Use these links to rapidly review the document

  TABLE OF CONTENTS




 

Exhibit 10.4    
    


AMENDMENT AND COMPLETE RESTATEMENT

OF THE

RETIREMENT PLAN FOR EMPLOYEES

OF

ALLIANCE CAPITAL MANAGEMENT L. P.  


(As Amended through January 1, 2002) 






 

TABLE OF CONTENTS    
    



 



	ARTICLE I —	 	DEFINITIONS
	ARTICLE II —	 	ELIGIBILITY FOR PARTICIPATION
	ARTICLE III —	 	RETIREMENT ON OR AFTER NORMAL RETIREMENT DATE
	ARTICLE IV —	 	VESTING
	ARTICLE V —	 	EARLY RETIREMENT AND DISABILITY BENEFIT
	ARTICLE VI —	 	OPTIONAL METHODS OF PAYMENT
	ARTICLE VII —	 	DEATH BENEFIT
	ARTICLE VIII —	 	DIRECT ROLLOVER DISTRIBUTIONS
	ARTICLE IX —	 	EMPLOYER CONTRIBUTION AND FUNDING POLICY
	ARTICLE X —	 	LIMITATIONS ON BENEFITS
	ARTICLE XI —	 	TOP-HEAVY PLAN YEARS
	ARTICLE XII —	 	NON-ALIENABILITY
	ARTICLE XIII —	 	AMENDMENT OF THE PLAN
	ARTICLE XIV —	 	TERMINATION OF THE PLAN
	ARTICLE XV —	 	TRUST AND ADMINISTRATION
	ARTICLE XVI —	 	CLAIMS PROCEDURES
	ARTICLE XVII —	 	MISCELLANEOUS








  



 
 

RETIREMENT PLAN FOR EMPLOYEES
  
    OF
  
    ALLIANCE CAPITAL MANAGEMENT L.P.    
    



        WHEREAS, effective as of January 1, 1980, the predecessor of Alliance Capital Management L.P. ("Alliance") established a retirement plan covering its
employees; and 


        WHEREAS,
that plan as subsequently amended and completely restated was adopted and continued by Alliance in connection with the transfer on April 21, 1988 of the predecessor's
business and substantially all of its operating assets and liabilities to Alliance and prior to that transfer and in connection therewith again amended and renamed the Retirement Plan for Employees of
Alliance Capital Management L.P. (the "Plan"); and 


        WHEREAS,
the Plan was amended and restated effective January 1, 1989 to comply with certain amendments to applicable law and to make certain other changes and was subsequently
further amended; and 


        WHEREAS,
on October 22, 1993, by resolution of the Board of Directors (the "Board") of Alliance Capital Management Corporation (the "Corporation"), Alliance's general partner,
adopted, effective as of January 1, 1993, amendments to the Plan and restated the Plan as so amended, all subject to such changes as may be necessary for the Plan to continue to satisfy the
requirements for qualification under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"), for the trust under the Plan to be exempt from tax under Section 501(a)
of the Code, and for the Plan to satisfy any other applicable requirements of the Employee Retirement Income Security Act of 1974, as amended; and 


        WHEREAS,
on October 22, 1993, the Board also authorized the Management Compensation Committee to make such technical and conforming changes to the Plan as it considers necessary
or appropriate and authorized the officers of the Corporation to execute such documents with respect to the above-described resolutions as the officer so acting deemed appropriate; and 


        WHEREAS,
the Internal Revenue Service issued a favorable determination letter dated March 31, 1995 with respect to the qualification of the Plan under Section 401(a) of the
Code, subject to the adoption of amendments to the Plan (the "Amendments"); 


1





 

        WHEREAS,
the Plan was amended to reflect each of the Amendments effective with respect to each Amendment either as of January 1, 1993 or as of such other date as required with
respect to the Amendment for the Plan to satisfy any applicable requirement for qualification under Section 401(a) of the Code. 



        WHEREAS,
on February 20, 2002, the Board of the Corporation adopted, effective as of the dates set forth herein, amendments to the Plan and restated the Plan as so amended, all
subject to the changes as may be necessary for the Plan to continue to satisfy the requirements for qualification under Section 401(a) of the code; 


        NOW,
THEREFORE, this document sets forth the Plan as embodying such further amendments which are effective either as of January 1, 2002, except as otherwise provided, or as of
such other date with respect to a particular amendment as required for the Plan to satisfy any applicable requirement for qualification under Section 401(a) of the Code. 


2





 
 
 

ARTICLE I
  
    DEFINITIONS    
    


        The following words and phrases as used herein shall, when initially capitalized, have the following meanings unless a different meaning is required by the
context: 



        1.01    "ACCRUED
BENEFIT" as of any specified date, means the Retirement Pension, commencing on his Normal Retirement Date, earned by a Participant as of such date, which shall
be equal to the Retirement Pension, computed in accordance with Section 3.02, to which he would have been entitled
had he continued as an Employee until his Normal Retirement Date, had been credited with one (1) Year of Service in each year of employment during such period and had the same Average Final
Compensation, Final Average Compensation and Past Final Average Compensation, as applicable, at his date of Retirement as that which he would have had if his Average Final Compensation, Final Average
Compensation and Past Final Average Compensation, as applicable, had been computed as of the date of computation of his Accrued Benefit, such amounts to be multiplied by a fraction, the numerator of
which is his number of years of Credited Service as of the specified date, and the denominator of which is the number of such years which he would have completed as of his Normal Retirement Date. 


        1.02    "ACTUARIAL
EQUIVALENT" means, except as provided below, a benefit of equivalent value that is actuarially calculated based on an annual investment rate of 6% compounded
annually and mortality determined in accordance with the UP-1984 mortality table with ages set back one year. 


        Notwithstanding
the foregoing, for purposes of determining with respect to any distribution under the Plan after December 31, 1995: 



        (a)   whether
the consent of the Participant (and if applicable, the Participant's Spouse) is necessary prior to distribution of the Participant's benefit; 


        (b)   the
single sum value of the Participant's benefit; and 


        (c)   the
value of a benefit under Option 4 or Option 5 provided for in Section 6.01; 




a
benefit of equivalent value shall be the greater of that determined in accordance with the assumptions set forth above, and that determined by applying the Applicable Interest Rate for the month of
September of the Plan Year immediately 



3





 

preceding
the Plan Year with respect to which the benefit is being determined and the Applicable Mortality Table; provided, however, in no event shall the single sum value of the Participant's
benefit distributed during the 1996 calendar year be less than would result by applying the Applicable Interest Rate for January 1996 and the Applicable Mortality Table. 



        1.03    "ADMINISTRATIVE
COMMITTEE" or "COMMITTEE" means the administrative committee appointed by the Board pursuant to Section 15.02. 


        1.04    "AFFILIATE"
means any corporation or unincorporated business (i) controlled by, or under common control with, the Company within the meaning of Sections 414(b)
and (c) of the Code; provided, however, that for all purposes of the Plan, "Affiliate" status shall be determined by application of Section 415(h) of the Code, or (ii) which is a
member of an "affiliated service group", as defined in Section 414(m)(2) of the Code, of which the Company is a member. 



        1.05    "ANNUITY
PURCHASE RATE" means, effective as of July 1, 1994, (a) the interest rate which would be used by the Pension Benefit Guaranty Corporation as of
the first day of the Plan Year of the date of the distribution involved for the purpose of determining the present value of a single sum distribution in connection with the termination of the Plan if
the present value of the applicable vested Accrued Benefit (using such rate) does not exceed $25,000, or (b) one hundred twenty percent of the rate used by the Pension Benefit Guaranty
Corporation for that purpose if the present value of the vested Accrued Benefit, as determined in accordance with clause (a) exceeds $25,000, provided that in no event shall the present value
of a Participant's vested Accrued Benefit determined by application of this clause (b) be less than $25,000; provided that the Annuity Purchase Rate with respect to the Accrued Benefit as of
such first day of the Plan Year shall not be larger than the Annuity Purchase Rate which would have been computed under the definition of Annuity Purchase Rate in effect immediately prior to
July 1, 1994. 


        1.06    "APPLICABLE
INTEREST RATE" means an annual investment rate equal to the annual interest rate on 30-year Treasury securities as specified by the Commissioner
of Internal Revenue. 


        1.07    "APPLICABLE
MORTALITY TABLE" means the mortality table based on the then prevailing standard table (described in Section 807(d)(5)(A) of the Code) used to
determine reserves for group annuity contracts issued as of the date as of which the value of the benefit involved is determined (without regard to any other subparagraph of Section 807(d)(5)
of the Code) that is prescribed by the Commissioner of Internal Revenue for purposes of determining the value of benefits. 



4





 

        1.08    (a)    "AVERAGE
FINAL COMPENSATION" means an amount obtained by totaling the Compensation of a Participant for the five (5) consecutive full calendar
years preceding the date of his Retirement or other Termination of Employment, whichever is applicable, in which he received his highest aggregate Compensation (or his Compensation for his consecutive
full calendar Years of Service, if less than five (5)), and dividing the sum thus obtained by five (5) (or the number of his full calendar Years of Service if less than five (5)).
Notwithstanding the foregoing, partial calendar Years of Service, other than the year of termination of employment, shall be taken into account in determining Average Final Compensation, if the
Participant completed at least 750 Hours of Service in each of such partial years. If any partial Year of Service is to be taken into account under the preceding sentence,
the Compensation for such year shall be included in the calculation of Average Final Compensation as follows: The Compensation for any such partial Year of Service shall be added to the Compensation
for the full calendar years included in calculating Average Final Compensation, and the total of such Compensation shall be divided by the sum of (i) the number of full calendar years included
in calculating Average Final Compensation and (ii) the fraction whose numerator is the number of days worked during the partial Year of Service (including any weekends, holiday or vacation that
occur during a continuous period of employment) and whose denominator is 365. 



        (b)   If,
during any of the calendar years taken into account in determining a Participant's Average Final Compensation, there was a period during which such Participant was
an Inactive Participant, or was on unpaid Leave of Absence, or was compensated for fewer hours than are customary for his job category by reason of disability, the Compensation paid in such period
shall be included in his Compensation for such calendar year (solely for the purpose of determining Average Final Compensation) at the rate of Compensation he was receiving immediately preceding such
period. 




        1.09    "BENEFICIARY"
means such person or persons as may be designated by a Participant or Retired Participant or as may otherwise be entitled, upon his death, to receive any
benefits or payments under the terms of this Plan. 


        1.10    "BOARD
OF DIRECTORS" or "BOARD" means the Board of Directors of the general partner of the Company responsible for the management of the Company's business or a
committee thereof designated by such Board. 


        1.11    "BREAK
IN SERVICE" with respect to any Employee, means any calendar year in which he completes fewer than five hundred and one (501) Hours of Service with
Employers or Affiliates; provided that in the case of an absence of an Employee pursuant to the Family and Medical Leave Act of 1993 (the 



5





 

"FMLA"),
the period beginning on the first date of such absence and ending 12 months thereafter shall not constitute a "Break in Service." 


        1.12    "CODE"
means the Internal Revenue Code of 1986, as amended from time to time. 


        1.13    "COMPANY"
means (a) Alliance Capital Management Corporation for the period prior to April 21, 1988, and (b) for subsequent periods, Alliance
Capital Management L.P. and any successor thereto. 


        1.14    (a)    "COMPENSATION"
means, for any calendar year, an amount equal to a Participant's base salary. 



        (b)   There
shall be excluded from Compensation overtime pay, bonuses, severance pay, distributions on Units representing assignments of beneficial ownership of limited
partnership interests in the Company, and any amounts paid or payable to or for a Participant or Retired Participant pursuant to any welfare plan or any pension plan, profit sharing plan or other plan
of deferred compensation, or any other extraordinary item of compensation or income; provided that in the case of a Participant whose Compensation from an Employer includes commissions, commissions
shall be included only up to the annual amount of the Participant's draw against actual commissions in effect at the beginning of the Plan Year involved. 



        (c)   For
Plan Years beginning on or after January 1, 1994, Compensation of a Participant in excess of $150,000 (or such other amount prescribed under
Section 401(a)(17) of the Code, including any cost-of-living adjustments) shall not be taken into account under the Plan for the purpose of determining benefits. For
Plan Years beginning on or after January 1, 1989 and before January 1 1994, $200,000 shall be substituted for $150,000 in the preceding sentence. For the avoidance of doubt, the increase
to the limit provided under Section 401(a)(17) of the Code under the Economic Growth and Tax Relief Reconciliation Act of 2001 shall only be applied with respect to Participants who accrue a
benefit under the Plan on or after January 1, 2002. 


        (d)   For
any year for which Compensation is relevant under the Plan, in connection with any Employee who is paid based on an annual rate of salary that applies for only a
portion of the year, the Compensation attributable to that portion of the year for such Employee shall be equal to the product of (i) such annual rate of salary, multiplied by (ii) a
fraction, the numerator of which is the number of pay periods during such year during which such Employee was paid at that annual rate of salary, and the denominator of which is 26. 




6





 




        The
determination of eligible Compensation shall be in accordance with records maintained by the Employer and shall be conclusive. 


        1.15    (a)    "CREDITED
SERVICE" means, unless excluded by Subsection (b), an Employee's Years of Service; 



        (b)   Credited
Service shall not include: 



        (1)   With
respect to all Employees, Years of Service ending on or before December 31, 1969; or 


        (2)   Any
Year of Service during any part of which an Employee is an Excluded Employee; provided that if the Employee is employed by an Employer after employment with an
Affiliate who during a period of employment with the Affiliate maintained a "defined benefit plan" within the meaning of Section 414(j) of the Code, the service with the Affiliate while an
Affiliate upon which the Employees accrued benefits under the Affiliate's plan is based shall be considered Credited Service hereunder, but in no event shall any period be counted more than once in
computing a Participant's Credited Service and any retirement pension related to such service shall be taken into account as set forth in Section 3.02(b) of the Plan. 





        1.16    "DEFERRED
RETIREMENT" means an Employee's continued employment after his sixty-fifth (65th) birthday. 


        1.17    "DEFERRED
RETIREMENT DATE" means the first day of the calendar month coincident with or next following the date of an Employee's Retirement provided such Retirement
occurs after his Normal Retirement Date. 


        1.18    "DISABILITY"
means the mental or physical incapacity of an Employee which, in the opinion of a physician approved by the Administrative Committee, renders him totally
and permanently incapable of performing his assigned duties with an Employer or an Affiliate. 


        1.19    "EARLY
RETIREMENT" means Retirement on or after a Participant's Early Retirement Date and prior to his Normal Retirement Date. 


        1.20    "EARLY
RETIREMENT DATE" means the first day of the month coincident with or next following the date upon which the Participant shall have attained the age of
fifty-five (55) and the sum of the Participant's age and Years of Service equals eighty (80). 



