, 1982, or, if less, the amount in the Participant’s After-Tax Contribution Account allocable to those contributions;
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(e)
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any amount remaining in the Participant’s After-Tax Contribution Account that is allocable to After-Tax Contributions made to the FMC Plans before April 1982;
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(f)
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all earnings or appreciation attributable to the After-Tax Contributions he or she made to the FMC Plans, the FMCTI Plan, or to the Plan after December 31, 1986;
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(g)
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all the vested value of his or her Contingent Account; and
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(h)
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all of the current value of vested Company Contributions and FMC contributions made as to After-Tax Contributions he or she made to the Plan, the FMCTI Plan, or FMC Plans after December 31, 1986 and before January 1, 2011.
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The Administrator will establish uniform and nondiscriminatory procedures for requesting, granting and processing in-service withdrawals under this Section 6.6.2, which may include electronic or telephonic procedures, as and to the extent permitted by applicable law or regulation.
6.6.3 An active Participant may make a hardship withdrawal from his or her Pre-Tax Contribution Account or Roth Elective Contribution Account (effective January 1, 2011) if he or she demonstrates to the Administrator that the withdrawal is necessary to satisfy the Participant’s immediate and heavy financial need. A hardship withdrawal cannot exceed 100% of such Participant’s Pre-Tax Contribution Account or Roth Elective Contribution Account (effective January 1, 2011) (excluding adjustment for any income credited to such Participant’s Pre-Tax Contribution Account or Roth Elective Contribution Account (effective January 1, 2011)) at the date of the withdrawal. In addition, the minimum hardship withdrawal permitted is $500, or, if less, the total amount of a Participant’s Pre-Tax Contribution Account or Roth Elective Contribution Account (effective January 1, 2011) (excluding adjustment for any income credited to such Participant’s Pre-Tax Contribution Account or Roth Elective Contribution Account (effective January 1, 2011)) at the date of withdrawal.
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(a)
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A distribution is on account of an immediate and heavy financial need if it is for:
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(1)
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Expenses for (or necessary to obtain) medical care that would be deductible under Code Section 213(d) (determined without regard to whether the expenses exceed 7.5% of adjusted gross income);
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(2)
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Costs directly related to the purchase of a principal residence for the Participant (excluding mortgage payments);
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(3)
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Payment of tuition, related educational fees and room and board expenses for up to the next 12 months of post-secondary education for the Participant, the Participant’s spouse, children or dependents (as defined in Code Section 152, determined without regard to Code Sections 152(b)(1), 152(b)(2) and 152(d)(1)(B));
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(4)
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Payments necessary to prevent the Participant’s eviction from his or her principal residence, or foreclosure on the mortgage on the Participant’s principal residence;
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(5)
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Payments for burial or funeral expenses for the Participant’s deceased parent, spouse, children or dependents (as defined in Code Section 152, determined without regard to Code Section 152(d)(1)(B));
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(6)
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Prior to September 16, 2009, legal expenses incurred by the Participant in obtaining a divorce;
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(7)
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Prior to September 16, 2009, expenses for the repair of damage to the Participant’s principal residence that would qualify for the casualty loss deduction under Code Section 165 (determined without regard to whether the loss exceeds 10% of adjusted gross income);
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(8)
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Prior to September 16, 2009, expenses incurred by the Participant in remedying an uninsured property loss;
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(9)
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Prior to September 16, 2009, expenses incurred by the Participant in adopting or attempting to adopt a child;
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(10)
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Prior to September 16, 2009, emergency expenses of the Participant in personal bankruptcy; or
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(11)
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Prior to September 16, 2009, other expenses deemed by the Administrator to constitute an immediate and heavy financial need and formally adopted under the rules of the Administrator as eligible for a hardship withdrawal.
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(b)
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In the event that the Administrator determines that a Participant has an immediate and heavy financial need in accordance with Section 6.6.3(a), a hardship withdrawal may be made from the Plan only if the amount of such distribution is considered as necessary to satisfy such immediate and heavy financial need of the Participant pursuant to the following standards:
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(1)
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The distribution is not in excess of the amount of the immediate and heavy financial need (including amounts necessary to pay any federal, state or local income taxes or penalties reasonably anticipated to result from the distribution),
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(2)
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The Participant makes a representation (made in writing or such other form as may be prescribed the Commissioner of the Internal Revenue Service), unless the Employer has actual knowledge to the contrary, that such immediate and heavy financial need cannot reasonably be relieved (i) through reimbursement or compensation by insurance or otherwise; (ii) by liquidation of the Participant’s assets, (iii) by cessation of Pre-Tax Contributions and Roth Elective Contributions (effective January 1, 2011) under the Plan; (iv) by other currently available distributions (including distribution of ESOP dividends under Code Section 404(k)) and nontaxable (at the time of the loan) loans, under plans maintained by the Participating Employer or any other employer; or (v) by borrowing from commercial sources on reasonably commercial terms in an amount sufficient to satisfy the need; and
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(3)
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The Participant shall not be permitted to elect to make Pre-Tax Contributions, Roth Elective Contributions (effective January 1, 2011) or After-Tax Contributions to the Plan and all other plans maintained by the Participating Employer on his behalf for a period of 6 months following the receipt of the distribution. For this purpose the phrase “all other plans maintained by the Participating Employer” means all qualified and nonqualified plans of deferred compensation maintained by the Participating Employer.
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6.6.4 The Administrator will establish uniform and nondiscriminatory procedures for requesting, granting and processing hardship withdrawals.
6.7.1 An active Participant may submit an application to the Administrator to borrow from his or her Account (on such uniform and nondiscriminatory terms and conditions as the Administrator shall prescribe) an amount, when added to the amount of any then outstanding loan, does not exceed the lesser of:
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(a)
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$50,000, reduced by the excess (if any) of the Participant’s highest outstanding Plan loan balance during the one-year period ending on the day before the loan is made over the Participant’s outstanding Plan loan balance on the day the loan is made; and
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(b)
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50% of the Participant’s Account as of the Valuation Date coincident with or immediately preceding the date the Administrator receives the application.
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In calculating the Participant’s loan limit, all loans from qualified plans of the Company and all Affiliates will be aggregated.
6.7.2 Each loan granted under the Plan will meet the following requirements:
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(a)
|
it must be evidenced by a negotiable promissory note;
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(b)
|
the rate of interest payable on the unpaid balance of the loan will be reasonable;
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(c)
|
the amount of the loan must be at least $1,000;
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(d)
|
the loan, by its terms, must require repayment within five years;
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(e)
|
the loan will be secured by the Participant’s interest in the Account Balance of his or her Account, but not to exceed 50% of such Account; and
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(f)
|
the loan must be repaid through payroll deduction, or, if the loan has been outstanding for at least three months, the Participant may make one payment by check or money order of the full amount of principal and interest then outstanding.
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6.7.3 If a Participant is granted a loan, a “Loan Account” will be established for the Participant. All Loan Accounts will be held by the Funding Agent, as part of the Trust Fund. The loan amount will be transferred from a Participant’s other Accounts according to uniform and nondiscriminatory ordering rules adopted by the Administrator, and will be disbursed from the Loan Account. Principal and interest payments of a loan will be credited initially to the Loan Account of the Participant, and will be transferred as soon as reasonably practicable thereafter to the other Accounts of the Participant according to uniform and nondiscriminatory ordering rules adopted by the Administrator. All fees and expenses incurred in connection with a loan obligation of a Participant will be borne solely by the Participant’s Account.
6.7.4 Loan repayments will be made through payroll withholding during a Participant’s employment. Each Participant who requests a loan consents to such payroll withholding for repayment of the loan. Upon termination of employment, a Participant may elect to continue to repay the loan under such uniform and nondiscriminatory rules as the Administrator has established. The Administrator will cease payroll reduction for loan repayments as soon as reasonably practicable after receipt of a court order to do so in the event of a Participant’s bankruptcy, and the loan will immediately be deemed to be in default. Any fees and expenses incurred in connection with a loan and loss caused by nonpayment or other default on a loan obligations will be borne solely by the Loan Account of the Participant. A default will constitute a taxable event to the Participant, necessitating certain reporting obligations on the Administrator’s part, and the note evidencing a loan in default will be executed upon and processed in accordance with the uniform and nondiscriminatory rules adopted by the Administrator. A Participant’s loan repayments will, at his or her request, be suspended during the time he or she is absent as a result of qualifying military service (as determined under USERRA), as permitted under Code Section 414(u)(4).
6.7.5 A Participant may not have more than two loans outstanding at any given time.
6.7.6 Upon termination of employment, a Participant who has an outstanding loan under the Plan must repay his or her loan in a lump sum or the loan will be in default. Notwithstanding the above, the Committee (or its delegate) may, in its sole discretion, allow terminated Participants to continue to repay loans under such uniform and nondiscriminatory rules as the Committee (or its delegate) determines.
