{"id":39784,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/excess-benefit-pension-plan-time-warner.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"excess-benefit-pension-plan-time-warner","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/excess-benefit-pension-plan-time-warner.html","title":{"rendered":"Excess Benefit Pension Plan – Time Warner"},"content":{"rendered":"

TIME WARNER
\nEXCESS BENEFIT PENSION PLAN
\n(As Amended Through July 28, 2010)<\/strong>ARTICLE
\nI<\/strong>ESTABLISHMENT OF THE PLAN<\/strong><\/p>\n

1.1. Establishment of Plan. <\/strong>The
\nPlan was established by Time Incorporated, a predecessor of Time Warner Inc.,
\nthe plan sponsor (the “Company”), as the Excess Benefit Pension Plan of Time
\nIncorporated and Subsidiary Companies (the “Plan”) for certain Employees,
\neffective as of January 1, 1976. The Plan was renamed the Time Warner Excess
\nBenefit Pension Plan, effective April 2, 1991. Effective as of January 11, 2001,
\nthe Plan was renamed the Time Warner Excess Benefit Pension Plan-AOLTW.
\nEffective January 1, 2004, the name of the Plan was changed back to the Time
\nWarner Excess Benefit Pension Plan. The Plan has been
\namended and restated from time to time, and is now further amended and restated
\neffective as of May 1, 2008. The provisions of the Plan as currently amended and
\nrestated are applicable only to amounts payable with respect to Separations From
\nService occurring on or after May 1, 2008. Participants who are entitled to
\nreceive benefits under the Plan with respect to Separations From Service
\noccurring prior to May 1, 2008 shall receive (or continue to receive, as
\napplicable) their benefits pursuant to the terms of the Plan as in effect on
\nOctober 3, 2004, in a manner consistent with the procedures implemented by the
\nCompany for purposes of such distributions since January 1, 2005, that are
\nintended to comply with Section 409A of the Internal Revenue Code of 1986, as
\namended (the “Code”). 1.2. Purpose of Plan.
\n<\/strong>The purpose of the Plan is to provide Participants with benefits in
\nexcess of those benefits which may be provided under an Employing Company’s
\ntax-qualified defined benefit pension plan, due to limitations on benefits
\nimposed by Section 415 of the Code. In addition, the Plan provides
\nParticipants with certain benefits based on a compensation level which is not
\nlimited by the compensation amount set forth in Section 401(a)(17) of the Code
\nas such section was amended, effective January 1, 1994, by the Omnibus Budget
\nReconciliation Act of 1993.
\n 1.3. Applicability of Plan. <\/strong>The
\nprovisions of the Plan are applicable only to Employees of Employing Companies
\nemployed on or after the date the Plan is effective for such Employing
\nCompanies. The Plan is intended to be an “excess benefit plan” within
\nthe meaning of Section 3(36) of the Employee Retirement Income Security Act of
\n1974 (“ERISA”) and an unfunded, non-qualified deferred compensation plan for a
\nselect group of management or highly compensated employees under Section 201(2)
\nof ERISA. The Plan is also intended to comply with certain requirements of
\nsection 114 of chapter 4, Title 4 U.S.C.<\/p>\n