7





 

        1.21    "ELIGIBLE
EMPLOYEE" means all Employees of an Employer other than: 



        (a)   any
Employee included in a unit of Employees covered by a collective bargaining agreement between an Employer and Employee representatives in the negotiation of which
retirement benefits were the subject of good faith bargaining, unless: (i) such bargaining agreement provides for participation in the Plan, (ii) the Employee representatives represented
an organization more than half of whose members are owners, officers or executives of such Employer, or (iii) 2% or more of the Employees who are covered pursuant to that agreement are
professionals as defined in Treasury Regulation Section 1.410(b)—6(d); 


        (b)   Employees
whose principal place of Employment is outside the United States, U.S. Virgin Islands, Guam and Puerto Rico; 


        (c)   an
individual classified by the Employer at the time services are provided as either an independent contractor, or an individual who is not classified as an Employee due
to an Employer's treatment of any services provided by him as being provided by another entity which is providing such individual's services to the Employer, even if such individual is later
retroactively reclassified as an Employee during all or part of such period during which services were provided pursuant to applicable law or otherwise. 


        (d)   any
individual listed in Section 2.09 of this Plan. 




        1.22    "EFFECTIVE
DATE" means January 1, 1980. 


        1.23    "EMPLOYEE"
means an individual described in Sections 3121(d) (1) or (2) of the Code who is employed by an Employer or an Affiliate. 



        1.24    "EMPLOYER"
means the Company and any Affiliate which, with the consent of the Board of Directors, has adopted the Plan as a participant herein and any successor to any
such Employer. 


        1.25    "EMPLOYMENT
COMMENCEMENT DATE" means: 



        (a)   the
first day in respect of which an Employee receives Compensation from an Employer or an Affiliate for the performance of services; or 



        (b)   in
the case of a former Employee who returns to the employ of an Employer or Affiliate after a Break in Service, the first day in respect 




8





 


of
which, after such Break in Service, he receives Compensation from an Employer or Affiliate for the performance of services. 




        1.26    "ENTRY
DATE" means the first day of each Plan Year. 


        1.27    "ERISA"
means the Employee Retirement Income Security Act of 1974, as amended from time to time. 


        1.28    (a)    "EXCLUDED
EMPLOYEE" means an individual in the employ of an Employer or an Affiliate who: 




        (1)   is
employed by an Affiliate that is not an Employer; or 


        (2)   is
included in a unit of employees covered by a collective bargaining agreement between employee representatives and one or more Employers or Affiliates, if retirement
benefits were the subject of good faith bargaining between such employee representatives and such Employer; or 


        (3)   is
not an Excluded Employee under Paragraph (4) of this subsection (a) and is neither a resident nor a citizen of the United States of America, nor
receives "earned income", within the meaning of Section 911(b) of the Code, from an Employer or Affiliate that constitutes income from sources within the United States, within the meaning of
Section 861(a)(3) of the Code, unless the individual became a Participant prior to becoming a non-resident alien and the Company stipulates that he shall not be an Excluded
Employee; or 


        (4)   is
not a citizen of the United States, unless the individual (A) was initially engaged as an Employee by an Employer or an Affiliate to render services entirely
or primarily in the United States or (B) is an Employee of an Employer which is a United States entity, and unless, in the case of an individual referred to in either Subparagraph (A) or
(B) of this Paragraph 4, the Company stipulates that he shall not be an Excluded Employee; or 


        (5)   is
accruing benefits and/or receiving contributions under a retirement plan of an Affiliate which operates entirely or primarily outside the United States other than
this Plan or the Profit Sharing Plan for Employees of Alliance Capital Management L.P. unless, in either case, the Company stipulates that he shall not be an Excluded Employee; or 





9





 



        (6)   is
compensated on a commission arrangement which does not provide for payment of periodic draws against actual commissions earned; or 



        (7)   is
a "leased employee". For purposes of this Plan, a "leased employee" means any person (other than an Employee of the recipient) who pursuant to an agreement between
the recipient and any other person ("leasing organization") has performed services for the recipient (or for the recipient and related persons determined in accordance with Section 414(n)(6) of
the Code on a substantially full time basis for a period of at least one year), and such services are performed under primary direction or control by the recipient employer. 




        (b)   An
Excluded Employee shall be deemed an Employee for all purposes under this Plan except that: 



        (1)   an
Excluded Employee may not become a Participant while he remains an Excluded Employee; and 


        (2)   a
Participant shall not receive any Credited Service for any Year of Service during any part of which he remains an Excluded Employee unless the Company specifies
otherwise. 





        1.29    "FINAL
AVERAGE COMPENSATION" means an amount obtained by totaling the Compensation of a Participant for the three (3) consecutive full calendar Years of Service
(which for any such year cannot exceed the taxable wage base in effect for that year) ending on or on the last day of the calendar year immediately preceding the date of his Retirement or other
Termination of Employment, whichever is applicable, (or his Compensation for the number of his full calendar years and fractions thereof then ending if less than three (3)), and dividing the sum thus
obtained by three (3) (or such number of full calendar years and fractions thereof if less than three (3)), but limited to Covered Compensation. Notwithstanding the foregoing, partial calendar
Years of Service, other than the year of termination of employment, shall be taken into account in determining Final Average Compensation, if the Participant completed at least 750 Hours of Service in
each of such partial years. If any partial Year of Service is to be taken into account under the preceding sentence, the Compensation for such year shall be included in the calculation of Final
Average Compensation as follows: The Compensation for any such partial Year of Service shall be added to the Compensation for the full calendar years included in calculating Final Average
Compensation, and the total of such Compensation shall be divided by the sum of (i) the number of full calendar years included in calculating Final Average Compensation and (ii) the
fraction whose numerator is the number of days worked during the partial Year of Service (including any weekends, holiday or vacation 



10





 

that
occur during a continuous period of employment) and whose denominator is 365. "Covered Compensation" for this Section 1.29 means the average of the taxable wage bases for the
thirty-five (35) calendar years ending with the year an individual attains social security retirement age. 


        1.30    "HIGHLY
COMPENSATED EMPLOYEE" means an Employee who, with respect to the "determination year": 



        (a)   owned
(or is considered as owning within the meaning of Section 318 of the Code) at any time during the "determination year" or "look-back year" more
than five percent of the outstanding stock of the Employer or stock possessing more than five percent of the total combined voting power of all stock of the Employer (the attribution of ownership
interest to Family Members shall be used pursuant to Section 318 of the Code); or 


        (b)   who
received "415 Compensation" during the "look-back year" from the Employer in excess of $80,000 and was in the Top Paid Group of Employees for the
"look-back year". 




        The
"determination year" shall be the Plan Year for which testing is being performed. The "look-back year" shall be the Plan Year immediately preceding the "determination
year." 


        For
purposes of this Section, the determination of "415 Compensation" for Plan Years beginning before January 1, 1998 shall be made by including amounts that would otherwise be
excluded from an Employee's gross income by reason of the application of Sections 125, 402(e)(3), 402(h)(1)(B) of the Code and, in the case of Employer contributions made pursuant to a salary
reduction agreement, by including amounts that would otherwise be excluded from an Employee's gross income by reason of the application of Section 403(b) of the Code. For Plan Years beginning
after December 31, 1997, the term "415 Compensation" shall include: (i) any elective deferral (as defined in Section 402(g)(3) of the Code) and (ii) any amount which is
contributed or deferred by the Employer at the election of the Employee and which is not includible in the gross income of the Employee by reason of Sections 125, 132(f)(4), 401(k) or 457 of the Code. 


        The
dollar threshold amount specified in (b) above shall be adjusted at such time and in such manner as is provided in Regulations. In the case of such an adjustment, the dollar
limits which shall be applied are those for the calendar year in which the "determination year" or "look-back year" begins. 


        In
determining who is a Highly Compensated Employee, Employees who are nonresident aliens and who received no earned income (within the meaning of 



11





 

Section 911(d)(2)
of the Code) from the Employer constituting United States source income within the meaning of Section 861(a)(3) of the Code shall not be treated as Employees. 


        Additionally,
all Affiliated Employers shall be taken into account as a single employer and Leased Employees within the meaning of Sections 414(n)(2) and 414(o)(2) of the Code shall be
considered Employees unless such Leased Employees are covered by a plan described in Section 414(n)(5) of the Code and are not covered in any qualified plan maintained by the Employer. The
exclusion of Leased Employees for this purpose shall be applied on a uniform and consistent basis for all of the Employer's retirement plans. Highly Compensated Former Employees shall be treated as
Highly Compensated Employees without regard to whether they performed services during the "determination year". 


        1.31    "HIGHLY
COMPENSATED FORMER EMPLOYEE" means a former Employee who had a separation year prior to the "determination year" and was a Highly Compensated Employee in the
year of separation from service or in any "determination year" after attaining age 55. Notwithstanding the foregoing, an Employee who separated from service prior to 1987 will be treated as a Highly
Compensated Former Employee only if during the separation year (or year preceding the separation year) or any year after the Employee attains age 55 (or the last year ending before the Employee's 55th
birthday), the Employee either received "415 Compensation" in excess of $50,000 or was a "five percent owner". For purposes of this Section, "determination year", "415 Compensation" and "five percent
owner" shall be determined in accordance with Section 1.30. Highly Compensated Former Employees shall be treated as Highly Compensated Employees. The method set forth in this Section for
determining who is a "Highly Compensated Former Employee" shall be applied on a uniform and consistent basis for all purposes for which the Section 414(q) of the Code definition is applicable. 



        1.32    (a)    "HOUR
OF SERVICE" means each hour: 




        (1)   for
which an Employee is paid, or entitled to payment, by an Employer or Affiliate for the performance of duties for an Employer or Affiliate, credited for the Plan Year
in which such duties were performed; or 


        (2)   for
which an Employee is directly or indirectly paid, or entitled to payment, by an Employer or Affiliate on account of a period of Leave of Absence, credited for the
Plan Year in which such Leave of Absence occurs; or 





12











  






        (3)   for
which an Employee has been awarded, or is otherwise entitled to, back pay from an Employer or Affiliate, irrespective of mitigation of damages, if he is not entitled
to credit for such hour under any other Paragraph of this Subsection (a); or 



        (4)   during
which an Employee is on an unpaid Leave of Absence described in Section 1.34(a) or (b), credited at the rate of which he would have accrued Hours of
Service if he had performed his normal duties during such Leave of Absence. 


        (5)   (A)    solely
for purposes of Section 1.11, each hour of an Employee's absence which commences on or after January, 1985 by reason of a leave pursuant
to the FMLA, the pregnancy of such Employee, the birth of a child of such Employee, the placement of a child in connection with the adoption of such child by the Employee or the caring for such child
for a period beginning immediately following such birth or placement. 



        (B)  under
this Paragraph (5) an Employee shall be credited with the number of hours which would normally have been credited to him but for such absence, or in any
case in which such number cannot be determined, a total of eight (8) Hours of Service for each day of such absence, except that no more than 501 Hours of Service shall be credited to an
Employee for any such period of absence and such Hours of Service shall be credited to an Employee only in the Plan Year in which such period of absence began if such Employee would be prevented from
incurring a Break in Service in such Plan Year solely because of the crediting of such Hours of Service, or in any other case, in the next succeeding Plan Year. 



        (C)  Notwithstanding
the foregoing, an Employee shall not be credited with Hours of Service pursuant to this Paragraph (5) unless such Employee shall furnish to the
Committee on a timely basis such information as the Committee shall reasonably require to establish 



          (i)  that
the absence from work is for reasons described in Subparagraph (A) hereof; and 


         (ii)  the
number of days which such absence continued. 






        (b)   Except
as provided in Paragraph (a) (5), the number of a Participant's Hours of Service and the Plan Year or other compensation period to which they are to be
credited shall be determined in accordance with Section 2530.200b-2 of the Rules and Regulations for Minimum 




13





 


Standards
for Employee Pension Benefit Plans, which section is hereby incorporated by reference into this Plan. 



        (c)   If
the Participant's compensation while an Employee was not determined on the basis of certain amounts for each hour worked, his Hours of Service need not be determined
from employment records, and he may, in accordance with uniform and nondiscriminatory rules adopted by the Committee, be credited with forty-five (45) Hours of Service for each week
in which he would be credited with any Hours of Service under the provisions of Subsection (a) or (b). 




        1.33    "INACTIVE
PARTICIPANT" means: 



        (a)   an
Employee who was a Participant during the preceding Plan Year but who, during the current Plan Year, neither completed a Year of Service nor incurred a Break in
Service; and 


        (b)   an
Excluded Employee who was a Participant or an Inactive Participant during the preceding Plan Year but who, during the current Plan Year, did not incur a Break in
Service. 




        An
Inactive Participant shall be deemed a Participant for all purposes under this Plan, except that he shall not accrue any benefit hereunder for any Plan Year during which he is an
Inactive Participant. 


        1.34    "LEAVE
OF ABSENCE" means: 



        (a)   absence
on leave approved by an Employee's Employer, if the period of such leave does not exceed two (2) years and the Employee returns to the employ of an
Employer or an Affiliate upon its termination; or 


        (b)   absence
due to service in the Armed Forces of the United States, if such absence is caused by war or other national emergency or an Employee is required to serve under
the laws of conscription in time of peace, and if the Employee returns to the employ of an Employer or an Affiliate within the period provided by law; or 



        (c)   absence
for a period not in excess of thirteen (13) consecutive weeks due to leave granted by an Employer, military service, vacation, holiday, illness,
incapacity, layoff, or jury duty, if the Employee does not return to the employ of an Employee or Affiliate at the end of such period. 




14





 




        In
granting or withholding Leaves of Absence, each Employer or Affiliate shall apply uniform and non-discriminatory rules to all Employees in similar circumstances. 


        1.35    "NORMAL
RETIREMENT DATE" means the first day of the month coincident with or next following the sixty fifth (65th) birthday of the Participant or Retired Participant. 


        1.36    "OPTION"
means any of the optional methods of payment of a Retirement Pension which a Participant or Retired Participant may elect in accordance with Article VI. 



        1.37    "PARTICIPANT"
means any individual who has become a Participant in the Plan in accordance with Sections 2.01, 2.02 or 2.06 and whose participation has not terminated
pursuant to Section 2.05. 


        1.38    "PAST
FINAL AVERAGE COMPENSATION" means the amount which would have been obtained by totaling the Compensation of a Participant for the five (5) consecutive full
calendar Years of Service during the last ten (10) calendar year period ending on December 31, 1988 for which the Participant received his highest aggregate Compensation (or his
Compensation for the number of his consecutive full calendar Years of Service ending December 31, 1988 if less than five (5)), except that for purposes of Section 3.02(a)(3), the
calculation period shall end on December 31, 1989 rather than December 31, 1988; and dividing said aggregate Compensation by five (5) (or such number of consecutive full calendar
Years of Service if less than five (5)). 


        1.39    "PLAN
YEAR" means the twelve (12) consecutive month period beginning on January 1 and ending on December 31 in any year commencing on or after
January 1, 1980. 