6.7.7
Roth Elective Contributions
. Effective January 1, 2011, a Participant’s Roth Elective Contributions, including earnings on such Contributions, shall not be available to be borrowed.
ARTICLE VII
Death Benefit
7.1
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Payment of Account Balance
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7.1.1 Subject to the provisions of Section 5.2, if a Participant dies before payment of his or her Account Balance has begun, his or her Account Balance will be paid to the Participant’s Beneficiary in the form of benefit chosen by the Beneficiary under Sections 6.2 and 6.3. The Beneficiary of a Participant who is married on the date of his or her death will be the Participant’s Surviving Spouse, unless the Participant has designated another Beneficiary and the Surviving Spouse consented to the designation, both as provided in Section 7.3.
7.2
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Failure to Name a Beneficiary
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If a Participant fails to name a Beneficiary and dies before payment of his or her Account Balance begins, or if no designated Beneficiary survives the Participant, the Administrator will pay any amounts due after the Participant’s death to the Participant’s surviving spouse or, if there is no surviving spouse, to the Participant’s surviving children, in equal shares. If the Participant leaves behind no surviving spouse or children, the Administrator will pay any amounts then due to the Participant’s estate. Notwithstanding the preceding, effective January 1, 2010, if a Participant fails to name a Beneficiary and dies before payment of his or her Account Balance begins, or if no designated Beneficiary survives the Participant, the Administrator will pay any amounts due after the Participant’s death to the Participant’s surviving spouse or, if there is no surviving spouse, to the Participant’s estate.
7.3
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Waiver of Spousal Beneficiary Rights
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7.3.1 A Participant may designate someone other than his or her Surviving Spouse as his or her primary Beneficiary only if the designation or election meets the requirements of this Section 7.3 outlined below.
7.3.2 The Administrator will provide each Participant with a written explanation of:
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(a)
|
the right of the Participant to name someone other than his or her Surviving Spouse as a Beneficiary;
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|
(b)
|
the right of the Participant’s spouse to be named as the primary Beneficiary for all of the Participant’s Account Balance and the effect of waiving that right; and
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|
(c)
|
the Participant’s right to revoke a previous designation of someone other than the Surviving Spouse as a Beneficiary, and the effect of such a revocation.
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7.3.3 A designation of someone other than the Surviving Spouse as a primary Beneficiary will be effective only if it is made in writing and consented to by the Participant’s spouse, with the spouse’s consent witnessed by a notary public or the Administrator. Any subsequent change of Beneficiary to an individual who is not the Participant’s Surviving Spouse must also be in writing and consented to by the Participant’s spouse, with the spouse’s consent witnessed by a notary public or the Administrator. Spousal consent is not necessary if the Participant establishes to the satisfaction of a Plan representative that the Participant does not have a spouse, or that the Participant’s spouse cannot be located. Spousal consent is also unnecessary if the Participant produces a court order to the effect that the Participant is legally separated from his or her spouse or has been abandoned by the spouse, within the meaning of the law of the Participant’s state of residence, unless a qualified domestic relations order requires otherwise. If the Participant’s spouse is legally incompetent to give consent, the spouse’s legal guardian may give the spouse’s consent, even if the legal guardian is the Participant. A spouse’s consent will be valid only as to that spouse, and an election deemed effective without the spouse’s consent will be valid only as to the spouse designated as to that election. A Participant may revoke a prior designation of someone other than the Surviving Spouse as a primary Beneficiary without the consent of his or her spouse, and may revoke such a designation an unlimited number of times.
7.3.4 A Participant’s former spouse will be treated as the spouse or Surviving Spouse only to the extent provided under a qualified domestic relations order as described in Code Section 414(p).
ARTICLE VIII
Special Forms of Benefit and Death Benefit Terms for Certain Participants Prior to 2002
For periods prior to January 1, 2002, the provisions of this Article VIII apply, instead of Sections 6.3, 6.4, 7.1, 7.2 and 7.3, to the entire Account Balance of each Participant who was: (a) a participant in the FMC Corporation Savings and Investment 401(k) Plan for Bargaining Unit Employees (“FMC Unmatched Plan”) immediately before his or her collective bargaining unit became covered under the FMC Corporation Savings and Investment (“FMC Matched Plan”) Plan, and whose account balance in the FMC Unmatched Plan was transferred to the FMC Matched Plan; or (b) transferred to FMC as part of its acquisition from Stein, Inc. or Frigoscandia Equipment Holding AB. Sections 6.1, 6.2, 6.5, 6.6 and 6.7 continue to apply to the Account Balances of Participants described in the preceding sentence, but this Article VIII does not apply to any other Participant.
8.2
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Forms of Benefit for Certain Transferred Participants
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8.2.1 The normal form of benefit for a Participant to whom this Article VIII applies is the 50% Joint and Survivor-Ten Year Certain Annuity with the Participant’s spouse as the Beneficiary, if the Participant is married on the Annuity Starting Date. If the Participant is not married on the Annuity Starting Date, the normal form of benefit is the Life and Ten Year Certain Annuity. If the Participant fails to make an election under Section 8.4, his or her Account Balance will be paid in the normal form of benefit. A Participant covered by this Article VIII who is married on the Annuity Starting Date may elect a benefit other than the normal form of benefit only if his or her spouse consents to the election within the time frame and in the manner required by Section 8.4.
8.2.2 Subject to Sections 8.2.1 and 8.4, and except as otherwise provided herein, a Participant covered by this Article VIII may elect to have his or her benefit under this Plan paid in the form of a lump sum distribution or a fixed dollar annuity purchased on his or her behalf. A Plan annuity is a fixed dollar annuity if it provides a stream of monthly payments that do not vary in amount.
8.2.3 If a Participant to whom this Article VIII applies elects to have a fixed dollar annuity purchased on his or her behalf, he or she may select any of forms of annuity described in this Section 8.2.3.
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(a)
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Life and Ten Year Certain Annuity
: This form of annuity pays the Participant a fixed amount each month beginning with the month in which the Annuity Starting Date occurs and ending when the Participant dies. If the Participant dies before 120 monthly payments have been made, payments will continue to the Participant’s Beneficiary until 120 monthly payments have been made to the Participant and Beneficiary under the annuity.
|
|
(b)
|
Joint and Survivor-Ten Year Certain Annuity
: This form of annuity pays the Participant a fixed amount each month beginning with the month in which the Annuity Starting Date occurs and ending when the Participant dies. If the Participant’s Beneficiary survives the Participant, payments will continue to the Participant’s primary Beneficiary until the Beneficiary dies. If the Participant and Beneficiary both die before 120 monthly payments have been made to the Participant and Beneficiary under the annuity, payments will continue to the Participant’s contingent Beneficiary until 120 monthly payments in all have been made under the annuity. The monthly payment payable to the primary or contingent Beneficiary before 120 payments have been made under the annuity equals the monthly payment made during the Participant’s lifetime. The monthly payment payable to the primary Beneficiary after 120 payments have been made under the annuity equals 100% or 50% of the monthly payment made during the Participant’s lifetime, as specified in the Participant’s election. Both the primary and contingent Beneficiaries must be named at the time this annuity is elected.
|
|
(c)
|
Period Certain Annuity
: This form of annuity pays the Participant a fixed amount each month beginning with the month in which the Annuity Starting Date occurs and ending when the specified number of monthly payments have been made to the Participant and, if he or she dies before receiving the specified number of payments, to the Participant’s Beneficiary. The Participant may specify 60, 120 or 180 monthly payments. The Participant specifies the number of monthly payments and names his or her Beneficiary at the time he or she elects the annuity.
|
|
(d)
|
Other
: This form of payment includes any other alternative form of distribution, including installment distributions, provided for by the Funding Agent. Notwithstanding the foregoing, a Participant may not elect any form of distribution providing only for the payment of interest or income earned on his or her Accounts.
|
8.2.4 An annuity under this Plan must provide that payments will be made over a period no longer than the life of the Participant, the lives of the Participant and his or her Beneficiary, the Participant’s life expectancy or the life expectancy of the Participant and his or her Beneficiary. A Participant to whom this Article VIII applies may not elect any form of annuity providing monthly payments to a Beneficiary who is other than his or her spouse, unless the amount distributed each year equals or exceeds the quotient obtained by dividing the Participant’s Account Balances by the divisor determined under Department of Treasury Regulation Section 1.401(a)(9)-2. Further, the amount of the monthly payment made to a Beneficiary cannot under any circumstances be larger than the amount of the monthly payment made to the Participant.