\n

\n<\/p>\n

ARTICLE II<\/strong>DEFINITIONS<\/strong><\/p>\n

2.1. Definitions. <\/strong>Whenever used in
\nthe Plan, the following terms shall have the respective meanings set forth below
\nunless otherwise expressly provided, and when the defined meaning is intended,
\nthe term is capitalized.
\n 2.2. “Affiliate”<\/strong> means an Employing
\nCompany and any entity affiliated with the Employing Company within the meaning
\nof Code Section 414(b), with respect to controlled groups of corporations,
\nSection 414(c) with respect to trades or businesses under common control with
\nthe Employing Company, and Section 414(m) with respect to affiliated service
\ngroups, and any other entity required to be aggregated with an Employing Company
\npursuant to regulations under Section 414(o) of the Code.
\n 2.3. “Assistant Benefits Officer”
\n<\/strong>means the Assistant Benefits Officer as provided for herein.
\n 2.4. “Beneficiary” <\/strong>means (i) with
\nrespect to Participants who have not yet terminated employment with an Employing
\nCompany or begun receiving benefits under the Employing Company’s Pension Plan,
\nthe person who would be entitled to receive pre-retirement joint and survivor
\ndeath benefits under the Employing Company’s Pension Plan, and (ii) with respect
\nto Participants who have already terminated employment with an Employing
\nCompany, the person or persons designated by a Participant, by notice to the
\nBenefits Officer, to receive any benefits payable under the Plan after his or
\nher death, which designation has not been revoked by notice to the Benefits
\nOfficer at the date of the Participant’s death. Such notice shall be in a form
\nas required by the Benefits Officer or acceptable to it, which is properly
\ncompleted and delivered to the Benefits Officer, or such officer’s designee.
\nNotice to the Benefits Officer shall be deemed to have given when it is actually
\nreceived by any such individual.
\n 2.5. “Benefits Officer” <\/strong>means the
\nBenefits Officer as provided for in Section 6.2 herein.
\n 2.6. “Code” <\/strong>means the Internal
\nRevenue Code of 1986, as amended.
\n 2.7. “Committee” <\/strong>means the committee
\nappointed by the Company as provided in Section 6.1 herein.
\n 2.8. “Company”<\/strong> means Time Warner Inc.
\nor any successor thereto. 2.9. “Compensation
\nLimit” <\/strong>means the compensation limit of Section 401(a)(17) of the Code,
\nas adjusted under Section 401(a)(17)(B) of the Code for increases in the cost of
\nliving. 2.10. “Employee” <\/strong>means
\n“Employee” as defined in the applicable Pension Plan.<\/p>\n

2<\/p>\n

\n<\/p>\n

2.11. “Employing Company” <\/strong>means
\nthe Company and each Affiliate which has been authorized by the Benefits Officer
\nto participate in the Plan and has adopted the Plan.
\n 2.12. “Participant” <\/strong>means each
\nEmployee who meets the eligibility requirement of Section 3.1.
\n 2.13. “Pension Plan” <\/strong>means a
\nqualified defined benefit pension plan in which any Employing Company
\nparticipates and which has been so designated by the Benefits Officer.
\n 2.14. “Plan” <\/strong>means this plan, the
\nTime Warner Excess Benefit Pension Plan as set forth herein and as it may be
\namended from time to time. 2.15. “Separation
\nFrom Service” <\/strong>means termination of employment with the Company or an
\nAffiliate that also constitutes a “separation from service” under
\nSection 409A(a)(2)(A)(i) of the Code; provided, however, that for purposes for
\ndetermining the controlled group of entities comprising the Participant’s
\nemployer under Treas. Reg. Section 1.409A-1(h)(3), the determination shall be
\nmade pursuant to the test for controlled groups under Sections 414(b) and (c) of
\nthe Code, using a common control ownership threshold of “at least 80%”
\nownership, rather than “at least 50%” ownership.
\n 2.16. “Severance Period” <\/strong>means the
\nperiod of time following a Separation From Service during which a Participant is
\nentitled to receive both salary continuation payments and continued
\nparticipation under an Affiliate’s health benefit plans pursuant to an
\nemployment contract between an Affiliate and the Participant, or in a severance
\nplan or other arrangement maintained by an Affiliate. For the avoidance of
\ndoubt, unless otherwise determined by the Benefits Officer, the Severance Period
\nshall not include any time period following the date on which a Participant
\ncommences employment with a subsequent employer that is not an Affiliate,
\nregardless of whether the Participant continues to receive salary continuation
\npayments from the Affiliate after such date. ARTICLE III<\/strong>
\nELIGIBILITY<\/strong>
\n 3.1. Eligibility. <\/strong>An Employee of an
\nEmploying Company who is a participant in a Pension Plan shall become a
\nParticipant in the Plan if, with respect to any calendar year, the amount of
\npension benefits otherwise payable to such Employee or former Employee under a
\nPension Plan is restricted as a result of the limitations of Sections 401(a)(17)
\nor 415 of the Code or any successor provisions thereto. ARTICLE
\nIV<\/strong> BENEFITS<\/strong> 4.1. (a)
\nAmount of Benefit<\/strong>. The benefit payable under the Plan to a
\nParticipant or his Beneficiary who is entitled to receive payments under the
\nPension Plan shall be equal to:<\/p>\n