        1.40    "PRIMARY
SOCIAL SECURITY BENEFIT" 



        (a)   means
the estimated old age retirement benefit payable to a Participant under the Federal Old-Age and Survivors Insurance System upon his Retirement on his
Normal Retirement Date or Deferred Retirement Date whichever is applicable; provided, however, that (i) in the event that either his Termination of Employment or December 31, 1989 occurs
before his Normal Retirement Date, his Primary Social Security Benefit shall be estimated by computing such benefit, determined without regard to any Social Security benefit increases that become
effective after his Termination of Employment or December 31, 1988, whichever is later, as if in each calendar year beginning in the calendar year in which occurred the earlier of his
Termination of Employment or 1989, he 




15





 


continued
to receive the same Compensation (defined as, Compensation in the calendar year preceding the earlier of his Termination of Employment or 1989, but including overtime, bonuses and
commissions otherwise excluded under Section 1.12 (b)), as he received in the Plan Year last preceding the earlier of his Termination of Employment or 1989; and (ii) the Participant's
calendar year earnings in the year of his Employment Commencement Date and for the prior calendar years shall be estimated by applying a salary scale, projected backwards, to the Participant's
Compensation for the calendar year immediately following the calendar year of the Participant's Employment Commencement Date, such salary scale being the actual change in the average wages from year
to year as determined by the Social Security Administration. 



        (b)   (1)    Notwithstanding
the provisions of Subsection (a), each Participant may have his Primary Social Security Benefit determined on the basis on his actual
salary history for the period ending on the earlier of his Termination of Employment or the December 31 applicable to the Participant for purposes of Subsection (a) within ninety
(90) days after the later of (A) his Termination of Employment or (B) the date on which he is notified of the benefit to which he is entitled. 



        (2)   As
soon as practicable after a Participant's Termination of employment, the Committee shall mail or personally deliver to the Participant a notice informing him
(A) of his right to supply the actual salary history described in Paragraph (b) (1), (B) of the financial consequences of failing to supply such history and (C) that he can
obtain such actual salary history from the Social Security Administration. 





        1.41    "QUALIFIED
JOINT AND SURVIVOR ANNUITY" means an annuity for the life of a Participant, with, if the Participant is married to a Spouse on his Retirement Pension
Starting Date, a survivor annuity for the life of such Spouse which is one-half (1/2) of the amount of the annuity payable during the joint lives of the Participant
and such Spouse. Any benefit payable in the form of a Qualified Joint and Survivor Annuity shall be the Actuarial Equivalent of the Participant's Retirement Pension. 


        1.42    "QUALIFIED
PRERETIREMENT SURVIVOR ANNUITY" means: 



        (a)   in
the case of a Participant who dies after his Early Retirement Date, a monthly life annuity for a Participant's Spouse equal to fifty percent (50%) of the benefit such
Participant would have received had he retired on the day before his death and commenced receiving his Retirement Pension on such date, reduced in accordance with Section 




16





 


5.01,
except that no reduction shall be made for the joint and survivor factor; and 


        (b)   in
the case of a Participant who dies on or prior to his Early Retirement Date, a monthly life annuity for a Participant's Spouse equal to fifty percent (50%) of the
benefit such Participant would have received if the Participant's Termination of Employment had occurred on the date of his death, and such Participant had survived to his Early Retirement Date, had
retired immediately upon attainment of his Early Retirement Date and immediately commenced receiving his Retirement Pension, reduced as provided in Section 5.01, except that a reduction shall
be made for the joint and survivor factor. The annuity described in this Subsection (b) shall commence to be payable, at the election of such Spouse, as of the first day of any month coincident
with or next following the date on which the Participant would have attained his Early Retirement Date. 


        (c)   in
the case of any vested Participant referred to in Section 4.04(a) of this Plan (a "Vested Terminated Participant") who dies on or prior to his Early Retirement
or Normal Retirement, a monthly life annuity for the Vested Terminated Participant's Spouse equal to fifty percent (50%) of the benefit such Vested Terminated Participant would have received if the
Vested Terminated Participant's Termination of Employment had occurred on the date of his death, and such Vested Terminated Participant had survived to his Early Retirement Date, had retired
immediately upon attainment of his Early Retirement Date and immediately commenced receiving his Retirement Pension, reduced as provided in Section 5.01, except that a reduction shall be made
for the joint and survivor factor. The annuity described in this Subsection (c) shall commence to be payable, at the election of such Spouse, as of the first day of any month coincident with or
next following the date on which the Vested Terminated Participant would have attained his Early Retirement Date. 




        1.43    "REQUIRED
BEGINNING DATE" 



        (a)   for
a Participant who is not a 5-percent owner (as defined in Section 416 of the Code) in the Plan Year in which he attains age 701/2
and who attains age 701/2 after December 31, 1998, April 1 of the calendar year following the calendar year in which occurs the later of the Participant's
(i) attainment of age 701/2 or (ii) Retirement. 


        (b)   for
a Participant who (i) is a 5-percent owner (as defined in Section 416 of the Code) in the Plan Year in which he attains age
701/2, or 




17





 


(ii) attains
age 701/2 before January 1, 1999, April 1 of the calendar year following the calendar year in which the Participant attains age 701/2. 




        1.44    "RETIRED
PARTICIPANT" means any Participant or former Participant who is entitled to benefits pursuant to Article III, IV or V. 


        1.45    "RETIREMENT"
means any Termination of Employment, other than by reason of death, on or after an Employee's Early or Normal Retirement Date. 



        1.46    "RETIREMENT
PENSION" (a)  means the annual pension to which a Participant shall become entitled pursuant to Article III, IV or V. Except as otherwise
provided in this Plan, such Retirement Pension shall be a non-assignable annuity payable in monthly installments, each of which shall be equal to one-twelfth (1/12th) of the
Retirement Pension determined pursuant to Article III, IV or V, whichever is applicable. The first payment of such Retirement Pension shall be made in accordance with the appropriate provisions
of Article III, IV or V, and, except as otherwise provided in this Plan, the last such payment shall be made on the first day of the month within which the Retired Participant's death occurs. 



        (b)   Nothing
herein shall affect or lessen the rights of any Participant or Beneficiary or the right of any Participant to receive a Qualified Joint and Survivor Annuity
under the provisions of Section 3.03 or to elect any optional form of payment under the provisions of Article VI. 




        1.47    "RETIREMENT
PENSION STARTING DATE" means the date as of which a Retired Participant's Retirement Pension commences to be payable under the terms of this Plan. A
Participant's Retirement Pension Starting Date shall in no event be later than the sixtieth (60th) day after the last day of the plan year in which occurs the later of the date on which he attains the
age of sixty-five (65) years or the date of his Termination of Employment, but in no event later than the Participant's Required Beginning Date. 


        1.48    "SPOUSE"
means: 



        (a)   in
the case of a Participant who dies before his Retirement Pension Starting Date, his lawfully married spouse on the date of his death if such spouse was married to
such Participant during the entire one (1) year period ending on the Participant's date of death; 



        (b)   in
the case of a Participant who dies on or after his Retirement Pension Starting Date, his lawfully married spouse on his Retirement Pension Starting Date; and 




18





 


        (c)   a
former spouse of the Participant to the extent provided in a qualified domestic relations order as described in Section 414(p) of the Code. 




        1.49    "SPOUSAL
CONSENT" means with respect to the election by a married Participant not to receive a Qualified Joint and Survivor Annuity pursuant to Section 3.03 as a
Qualified Preretirement Survivor Annuity pursuant to Section 7.02(a) or to the consent of a Participant's Spouse to the commencement of a Participant's Retirement Pension pursuant to
Section 4.04 or 5.01, that 



        (a)   the
Participant's Spouse consents in writing to such election or Retirement Pension commencement, and the Spouse's consent acknowledges the effect of such election and
is witnessed by a member of the Committee or by a notary public; or 



        (b)   it
is established to the Committee's satisfaction that the consent required under Subsection (a) hereof is unobtainable because the Participant is unmarried,
because the Participant's Spouse cannot be located, or because of such other circumstances as the Secretary of the Treasury may by regulation prescribe. 




Any
such consent and any such determination as to the impossibility of obtaining such consent shall be effective only with respect to the individual who signs such consent or with respect to whom such
determination is made and not with respect to any individual who may subsequently become the Spouse of such Participant. 



        1.50    "TERMINATION
OF EMPLOYMENT" means the date on which an Employee ceases to be employed by an Employer or Affiliate for any reason; provided, however, that no Termination
of Employment shall be deemed to occur upon an Employee's transfer from the employ of one employer or Affiliate to the employ of another Employer or Affiliate. 


        1.51    "TOP
PAID GROUP" means the top 20 percent of Employees who performed services for the Employer during the applicable year, ranked according to the amount of "415
Compensation" (determined for this purpose in accordance with Section 1.30) received from the Employer during such year. All Affiliated Employers shall be taken into account as a single
employer, and Leased Employees
within the meaning of Sections 414(n)(2) and 414(o)(2) of the Code shall be considered Employees unless such Leased Employees are covered by a plan described in Section 414(n)(5) of the Code
and are not covered in any qualified plan maintained by the Employer. Employees who are non-resident aliens and who received no earned income (within the meaning of
Section 911(d)(2) of the Code from the Employer constituting United States source 



19





 

income
within the meaning of Section 861(a)(3) of the Code shall not be treated as Employees. Additionally, for the purpose of determining the number of active Employees in any year, the
following additional Employees shall also be excluded; however, such Employees shall still be considered for the purpose of identifying the particular Employees in the Top Paid Group: 



        (a)   Employees
with less than six (6) months of service; 


        (b)   Employees
who normally work less than 171/2 hours per week; 


        (c)   Employees
who normally work less than six (6) months during a year; and 


        (d)   Employees
who have not yet attained age 21. 




        In
addition, if 90 percent or more of the Employees of the Employer are covered under agreements the Secretary of Labor finds to be collective bargaining agreements between
Employee representatives and the Employer, and the Plan covers only Employees who are not covered under such agreements, then Employees covered by such agreements shall be excluded from both the total
number of active Employees as well as from the identification of particular Employees in the Top Paid Group. 


        1.52    "TREASURY
REGULATIONS" means the regulations promulgated by the Internal Revenue Service and the Secretary of the Treasury under the Code. 


        1.53    "TRUST"
means the trust forming part of this Plan. 


        1.54    "TRUST
FUND" means all the assets of the Plan which are held by the Trustee. 


        1.55    "TRUSTEE"
means the persons or entity acting, at any time, as trustee of the Trust Fund. 


        1.56    "YEARS
OF SERVICE" means the following: 



        (a)   all
Plan Years during each of which an Employee completes at least one thousand (1,000) Hours of Service; 


        (b)   for
an Employee employed by the Company as of December 31, 1979, "Years of Service" shall include any calendar year during which he was employed on a
full-time basis for the entire year prior to the Effective Date by either the Company, or Donaldson, Lufkin & Jenrette 




20





 


Inc.
("DLJ"), or an affiliated company of DLJ, or Wood, Struthers & Winthrop, Inc. or Pershing Co., Inc.; 


        (c)   in
the case of any Plan Year consisting of fewer than twelve (12) months, the number of Hours of Service required to complete a Year of Service shall be
determined by multiplying the number of months in such short Plan Year by eighty-three and one-third (831/3); 


        (d)   for
the purpose of applying the rules in Section 4.03 to the eligibility provisions in Article II, pursuant to Section 2.06(c), Years of Service
shall include the twelve (12) month period, beginning on an Employee's Employment Commencement Date, during which he has completed one thousand (1000) Hours of Service; and 


        (e)   solely
for the purposes of the eligibility provisions of Article II and the vesting provisions of Article IV and not for purposes of determining Credited
Service under Section 1.15, in the case of an Employee who was an employee of Eberstadt Asset Management, Inc. ("Eberstadt") on November 20, 1984, service with Eberstadt on or
prior to such date shall be considered as service with an Employer or an Affiliate; 


        (f)    any
other provision of the Plan notwithstanding, including but not limited to Section 3.02(b) and the proviso contained in Section 1.13(b)(2) solely for
the purposes of the eligibility provisions of Article II and the vesting provisions of Article IV and not for purposes of determining Credited Service under Section 1.15, in the
case of an Employee who was an employee of Equitable Capital Management Corporation ("ECMC") on July 22, 1993, service with ECMC on or prior to such date shall be considered as service with an
Employer or an Affiliate; 


        (g)   for
purposes of determining an Employee's Early Retirement Date under the Plan, in the case of any individual who became an Employee on March 3, 1970, such an
Employee (whether or not employed on January 1, 1993) shall be credited with a full Year of Service with respect to calendar year 1970, regardless of whether a Year of Service would otherwise
have been credited under the Plan. 


        (h)   solely
for the purposes of the eligibility provisions of Article II and the vesting provisions of Article IV and not for purposes of determining Credited
Service under Section 1.15, in the case of an Employee who was an employee of either Shields Asset Management, Incorporated ("Shields") or Regent Investor Services Incorporated ("Regent") on
March 4, 1994 and on that date became an Employee of an 




21





 


Employer
or an Affiliate, the Employee's service with Shields or Regent on or prior to such date shall be considered as service with an Employer or an Affiliate. 


        (i)    solely
for the purposes of the eligibility provisions of Article II and the vesting provisions of Article IV and not for purposes of determining Credited
Service under Section 1.15, in the case of an Employee who was an employee of Cursitor Holdings, L.P. or Cursitor Holdings Limited (individually and collectively, "Cursitor") on
February 29, 1996, and on that date either was employed by or continued in the employment of Cursitor Alliance LLC, Cursitor Holdings Limited, Draycott Partners, Ltd. or Cursitor-Eaton
Asset Management Company, the Employee's service with Cursitor on or prior to that date shall be considered as service with an Employer or an Affiliate. 




22





 




 
 

ARTICLE II
  
    ELIGIBILITY FOR PARTICIPATION    
    



        2.01    Each
Employee who was a Participant on the Restatement Effective Date shall remain a Participant hereunder. 


        2.02    An
Employee who does not become a Participant pursuant to Section 2.01 and who has attained age twenty-one (21) shall become a Participant as
follows: 



        (a)   if
he shall have completed one thousand (1,000) Hours of Service during the twelve (12) month period beginning on his Employment Commencement Date, he shall
become a Participant as of the Entry Date of the Plan Year in which occurs the end of such twelve (12) month period; 



        (b)   if
he has not satisfied the service requirements of Subsection (a), he shall become a Participant as of the Entry Date of the Plan Year immediately following the first
Plan Year in which he completes one thousand (1,000) Hours of Service. 




        2.03    If
an Employee has not attained age twenty-one (21) on the date on which he satisfies the service requirement of Section 2.02, he shall become
a Participant on the Entry Date of the Plan Year in which he attains his twenty-first (21st) birthday. 


        2.04    If
the Administrative Committee so requests, an Employee who has qualified for participation in the Plan shall file with the Administrative Committee a statement in
such form as the Committee may prescribe, setting forth his age and giving such proof thereof as the Administrative Committee may require. 