8.3
|
Change in Form, Timing or Medium of Benefit Payment for Certain Transferred Participants
|
Any former Employee, former employee of FMCTI, or former employee of FMC who is a Participant to whom this Article VIII applies and who has chosen to defer payment of his or her Account Balance may request a change in the form, timing or medium in which his or her Account Balances will be paid, so long as the revised election conforms to Sections 8.2 through 8.4. Once payments have begun, no Participant may change the form, timing or medium of payment of his or her Account Balance.
8.4
|
Waiver of Normal Form of Benefit for Certain Transferred Participants
|
8.4.1 The Account Balance of a Participant to whom this Article VIII applies will be distributed in the normal form of benefit, regardless of what form of benefit the Participant chooses, unless the Participant makes an effective waiver under this Section 8.4 and, if the Participant is married on the Annuity Starting Date, unless the Participant’s spouse consents to the Participant’s choice of another form of benefit in the manner described in this Section 8.4. No sooner than 30, and no more than 90, days before the Annuity Starting Date, the Administrator will provide the Participant with a written explanation of:
|
(a)
|
the terms and conditions of the normal form of benefit;
|
|
(b)
|
the Participant’s right to waive the normal form of benefit and the effect of waiving the normal form of benefit;
|
|
(c)
|
the right of the Participant’s spouse to consent or withhold his or her consent to the Participant’s choice of another form of benefit; and
|
|
(d)
|
the Participant’s right to revoke a waiver of the normal form of benefit, and the effect of revoking the waiver.
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A Participant may revoke his or her waiver of the normal form of benefit at any time before the payment begins, without his or her spouse’s consent. For purposes of the previous sentence, if the Participant’s Account Balance is to be paid in the form of an annuity, payment will be deemed to begin when the annuity has been purchased.
8.4.2 A Participant’s waiver of the normal form of benefit will be effective only if:
|
(a)
|
the Participant’s spouse consents in writing to the waiver;
|
|
(b)
|
the waiver includes an election of a form of benefit that cannot be changed without the spouse’s consent, or the spouse’s consent specifically permits the Participant to make other elections of forms of benefit;
|
|
(c)
|
the spouse’s consent acknowledges the effect of the waiver; and
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|
(d)
|
the spouse’s consent is witnessed by a notary public or the Administrator.
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Spousal consent to the Participant’s waiver of the normal form of benefit is not necessary if the Participant establishes to the satisfaction of a Plan representative that the Participant does not have a spouse, or that the Participant’s spouse cannot be located. Spousal consent is also unnecessary if the Participant produces a court order to the effect that the Participant is legally separated from his or her spouse or has been abandoned by the spouse, within the meaning of the law of the Participant’s state of residence, unless a qualified domestic relations order requires otherwise. If the Participant’s spouse is legally incompetent to give consent, the spouse’s legal guardian may give the spouse’s consent, even if the legal guardian is the Participant. A spouse’s consent will be valid only as to that spouse, and an election deemed effective without the spouse’s consent will be valid only as to the spouse designated as to that election.
8.4.3 Notwithstanding the foregoing, the first payment of the Participant’s Account Balance may be made as early as seven days after the Participant makes an affirmative election to receive his or her Account Balance in a particular form of payment, even if that means the Participant has fewer than 30 days to decide on a form of payment, if the Annuity Starting Date is after the date of the Participant’s affirmative election and, if the Participant is married on the Annuity Starting Date, the Participant’s spouse consents to the form of payment in the manner required by Section 8.4.2.
8.4.4 If the Administrator believes that any spouse might, under the law of any jurisdiction, have any interest in any benefit that might become payable to a Participant, the Administrator may, as a condition precedent to the Participant’s making any distribution or withdrawal election, require a written release or releases, or other documents that it believes are necessary, desirable, or appropriate to prevent or avoid any conflict or multiplicity of claims regarding payment of any Plan benefits.
8.5
|
Payment of Account Balances of Certain Transferred Participants Who Die Before Payment Begins
|
8.5.1 If a Participant to whom this Article VIII applies dies before payment of his or her Account Balance has begun, 50% of the Participant’s Account Balance will be paid to his or her Surviving Spouse in the form of a life annuity, and the remainder will be paid to his or her Surviving Spouse in the form of a lump sum within 90 days after the Administrator receives notice of the Participant’s death. If the Participant has no Surviving Spouse, the Participant’s Account Balance will be paid to his or her Beneficiary in the form of a lump sum within 90 days after the Administrator receives notice of the Participant’s death.
8.5.2 The Participant may choose a form of benefit other than the life annuity for the 50% of his or her Account Balance that will be paid to the Surviving Spouse, so long as the Participant’s election meets the requirements of Section 8.7 and his or her Spouse consents in the time and manner required by Section 8.7. The Participant may also designate a Beneficiary other than his or her Surviving Spouse as the primary Beneficiary to receive some or all of his or her Account Balance, so long as the Surviving Spouse consents to the designation in the time and manner required by Section 8.7.
8.5.3 Unless the Participant has chosen a form of benefit for his or her Beneficiary or Surviving Spouse, the Beneficiary or Surviving Spouse may choose to have any amounts payable to him or her paid in any of the forms of benefit described under Section 8.2 other than the Joint and Survivor-Ten Year Certain Annuity. Payments to a Surviving Spouse must begin no later than the April 1 following the year in which the Participant would have reached age 70½, and payments to a Beneficiary who is not the Surviving Spouse must begin no later than one year after the Participant’s death. Amounts payable to a Beneficiary or Surviving Spouse must be made within five years after the Participant’s death, or over a period not exceeding the life or life expectancy of the Surviving Spouse. A Participant’s Surviving Spouse who chooses to waive his or her right to receive 50% of the Participant’s Account Balances in the form of a life annuity must waive the right in the time and manner described in Section 8.7.
8.5.4 Notwithstanding Section 8.5.3 above, if at the time the Participant dies his or her Account Balance does not exceed $5,000 the Account will be distributed in the form of a single sum payment. In addition. if more than one Beneficiary is concurrently entitled to receive annuity payments, or if the monthly annuity payment to any Beneficiary would be less than $50 (or another amount established from time to time by the Administrator), the Administrator may choose to pay the value of the annuity in a single sum, so long as the single sum would not exceed the dollar limit of the previous sentence. Participant may change the form, timing or medium of payment of his or her Account Balance.
8.6
|
Failure to Name a Beneficiary for Certain Transferred Participants
|
If a Participant to whom this Article VIII applies fails to name a Beneficiary and dies before payment of his or her Account Balance begins, or if no designated Beneficiary survives the Participant, the Administrator will pay any amounts due after the Participant’s death to the Participant’s Surviving Spouse or, if there is no Surviving Spouse, to the Participant’s surviving children in equal shares. If the Participant leaves behind no Surviving Spouse or surviving children, the Administrator will pay any amounts then due to the Participant’s estate.
8.7
|
Waiver of Preretirement Survivor Annuity for Certain Transferred Participants
|
8.7.1 A Participant to whom this Article VIII applies may designate someone other than his or her Surviving Spouse as a primary Beneficiary to receive any portion of his or her Account Balance payable after his or her death, or the Participant or his or her Surviving Spouse may choose a form of benefit other than the life annuity for the 50% of the Account Balances that will automatically be paid to the Surviving Spouse as a life annuity only if the designation or election meets the requirements of this Section 8.7 outlined below.
8.7.2 The Administrator will provide each Participant with a written explanation of:
|
(a)
|
the 50% preretirement life annuity payable to the Participant’s Surviving Spouse;
|
|
(b)
|
the Participant’s right to waive that annuity and the effect of such a waiver;
|
|
(c)
|
the right of the Participant’s spouse to the 50% preretirement life annuity and the effect of waiving that right; and
|
|
(d)
|
the Participant’s right to revoke a previous waiver and the effect of such a revocation;
|
|
(e)
|
the right of the Participant to name someone other than his or her Surviving Spouse as a Beneficiary;
|
|
(f)
|
the right of the Participant’s spouse to be named as the primary Beneficiary for all of the Participant’s Account Balance and the effect of waiving that right; and
|
|
(g)
|
the Participant’s right to revoke a previous designation of someone other than the Surviving Spouse as a Beneficiary, and the effect of such a revocation.
|
The Administrator will provide the above explanation to the Participant during the period that begins on the first day of the Plan Year in which the Participant reaches age 32 and ends on the last day of the Plan Year in which the Participant reaches age 34. If a Participant first becomes a Participant after the start of that period, the Administrator will provide the explanation no later than the end of the second Plan Year after the Participant first becomes a Participant.