3<\/p>\n

\n<\/p>\n

(1) The amount, if any, by which the annual benefit
\n(determined without regard to any actuarial increase to which such Participant
\nor Beneficiary would be entitled on account of retirement after attainment of
\nage 65) which would be payable to, or with respect to, such Participant or
\nBeneficiary under the Pension Plan if the provisions set forth in the Pension
\nPlan to comply with the limitations of Section 415 of the Code were not
\napplicable, exceeds (2) The amount of benefit actually
\npayable (or, with respect to a Participant who is receiving minimum
\ndistributions under the Pension Plan required under Section 401(a)(9) of the
\nCode, the amount of benefit payable without regard to any adjustment for offsets
\nallowed under the minimum distributions rules of Section 401(a)(9) of the Code)
\nto, or with respect to, such Participant or Beneficiary under the Pension Plan.
\n (b) In determining the annual benefit under the Pension Plan
\nfor purposes of Section 4.1(a) of the Plan: (i) compensation in excess of the
\nCompensation Limit shall be counted, up to a maximum compensation of $250,000
\nfor 1994; (ii) for calendar years after 1994, such $250,000 maximum compensation
\nshall be increased by 5% annually for each year, but shall in no event exceed
\n$350,000; and (iii) regular annual bonuses deferred under the Time Warner
\nDeferred Compensation Plan or pursuant to an individual employment agreement
\nwith Time Warner Inc. shall be included to the extent such bonuses would have
\nbeen included in compensation under the Pension Plan, were it not for the
\nCompensation Limit applicable to the Pension Plan and the fact that such bonuses
\nwere deferred, but assuming that the maximum compensation in effect for the
\nPension Plan had been as specified in (b)(i) and (ii).
\n (c) In addition, in determining the annual benefit under the
\nPension Plan for purposes of Section 4.1(a) of the Plan, any Regular Death
\nBenefits provided under a Pension Plan shall be disregarded.
\n 4.2. Eligibility, Participation and Vesting.
\n<\/strong>As to any Employee, the rules regarding eligibility, participation and
\nvesting of the Pension Plan of the Employing Company with respect to which the
\nbenefit hereunder is applicable shall also apply to this Plan. The Benefits
\nOfficer may make such modifications to such rules with respect to the Plan as it
\nconsiders necessary or desirable. ARTICLE V<\/strong> PAYMENT OF
\nBENEFITS<\/strong> 5.1. Payment of Benefits.
\n<\/strong>In the event of the Participant’s Separation From Service, the
\nParticipant’s benefit shall be distributed as follows:
\n (a) On or prior to September 15, 2008 (or such later date as
\nmay be permitted by the Benefits Officer, to the extent permissible under
\nSection 409A of the Code), each Participant who has not had a Separation From
\nService prior to May 1, 2008 shall be permitted (to the extent permissible under
\nSection 409A of the Code, as reasonably determined by the Benefits Officer) to
\ndesignate, in an election form to be provided by the Company, whether his or her
\nbenefits under this Plan shall be distributed to such Participant or Beneficiary
\neither in (i) a single lump sum or (ii) 120 equal monthly installments, in
\neither case, in an amount or amounts actuarially<\/p>\n