        2.05    A
Participant shall cease to be a Participant as of either: 



        (a)   the
date of his Termination of Employment if he incurs a Break in Service during the Plan Year of such Termination of Employment or in the next succeeding Plan Year; or 



        (b)   the
first day of the first Plan Year in which he incurs a Break in Service, if he incurs a Break in Service without incurring a Termination of Employment. 



23





 

        2.06    (a)    A
former Participant who has incurred a Break in Service following a Termination of Employment and who is re-employed by an Employer or
Affiliate shall again become a Participant on the earlier of: 




        (1)   his
most recent Employment Commencement Date, if he completes one thousand (1,000) Hours of Service during the twelve (12) month period beginning on such date; or 


        (2)   the
first day of the first Plan Year following his most recent Employment Commencement Date during which he completes one thousand (1,000) Hours of Service. 




        (b)   A
former Participant who has incurred a Break in Service without a Termination of Employment shall again become a Participant as of the first day of the subsequent Plan
Year during which he completes one thousand (1,000) Hours of Service. 


        (c)   If
the provisions of Section 4.03 are applicable to a former Participant, then Section 2.06(a) or (b) shall be inapplicable, and such former
Participant shall again become a Participant when he satisfies the provisions of Section 2.02. 




        2.07    An
Employee who is an Excluded Employee on the date on which he would otherwise become a Participant pursuant to Sections 2.01, 2.02, 2.03, or 2.06, shall become a
Participant on the date, if any, on which he ceases to be an Excluded Employee, if he is then an Employee. 



        2.08    Notwithstanding
any provision of this Plan to the contrary, effective as of December 12, 1994, contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with Section 414(u) of the Code. 


        2.09    Notwithstanding
any other provision of the Plan, the following individuals shall not be eligible to participate or be a Participant in this Plan: (i) any person
who becomes an Employee on or after October 2, 2000 and (ii) employees of Sanford C. Bernstein, Inc., Sanford C. Bernstein & Co., Inc. and Bernstein
Technologies Inc. and their subsidiaries who became Employees upon or after the consummation of the transactions described in that certain Acquisition Agreement dated as of June 20,
2000, as amended and restated as of October 2, 2000, among Alliance Capital Management L.P., Alliance Capital Management Holding L.P., Alliance Capital Management LLC, Sanford C.
Bernstein Inc., Bernstein Technologies Inc., SCB Partners Inc., Sanford C. Bernstein & Co., LLC and SCB LLC. 


24








  



 
  ARTICLE III
  
    RETIREMENT ON OR AFTER NORMAL RETIREMENT DATE    
    


        3.01    Each
Participant shall be retired no later than on his seventieth (70th) birthday if permitted under the provisions of the Age Discrimination in Employment Act, unless
both he and his Employer agree that he shall be continued as an Employee beyond that date. Payments from the Plan shall begin in any event on the Participant's Required Beginning Date in accordance
with Section 3.03(a), applied as if the Participant's Retirement occurred on the last day of the calendar month immediately preceding his Required Beginning Date. If a Participant continues as
an Employee following his Required Beginning Date, the amount of the Participant's Retirement Pension payable upon his actual Retirement shall be actuarially reduced, using an investment rate of 6%
and the UP-1984 mortality table with ages set back one year, to reflect any payments the Participant received prior to such Retirement following the Required Beginning Date; provided,
however that the preceding reduction shall not apply to any Participant who attained his Required Beginning Date before January 1, 1996. Notwithstanding any provision of this Plan to the
contrary, the provisions of this Section 3.01 shall be construed in a manner that complies with Section 401(a)(9) of the Code and, with respect to distributions made on or after
January 1, 2001, the Plan will apply the minimum distribution requirements of Section 401(a)(9) of the Code in accordance with the Treasury Regulations thereunder that were proposed in
January 2001, the provisions of which are hereby incorporated by reference. This preceding sentence shall continue in effect until the end of the last calendar year beginning before the
effective date of the final regulations under Section 401(a)(9) of the Code or such other date as may be specified in guidance published by the Internal Revenue Service. 


        3.02    (a)    A
Participant shall be fully (100%) vested in his Accrued Benefit on his sixty-fifth (65th) birthday. Upon his Retirement on or after his Normal
Retirement Date, a Participant shall be entitled to receive a Retirement Pension, commencing on such date, equal to: 




        (1)   (A)    one
and one-half percent (11/2%) of his Average Final Compensation multiplied by the number, not exceeding
thirty-five (35), of his years of Credited Service completed prior to his Retirement, reduced by 



        (B)  sixty-five
one hundredths of one percent (.65%) of his Final Average Compensation multiplied by the number, not exceeding thirty five (35), of his years of
Credited Service completed prior to his Retirement, plus 





25





 



        (C)  one
percent (1%) of his Average Final Compensation multiplied by the number, if any, of his years of Credited Service exceeding thirty-five
(35) completed prior to his Retirement, or 




        (2)   (A)    one
and one-half percent (11/2%) of his Past Final Average Compensation multiplied by the number of his years of Credited
Service completed as of December 31, 1988, reduced by 



        (B)  one
and two-thirds percent (12/3%) of his Primary Social Security Benefit multiplied by the number of his years of Credited Service completed
as of December 31, 1988, but in no event by more than eighty-three and a third percent (831/3%) of his Primary Social Security Benefit, plus 



        (C)  one
and one-half percent (11/2%) of his Average Final Compensation multiplied by the number, not exceeding thirty-five
(35) (less the number of years of Credited Service referred to in Paragraph (2) (A) hereof, but not reduced below zero), of his years of Credited Service completed after 1988 and
prior to January 1, 1991, reduced by 


        (D)  sixty-five
one hundredths of one percent (.65%) of his Final Average Compensation multiplied by the number, not exceeding thirty-five
(35) (less the number of years of Credited Service referred to in Paragraph (2) (A) hereof, but not reduced below zero), of his years of Credited Service completed after 1988 and
prior to January 1, 1991, plus 


        (E)  one
percent (1%) of his Average Final Compensation multiplied by the number, if any, of his years of Credited Service exceeding thirty-five
(35) completed after 1988 and prior to January 1, 1991. 




        (3)   Notwithstanding
Paragraphs (1) and (2) above, in the case of a Participant who is not a Highly Compensated Employee described in
Section 414(q)(1)(A) or (B) of the Code, the Retirement Pension shall not be less than: 



        (A)  one
and one-half percent (11/2%) of his Past Final Average Compensation multiplied by the number of his years of Credited Service completed
prior to 1990, reduced by 


        (B)  one
and two-thirds percent (12/3%) of his Primary Social Security Benefit, multiplied by the number of his years of Credited Service completed
prior to 1990, but in no event by more 





26





 



than
eighty-three and one third percent (831/3%) of his Primary Social Security Benefit. 





        (b)   Notwithstanding
Subsection (a), the Retirement Pension of a Participant who is referred to in the proviso of Section 1.15(b)(2) shall be reduced, but not below
the amount computed under Subsection (a) without regard to the Participant's Credited Service referred to in that proviso, by the retirement pension based on the Credited Service referred to in
the proviso which the Participant is entitled to receive upon his Retirement on or after his Normal Retirement Date pursuant to the "defined benefit plan" of any Affiliate referred to in the proviso
or any successor or transferor plan or that he would have been entitled to receive but for the prior payment of all or a portion of his benefits under any such plan. 


        (c)   Notwithstanding
the foregoing, the retirement pension to which a participant is entitled upon his actual date of Retirement shall in no case be less than the Retirement
Pension to which he would have been entitled if he had retired on any earlier date on or after his Early Retirement Date. 


        (d)   Notwithstanding
any other provision of this Plan, the Retirement Pension of a Participant, calculated on a life annuity basis, may not exceed $100,000 per year. 



        (e)   Notwithstanding
the foregoing, the Retirement Pension of a Participant described in this subsection (e) shall be equal to the greater of: 



        (1)   the
Participant's Retirement Pension determined under Section 3.02(a)-(d) as applied to the Participant's total years of Credited Service under the Plan; or 


        (2)   the
sum of: (A) the Participant's Retirement Pension as of December 31, 1993, frozen in accordance with Treasury Regulation
Section 1.401(a)(4)-13, and (B) the Participant's Retirement Pension determined under 3.02(a)-(d), as applied to the Participant's years of Credited Service accrued after
December 31, 1993. 




The
previous sentence shall apply only to a Participant whose Retirement Pension determined on or after January 1, 1994 is based, at least in part, on Compensation for a Plan Year beginning
prior to January 1, 1994 that exceeded $150,000. 



27





 

        (f)    If
a Participant (other than a 5% owner as described in Section 414(q) of the Code) continues as an Employee after the April 1 of the calendar year
following the calendar year in which such Participant attains age 701/2 (the "April 1 Date"), the provisions of this Section 3.02(f) shall apply in place of the provisions
of Section 3.04(a) for periods of employment after the April 1 Date. The Participant's Accrued Benefit, determined as of any date after the April 1 Date, shall equal the greater
of: 



        (1)   the
Actuarial Equivalent, as of the date of such determination, of the Participant's Accrued Benefit determined as of the April 1 Date (if the determination is
made in the Plan Year in which the April 1 Date occurs), or determined as of the last day of the prior Plan Year (if the determination is made in any later year), or 


        (2)   the
Participant's Accrued Benefit determined as of the last day of the prior Plan Year, increased by any additional accrual due to Credited Service earned in the current
Plan Year. 





        3.03    (a)  (1)    Notwithstanding
any other provision of the Plan and except as provided in Paragraph (2) hereof and in Subsection (b), the
Retirement Pension of a married Participant or former married Participant shall be paid in the form of a Qualified Joint and Survivor Annuity, and if the Participant is not married, in the form of a
Single Life Annuity. 




        (2)   Distribution
to a Participant in a single sum payment of the entire Actuarial Equivalent of the Accrued Benefit to which he has become entitled shall be made: 



        (A)  if
such distribution is made prior to the date on which payment of the Qualified Joint and Survivor Annuity commences and the amount of such distribution is $5,000 (for
Participants whose Termination of Employment occurs before January 1, 1998, $3,500) or less; or 



        (B)  in
any case not described in subparagraph (A), with the written consent of the Participant and his Spouse (or, if the Participant has died, of his surviving Spouse). 





        For
purposes of this Subsection, if the Actuarial Equivalent of the Retirement Pension to which a Participant has become entitled is zero, the 



28





 

Participant
shall be deemed to have fully received a distribution of such zero Retirement Pension in a single sum. 



        (b)   A
Participant or former Participant shall have the right to elect, during the ninety (90) day period terminating on his Retirement Pension Starting Date and
subject to Spousal Consent, not to receive his Retirement Pension in the form of a Qualified Joint and Survivor Annuity. Any election made under this Subsection (b) may be revoked at any time
and, once revoked, may be made again. 


        (c)   The
Committee shall provide to each Participant, within a reasonable time prior to his Retirement Pension Starting Date (and consistent with such regulations as the
Secretary of the Treasury may prescribe), a written explanation of: 



        (1)   the
terms and conditions of the Qualified Joint and Survivor Annuity; 


        (2)   the
Participant's right to make, and the effect of, an election under Subsection (b) to waiver the Qualified Joint and Survivor Annuity; and 


        (3)   the
rights of the Participant's Spouse with respect to such election; and 


        (4)   the
right to make, and the effect of, a revocation of any such election. 




        (d)   The
written notification described in Subsection (c) shall be furnished by the Committee by mail or personal delivery to the Participant or, to the extent
permitted by regulations, by posting such notification, in accordance with Treasury Regulation Section 1.7476-2(c) (1), at all locations normally used by the Employer for the
posting of employee matters. 


        (e)   If
a Participant so requests on or before the sixtieth (60th) day after the information described in Subsection (c) is furnished to him (or by such later date as
the Committee shall prescribe), within thirty (30) days after its receipt of such request, personally deliver or mail to him a written explanation of the terms and conditions of the Qualified
Joint and Survivor Annuity and of the financial effect on the
Participant's Retirement Pension (in terms of dollars per Retirement Pension payment), of electing and of not electing to receive benefits in such form. 


        (f)    If
a Participant has not elected to decline the Qualified Joint and Survivor Annuity by the thirtieth (30th) day before his Retirement Pension 



29





 

Starting
Date, his benefits shall initially be paid in the form of a Qualified Joint and Survivor Annuity, even if his election period has not yet ended. If such Participant subsequently makes a
valid election to have benefits paid in some form other than a Qualified Joint an Survivor Annuity, such election shall be deemed to have been made as of his Retirement Pension Starting Date and his
later Retirement Pension payments shall be appropriately adjusted. 


        (g)   A
Participant who elects not to receive his Retirement Pension in the form of a Qualified Joint and Survivor Annuity or whose Spouse does not meet the requirements of
Section 1.46 shall receive his Retirement Pension in the form specified by the Option which he has elected pursuant to Article VII or, if no such Option has been elected, in the form of
an annuity for his own life. 




        3.04    Notwithstanding
anything to the contrary contained in this Plan (except to the extent otherwise provided in Section 3.02(f)), 



        (a)   If
a Participant continues as an Employee after his Normal Retirement Date, the Participant's Accrued Benefit shall be actuarially increased to take into account the
period after his Normal Retirement Date during which the Participant was not receiving any benefits under the Plan. The Participant's Accrued Benefit, determined as of any date after his Normal
Retirement Date, shall equal the greater of: 



        (1)   the
Actuarial Equivalent, as of the date of such determination, of the Participant's Accrued Benefit determined as of his Normal Retirement Date (if the determination is
made in the Plan Year in which he reaches his Normal Retirement Date), or determined as of the last day of the prior Plan Year (if the determination is made in any later year), or 


        (2)   the
Participant's Accrued Benefit determined as of the last day of the prior Plan Year, increased by any additional accrual due to Credited Service earned in the current
Plan Year. 




        (b)   If
a Participant, after his Normal Retirement Date, again becomes an Employee, his Retirement Pension shall be suspended during the period of his reemployment. The
amount of such reemployed
Participant's Retirement Pension payable upon his subsequent retirement shall be determined in accordance with Section 3.04(a), except that (1) the Participant's date of reemployment
shall be substituted for the Participant's Normal Retirement Date and (2) such Retirement Pension shall be reduced by the Actuarial Equivalent of the retirement benefits previously received. 



30





 
 
 

ARTICLE IV
  
    VESTING    
    


        4.01    (a)    A
Participant whose Termination of Employment occurs, other than by reason of his death or Disability, prior to his Early Retirement Date, shall have a
vested interest in his Accrued Benefit determined in accordance with the following schedule: 



	Years of Service
 
	 	Percentage Vested
	 
	Fewer than Five	 	0	%
	Five or more	 	100	%






provided
that the applicable percentage for a Participant who had four (4) but fewer than five (5) Years of Service prior to October 25, 1989 shall in no event be less than forty
percent (40%). 