8.7.3 A designation of someone other than the Surviving Spouse as a primary Beneficiary, or the election of a form of benefit other than the 50% preretirement life annuity will be effective only if it is made in writing and consented to by the Participant’s spouse, with the spouse’s consent witnessed by a notary public or the Administrator. Moreover, the election must be made during the period that begins on the first day of the Plan Year in which the Participant reaches age 35 (or, if earlier, the date the Participant separates from service) and ends on the date of the Participant’s death. Any subsequent change of Beneficiary to an individual who is not the Participant’s Surviving Spouse must also be in writing and consented to by the Participant’s spouse, with the spouse’s consent witnessed by a notary public or the Administrator. Spousal consent is not necessary if the Participant establishes to the satisfaction of a Plan representative that the Participant does not have a spouse, or that the Participant’s spouse cannot be located. Spousal consent is also unnecessary if the Participant produces a court order to the effect that the Participant is legally separated from his or her spouse or has been abandoned by the spouse, within the meaning of the law of the Participant’s state of residence, unless a qualified domestic relations order requires otherwise. If the Participant’s spouse is legally incompetent to give consent, the spouse’s legal guardian may give the spouse’s consent, even if the legal guardian is the Participant. A spouse’s consent will be valid only as to that spouse, and an election deemed effective without the spouse’s consent will be valid only as to the spouse designated as to that election. A Participant may revoke a prior waiver of the 50% preretirement life annuity or a prior designation of someone other than the Surviving Spouse as a primary Beneficiary without the consent of his or her spouse, and may revoke such a waiver or designation an unlimited number of times.
8.7.4 A Participant’s former spouse will be treated as the spouse or Surviving Spouse only to the extent provided under a qualified domestic relations order as described in Code Section 414(p).
ARTICLE IX
Fiduciaries
9.1.1 The Company is the Plan sponsor and a “named fiduciary,” as that term is defined in ERISA Section 402(a)(2), with respect to control over and management of the Plan’s assets only to the extent that it (a) appoints the members of the Committee which administers the Plan at the Administrator’s direction; (b) delegates its authorities and duties as “plan administrator” (as defined under ERISA) to the Committee; and (c) continually monitors the performance of the Committee.
9.1.2 The Company as Administrator, and the Committee, which administers the Plan at the Administrator’s direction, are “named Fiduciaries” of the Plan, as that term is defined in ERISA Section 402(a)(2), with authority to control and manage the operation and administration of the Plan. The Administrator is also the “administrator” and “plan administrator” of the Plan, as those terms are defined in ERISA Section 3(16)(A) and Code Section 414(g), respectively.
9.1.3 The Trustee is a “named fiduciary” of the Plan, as that term is defined in ERISA Section 402(a)(2), with authority to manage and control all Trust assets, except to the extent that authority is allocated under the Plan and Trust to the Administrator or is delegated to an Investment Manager, an insurance company, or the Plan Participants at the direction of the Administrator or the Committee.
9.1.4 The Company, Committee, Administrator and Trustee are the only named fiduciaries of the Plan.
9.2
|
Employment of Advisers
|
A named fiduciary, and any fiduciary appointed by a named fiduciary, may employ one or more persons to render advice regarding any of the named fiduciary’s or fiduciary’s responsibilities under the Plan.
9.3
|
Multiple Fiduciary Capacities
|
Any named fiduciary and any other fiduciary may serve in more than one fiduciary capacity with respect to the Plan.
All Plan expenses, including expenses of the Administrator, the Committee, the Trustee, any Investment Manager and any insurance company, will be paid by the Trust Fund, unless a Participating Employer elects to pay some or all of those expenses. All or a portion of the recordkeeping costs or charges imposed or incurred (if any) in maintaining the Plan will be charged on a per capita basis to the Account of each Participant. In addition, all charges imposed or incurred (if any) for an Investment Fund or a transfer between Investment Funds will be charged to the Account of the Participant directing that investment. In addition, all charges imposed or incurred for a Participant loan will be charged to the Account of the Participant requesting the loan.
To the extent not prohibited by state or federal law, each Participating Employer agrees to, and will indemnify and save harmless the Administrator, any past, present, additional or replacement member of the Committee, and any other Employee, officer or director of that Participating Employer, from all claims for liability, loss, damage (including payment of expenses to defend against any such claim) fees, fines, taxes, interest, penalties and expenses which result from any exercise or failure to exercise any responsibilities with respect to the Plan, other than willful misconduct or willful failure to act.
ARTICLE X
Plan Administration
10.1
|
Powers, Duties and Responsibilities of the Administrator and the Committee
|
10.1.1 The Administrator and the Committee have full discretion and power to construe the Plan and to determine all questions of fact or interpretation that may arise under it. An interpretation of the Plan or determination of questions of fact regarding the Plan by the Administrator or Committee will be conclusively binding on all persons interested in the Plan.
10.1.2 The Administrator and the Committee have the power to promulgate such rules and procedures, to maintain or cause to be maintained such records and to issue such forms as they deem necessary or proper to administer the Plan.
10.1.3 Subject to the terms of the Plan, the Administrator and/or the Committee will determine the time and manner in which all elections authorized by the Plan must be made or revoked.
10.1.4 The Administrator and the Committee have all the rights, powers, duties and obligations granted or imposed upon them elsewhere in the Plan.
10.1.5 The Administrator and the Committee have the power to do all other acts in the judgment of the Administrator or Committee necessary or desirable for the proper and advantageous administration of the Plan.
10.1.6 The Administrator and the Committee will exercise all of their responsibilities in a uniform and nondiscriminatory manner.
10.2
|
Investment Powers, Duties and Responsibilities of the Administrator and the Committee
|
10.2.1 The Administrator and the Committee have the power to make and deal with any investment of the Trust in any manner it deems advisable and which is consistent with the Plan. Notwithstanding the foregoing, the power to make and deal with Trust investments does not extend to any assets subject to the direction and control of Plan Participants as described in Section 10.3.2.
10.2.2 The Administrator and/or the Committee will establish and carry out a funding policy and method consistent with the objectives of the Plan and the requirements of ERISA.
10.2.3 The Administrator and the Committee have the power to direct that assets of the Trust be held in a trust or a master trust consisting of assets of plans maintained by a Participating Employer that are qualified under Code Section 401(a).
10.3
|
Investment of Accounts
|
10.3.1 The Administrator or, as delegated by the Administrator, the Committee, may establish such different Investment Funds as it from time to time determines to be necessary or advisable for the investment of Participants’ Accounts, including Investment Funds pursuant to which Accounts can be invested in “qualifying employer securities,” as defined in Part 4 of Title I of ERISA. Each Investment Fund will have the investment objective or objectives established by the Administrator or Committee. Except to the extent investment responsibility is expressly reserved in another person, the Administrator or the Committee, in its sole discretion, will determine what percentage of the Plan assets is to be invested in qualifying employer securities. The percentage designated by the Administrator can exceed ten percent of the Plan’s assets, up to a maximum of all of the Plan’s assets.
10.3.2 Except as provided in Section 10.3.3, the Administrator or, as delegated by the Administrator, the Committee may in its sole discretion permit Participants to determine the portion of their Accounts that will be invested in each Investment Fund. The frequency with which a Participant may change his or her investment election concerning future Pre-Tax Contributions or Roth Elective Contributions (effective January 1, 2011) or his or her existing Account will be governed by uniform and nondiscriminatory rules established by the Administrator or the Committee. To the extent permitted under ERISA, the Plan is intended to comply with and be governed by Section 404(c) of ERISA.
10.3.3
Diversification of Employer Securities.
Effective for Plan Years beginning on or after January 1, 2007, if any portion of a Participant’s Account is invested in publicly-traded Company securities, the Participant may elect to direct the Plan to divest such portion of his or her account of any such securities, and to reinvest an equivalent amount in other investment options which satisfy the requirements of this Section 10.3.3.
Other investment options for purposes of this Section 10.3.3 must include no less than three (3) investment options, other than Company securities, to which the Participant may redirect contributions invested in Company securities. Each such option must be diversified and have materially different risk and return characteristics. The Plan must permit divestment and reinvestment opportunities at least quarterly. Except as provided in applicable Treasury regulations, the Plan may not impose restrictions or conditions on the investment of Company securities which the Plan does not impose on the investment of other Plan assets, other than restrictions or conditions imposed by applicable securities laws or IRS guidance
10.4
|
Valuation of Accounts
|
A Participant’s Accounts will be revalued at fair market value on each Valuation Date. On each Valuation Date, the earnings and losses of the Trust will be allocated to each Participant’s Account in the ratio that his or her total Account Balance bears to all Account Balances. Notwithstanding the foregoing, if the Administrator or Committee establishes Investment Funds pursuant to Section 10.3, the earnings and losses of the particular Investment Funds will be allocated in the ratio that the portion of each Participant’s Account Balance invested in a particular Investment Fund bears to the total amount invested in that fund. If and to the extent the rules of any Investment Fund require a different method of valuation, those rules will be followed.