4<\/p>\n

\n<\/p>\n

equivalent to the amounts payable under Section 4.1 hereof, based on such
\nactuarial tables and interest rates as may be adopted from time to time under
\nthe Pension Plan for the purpose of computing such equivalencies; provided,
\nhowever<\/u>, that any Employee who becomes a Participant on or after January 1,
\n2008 shall make the designation described in the preceding sentence by
\nJanuary 30 of the calendar year following the calendar year in which such
\nEmployee becomes a Participant, or by such earlier date as the Benefits Officer
\nmay, in such officer’s sole and absolute discretion, prescribe, in a manner
\nconsistent with Treas. Reg. Section 1.409A-2(a)(7)(iii). In the event no
\ndesignation as to the method of payment is made in a manner that complies with
\n(i) Section 409A of the Code and (ii) the rules set forth from time to time by
\nthe Committee or the Benefits Officer, payment shall be made in a lump sum.
\n (b) Except as otherwise required to comply with Section 409A
\nof the Code, the payment(s) described under Section 5.1(a) above shall be made
\nor commence on the first day of the month following a period of six full
\ncalendar months following the date of the Participant’s Separation From Service
\n(or within 30 days thereafter), and any subsequent annual installment payments
\nshall be paid on the anniversaries of the date of such first payment (or within
\n30 days thereafter). (c) Notwithstanding the forgoing, the
\nBenefits Officer may, in such officer’s sole and absolute discretion, permit
\nParticipants to change their elections under the Plan; provided that such
\nelection changes comply with Section 409A of the Code or the transitional relief
\nrules promulgated by the Treasury Department thereunder.
\n 5.2. No Suspended Benefits. <\/strong>In the
\nevent a Participant who is receiving payments pursuant to Section 5.1 returns to
\nemployment with an Employing Company in whose employ he accrued such benefits or
\nan entity affiliated within the meaning of Sections 414(b), (c), (m) or (o) of
\nthe Code with such Employing Company, payments under the Plan shall not be
\nsuspended under the suspension of benefits provisions of the Pension Plan, and
\npayment of benefits shall continue in accordance with the election provided for
\nin Section 5.1(a). 5.3. Payment on Account of
\nDeath. <\/strong>If the Participant dies with an accrued benefit under the Plan
\nafter the date of the Participant’s Separation From Service, 100% of the
\npayments described under Section 4.1 shall be made to his or her Beneficiary. If
\na Participant dies on or prior to the date of his or her Separation From
\nService, then (in lieu of any amounts otherwise payable under Section 4.1) the
\nParticipant’s Beneficiary shall receive a benefit in the form of a single lump
\nsum equal to 60% (100% with respect to a Participant who dies on or after
\nJuly 1, 2010) of the lump sum payment that the Participant would have been
\nentitled to receive under Section 5.1 if the Participant had a Separation From
\nService (other than due to death) on the date of the Participant’s death;
\nprovided, however, that if the Participant is married on the date of the
\nParticipant’s death, then such death benefit shall be no less than the actuarial
\nequivalent of a 50 percent joint and survivor annuity payable to the Beneficiary
\nimmediately and payable in accordance with Section 5.1.
\n 5.4 Payment Relating to Severance
\nPeriod<\/strong>. In the event the Participant is entitled to receive severance
\nbenefits during a Severance Period, the Participant will be entitled to receive
\na payment under this Plan on third anniversary of the Participant’s Separation
\nFrom Service in an amount equal to the excess, if any, of (i) the actuarial
\nequivalent of the benefits<\/p>\n