        (b)   Notwithstanding
the foregoing, a Participant shall be fully (100%) vested upon his death, upon his Termination of Employment due to Disability, or upon attaining his
Early Retirement Date. 




        4.02    If
a former Employee again becomes an Employee after having incurred a Break in Service, the Years of Service which he had completed prior to such Break in Service
shall be disregarded for all purposes under this Plan until he shall have completed one (1) Year of Service after such Break in Service. 


        4.03    If
a former Employee: 



        (a)   has
incurred a number of consecutive Breaks in Service which equals or exceeds the greater of (i) five (5) or (ii) the number of his Years of
Service before such Breaks in Service; 


        (b)   had
no vested interest in his Accrued Benefit at the time of such Break in Service; and 


        (c)   again
becomes an Employee, his Years of Service prior to such Breaks in Service shall be disregarded for all purposes under this plan. 




        4.04    (a)    A
vested Participant whose Termination of Employment occurs, other than by reason of his death or Disability, prior to his Early Retirement Date shall
be entitled to a Retirement Pension: 




        (1)   commencing
on his Early Retirement Date; or 




31





 


        (2)   at
his written election, commencing on the first day of any month after his Early Retirement Date but not later than his Normal Retirement Date; 




and
which is the Actuarial Equivalent, as of his Retirement Pension Starting Date, of his Accrued Benefit; provided, that without the written consent of the Participant, and if the Participant is
married, Spousal Consent, such Retirement Pension shall not commence prior to his Normal Retirement Date if
the Actuarial Equivalent of such Retirement Pension is greater than $5,000 (for Participants whose Termination of Employment occurs before January 1, 1998, $3,500). 


        (b)   Notwithstanding
any other provision of this Plan, if a Participant is entitled to a Retirement Pension pursuant to the provisions of this Article IV, such
Retirement Pension shall be paid in accordance with the provisions of Section 3.04. 




        4.05    In
the case of a former Participant who is reemployed by any Employer or an Affiliate before such Participant's Normal Retirement Date: 



        (a)   if
he is receiving a Retirement Pension at the time of his reemployment, such Retirement Pension shall be suspended during the period of his reemployment, and any years
of Credited Service with respect to which he has received any benefits under this Plan shall be taken into account for purposes of determining his benefit under benefit accrual provisions of
Section 3.02 or Subsection 11.04(a)(2), but the amount of his Retirement Pension, when payable, shall be reduced by the Actuarial Equivalent of such benefits previously received; 



        (b)   if
he had received a single sum distribution (or been deemed to have received such a distribution under Subsection 3.03(a)(2) hereof) or any optional payment under the
terms of the Plan, his Years of Credited Service with respect to which he had received any benefits under this Plan shall be taken into account for purposes of determining his benefit under the
benefit accrual provisions of Section 3.01 or Subsection 11.04(a)(2), but the amount of his Retirement Pension, when payable, shall be reduced by the Actuarial Equivalent of the benefits
previously received. In the case of an Employee whose period of reemployment extends beyond his Normal Retirement Date, the provisions of Section 3.04(a) shall apply in addition to the
provisions of this Section 4.05. 



32





 
 
 

ARTICLE V
  
    EARLY RETIREMENT AND DISABILITY BENEFIT    
    



        5.01    Upon
Retirement on or after his Early Retirement Date but before his Normal Retirement Date, a Participant shall be entitled to elect to receive, with his written
consent, a Retirement Pension commencing on: 



        (a)   the
first day of the month coincident with or next following the date of his Retirement; or 


        (b)   the
first day of any month which precedes his Normal Retirement Date; 




which
is the Actuarial Equivalent as of his Normal Retirement Date of his Accrued Benefit. 



        Notwithstanding
the foregoing, however, in no event shall the Participant's Retirement Pension payable pursuant to this Section 5.01 be less than the Participant's Retirement
Pension determined under this Section as of December 31, 1995 based on the Annuity Purchase Rate and mortality determined by application of the UP-1984 mortality table set back one
year. 


        5.02    Upon
a Participant's Termination of Employment due to Disability, he shall be fully (100%) vested in his Accrued Benefit and shall be entitled to receive a Retirement
Pension commencing on his Normal Retirement which is equal to his Accrued Benefit as of the date of his Termination of Employment. 



        5.03    Notwithstanding
any other provision of this Plan, if a Participant is entitled to a Retirement Pension pursuant to the provisions of this Article V, such
Retirement Pension shall be paid in accordance with the provisions of Section 3.04. 


33






  



 
 

ARTICLE VI
  
    OPTIONAL METHODS OF PAYMENT    
    


        6.01    The
optional methods of payment set forth in this Section 6.01 shall be available under the Plan and shall be elected in the manner provided herein. 



        (a)    Election Procedure.    


        A
Participant or Retired Participant may elect any of the Options provided herein, which Option shall be the Actuarial Equivalent (determined as of his Retirement Pension Starting Date)
of the Retirement Pension otherwise payable to him in accordance with Article III, IV or V, whichever is applicable; provided, however, that no Option may be elected which would permit his
Beneficiary (other than his Spouse) to receive a benefit which is fifty percent (50%) or more of the Actuarial Equivalent (determined as of the Participant's projected Retirement Pension Starting
Date) of the combined benefits payable to such Beneficiary and such Participant or Retired Participant. Such election shall be made in accordance with Section 3.03(b). Except as otherwise
provided in this Article VI, an Option shall become effective on the later of (1) the date a Participant elects an Option, or (2) his Retirement Pension Starting Date. If a
Participant or Retired Participant dies before the date on which an Option becomes effective, any election of such Option shall be null and void. A married Participant may elect an Option only if he
elects, in accordance with Section 3.03, not to receive benefits in the form of a Qualified Joint and Survivor Annuity. 



        (b)    The following Options may be elected by a Participant:    



Option 1



        Life Annuity:    A Participant or Retired Participant may elect to receive his Retirement Pension in the form of an annuity for
his own life only. 



Option 2



        Joint and Survivor Annuity:    (1)    A Participant or Retired Participant may elect to receive an actuarially
adjusted Retirement Pension payable to himself in equal monthly installments for his lifetime and thereafter payable to his Beneficiary, if such Beneficiary survives him, in equal monthly installments
at a rate of fifty percent (50%), seventy-five percent (75%) or one hundred percent (100%), as the Participant or Retired Participant may designate, of the Retirement Pension payable
during their joint lifetimes. Election of this Option is conditioned upon the statement of the name and gender of the Beneficiary in such election, 



34





 

and
in addition, the delivery to the Administrative Committee within ninety (90) days after filing such election of proof, satisfactory to the Administrative Committee, of the age of the
Beneficiary. 


        (2)   If
his Beneficiary dies before the Retirement Pension Starting Date of the Participant or Retired Participant, any election of this Option 2 shall be null and void. 



        (3)   If
his Beneficiary dies after the Retired Participant's Retirement Pension Starting Date, the election of this Option 2 shall be effective, and the Participant or
Retired Participant shall receive or continue to receive the same actuarially adjusted Retirement Pension as if his Beneficiary had not predeceased him. 



Option 3



        Life Annuity — Period Certain:    A Participant or Retired Participant may elect to receive an actuarially
adjusted Retirement Pension payable in equal monthly installments for his lifetime or over a period certain not longer than the greater of the Participant's life expectancy on his Retirement Pension
Starting Date, or the joint life and last survivor expectancy of the Participant or Retired Participant and his Beneficiary on his Retirement Pension Starting Date, determined under the
Treasury Regulations under Section 72 of the Code. If the Participant or Retired Participant dies prior to the end of the period certain, the remaining installments shall be paid to his
Beneficiary. 



Option 4



        Single Sum Distribution:    A Participant or Retired Participant may elect to receive the Actuarial Equivalent of his Accrued
Benefit, computed as of his Retirement date, in the form of a single sum distribution. Such amount shall be paid to him, or, if he dies between the date on which the distribution first becomes payable
and the date of actual distribution, to his Beneficiary, within sixty days after the date which would otherwise have been his Retirement Pension Starting Date; provided, however, that the entire
amount shall be distributed within a single taxable year of the recipient. In no event shall a Participant's benefit payable under this Option 4 be less than would have been payable under the terms of
the Plan in effect on December 31, 1995 based on the Participant's Accrued Benefit as of that date. 



Option 5



        Payment in Installments:    A Participant or Retired Participant may elect to have the Actuarial Equivalent of his Accrued
Benefit, computed as of his 



35





 

Retirement
date, paid to him in approximately equal installments, payable no less often than annually, over a period certain not longer than the greater of the Participant's life expectancy on his
Retirement Pension Starting Date, or the joint life and last survivor expectancy of the Participant or Retired Participant and his Beneficiary on his Retirement Pension Starting Date, determined under
the Treasury Regulations under Section 72 of the Code. If the Participant or Retired Participant dies prior to the end of the period certain, the remaining installments shall be paid to his
Beneficiary. In no event shall a Participant's benefit payable under this Option 5 be less than would have been payable under the terms of the Plan in effect on December 31, 1995 based on the
Participant's Accrued Benefit as of that date. 


        (c)    Change of Option:    


        A
Participant or Retired Participant may elect to change the Option then in effect at any time during the period provided in Subsection (a) within which an Option may be elected;
provided, however, that a Participant or Retired Participant may not elect to change the Option then in effect more frequently than once during any consecutive twelve (12) month period. 


        (d)    Designation of Beneficiary:    



        (1)   Upon
receipt of notification from the Administrative Committee that he has qualified for participation in the Plan, a Participant may designate a Beneficiary or
Beneficiaries and a successor Beneficiary or Beneficiaries. A Participant or Retired Participant may change such designation from time to time by filing a new designation with the Administrative
Committee. No change of Beneficiary shall require the consent of any previously designated Beneficiary, and no Beneficiary shall have any rights under this Plan except as specifically provided by its
terms. 


        (2)   If
a Retired Participant (other than one who has elected Option 1 or 2) has failed to designate a Beneficiary, or if his Beneficiary has predeceased him, or if he
has instructed the Administrative Committee in writing to designate a Beneficiary, the Administrative Committee shall designate a Beneficiary or Beneficiaries on his behalf, but only from among his
Spouse, descendants (including adoptive descendants), parents, brothers and sisters, or nephews and nieces; provided, however, that if the Retired Participant had instructed the Administrative
Committee in writing to designate in a specified order or from a specified group, the Administrative Committee shall act only in accordance with 




36





 


such
written instructions. If a Retired Participant has no validly designated Beneficiary, the Actuarial Equivalent of any amounts which would otherwise have been payable to a Beneficiary shall be
paid to the Retired Participant's estate. 


        (3)   If
the Beneficiary of a Participant or Retired Participant predeceases him the rights of such Beneficiary shall thereupon terminate. 



        (4)   If
a Retired Participant dies after any installment of his Retirement Pension has become due but has not yet been paid to him, the balance of such installment shall be
paid to his Beneficiary. 





        6.02    The
Administrative Committee is authorized and empowered from time to time to adopt and fairly to administer regulations relating to the exercise or operation of an
Option; provided, however, that no such regulation shall be inconsistent with the provisions of Section 6.01. Without limiting the generality of the foregoing such regulations may prescribe: 



        (a)   such
terms and conditions as the Administrative Committee shall deem appropriate in respect of the exercise of any Option; 


        (b)   the
form of application; 


        (c)   any
information or proof thereof to be furnished by a Participant, a Retired Participant or a Beneficiary in connection with any Option; and 


        (d)   any
other requirement or condition relating to any Option. 




        6.03    The
Administrative Committee may, in its sole discretion, at any time or from time to time, provide the benefits to which any Retired Participant or his Beneficiary is
entitled under this Plan by purchase of any form of nonassignable annuity contract. Upon the purchase of any such contract, the rights of the Retired Participant and his Beneficiary to receive any
payments pursuant to this Plan shall be exclusively limited to such rights as may accrue under such contract, and neither such Retired Participant nor his Beneficiary shall have any further claim
against his Employer, the Administrative Committee, the Trustee or any other person. 



        6.04    If,
at any time, any Retired Participant or his Beneficiary is, in the judgment of the Administrative Committee, legally, physically or mentally incapable of personally
receiving and receipting for any payment due hereunder, 


37





 

payment
may, in the discretion of the Administrative Committee, be made to the guardian or legal representative of such Retired Participant or Beneficiary or, if none exists, to any other person or
institution which, in the judgment of the Administrative Committee, is then maintaining, or then has custody of, such Retired Participant or Beneficiary. 


        6.05    Notwithstanding
anything to the contrary contained in this Plan: 



        (a)   The
entire interest of each Participant must be distributed or begin to be distributed no later than the Participant's Required Beginning Date. 


        (b)   Distributions,
if not made in a single sum, may only be made over one of the following periods (or a combination thereof): 



        (1)   the
life of the Participant, 


        (2)   the
life of the Participant and Designated Beneficiary, 


        (3)   a
period certain not extending beyond the life expectancy of the Participant, or 


        (4)   a
period certain not extending beyond the joint and last survivor expectancy of the Participant and his Designated Beneficiary. 




        (c)   If
the Participant dies after distribution of his or her interest has begun, the remaining portion of such interest will continue to be distributed at least as rapidly
as under the method of distribution being used prior to the Participant's death. 


        (d)   If
the Participant dies before distribution of his or her interest begins, distribution of the Participant's entire interest shall be completed by December 31 of
the calendar year containing the fifth (5th) anniversary of the Participant's death except to the extent that an election is made to receive distributions in accordance with (1) or
(2) below: 



        (1)   If
any portion of the Participant's interest is payable to a Beneficiary, distributions may be made over the life or over a period certain not greater than the life
expectancy of the Designated Beneficiary commencing on or before December 31 of the calendar year immediately following the calendar year in which the Participant died; 




38





 


        (2)   If
the Beneficiary is the Participant's surviving Spouse, the date distributions are required to begin in accordance with (a) above shall not be earlier than
December 31 of the calendar year in which the Participant would have attained age 701/2; 


        (3)   If
the surviving Spouse dies before the distributions to such spouse begin, the provisions of this Section 6.05(d), shall be applied as if the surviving spouse
were the Participant. 




        (e)   Any
amount paid to a child of the Participant will be treated as if it has been paid to the surviving Spouse if the amount becomes payable to the surviving spouse when
the child reaches the age of majority. 


        (f)    The
life expectancy of a Participant and his Spouse may be recalculated annually. The life expectancy of a non-Spouse beneficiary may not be recalculated. 


        (g)   Notwithstanding
any provision of this Plan to the contrary, the provisions of this Section 6.05 shall be construed in a manner that complies with
Section 401(a)(9) of the Code and, with respect to distributions made on or after January 1, 2001, the Plan will apply the minimum distribution requirements of Section 401(a)(9)
of the Code in accordance with the Treasury Regulations thereunder that were proposed in January 2001, the provisions of which are hereby incorporated by reference. This subsection
(g) shall continue in effect until the end of the last calendar year beginning before the effective date of the final regulations under Section 401(a)(9) of the Code or such other date
as may be specified in guidance published by the Internal Revenue Service. 