10.5
|
The Insurance Company
|
The Administrator or the Committee may appoint one or more insurance companies as Funding Agents, and may purchase insurance contracts, annuity contracts or policies from one or more insurance companies with Plan assets. Neither the Administrator nor the Committee, nor any other Plan fiduciary will be liable for any act or omission of an insurance company with respect to any duties delegated to any insurance company.
Each person providing services to the Plan will be paid such reasonable compensation as is from time to time agreed upon between the Company and that service provider, and will have his, her or its expenses reimbursed. Notwithstanding the foregoing, no person who is an Employee will be paid any compensation for his or her services to the Plan.
10.7
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Delegation of Responsibility
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The Administrator and the Committee may designate by written instrument one or more actuaries, accountants or consultants as fiduciaries to carry out, where appropriate, their administrative responsibilities, including their fiduciary duties. The Committee may from time to time allocate or delegate to any subcommittee, member of the Committee and others, not necessarily employees of the Company, any of its duties relative to compliance with ERISA, administration of the Plan and other related matters, including those involving the exercise of discretion. The Company’s duties and responsibilities under the Plan will be carried out by its directors, officers and employees, acting on behalf of and in the name of the Company in their capacities as directors, officers and employees, and not as individual fiduciaries. No director, officer or employee of the Company will be a fiduciary with respect to the Plan unless he or she is specifically so designated and expressly accepts such designation.
The Committee will consist of at least three people, who need not be directors, and will be appointed by the Chief Executive Officer of the Company. Any Committee member may resign and the Chief Executive Officer may remove any Committee member, with or without cause, at any time. A majority of the members of the Committee will constitute a quorum for the transaction of business, and the act of a majority of the Committee members at a meeting at which a quorum is present will be an act of the Committee. The Committee can act by written consent signed by all of its members. Any member of the Committee who is an Employee cannot receive compensation for his or her services for the Committee. No Committee member will be entitled to act on or decide any matter relating solely to his or her status as a Participant.
ARTICLE XI
Appointment of Trustee
The Committee or its authorized delegate will appoint the Trustee and either may remove it. The Trustee accepts its appointment by executing the trust agreement. A Trustee will be subject to direction by the Committee or its authorized delegate or, to the extent specified by the Company, by an Investment Manager or other Funding Agent, and will have the degree of discretion to manage and control Plan assets specified in the trust agreement. Neither the Administrator nor the Committee, nor any other Plan fiduciary will be liable for any act or omission to act of a Trustee, as to duties delegated to the Trustee. Any Trustee appointed under this Article XI will be an institution.
ARTICLE XII
Plan Amendment or Termination
12.1
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Plan Amendment or Termination
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The Company may amend, modify or terminate this Plan at any time by resolution of its Board or by resolution of or other action recorded in the minutes of the Administrator or the Committee. Execution and delivery by the Chairman of the Board, the President, any Vice President of the Company or the Committee of an amendment to the Plan is conclusive evidence of the amendment, modification or termination.
12.2
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Limitations on Plan Amendment
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No Plan amendment can:
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(a)
|
authorize any part of the Trust Fund to be used for, or diverted to, purposes other than the exclusive benefit of Participants or their Beneficiaries;
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(b)
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decrease the accrued benefits of any Participant or his or her Beneficiary under the Plan; or
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(c)
|
except to the extent permitted by law, eliminate or reduce an early retirement benefit or retirement-type subsidy (as defined in Code Section 411) or an optional form of benefit with respect to service prior to the date the amendment is adopted or effective, whichever is later.
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12.3
|
Right to Terminate Plan or Discontinue Contributions
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The Participating Employers intend and expect to continue this Plan in effect and to make the contributions provided for in this Plan. However, the Company reserves the right to terminate the Plan at any time in the manner set forth in Section 12.1. In addition, each Participating Employer reserves the right to completely discontinue contributions to the Plan for its Employees at any time. Upon termination of the Plan, each affected Participant’s Account Balance will be vested and nonforfeitable and the Trust will continue until the Trust Fund has been distributed.
If the Company is ever judicially declared bankrupt or insolvent, and no provisions to continue the Plan are made in the bankruptcy or insolvency proceeding, the Plan will, to the extent permissible under federal bankruptcy law, be completely terminated.
ARTICLE XIII
Miscellaneous Provisions
All benefits to which any Participant, Surviving Spouse or Beneficiary may be entitled under this Plan will be determined under the Plan as in effect when the Participant ceases to be an Eligible Employee, and will not be affected by any subsequent change in the provisions of the Plan, unless either the Participant again becomes an Eligible Employee or the subsequent change expressly applies to the Participant.
13.2
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Merger or Transfer of Assets
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13.2.1 Neither the merger or consolidation of a Participating Employer with any other person, nor the transfer of the assets of a Participating Employer to any other person, nor the merger of the Plan with any other plan will constitute a termination of the Plan.
13.2.2 The Plan may not merge or consolidate with, or transfer any assets or liabilities to, any other plan, unless each Participant 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 or she would have been entitled to receive immediately before the merger, consolidation or transfer (if the Plan had then terminated).
13.3
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Benefits Not Assignable
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13.3.1 A Participant’s Account Balance may not be assigned or alienated either voluntarily or involuntarily.
13.3.2 Notwithstanding the foregoing, a Participant may pledge his or her Pre-Tax Account as security for a loan under Section 6.7. In addition, the Administrator or Committee will comply with the terms of any qualified domestic relations order, as defined in Code Section 414(p). Notwithstanding any other provision of the Plan, the Funding Agent has all powers that would otherwise be assigned to the Administrator, regarding the interpretation of and compliance with qualified domestic relations orders, including the power make and enforce rules regarding segregations of or holds on a Participant’s Account to comply with a qualified domestic relations order, or when a domestic relations order is reasonably expected, or is under examination of its status.
13.3.3 The prohibition of Section 13.3.1 will not apply to any offset of a Participant’s Account Balance against an amount the Participant is ordered or required to pay to the Plan under a judgment, order, decree or settlement agreement that meets the requirements of this Section 13.3.3. The requirement to pay must arise under a judgment of conviction for a crime involving the Plan, under a civil judgment (including a consent order or decree) entered by a court in an action brought in connection with a violation (or alleged violation) of part 4 of subtitle B of title I of ERISA, or pursuant to a settlement agreement between the Secretary of Labor and the Participant in connection with a violation (or alleged violation) of that part 4. In addition, the judgment, order, decree or settlement agreement must expressly provide for the offset of all or part of the amount that must be paid to the Plan against the Participant’s Account Balance.
13.4
|
Exclusive Benefit of Participants
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Notwithstanding any other provision of the Plan, no part of the Trust Fund must ever be used for, or diverted to, any purpose other than the exclusive providing benefits to Participants and their Beneficiaries and defraying the reasonable expenses of the Plan, except that, upon the direction of the Administrator:
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(a)
|
any contribution made by a Participating Employer by a mistake of fact will be returned within one year after payment of the contribution;
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|
(b)
|
any contribution made by a Participating Employer that was conditioned upon its deductibility shall be returned to the extent disallowed as a deduction under Code Section 404 within one year after the deduction is disallowed; and
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|
(c)
|
any contribution that was initially conditioned on the Plan’s satisfying the requirements of Code Section 401(a) will be returned to the Participating Employer who made it, if the Plan is initially determined not to satisfy the requirements of Code Section 401(a).
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Any amount a Participating Employer seeks to recover under paragraph (a) or (b) will be reduced by the amount of any losses attributable to it, but will not be increased by the amount of any earnings attributable to it.
13.5
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Benefits Payable to Minors, Incompetents and Others
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If any benefit is payable to a minor, an incompetent, or a person otherwise under a legal disability, or to a person the Administrator reasonably believes to be physically or mentally incapable of handling and disposing of his or her property, whether because of his or her advanced age, illness, or other physical or mental impairment, the Administrator has the power to apply all or any part of the benefit directly to the care, comfort, maintenance, support, education, or use of the person, or to pay all or any part of the benefit to the person’s parent, guardian, committee, conservator, or other legal representative, wherever appointed, to the individual with whom the person is living or to any other individual or entity having the care and control of the person. The Plan, the Administrator and any other Plan fiduciary will have fully discharged their responsibilities to the Participant, Surviving Spouse or Beneficiary entitled to a payment by making payment under the preceding sentence.
13.6
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Plan Not A Contract of Employment
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The Plan is not a contract of Employment, and the terms of Employment of any Employee will not be affected in any way by the Plan or any related instruments, except as specifically provided in the Plan or related instruments.
Plan benefits will be paid or provided for solely from the Trust or applicable insurance or annuity contracts, and the Participating Employers assume no liability for Plan benefits.
13.8
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Proof of Age and Marriage
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Participants and Beneficiaries must furnish proof of age and marital status satisfactory to the Administrator or Committee when and if the Administrator or Committee reasonably requests it. The Administrator or Committee may delay the payment of any benefits under the Plan until all pertinent information regarding age and marital status has been presented to it, and then, if appropriate, make payment retroactively.
The Plan is intended to qualify under Code Section 401(a) and to comply with ERISA, and its terms will be interpreted accordingly. If any Plan provision is subject to more than one construction, the ambiguity will be resolved in favor of the interpretation or construction consistent with that intent. Similarly, if there is a conflict between any Plan provisions, or between any Plan provision and any Plan administrative form submitted to the Administrator, the Plan provisions necessary to retain qualified status under Code Section 401(a) will govern. Otherwise, to the extent not preempted by ERISA or as expressly provided herein, the laws of the State of Delaware (other than its conflict of laws provisions) will control the interpretation and performance of the Plan.
13.10
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Income Tax Withholding
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The Administrator or Committee may direct that any amounts necessary to comply with applicable employment tax law be withheld from any payment due under this Plan.
13.11.1 Any application for benefits under the Plan and all inquiries concerning the Plan shall be submitted to the Company at such address as may be announced to Participants from time to time. Applications for benefits shall be in the form and manner prescribed by the Company and shall be signed by the Participant or, in the case of a benefit payable after the death of the Participant, by the Participant's Surviving Spouse or Beneficiary, as the case may be.
13.11.2 The Plan Administrator shall give written or electronic notice of its decision on any application to the applicant within 90 days of receipt of the application. Electronic notification may be used, at the discretion of the Plan Administrator (or Review Panel, as discussed below). If special circumstances require a longer period of time, the Plan Administrator shall provide notice to the applicant within the initial 90-day period, explaining the special circumstances requiring the extension of time and the date by which the Plan expects to render a benefit determination. A decision will be given as soon as possible, but no later than 180 days after receipt of the application. In the event any application for benefits is denied in whole or in part, the Plan Administrator shall notify the applicant in writing or electronic notification of the right to a review of the denial. Such notice shall set forth, in a manner calculated to be understood by the applicant: the specific reasons for the denial; the specific references to the Plan provisions on which the denial is based; a description of any information or material necessary to perfect the application and an explanation of why such material is necessary; and a description of the Plan’s review procedures and the applicable time limits to such procedures, including a statement of the participant’s right to bring a civil action under ERISA Section 502(a) following a denial on review.
13.11.3 The Company shall appoint a "Review Panel," which shall consist of three or more individuals who may (but need not) be employees of the Company. The Review Panel shall be the named fiduciary that has the authority to act with respect to any appeal from a denial of benefits under the Plan, and shall hold meetings at least quarterly, as needed. The Review Panel shall have the authority to further delegate its responsibilities to two or more individuals who may (but need not) be employees of the Company.
13.11.4 Any person (or his authorized representative) whose application for benefits is denied in whole or in part may appeal the denial by submitting to the Review Panel a request for a review of the application within 60 days after receiving notice of the denial. The Review Panel shall give the applicant or such representative the opportunity to submit written comments, documents, and other information relating to the claim; and an opportunity to review, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other relevant information (other than legally privileged documents) in preparing such request for review. The request for review shall be in writing and addressed as follows: "Review Panel of the Employee Welfare Benefits Plan Committee, 1803 Gears Road, Houston, Texas 77067-4097." The request for review shall set forth all of the grounds on which it is based, all facts in support of the request and any other matters that the applicant deems pertinent. The Review Panel may require the applicant to submit such additional facts, documents, or other material as it may deem necessary or appropriate in making its review. The Review Panel will consider all comments, documents, and other information submitted by the applicant regardless of whether such information was submitted or considered during the initial benefit determination.
13.11.5 The Review Panel shall act upon each request for review within 60 days after receipt thereof. If special circumstances require a longer period of time, the Review Panel shall so notify the applicant within the initial 60 days, explaining the special circumstances requiring the extension of time and the date by which the Review Panel expects to render a benefit determination. A decision will be given as soon as possible, but no later than 120 days after receipt of the request for review. The Review Panel shall give notice of its decision to the Company and the applicant. In the event the Review Panel confirms the denial of the application for benefits in whole or in part, such notice shall set forth in a manner calculated to be understood by the applicant, the specific reasons for such denial and specific references to the Plan provisions on which the decision is based. If such an extension of time for review is required because of special circumstances, the Plan Administrator shall provide the applicant with written notice of the extension, describing the special circumstances and the date as of which the benefit determination will be made, prior to the commencement of the extension. In the event the Review Panel confirms the denial of the application for benefits in whole or in part, such notice shall set forth in a manner calculated to be understood by the applicant: the specific reasons for such denial; the specific references to the Plan provisions on which the decision is based; the applicant’s right, upon request and free of charge, to receive reasonable access to, and copies of, all documents and other relevant information (other than legally-privileged documents and information); and a statement of the applicant’s right to bring a civil action under ERISA Section 502(a).
13.11.6 The Review Panel shall establish such rules and procedures, consistent with ERISA and the Plan, as it may deem necessary or appropriate in carrying out its responsibilities under this Section 13.11.
13.11.7 To the extent an application for accelerated vesting as a result of a Disability requires the Plan Administrator or the Review Panel, as applicable, to make a determination of Disability under the terms of the Plan, such determination shall be subject to all of the general rules described in this Section 13.11, except as they are expressly modified by this Section 13.11.7.
|
(a)
|
If the applicant’s claim is for benefits as a result of Disability, then the initial decision on a claim for disability benefits will be made within 45 days after the Plan receives the applicant’s claim, unless special circumstances require additional time, in which case the Plan Administrator will notify the applicant before the end of the initial 45-day period of an extension of up to 30 days. If necessary, the Plan Administrator may notify the applicant, prior to the end of the initial 30-day extension period, of a second extension of up to 30 days. If an extension is due to the applicant’s failure to supply the necessary information, the notice of extension will describe the additional information and the applicant will have 45 days to provide the additional information. Moreover, the period for making the determination will be delayed from the date the notification of extension was sent out until the applicant responds to the request for additional information. No additional extensions may be made, except with the applicant’s voluntary consent. The contents of the notice shall be the same as described in Section 13.11.2 above. If a benefit claim as a result of Disability is denied in whole or in part, the applicant (or his authorized representative) will receive written or electronic notification, as described in Section 13.11.2.
|
|
(b)
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If an internal rule, guideline, protocol or similar criterion is relied upon in making the adverse determination, then the notice to the applicant of the adverse decision will either set forth the internal rule, guideline, protocol or similar criterion, or will state that such was relied upon and will be provided free of charge to the applicant upon request (to the extent not legally-privileged) and if the applicant’s claim was denied based on a medical necessity or experimental treatment or similar exclusion or limit, then the applicant will be provided a statement either explaining the decision or indicating that an explanation will be provided to the applicant free of charge upon request.
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(c)
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The Review Panel, as described above in Section 13.11.3 shall be the named fiduciary that has the authority to act on with respect to any appeal from a denial of benefits as a result of Disability under the Plan. Any applicant (or his authorized representative) whose application for benefits as a result of Disability is denied in whole or in part may appeal the denial by submitting to the Review Panel a request for a review of the application within 180 days after receiving notice of the denial. The request for review shall be in the form and manner prescribed by the Review Panel and addressed as follows: "Review Panel of the Employee Welfare Benefits Plan Committee, 1803 Gears Road, Houston, Texas 77067-4097." In the event of such an appeal for review, the provisions of Section 13.11.4 regarding the applicant’s rights and responsibilities shall apply. Upon request, the Review Panel will identify any medical or vocational expert whose advice was obtained on behalf of the Review Panel in connection with an adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination. The entity or individual appointed by the Review Panel to review the claim will consider the appeal de novo, without any deference to the initial benefit denial. The review will not include any person who participated in the initial benefit denial or who is the subordinate of a person who participated in the initial benefit denial.
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(d)
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If the initial disability benefit denial was based in whole or in part on a medical judgment, then the Review Panel will consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment, and who was neither consulted in connection with the initial benefit determination nor is the subordinate of any person who was consulted in connection with that determination; and upon notifying the applicant of an adverse determination on review, include in the notice either an explanation of the clinical basis for the determination, applying the terms of the Plan to the applicant’s medical circumstances, or a statement that such explanation will be provided free of charge upon request.