        6.06    Notwithstanding
anything contained herein to the contrary, unless the Participant elects otherwise, distributions to the Participant will commence no later than the
60th day after the close of the Plan Year in which occurs the latest of: 




        (1)   the
Participant's attainment of age 65; 


        (2)   the
10th anniversary of the year in which the Participant commenced participation in the Plan; or 


        (3)   the
Participant's termination of service with the Employer. 





Notwithstanding
the foregoing, the failure of a Participant and his Spouse to consent to a distribution at any time that any portion of the Accrued Benefit could 


39





 

be
distributed to the Participant or his surviving Spouse prior to the time the Participant attains (or would have attained if not deceased) age 65, shall be deemed to be an election to defer payment
of any benefit sufficient to satisfy this Section 6.06. 


40





 
 
 

ARTICLE VII
  
    DEATH BENEFIT    
    


        7.01    No
benefits under this Plan shall be payable on account of the death of a Participant or Retired Participant other than a death benefit pursuant to Section 3.03,
an Option validly elected under Article VI, or this Article VII. 


        7.02    (a)    Except
as provided in Subsection (b), if a married Participant who is vested in any portion of his Accrued Benefit should die prior to his Retirement
Pension Starting Date, his Spouse shall be entitled to receive a Qualified Preretirement Survivor Annuity. 



        (b)   Notwithstanding
any other provision of this Article VII, distributions of the Actuarial Equivalent of the Qualified Preretirement Survivor Annuity to which a
surviving Spouse has become entitled shall immediately be made or commence to be made to the surviving Spouse in a form other than the Qualified Preretirement Survivor Annuity: 



        (1)   if
such distribution is made prior to the date on which payments of the Qualified Preretirement Survivor Annuity commence and the amount of such distribution is $5,000
(for Participants whose Termination of Employment occurs before January 1, 1998, $3,500) or less; or 



        (2)   in
any case not described in Paragraph (1), with the written consent of such surviving Spouse. 





        7.03    (a)    The
Committee shall provide each Participant within the "applicable period" for such Participant a written explanation of the Qualified Preretirement
Survivor Annuity comparable to the explanation required in Section 3.03(c). 



        (b)   The
applicable period is whichever of the following periods ends last: 



        (1)   the
period beginning with the first day of the Plan Year in which the Participant attains age 32 and ending with the close of the Plan Year preceding the Plan Year in
which the Participant attains age 35; 


        (2)   "a
reasonable period" ending after the individual becomes a Participant; and 




41





 


        (3)   "a
reasonable period" ending after this Section 7.03 first applies to the Participant. 




For
purposes of this Section 7.03, "a reasonable period" is the end of the two year period beginning one year prior to the date the applicable event occurs, and ending one year after that date. 


        (c)   Notwithstanding
the foregoing in the case of a Participant who separates from service before the Plan Year in which age 35 is attained, notice shall be provided within
the two year period beginning one year prior to separation and ending one year after separation. If the Participant thereafter returns to employment with the Employer, the "applicable period" for such
participant shall be redetermined. 



42





 
 
 

ARTICLE VIII
  
    DIRECT ROLLOVER DISTRIBUTIONS    
    



        8.01    Upon
receiving directions from a Member who is eligible to receive a distribution from the Plan which constitutes an eligible rollover distribution, as defined in
Section 402(c)(4)of the Code, to transfer all or any part of such distribution to an eligible retirement plan, as defined in Section 402(c)(8)(B), the Administrative Committee shall
cause the portion of the distribution which the Participant has elected to so transfer to be transferred directly to such eligible retirement plan; provided, however, that the Participant shall be
required to notify the Administrative Committee of the identity of the eligible retirement plan at the time and in the manner that the Administrative Committee shall prescribe and the Administrative
Committee may require the Participant or the eligible retirement plan to provide a statement that the eligible retirement plan is intended to be qualified under Section 401(a) of the Code (if
the plan is intended to be so qualified) or otherwise meets the requirements necessary to be an eligible retirement plan. 


        8.02    Upon
receiving instructions from a Beneficiary who is the Participant's Spouse who is eligible to receive a distribution pursuant to the Plan that constitutes an
eligible rollover distribution as defined in Section 402(c)(4) of the Code, to transfer all or any part of such distribution to a plan that constitutes an eligible retirement plan under
Section 402(c)(8)(B) of the Code with respect to that distribution, the Administrative Committee shall cause the portion of the distribution which such Spouse has elected to so transfer to the
eligible retirement plan so designated; provided, however, that the Spouse shall be required to notify the Administrative Committee of the identity of the eligible retirement plan at the time and in
the manner that the Committee shall prescribe. 


        8.03    The
Administrative Committee may accomplish the direct transfer described in Section 8.01 or Section 8.02, as applicable, by delivering a check to the
Participant or Spouse (in each case, a "Distributee") which is payable to the trustee, custodian or other appropriate fiduciary of the eligible retirement plan, or by such other means as the
Administrative Committee may in its discretion determine. The Administrative Committee may establish such rules and procedures regarding minimum amounts which may be the subject of direct transfers
and other matters pertaining to direct transfers as it deems necessary from time to time. 


43





 
 
 

ARTICLE IX
  
    EMPLOYER CONTRIBUTION AND FUNDING POLICY    
    


        9.01    This
Plan contemplates that each Employer shall, from time to time, contribute such amounts as may, in accordance with Section 412 of the Code and sound
actuarial principles (as recommended by an actuary enrolled pursuant to Section 3042 of ERISA), be deemed necessary by such Employer to provide the benefits contemplated hereunder. 


        9.02    All
contributions made by any Employer shall be paid directly to the Trustee for deposit in the Trust Fund. 



        9.03    Any
forfeiture arising under the provisions of this Plan shall be applied to reduce contributions which would otherwise be required to be made by the Employers pursuant
to Section 9.01. 


        9.04    The
Company shall establish a funding policy and method consistent with the objectives of the Plan and the requirements of Title I of ERISA. In establishing and
reviewing such funding policy and method, the Company shall endeavor to determine the Plan's short-term and long-term financial needs, taking into account the need for
liquidity to pay benefits and the need for investment growth. 


44





 
 
 

ARTICLE X
  
    LIMITATIONS ON BENEFITS    
    


        10.01    The
limitations of Section 415 of the Code applicable to "defined benefit plans" as defined in Section 414(j) of the Code are hereby incorporated by
reference in this Plan; provided, however, that
where the Code so provides, benefit limitations in effect under prior law shall be applicable to benefits accrued as of the last effective day of such prior law. In the case of a Participant who is,
or has ever been, a participant in one or more "defined contribution plans" as defined in Section 414(i) of the Code maintained by Employer or any predecessor of the Employer, if
benefits or contributions need to be reduced due to the application of Section 415(e) of the Code, then benefits under this Plan shall be reduced with respect to the affected Participant before
any contributions credited to the Participant under any defined contribution plan maintained by the Employer shall be reduced. Notwithstanding the foregoing, the limitations of Section 415(e)
of the Code shall cease to apply as of the first day of the first Plan Year beginning on or after January 1, 2000. 


45






  



 
 

ARTICLE XI
  
    TOP-HEAVY PLAN YEARS    
    


        11.01    For
purposes of this Article XI, the following definitions shall apply: 



        (a)   "Determination
Date" means for any Plan Year subsequent to the first Plan Year, the last day of the preceding Plan Year, for the first Plan Year, the last day of that
Plan Year. 


        (b)   "Employee"
means any employee of an Employer and any beneficiary of such an employee. 


        (c)   "Employer"
means the Employer and any Affiliate. 


        (d)   "Key
Employee" means, for Plan Years beginning after December 31, 2000, any Employee or former Employee (including any deceased Employee) who at any time during
the Plan Year that includes the determination date was an officer of the Employer having annual compensation greater than $130,000 (as adjusted under Section 416(i)(1) of the Code for Plan
Years beginning after December 31, 2002), a 5-percent owner of the employer, or a 1-percent owner of the employer having annual compensation of more than $150,000. For
this purpose, annual compensation means compensation within the meaning of Section 415(c)(3) of the Code. The determination of who is a Key Employee will be made in accordance with
Section 416(i)(1) of the Code and the applicable regulations and other guidance of general applicability issued thereunder. 


        (e)   "Permissive
Aggregation Group" means the Required Aggregation Group of plans plus any other plan or plans of the Employer which, when considered as a group with the
Required Aggregation Group, would continue to satisfy the requirements of Sections 401(a)(4) and 410 of the Code. 


        (f)    "Required
Aggregation Group" means (1) each qualified plan of the Employer in which at least one Key Employee participates, and (2) any other qualified
plan of the Employer which enables a plan described in (1) to meet the requirements of Sections 401(a)(4) or 410 of the Code. 


        (g)   "Top-Heavy
Compensation" means the first $200,000 (or such higher amount as may be prescribed pursuant to Treasury 



46





 

Regulations)
of W-2 earnings actually paid in the Plan Year by an Employer or an Affiliate for services as an Employee. 


        (h)   "Top-Heavy
Ratio": 



        (1)   If
in addition to this Plan the Employer maintains one or more other defined benefit plans (including any simplified employee pension plan) and the Employer has not
maintained any defined contribution plan which during the 1-year period ending on the Determination Date has or has had account balances, the top-heavy ratio for this Plan
alone or for the Required or Permissive Aggregation Group, as appropriate, is a fraction, the numerator of which is the sum of the present value of accrued benefits of all Key Employees as of the
Determination Date (including any part of any accrued benefit distributed in the 1-year period ending on the Determination Date), and the denominator of which is the sum of the present
value of all accrued benefits (including any part of any accrued benefit distributed in the 1-year period ending on the Determination Date), both computed in accordance with
Section 416 of the Code and the regulations thereunder. 


        (2)   If
in addition to this Plan the Employer maintains one or more defined benefit plans (including any simplified employee pension plan) and the Employer maintains or has
maintained one or more defined contribution plans which during the 1-year period ending on the Determination Date has or has had any account balances, the Top-Heavy Ratio for
any Required or Permissive Aggregation Group, as appropriate, is a fraction, the numerator of which is the sum of the present value of accrued benefits under the aggregated defined benefit plan or
plans for all Key Employees, determined in accordance with (1) above, and the sum of the account balances under the aggregated defined contribution plan or plans for all Key Employees as of the
Determination Date, and the denominator of which is the sum of the present value of accrued benefits under the aggregated defined benefit plan or plans for all participants, determined in accordance
with (1) above, and the sum of the account balances under the aggregated defined contribution plan or plans for all participants as of the Determination Date, all determined in accordance with
Section 416 of the Code and the regulations thereunder. The account balances accrued benefits under a defined contribution plan in both the numerator and denominator of the
Top-Heavy Ratio are increased for any 




47





 


distribution
of an account balance made in the 1-year period ending on the Determination Date. 


        (3)   For
purposes of (1) and (2) above, the value of account balances and the present value of accrued benefits will be determined as of the most recent
Valuation Date that falls within or ends with the 12-month period ending on the Determination Date, except as provided in Section 416 of the Code and the regulations thereunder for
the first and the second plan years of a defined benefit plan. The account balances and accrued benefits of a participant (x) who is not a Key Employee but who was a Key Employee in a prior
year, or (y) who has not received any Top-Heavy Compensation from any Employer maintaining the Plan at any time during the 5-year period ending on the Determination Date
will be disregarded. Notwithstanding the above, for Plan Years beginning after December 31, 2001, the accrued benefits and accounts of any Participant who has not performed services for the
Employer during the 1-year period ending on the Determination Date will be disregarded. The calculation of the Top-Heavy Ratio, and the extent to which distributions,
rollovers, and transfers are taken into account will be made in accordance with Section 416 of the Code and the regulations thereunder. Deductible Employee contributions will not be taken into
account for purposes of computing the Top-Heavy Ratio. When aggregating plans the value of account balances and accrued benefits will be calculated with reference to the Determination
Dates that fall within the same calendar year. 




        The
accrued benefit of a Participant other than a Key Employee shall be determined under (x) the method, if any, that uniformly applies for accrual purposes under all defined
benefit plans maintained by the Employer, or (y) if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional rule of
Section 411(b)(1)(C) of the Code. 



        (4)   For
purposes of (1) and (2) above, in the case of a distribution from the Plan made for a reason other than separation from service, death or Disability,
"5-year period" shall be substituted for "1-year period" wherever such term is found. 





        (i)    "Valuation
Date" means the last day of a Plan Year. 



48





 

        11.02    If
the Plan is or becomes top-heavy in any Plan Year, the provisions of Sections 11.04 through 11.05 will automatically supersede any conflicting provision
of the Plan. 


        11.03    The
Plan shall be considered top-heavy for any Plan Year if any of the following conditions exists: 



        (a)   If
the Top-Heavy Ratio for the Plan exceeds 60 percent and the Plan is not part of any Required Aggregation Group or Permissive Aggregation Group of
plans. 


        (b)   If
the Plan is part of a Required Aggregation Group of plans but not part of a Permissive Aggregation Group and the Top-Heavy Ratio for the group of plans
exceeds 60 percent. 


        (c)   If
the Plan is part of a Required Aggregation Group of plans and part of a Permissive Aggregation Group and the Top-Heavy Ratio for the Permissive
Aggregation Group exceeds 60 percent. 




        11.04    (a)    The
Retirement Pension, commencing on or after the Normal Retirement Date of each individual, other than a Key Employee, who was a Participant during
any Top-Heavy Plan year shall be the greater of: 




        (1)   such
Participant's Retirement Pension determined under Section 3.02; or 


        (2)   an
amount equal to two percent (2%) of such Participant's Highest Average Compensation for each of the first ten (10) years of his Top-Heavy Service;
provided, however, that in the case of a Participant whose Retirement Pension Starting Date is later than his Normal Retirement Date, the amount determined under this Paragraph (2) commencing
on such Retirement Pension Starting Date shall not be less than the Actuarial Equivalent of the Retirement Pension that would have been payable pursuant to this Paragraph (2) on the
Participant's Normal Retirement Date 




        (b)   For
purposes of this Section 11.04: 



        (1)   "Highest
Average Compensation" means a Participant's average Top-Heavy Compensation for the five (5) consecutive years during which his aggregate
Top-Heavy Compensation was highest, excluding compensation earned by such Participant: 



        (A)  after
the close of the last Top-Heavy Plan Year; or 





49





 



        (B)  prior
to January 1, 1984, except to the extent that compensation prior to January 1, 1984 is required to be taken into account so that such average is
based on a five (5) year period. 




        (2)   "Top-Heavy
Service" means each Year of Service: 



        (A)  in
which ended a Plan Year which was not a Top-Heavy Plan Year; or 


        (B)  completed
in a Plan Year beginning prior to January 1, 1984. 