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(e)
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A decision on review shall be made promptly, but not later than 45 days after receipt of a request for review, unless special circumstances require an extension of time for processing. If an extension is required, the applicant will be notified before the end of the initial 45-day period that an extension of time is required and the anticipated date that the review will be completed. A decision will be given as soon as possible, but not later than 90 days after receipt of a request for review. The Review Panel shall give notice of its decision to the applicant; such notice shall comply with the requirements set forth in Section 13.11.5. In addition, if the applicant’s claim was denied based on a medical necessity or experimental treatment or similar exclusion, the applicant will be provided a statement explaining the decision, or a statement providing that such explanation will be furnished to the applicant free of charge upon request. The notice shall also contain the following statement: “You and your Plan may have other voluntary alternative dispute resolution options, such as mediation. One way to find out what may be available is to contact your local U.S. Department of Labor Office and your State insurance regulatory agency.”
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13.11.8 No legal or equitable action for benefits under the Plan shall be brought unless and until the applicant (a) has submitted a written application for benefits in accordance with Section 13.11.1 (or 13.11.7(a), as applicable), (b) has been notified by the Plan Administrator that the application is denied, (c) has filed a written request for a review of the application in accordance with Section 13.11.4 (or 13.11.7(c), as applicable); and (d) has been notified that the Review Panel has affirmed the denial of the application; provided that legal action may be brought after the Review Panel has failed to take any action on the claim within the time prescribed in Section 13.11.5 (or 13.11.7(e), as applicable). A applicant may not bring an action for benefits in accordance with this Section 13.11.8 later than 90 days after the Review Panel denies the applicant's application for benefits.
13.12
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Participation in the Plan by An Affiliate
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13.12.1 With the consent of the Board or an authorized delegate of the Board, any Affiliate, by appropriate action of its board of directors, a general partner or the sole proprietor, as the case may be, may adopt the Plan. Each Affiliate will determine the classes of its Employees that will be Eligible Employees and the amount of its contribution to the Plan on behalf of its Eligible Employees.
13.12.2 With the consent of the Board or an authorized delegate of the Board, a Participating Employer, by appropriate action, may terminate its participation in the Plan.
13.12.3 With the consent of the Board or an authorized delegate of the Board, a Participating Employer, by appropriate action, may withdraw from the Plan and the Trust. A Participating Employer’s withdrawal will be deemed to be an adoption by that Participating Employer of a plan and trust identical to the Plan and the Trust, except that all references to the Company will be deemed to refer to that Participating Employer. At such time and in such manner as the Administrator directs, the assets of the Trust allocable to Employees of the Participating Employer will be transferred to the trust deemed adopted by the Participating Employer.
13.12.4 A Participating Employer will have no power with respect to the Plan except as specifically provided herein.
13.13
|
Action by Participating Employers
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Any action required to be taken by the Company pursuant to any Plan provisions will be evidenced in the manner set forth in Section 12.1. Any action required to be taken by a Participating Employer will be evidenced by a resolution of the Participating Employer’s board of directors or an authorized delegate of that board. Participating Employer action may also be evidenced by a written instrument executed by any person or persons authorized to take the action by the Participating Employer’s board of directors, any authorized delegate of that board, or the stockholders. A copy of any written instrument evidencing the action by the Company or Participating Employer must be delivered to the secretary or assistant secretary of the Company or Participating Employer.
Any dividends credited to a group annuity contract between the Participating Employer and the Funding Agent will be used to provide additional benefits under the Plan.
ARTICLE XIV
Top Heavy Provisions
14.1
|
Top Heavy Definitions
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For purposes of this Article XIV and any amendments to it, the terms listed in this Section 14.1 have the meanings ascribed to them below.
14.1.1
Aggregate Employer Contributions
means the sum of all Company Contributions, Company Safe Harbor Nonelective Contributions (effective January 1, 2010), and Forfeitures allocated under this Plan for a Matched Participant, as applicable, and all employer contributions and forfeitures allocated for the Matched Participant to all Related Defined Contributions in the Aggregation group.
14.1.2
Aggregation Group
means the group of plans in a Mandatory Aggregation Group, if any, that includes the Plan, unless including additional Related Plans in the group would prevent the Plan for being a Top Heavy Plan, in which case Aggregation Group means the group of plans in a Permissive Aggregation Group, if any, that includes the Plan.
14.1.3
Determination Date
means, for a Plan Year, the last day of the preceding Plan Year. If the Plan is part of an Aggregation Group, the Determination Date for each other plan will be, for any Plan Year, the Determination Date for that other plan that falls in the same calendar year as the Determination Date for the Plan.
14.1.4
Key Employee
means an employee described in Code Section 416(i)(1) and the regulations promulgated thereunder. Generally, a Key Employee is an Employee or former Employee (including a deceased Employee) who, at any time during the Plan Year containing the Determination Date is:
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(a)
|
an officer of the Company or an Affiliate with annual Compensation greater than $130,000 (as adjusted under Code Section 416(i)(1) for Plan Years beginning on and after January 1, 2002);
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(b)
|
a five percent owner of the Company or an Affiliate; or
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(c)
|
a one percent owner of the Company or an Affiliate having annual Compensation of more than $150,000.
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For purposes of determining who is a Key Employee, the Plan’s definition of Compensation will be applied by taking into account amounts paid by Affiliates who are not Participating Employers, as well as amounts paid by Participating Employers, and without applying the exclusions for amounts paid by a Participating Employer to cover an Employee’s nonqualified deferred compensation FICA tax obligations and for gross-up payments on such FICA tax payments.
14.1.5
Mandatory Aggregation Group
means each plan (considering the Plan and Related Plans) that, during the Plan Year that contains the Determination Date or any of the four preceding Plan Years:
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(a)
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had a participant who was a Key Employee; or
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(b)
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was required to be considered with a plan in which a Key Employee participated in order to enable the plan in which the Key Employee participated to meet the requirements of Code Section 401(a)(4) or 410(b).
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14.1.6
Non-key Employee
means an Employee or former Employee who is not a Key Employee.
14.1.7
Permissive Aggregation Group
means the group of plans consisting of the plans in a Mandatory Aggregation Group with the Plan, plus any other Related Plan or Plans that, when considered as a part of the Aggregation Group, does not cause the Aggregation Group to fail to satisfy the requirements of Code Section 401(a)(4) or 410(b).
14.1.8
Present Value of Accrued Benefits
means, for any Plan Year, an amount equal to the sum of (a), (b) and (c) for each person who, in the Plan Year containing the Determination Date, was a Key Employee or a Non-key Employee.
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(a)
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The value of a person’s full Account Balance under the Plan, plus his or her total account balances under each Related Defined Contribution Plan in the Aggregation Group, determined as of the valuation date coincident with or immediately preceding the Determination Date, adjust for contributions due as of the Determination Date, as follows:
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|
(i)
|
in the case of a plan not subject to the minimum funding requirements of Code Section 412, by including the amount of any contributions actually made after the valuation but on or before the Determination Date and, in the first plan year of a plan, by including contributions made after the Determination Date that are allocated as of a date in the first plan year; and
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(ii)
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in the case of a plan that is subject to the minimum funding requirements of Code Section 412, by including the amount of any contributions that would be allocated as of a date no later than the Determination Date, plus adjustments to those amounts required under applicable rulings, even though those amounts are not yet required to be contributed or allocated (e.g., because they have been waived) and by including the amount of any contributions actually made (or due to be made) after the valuation date but before the expiration of the extended payment period in Code Section 412(c)(10).
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(b)
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The sum of the actuarial present value of a person’s accrued benefits under each Related Defined Benefit Plan in the Aggregation Group, determined for any person who is employed by a Participating Employer on a Determination Date, expressed as a benefit commencing at normal retirement date (or, if later, the person’s attained age). The present value of an accrued benefit under a Related Defined Benefit Plan is determined as of the most recent valuation date that is within the 12-month period ending on the Determination Date.
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|
(c)
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The aggregate value of amounts distributed under the Plan and any plan in an Aggregation Group (as defined in Code Section 416(g)(2)) during the one (1) year period ending on the Determination Date, including amounts distributed under a terminated plan that, if it had not been terminated, would have been in a Mandatory Aggregation Group. In the case of a distribution from any such plan made for a reason other than separation from service (effective January 1, 2002, severance from employment), death or Disability, this provision shall be applied by substituting ‘five (5) year period’ for ‘one (1) year period.’
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(d)
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The Present Value of Accrued Benefit of any individual who has not performed services for the Company or an Affiliate during the one (1) year period ending on the Determination Date shall not be taken into account.
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14.1.9
Related Plan
means any other defined contribution plan (a “Related Defined Contribution Plan”) or defined benefit plan (a “Related Defined Benefit Plan”) (both as defined in Code Section 415(k), maintained by the Company or an Affiliate.