For
Plan Years beginning after December 31, 2001, for purpose of satisfying the minimum benefit requirements of Section 416(c)(1) of the Code and this Plan, in determining Years of
Service, any service with Employer shall be disregarded to the extent that such service occurs during a Plan Year when the Plan benefits (within the meaning of Section 410(b) of the Code) no
Key Employee or former Key Employee. 




        (c)   In
the case of a Participant who is also a Participant in a defined contribution plan maintained by an Employer or an Affiliate, the amount described in
Paragraph (a) (2) shall be reduced by the actuarial equivalent, determined as of the date of the Participant's Retirement Pension Starting Date, of the Participant's account balance
under such defined contribution plan derived from employer contributions (which account balance shall be deemed to include prior withdrawals made by the Participant accumulated at interest to the
Participant's Retirement Pension Starting Date). For purposes of this Subsection (c), actuarial equivalence and the interest rate referred to in the preceding sentence shall be determined using the
actuarial assumptions described in Section 1.02. 




        11.05    (a)    For
any Top-Heavy Plan Year, each Participant shall be vested in his Accrued Benefit in accordance with the following schedule: 



	Years of Service
 
	 	Nonforfeitable Percentage
	 
	Fewer than Two Years	 	0	%
	Two Years but less than Three Years	 	20	%
	Three Years but less than Four Years	 	40	%
	Four Years but less than Five Years	 	60	%
	Five Years but less than Six Years	 	80	%
	Six or more Years	 	100	%





50





 

        (b)   Any
portion of a Participant's Accrued Benefit which has become vested pursuant to Subsection (1) shall remain vested after the Plan has ceased to be a
Top-Heavy Plan. 


        (c)   Any
Participant who has completed at least five (5) Years of Service prior to the beginning of the Plan Year in which the Plan ceased to be a
Top-Heavy Plan shall continue to vest in his Accrued Benefit according to the schedule set forth in Subsection (a) after the Plan has ceased to be a Top-Heavy Plan. 



51





 
 
 

ARTICLE XII
  
    NON-ALIENABILITY    
    


        12.01    Except
in the case of a qualified domestic relations order described in Section 414(p) of the Code, no benefit under this Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, charge, encumbrance, garnishment, levy or attachment; and any attempt to so anticipate, alienate, sell, transfer, assign, pledge, charge,
encumber, garnish, levy upon or attach the same shall be void; nor shall any such benefit be in any manner liable for or subject to the debts, contracts, liabilities, engagements or torts of the
person entitled thereto. 


        12.02    If
any Participant or Beneficiary under this Plan becomes bankrupt or attempts to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge any benefit
under this Plan, the Administrative Committee may (but shall not be required to) terminate the payment of such benefit to such Participant or Beneficiary. If payment is thus terminated, the
Administrative Committee shall direct the Trustee to hold or apply future payments for the benefit of such Participant, his Beneficiary, his spouse or children or other dependents, or any of them, in
such manner and in such proportion as the Administrative Committee may deem proper. 



        12.03    Notwithstanding
anything herein to the contrary, effective August 5, 1997, the provisions of this Article XII shall not apply to any offset of a
Participant's benefits provided under the Plan against an amount that the Participant is ordered or required to pay to the Plan under any of the circumstances set forth in Section 401(a)(13)(C)
of the Code and Sections 206(d)(4) and 206(d)(5) of ERISA. 


52





 
 
 

ARTICLE XIII
  
    AMENDMENT OF THE PLAN    
    


        13.01    The
Company shall have the right by action of the Board, at any time and from time to time, to amend in whole or in part any of the provisions of this Plan, and any
such amendment shall be binding upon the Participants and their Beneficiaries, the Trustee, the Administrative Committee, any Employer, and all parties in interest; provided, however, that no such
amendment shall authorize or permit any of the assets of the Trust Fund to be used for or directed to purposes other than the exclusive benefit of the Participants or their Beneficiaries. Any such
amendment shall become effective as of the date specified therein. 


        13.02    No
amendment to the Plan including a change in the actuarial basis for determining optional or early retirement benefits shall be effective to the extent that it has
the effect of decreasing a Participant's Accrued Benefit. Notwithstanding the preceding sentence, a Participant's Accrued Benefit may be reduced to the extent permitted under Section 412(c)(8)
of the Code. For purposes of this paragraph, a Plan amendment which has the effect of (1) eliminating or reducing an early retirement benefit or a retirement-type subsidy, or
(2) eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment shall be treated as reducing accrued benefits. In the case of a
retirement-type subsidy, the preceding sentence shall apply only with respect to a participant who satisfies either before or after the amendment the preamendment conditions for the
subsidy. In general, a retirement-type subsidy is a subsidy that continues after retirement, but does not include a qualified disability benefit, a medical benefit, a social security
supplement, a death benefit (including life insurance). Furthermore, no amendment to the Plan shall have the effect of decreasing a Participant's vested interest determined without regard to such
amendment as of the later of the date such amendment is adopted, or becomes effective. 



        13.03    If
at any time the vesting schedule set forth in Section 4.01 is amended, or the Plan is amended in any way that directly or indirectly affects the computation
of the Participant's nonforfeitable percentage or if the Plan is deemed amended by an automatic change to or from a top-heavy vesting schedule, each Participant with at least three Years
of Service may elect, within a reasonable period after the adoption of the amendment or change, to have the nonforfeitable percentage computed under the Plan without regard to such amendment or
change. For Participants who dc not have at least one Hour of Service in any Plan Year beginning after December 31, 1988, the preceding sentence shall be applied by substituting "five Years of
Service" for "three Years of Service" where such language appears. The period during which the election may be made shall 


53





 

commence
with the date the amendment is adopted or deemed to be made and shall end on the latest of: 



          (i)  60 days
after the amendment is adopted; 


         (ii)  60 days
after the amendment becomes effective; or 


        (iii)  60 days
after the Participant is issued written notice of the amendment by the Employer or the Plan Administrator. 



54





 
 
 

ARTICLE XIV
  
    TERMINATION OF THE PLAN    
    



        14.01    The
Company may, by action of the Board and by appropriate notice to the Trustee, determine that it shall terminate the Plan in its entirety or withdraw from the Plan
and terminate the same with respect to itself. The Company may by action of the Board at any time determine that any other Employer shall withdraw from the Plan, and any other Employer by action of
its Board of Directors may determine that it shall so withdraw, and upon any such determination, the Plan, in respect of such Employer, shall be terminated. 


        14.02    Any
termination or partial termination shall be effective as of the date specified in the resolution providing therefor, if any, and shall be binding upon the
Employer, the Trustee, all Participants and Beneficiaries and all parties in interest. 


        14.03    Upon
termination of the Plan in its entirety, each Participant shall be fully (100%) vested in his Accrued Benefit, determined as of the date of such termination. A
Participant's Accrued Benefit shall be payable only from the Trust Fund, except to the extent otherwise provided in Title IV of ERISA. 


        14.04    In
the event of a partial termination of the Plan, within the meaning of Section 411(d)(3)(A) of the Code, each affected Participant shall, insofar as required
by applicable law, be fully (100%) vested in his Accrued Benefit, determined as of the date of such partial termination. 


        14.05    Upon
termination of the Plan in its entirety or upon a partial termination of the Plan, the assets comprising the Trust Fund shall be allocated in accordance with the
statutory priorities set forth in Section 4044(d)(2) of ERISA and regulations promulgated thereunder. Subject to the limitations imposed by Section 4044(d)(2) of ERISA and
Section 14.06, any funds remaining after satisfaction of all liabilities to Plan Participants shall be returned to the Employer. 


        14.06    (a)    As
used in this Section 14.06: 




        (1)   "Applicable
Early Termination Date" means the tenth (10th) anniversary of the effective date of any increase in benefits under this Plan. 


        (2)   "Predecessor
Plan" means any retirement plan which (A) was maintained by a corporation or unincorporated business before it became an Employer and (B) has
merged into the Plan. 




55











  





        (3)   "Twenty-five
Highest Paid Employees" means the twenty-five (25) highest paid Employees on the tenth (10th) anniversary preceding the
Applicable Early Termination Date (including any such Employees) who were not then, or were not eligible to become, Participants in the Plan), excluding any Participant whose Retirement Pension will
not exceed $1,500. 


        (4)   "Unrestricted
Benefits" means benefits in the form provided under this Plan equal to the amount provided by the greatest of: 



        (A)  employer
contributions (or funds attributable thereto) under the Plan or a Predecessor Plan which would have been applied to provide the Participant's Accrued Benefit if
the Plan or such Predecessor Plan, as in effect on the tenth (10th) anniversary preceding the Applicable Early Termination Date, had continued without change; 


        (B)  $20,000;
or 


        (C)  an
amount equal to the sum of (A) employer contributions (or funds attributable thereto) which would have been applied to provide the Participant's Accrued
Benefit under the Plan or any Predecessor Plan if the Plan or such Predecessor Plan had terminated on the tenth (10th) anniversary preceding the Applicable Early Termination Date and (B) twenty
percent (20%) of the first $50,000 of the Participant's average Compensation during the preceding five (5) years, multiplied by the number of years in respect of which the full current costs of
the Plan have been met since the tenth (10th) anniversary preceding the Applicable Early Termination Date; 


        (D)  (1)    for
a Participant who is not a "substantial owner" as defined in Section 4022(b)(5) of ERISA, an amount which equals the present value of the
maximum benefit of such Participant described in Section 4022(b)(3)(B) of ERISA, determined on the date the Plan terminates or the Participant's Retirement Pension Starting Date, whichever is
earlier and determined in accordance with regulations of the Pension Benefit Guaranty Corporation ("PBGC"), without regard to any other limitations in Section 4022 of ERISA; or 



        (2)   for
a Participant who is a "substantial owner," as defined in Section 4022(b)(5) of ERISA, the greatest of the amounts in (A), (B), (C) or an amount which
equals the present 






56





 




value
of the benefit guaranteed upon termination of the Plan for such Participant under Section 4022 of ERISA, or if the Plan has not terminated, the present value of the benefit that would be
guaranteed if the Plan terminated on such Participant's Retirement Pension Starting Date, determined in accordance with regulations of the PBGC. 






        (b)   Subject
to the provisions of Section 4044 of ERISA, in the event that: 



        (1)   the
Plan is terminated in respect of an Employer at any time prior to the Applicable Early Termination Date; or 


        (2)   the
benefits of any Participant became payable (A) at any time prior to the Applicable Early Termination Date or (B) subsequent to the Applicable Early
Termination Date but before the full current costs of the Plan for the period prior to the Applicable Early Termination Date have been funded, 




the
benefits (as defined in Treasury Regulation 1.401-4(c)(2)(vi)(a)) which any of the Twenty-Five Highest Paid Employees may receive (including any Unrestricted
Benefits) shall not exceed his Unrestricted Benefits at any time. 


        In
the case of a Participant described in Subparagraph (2) (B), if on the Applicable Early Termination Date the full current costs are not met, the restrictions contained in this
Section 14.06 shall continue in force until the full current costs are funded for the first time. 


        (c)   The
provisions of this Section 14.06 shall not restrict the current payment of full retirement benefits called for by this Plan to any Retired Participant or his
Beneficiary while the Plan is in full effect and its full current costs have been met. 


        (d)   If
any funds are released by operation of the provisions of this Section 14.06, they shall be applied solely for the benefit of Participants and Beneficiaries
other than the Twenty-five Highest Paid Employees or, if not required for the funding of benefits for such Participants and Beneficiaries, shall revert to the appropriate Employer. 


        (e)   The
restrictions contained in Subsection (b) may be exceeded for the purpose of making current Retirement Pension payments to a Retired Participant who would
otherwise be subject to such restrictions if: 



57





 


        (1)   such
Retirement Pension is in the form described in Section 1.41 or 3.02, whichever is applicable, or under an Option which does not provide level pension
benefits greater than those provided by the form described in Section 1.41; 


        (2)   the
Retirement Pension thus provided is supplemented, to the extent necessary to provide the full Retirement Pension in the form provided in Section 1.41 or 3.02,
by current payments to such Retired Participant as installments of such Retirement Pension come due; and 



        (3)   such
supplemental payments are made at any time only if (A) the full current costs of the Plan have then been funded or (B) the aggregate of such
supplemental payments for all such Retired Participants for the current year does not exceed the aggregate of the Employer contributions already made in respect of such year. 




        (f)    If
there shall be more than one Employer, the provisions of this Section 14.06 shall be applied separately in respect of each such Employer. 


        (g)   A
Participant who is one of the Twenty-five Highest Paid Employees may elect to receive his benefits under this Plan in the form of a lump sum distribution
only if he agrees to deposit with an acceptable depository property having a market value equal to one hundred twenty-five percent (125%) of the difference between the amount of such
distribution and the Actuarial Equivalent of his Unrestricted Benefits as security for his repayment of any benefits paid to him in excess of the maximum permitted by this Section 14.06.
Additional deposits of security, in the amount necessary to increase the fair market value of such security to one hundred twenty-five percent (125%) of the difference between the amount
of the distribution and the actuarial Equivalent of his Unrestricted Benefits shall be made whenever the fair market value of such security is less than one hundred ten percent (110%) of such
difference. 




 
 

          14.07
    If the Plan shall merge or consolidate with, or transfer its assets or liabilities to, any other "pension plan", as defined in Section 3(2) of ERISA, each Participant shall be
entitled to receive a benefit immediately after such merger, consolidation or transfer (assuming that the Plan had then terminated) which is equal to or greater than the benefit which he would have
been entitled to receive immediately before such merger, consolidation or transfer (assuming that the Plan had then terminated). 


58





 
 
 

ARTICLE XV
  
    TRUST AND ADMINISTRATION    
    


        15.01    The
assets of the Trust Fund shall be held by the Trustees, who shall consist of not fewer than two (2) individuals, or a bank or trust company appointed by the
Board. The Trustees shall hold office until their or its successors have been duly appointed or until death, resignation or removal. 


        15.02    The
Plan shall be administered by an Administrative Committee, provided, however, that the Committee shall have no authority with respect to the investment of the
assets of the Plan. The Committee shall consist of three (3) or more persons appointed by the Board. The Board may remove any member of the Committee at any time, with or without cause. The
Board shall appoint a new member of the Committee as soon as is reasonably possible after the removal. Until a new appointment is made, the remaining members of the Administrative Committee shall have
full authority to act. Each member of the Committee, upon becoming a member of the Committee shall file an acceptance in writing with the Board. Any member of the Committee may resign by delivering
his written resignation to the Board. Any such resignation shall become effective upon its receipt by the Board or on such other date as is agreed to by the Board and such member of the Committee. 


        15.03    The
investment of the assets of the Plan shall be managed, except to the extent that such responsibility has been allocated or delegated, by the Trustee. 


        15.04    The
Trustees shall act unanimously; provided, however, that if at any time there are more than two (2) Trustees acting hereunder, they shall act by majority
vote and may act either by vote at a meeting or in writing without a meeting. Notwithstanding the foregoing: 



        (a)   checks
and other instruments for the payment of money and instruments relating to the purchase, sale or other disposition of securities or other property held in the
Trust and checks and other instruments in payment of distributions to Members and Beneficiaries or in payment of proper expenses under the Plan may be signed by any one Trustee or by any person or
persons authorized by unanimous action of all the Trustees then acting hereunder with the same force and effect as if signed by all Trustees; and 



        (b)   the
Trustees may, by written authorization, empower one of them individually to execute any other document or documents on behalf 



59





 

of
the Trustees, such authorization to remain in effect until revoked by any Trustee. 




        15.05    The
Trustees and the Administrative Committee may appoint such independent accountants, enrolled actuaries, legal counsel, investment advisors and other agents or
specialists as they deem necessary or desirable in connection with the performance of their duties hereunder. The Trustees shall be entitled to rely conclusively upon, and shall be fully protected in
any action taken by them in good faith in relying upon, any opinions or reports which are furnished to them by any such independent accountant, enrolled actuary, legal counsel, investment advisor or
other specialist. 


        15.06    The
Administrative Committee and the Trustees shall serve without compensation for services as such. All expenses of the Trust shall be paid by the Trust unless paid
by Employers. Such expenses shall include any expenses incidental to the operation of the Trust, including, but not limited to, fees of independent accountants, enrolled actuaries, legal counsel,
investment advisors and other agents or specialists and similar costs. 


        15.07    The
Administrative Committee and the Trustees shall discharge their duties with respect to the Plan solely in the interests of the Participants and their
Beneficiaries; and 



        (a)   for
the exclusive purpose of providing benefits to Participants and the Beneficiaries and defraying reasonable expenses of administering the Plan; 


        (b)   with
the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man, acting in like capacity and familiar with such matters, would
use in the conduct of an enterprise of a like character and with like aims; 


        (c)   by
diversifying the investments of the Trust Fund so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and 


        (d)   in
accordance with the documents and instruments governing the Plan, insofar as such documents and instruments are consistent with the provisions of ERISA. 




        15.08    (a)    The
Administrative Committee is hereby designated as the "administrator" of the plan within the meaning of Section 3(16)(A) of ERISA. The
Administrative Committee is hereby designated as a "named fiduciary" of the Plan within the meaning of Section 402(a)(2) of ERISA, and shall, unless 


60





 

otherwise
provided pursuant to subsection (b) jointly administer the Plan as agent of the Company in accordance with its terms and shall have all powers necessary to carry out the provisions
of the Plan. In carrying out its duties with respect to the general administration of the Plan, the Administrative Committee shall have in addition to any other lawful powers and not by way of
limitation, the following powers: 




        (1)   to
determine all questions relating to eligibility to participate in the Plan; 


        (2)   to
compute the amount and kind of benefits payable to the Participants and their Beneficiaries; 


        (3)   to
make disbursements from the Trust in accordance with the provisions of the Plan; 


        (4)   to
maintain all records necessary for the administration of the Plan; 


        (5)   to
interpret the provisions of the Plan and to make and publish such rules and regulations as are not inconsistent with the terms hereof; 




        (b)   The
Trustees are hereby designated as "named fiduciaries" within the meaning of Section 402(a) of ERISA, with respect to the investment of the assets of the Plan
and shall, except to the extent provided in Subsections (c) and (d), direct the investment of such assets and possess all powers which may be necessary to carry out such duty. 


        (c)   The
Trustee may appoint an investment manager, as defined in Section 3(38) of ERISA, in which case no Trustee shall be liable for the acts or omissions of such
investment manager or be under any obligation to invest or otherwise manage any asset of the Trust Fund which is subject to the management of such manager. 


        (d)   (1)    The
Administrative Committee and the Trustees may establish procedures for (A) the allocation of fiduciary responsibilities (other than "trustee
responsibilities" as defined in Section 405(c)(3) of ERISA under the Plan among themselves, and (B) the designation of persons other than names fiduciaries to carry out fiduciary
responsibilities (other than trustee responsibilities) under the Plan. 



        (2)   If
any fiduciary responsibility is allocated or if any person is designated to carry out any responsibility pursuant to Paragraph (1), no named 




61






 


fiduciary
shall be liable for any act or omission of such person in carrying out such responsibility, except as provided in Section 405(c)(2) of ERISA. 





        15.09    The
Trustees shall receive any contributions paid to them in cash and shall establish the Trust Fund hereunder. The Trust Fund shall be held, managed and administered
in accordance with the terms of this Plan. 


        15.10    The
Trustees shall invest and reinvest the Trust Fund and keep the Trust Fund invested, without distinction between principal and income, in such securities or other
property, real or personal, foreign or domestic, wherever situated, as the Trustees shall deem advisable, including, but not limited to, the general account or a separate account of an insurance
company licensed to do business in the State of New York, shares in a regulated investment company or plans for the accumulation of such shares, common or preferred stocks, bonds and mortgages, and
other evidences of ownership or indebtedness. In making such investments, the Trustee shall not be restricted to securities or other property of the character authorized or required by applicable law
for trust investments. 


        15.11    The
Trustees shall have the following powers and authority in the investment of the assets of the Trust Fund: 



        (a)   to
purchase, or subscribe for, any securities (including shares in a regulated investment company or plans for the accumulation of such shares) or other property and to
retain the same in trust, the Trustees being specifically authorized to limit investment, in their own discretion, to shares of regulated investment companies or to plans for the accumulation of such
shares; 


        (b)   to
sell, exchange, convey, transfer or otherwise dispose of, by private contract or at public auction, any securities or other property held by them; and no person
dealing with the Trustees shall be bound to see to the application of the purchase money or to inquire into the validity, expediency or propriety of any such sale or other disposition; 



        (c)   to
vote any stocks, bonds or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion
privileges, subscription rights or other options and to make any payments incidental thereto; to oppose, consent to, or otherwise participate in, corporate reorganizations or other changes affecting
corporation securities; to pay any assessments or charges in connection with any security; to delegate any discretionary powers; and generally to exercise any of the powers of an owner with respect to
stocks, bonds, securities or other property held as part of the Trust Fund; 



62





 

        (d)   to
cause any securities or other property held as part of the Trust Fund to be registered in their own names or in the name of one or more nominees, and to hold any
investments in bearer form, but the books and records of the Trustees shall at all times show that all such investments are part of the Trust Fund; 


        (e)   to
borrow or raise money for the purposes of the Plan in such amount and upon such terms and conditions as the Trustee shall deem advisable; and for any sum so borrowed,
to issue their promissory note as Trustees and to secure the repayment thereof by pledging all, or any part, of the Trust Fund; and no person lending money to the Trustees shall be bound to see to the
application of the money lent or to inquire into the validity, expediency or propriety of any such borrowing; 


        (f)    to
keep such portion of the Trust Fund in cash or cash balances as the Trustee may, from time to time, deem to be in the best interests of the Plan, without liability
for interest thereon; 


        (g)   to
accept and retain for such time as may seem advisable any securities or other property received or acquired by them as Trustees hereunder, whether or not such
securities or other property would normally be purchased as investments hereunder; 



        (h)   to
sell call options on any national securities exchange with respect to securities held in the Trust Fund, and to purchase call options for the purpose of closing out
previous sales of call option; 


        (i)    to
appoint a bank or trust company as corporate Trustee, and to enter into and execute an agreement with any such corporate Trustee to provide for the investment and
reinvestment of assets of the Trust Fund. 




        15.12    The
Trustees, at the direction of the Administrative Committee, shall from time to time make payments out of the Trust Fund in accordance with the provisions of the
Plan in such manner, in such amounts and for such purposes as they may determine, and when any such payment has been made, the amount thereof shall no longer constitute a part of the Trust Fund. 


        15.13    (a)    The
Trustees shall keep accurate and detailed accounts of all investments, receipts, disbursements and other transactions hereunder. 



        (b)   Within
two hundred ten (210) days following the close of each Plan Year, the Trustees shall file with the Company a written account setting forth all investments,
receipts, disbursements and other transactions effected by them during such Plan Year. Except as provided to the contrary by Section 413(a) of 



63





 

ERISA,
upon the expiration of ninety (90) days from the date of filing of such account, the Trustees shall be forever released and discharged from all liability and accountability to anyone
with respect to the propriety of their acts and transactions shown in such account, except with respect to any such acts or transactions as to which the Company shall file with the Trustees written
objections within such ninety (90) day period. 


        (c)   The
filing by the Trustees with the Company of an annual report in accordance with Section 103 of ERISA shall constitute the filing of an account within the
meaning of this Section 15.13. 




        15.14    Any
Trustee may be removed by the Company at any time. A Trustee may resign at any time upon thirty (30) days' notice in writing to the Company, which notice
may be waived by the Company. Upon such removal or resignation of a Trustee, or upon the death or disability of a Trustee, the Company may, or in the event there is no then acting Trustee, shall
appoint a successor Trustee, who shall have the same powers and duties as those conferred upon the Trustees hereunder. The Company may at any time appoint one or more additional Trustees, who shall
have the same powers and duties as those conferred upon the Trustees hereunder. 


        15.15    In
any case in which any person is required or permitted to make an election under this Plan, such election shall be made in writing and filed with the Administrative
Committee on the form provided by them or made in such other manner as the Administrative Committee may direct. 


64





 
 
 

ARTICLE XVI
  
    CLAIMS PROCEDURES    
    


        16.01    (a)    In
the event of a dispute between the Administrative Committee and a Participant, former Participant, or Beneficiary over the amount of benefits
payable under the Plan, the Participant, former Participant, or Beneficiary may file a claim for benefits by notifying the Administrative Committee in writing of such claim. Such notification
may be in any form adequate to give reasonable notice to the Administrative Committee, and shall set forth the basis of such claim. The Administrative Committee is authorized to conduct such
examinations as may be necessary to determine the validity of the claim and to take such steps as may be necessary to facilitate the payment of any benefits to which the claimant may be entitled under
the Plan. 



        (b)   The
Administrative Committee shall decide whether to grant a claim within ninety (90) days of the date on which the claim is filed, unless special circumstances
require an extension of time for processing the claim and the claimant is notified in writing within such ninety (90) day period of the reasons for an extension of time; provided, however, that
no extensions shall be permitted beyond ninety (90) days after the date on which the claimant received notice of the extension of time from the Administrative Committee. If the Administrative
Committee fails to notify the claimant of its decision to grant or deny such claim within the time specified by this Subsection (b), such claim shall be deemed to have been denied by the
Administrative Committee and the review procedure described in Subsection (c) shall become available to the claimant. 


        (c)   (1)    Whenever
a claim for benefits is denied, written notice, prepared in a manner calculated to be understood by the claimant, shall be provided to him,
setting forth the specific reasons for the denial and making reference to pertinent Plan provisions on which the denial is based, and explaining the procedure for review of the decision made by the
Administrative Committee. If the denial is based upon the Administrative Committee's lack of sufficient information to support a decision, the Administrative Committee shall specify the information
which is necessary to perfect the claim and its reasons for requiring such additional information. 



        (2)   Any
claimant whose claim is denied may, within sixty (60) days after his receipt of written notice of such denial, request in writing a review by a senior
executive officer of the general partners referred to in Section 1.10 who is not then a member of the Administrative Committee or the claimant himself (the "Officer"), who shall be a "named
fiduciary," within the meaning of Section 402(a) of ERISA, for the purpose of adjudicating such appeals. Such claimant or his representative may examine any Plan documents relevant to this
claim and 




65





 


may
submit issues and comments in writing. The Officer shall adjudicate the claimant's appeal within sixty (60) days after its receipt of his written request for review, unless special
circumstances require an extension of time for processing the request for review and the claimant is notified in writing of the reasons for an extension of time within such sixty (60) day
period; provided, however, that such adjudication shall be made no later than one hundred twenty (120) days after the Officer's receipt of the claimant's written request for review. 


        (3)   If
the Officer fails to notify the claimant of his decision with respect to the claimant's request for review within the time specified by this Subsection (c), such
claim shall be deemed to have been denied on review. 




        (d)   If
the claim is denied by the Officer such decision shall be in writing, shall state specifically the reasons for the decisions, shall be written in a manner calculated
to be understood by the claimant and shall make specific reference to the pertinent Plan provisions upon which it is based. 



        (e)   The
procedure set forth in this Section 16.01 shall be interpreted in accordance with regulations promulgated by the United States Department of Labor or any
successor authority regulating claim procedures for employee benefit plans. 



66





 

 
 

 
 

ARTICLE XVII
  
    MISCELLANEOUS    
    


        17.01    If
any provision of this Plan shall be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining parts of this Plan, but
such illegal or invalid provision shall be deemed modified to the extent necessary to conform to applicable law and carry out the purposes of this Plan, or, if such modification is impossible, the
Plan shall be construed and enforced as if such illegal or invalid provision had never been inserted herein. 


        17.02    This
Plan shall be governed, construed, administered and regulated in all respects under the laws of the State of New York, except insofar as they have been superseded
by the provisions of ERISA. 


        17.03    Wherever
any words are used herein in the masculine gender, they shall be construed as though they were also used in the feminine gender in all cases where they would
so apply, and vice versa, and wherever any words are used herein in the singular form, they shall be construed as through they were also used in the
plural form in all cases where they would so apply, and vice versa. 


        17.04    The
adoption and maintenance of this Plan shall not be deemed to constitute a contract between any Employer and any person or to be a consideration for the employment
of any person. Nothing contained herein shall be deemed to give any person the right to be retained in the employ of any Employer or to derogate from the right of any Employer or discharge any person
at any time without regard to the effect of such discharge upon the rights of such person as a Participant in this Plan. 



        17.05    Except
as otherwise provided by ERISA, no liability shall attach to any Employer for payment of any benefits or claims hereunder, and all participants and
Beneficiaries, and all persons claiming under or through them, shall have recourse only to the Trust Fund for payment of any benefit hereunder. 


        17.06    Nothing
in this Plan, express or implied, is intended, or shall be construed, to confer upon or give to any person, firm, association or corporation, other than the
parties hereto and their successors in interest, any right, remedy or claim under or by reason of this Plan or any covenants, condition or stipulation hereof, and all covenants, conditions and
stipulations in this plan, by or on behalf of any party, shall be for the sole and exclusive benefit of the parties hereto. 



        (a)   Any
contribution to the Plan made by an Employer by a mistake in fact may be returned to such Employer at the direction of the 



67





 

Trustee
within one (1) year after the date of the payment of such contribution. 



        (b)   Each
contribution made to this Plan by an Employer is conditioned upon its deductibility under Section 404 of the Code. If the deduction is disallowed, such
contribution shall, to the extent disallowed as a deduction, be returned to such Employer within one (1) year following the date of disallowance. 


        (c)   This
Plan is established for the exclusive benefit of the Participants herein and their Beneficiaries. Except as provided in Section 14.05 and this
Section 17.06, it shall be impossible for any assets of the Trust to revert to any Employer prior to the satisfaction of all liabilities hereunder with respect to all Participants and their
Beneficiaries. 



68