14.1.10
A Super Top Heavy Aggregation Group
exists in any Plan Year for which, as of the Determination Date, the sum of the Present Value of Accrued Benefits for Key Employees under all plans in the Aggregation Group exceeds 90% of the sum of the Present Value of Accrued Benefits for all employees under all plans in the Aggregation Group. In determining the sum of the Present Value of Accrued Benefits for all employees, the Present Value of Accrued Benefits for any Non-key Employee who was a Key Employee for any Plan Year preceding the Plan Year that contains the Determination Date will be excluded.
14.1.11
Super Top Heavy Plan
means the Plan when it is described in the second sentence of Section 14.2.
14.1.12
A Top Heavy Aggregation Gro
up exists in any Plan Year for which, as of the Determination Date, the sum of the Present Value of Accrued Benefits for Key Employees under all plans in the Aggregation Group exceeds 60% of the sum of the Present Value of Accrued Benefits for all employees under all plans in the Aggregation Group. In determining the sum of the Present Value of Accrued Benefits for all employees, the Present Value of Accrued Benefits for any Non-key Employee who was a Key Employee for any Plan Year preceding the Plan Year that contains the Determination Date will be excluded.
14.1.13
Top Heavy Plan
means the Plan when it is described in the first sentence of Section 14.2.
14.2
|
Determination of Top Heavy Status
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This Plan is a Top Heavy Plan in any Plan Year in which it is a member of a Top Heavy Aggregation Group, including a Top Heavy Aggregation Group that includes only the Plan. The Plan is a Super Top Heavy Plan in any Plan Year in which it is a member of a Super Top Heavy Aggregation Group, including a Super Top Heavy Aggregation Group that includes only the Plan.
14.3
|
Minimum Allocation for Top Heavy Plan
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14.3.1 For any Plan Year that the Plan is a Top Heavy Plan, the sum of the Company Contributions, Company Safe Harbor Nonelective Contributions (effective January 1, 2010), and Forfeitures allocated to the Accounts of each Matched Participant who is a Non-key Employee will be at least three percent of such Participant’s Compensation. However, if the sum of the Company Contributions, Company Safe Harbor Nonelective Contributions (effective January 1, 2010), and Forfeitures allocated to the Accounts of each such Participant who is a Key Employee for the Plan Year is less than three percent of his or her Compensation and this Plan is not required to be included in an Aggregation Group to enable a defined benefit plan to meet the requirements of Code Section 401(a)(4) or 410(b), the sum of the Company Contributions, Company Safe Harbor Nonelective Contributions (effective January 1, 2010), and Forfeitures allocated to the Accounts of each such Participant who is a Non-key Employee for the Plan Year will be equal to the largest percentage of Compensation allocated to the Accounts of any such Participant who is a Key Employee. Notwithstanding the foregoing, no minimum allocation will be required for any Non-key Employee who participates in another defined contribution plan subject to Code Section 412 and included with this Plan in a Mandatory Aggregation Group.
14.3.2 For any Plan Year when the Plan is a Top Heavy Plan but not a Super Top Heavy Plan and a Key Employee is a participant in both this Plan and a defined benefit plan included in a Mandatory Aggregation Group that is top heavy, the extra minimum allocation will be provided only in this Plan, and by substituting four percent for three percent, where the latter percentage appears in Section 14.3.1.
14.3.3 For any Plan Year that the Plan is a Top 1-levy Plan, the minimum allocations set forth in this Section 14.3 will be allocated to the Accounts of all Non-key Employees who are Matched Participants and who are employed by the Company on the last day of the Plan Year, regardless of their service during the Plan Year, and whether or not they have made contributions of their own to the Plan.
14.3.4 In lieu of the above, if a Non-key Employee participates in this Plan and a Related Defined Benefit Plan included with this Plan in a Mandatory Aggregation Group that is a Top Heavy Aggregation Group, a minimum allocation of five percent of Compensation will be provided under this Plan. However, for any Plan Year when the Plan is a Top Heavy Plan but not a Super Top Heavy Plan and a Key Employee is a participant in both this Plan and a Related Defined Benefit Plan included with this Plan in a Mandatory Aggregation Group, seven and one-half percent will be substituted for five percent where the latter percentage appears in this Section 14.3.4, and the extra minimum allocation will be provided only in this Plan.
14.3.5 Company Contributions or Company Safe Harbor Nonelective Contributions (effective January 1, 2010) made on behalf of a Matched Participant pursuant to Section 3.4 of the Plan shall be taken into account for purposes of satisfying the minimum allocation requirements of Section 14.3 of the Plan and Code Section 416(c)(2). Company Contributions made on behalf of a Matched Participant or Company Safe Harbor Nonelective Contributions (effective January 1, 2010) made that are used to satisfy the minimum contribution requirements shall be treated as Company Contributions or Company Safe Harbor Nonelective Contributions (effective January 1, 2010), as applicable, for purposes of the Actual Contribution Percentage Test and other requirements of Code Section 401(m).
IN WITNESS WHEREOF, the undersigned Committee member has executed this Plan this ___ day of May, 2012, to be effective, as amended and restated, as of January 1, 2012, except as otherwise expressly provided herein.
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JOHN BEAN TECHNOLOGIES CORPORATION
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By:
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Member, Employee Welfare Benefits
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Plan Committee
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APPENDIX A
Bargaining Units Covered Under the Plan
Until otherwise negotiated, the bargaining units whose members are covered by the Plan, and the effective dates of their coverage, are listed below:
Name of Bargaining Unit
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Effective Date
of Plan Coverage
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Effective Date of
FMC Plans or FMCTI Plan
Coverage
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Packaging Systems Division, Green
Bay, Wisconsin, United Steel
Workers, Local 32-6050
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Effective Date
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October 1, 1989;
Division Sold by FMC June
17, 1998; Account balances remained in FMC Plans and FMCTI Plan
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Jetway Systems, Ogden, Utah United
Steel Workers Local 612
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Effective Date
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January 1, 1995
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Agricultural Machinery Division,
Hoopeston, Illinois, United Paper-
workers International Union, AFL-
C10, CLC, Local 7985
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Effective Date
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January 1, 1997
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Smith Meter, Inc., Erie, Pennsylvania,
International Union, United Automobile,
Aerospace, and Agricultural
Implement Workers of America
Local Union 714
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Effective Date
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June 1, 1998
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Hawaii Transportation Workers
Union of America
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Effective Date
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October 6, 2000
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APPENDIX B
Bargaining Units Matched Under the Plan
Until otherwise negotiated, the bargaining units whose members are entitled to a Company Contribution under Section 3.4 of the Plan, and the effective dates of their coverage, are listed below:
Name of Bargaining Unit
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Effective Date of Eligibility
for Company Contributions
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Effective Date of Eligibility
for FMC Contributions
in FMC Matched Plan or FMCTI
Contributions in FMCTI Plan
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Agricultural Machinery Division,
Hoopeston, Illinois, United Paper-
workers, International Union, AFL-
CIO, CLC, Local 7985
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Effective Date
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January 1, 1997
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APPENDIX C
Elections Through December 31, 2001
The following Participants (listed by social security number) who work at the following locations had deferral and/or contribution elections of less than 2% under the FMC Plans, and have been grandfathered in those elections under the FMCTI Plan and this Plan through December 31, 2001:
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50210 Ogden, Utah
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528-77-8981
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528-64-6781
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528-92-1900
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529-04-6475
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529-37-4883
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529-66-9715
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529-92-4281
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567-58-0486
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51113 Corpus Christi, Texas
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467-11-9220
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Appendix D
List of Airport Services Locations
Name of Division Location
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Effective Date
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End Date
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Prevailing Wage Employee (Y/N)
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Living Wage Employee (Y/N)
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LAX Terminal 6 (FFT AS LAX PW 50248)
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January 1, 2011
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Y
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Y
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Miami-Dade County (FFT AS MIAMI PW 50245)
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January 1, 2011
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Y
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N
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Orange County (FFT AS ORANGE CTY PW 50246)
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January 1, 2011
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Y
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N
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Long Beach (FFT AS Long Beach PW 50247)
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January 1, 2011
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Y
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N
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LAX Delta (FFT AS LAX DELTA LP 50249)
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March 1, 2011
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N
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N
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Cincinnati (FFT AS CINCINNATI LP 50250)
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June 1, 2011
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N
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N
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LAX Terminal 2 (FFT AS LAX2 LP 50251)
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September 1, 2011
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N
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N
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Houston Train (FFT AS HAS TRAIN LP 50253)
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September 1, 2011
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N
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N
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Chicago O’Hare (FFT AS CHI ORD LP 50252)
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October 1, 2011
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N
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N
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Dallas-Fort Worth (FFT AS Dallas Terminal E 50228)
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January 1, 2012
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N
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N
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