5<\/p>\n

\n<\/p>\n

determined under Section 4.1 as of the date of the Participant’s Separation
\nFrom Service, but including the additional vesting service, if any, that the
\nParticipant would have earned had the Participant remained employed by an
\nAffiliate during the Severance Period, over (ii) the actuarial equivalent of the
\nbenefits that were paid or payable to the Participant pursuant to 4.1 as of the
\ndate of the Participant’s Separation From Service without the inclusion of such
\nadditional vesting service. ARTICLE VI<\/strong> ADMINISTRATION
\nAND FIDUCIARY DUTIES<\/strong> 6.1. The
\nCommittee. <\/strong>The Plan shall be administered by the Administrative
\nCommittee of the Time Warner Pension Plan as set forth in Article XI of such
\nPension Plan. No member of the Committee shall receive any compensation for his
\nor her services as such. Participants may be members of the Committee but may
\nnot participate in any decision affecting their own account in any case where
\nthe Committee may take discretionary action under Article V. A
\nmajority of the members of the Committee shall constitute a quorum for the
\ntransaction of business. All resolutions or other action taken by the Committee
\nshall be by a vote of a majority of its members present at any meeting or,
\nwithout a meeting, by instrument in writing signed by all its members. Members
\nof the Committee may participate in a meeting of such Committee by means of a
\nconference telephone or similar communications equipment that enables all
\npersons participating in the meeting to hear each other, and such participation
\nin a meeting shall constitute presence in person at the meeting. The
\nCommittee shall be the administrator of the Plan within the meaning of
\nSection 3(16)(A) of ERISA and shall have all powers necessary to administer the
\nPlan except to the extent that any such powers are vested in any other fiduciary
\nby the Plan or by the Committee. The Committee may from time to time establish
\nrules for the administration of the Plan. It shall have exclusive authority and
\nsole and absolute discretion to interpret the Plan, to determine eligibility for
\nbenefits and the amount of benefit payments and to make any factual
\ndeterminations, resolve factual disputes and decide all matters arising in
\nconnection with the interpretation, administration and operation of the Plan or
\nwith the determination of eligibility for benefits or the amount of benefit
\npayments. All its rules, interpretations and decisions shall be applied in a
\nuniform manner to all employees similarly situated and shall be conclusive and
\nbinding on the Employing Companies and on Participants and their beneficiaries
\nto the extent permitted by law. The Committee may delegate any of its
\npowers or duties to others as it shall determine and may retain counsel, agents
\nand such clerical and accounting, actuarial or other services as it may require
\nin carrying out the provisions of the Plan. The Committee may rely
\nconclusively upon all tables, valuations, certificates, opinions and reports
\nfurnished by any actuary, accountant, controller, counsel or other person who is
\nemployed or engaged for any purpose in connection with the administration of the
\nPlan.<\/p>\n

6<\/p>\n

\n<\/p>\n

Neither the Committee nor a member of the board of directors of the
\nCompany or the board of directors (or governing body) of an Affiliate as such
\nterms are defined in the Pension Plan and no officer or employee of the Company
\nor any Affiliate shall be liable for any act or action hereunder, whether of
\nomission or commission, by any other member or employee or by any agent to whom
\nduties in connection with the administration of the Plan have been delegated or
\nfor anything done or omitted to be done in connection with the Plan.
\n The Committee shall keep a record of all its proceedings and of all
\npayments directed by it to be made to Participants or payments made by it for
\nexpenses or otherwise. 6.2 The Benefits
\nOfficer; Appointment. <\/strong>The Benefits Officer shall be appointed by the
\nChief Executive Officer of the Company and may be removed by the Chief Executive
\nOfficer of the Company at any time. The Benefits Officer may not serve
\nconcurrently on the Committee. The Benefits Officer may resign at any time by
\ngiving notice to the Chief Executive Officer of the Company. Any such
\nresignation shall take effect at the date of receipt of such notice or at any
\nlater date specified therein; and, unless otherwise specified therein, the
\nacceptance of such resignation shall not be necessary to make it effective. A
\nParticipant may be appointed as the Benefits Officer. The Benefits Officer shall
\nnot receive compensation for his services as such.
\n 6.3 Delegation of Duties. <\/strong>The
\nBenefits Officer may authorize others to execute or deliver any instrument or to
\nmake any payment in his or her behalf and may delegate any of his or her powers
\nor duties to others as he or she shall determine, including the delegation of
\nsuch powers and duties to an Assistant Benefits Officer who shall be appointed
\nby the Benefits Officer. In the event of such delegation, the Assistant Benefits
\nOfficer shall for all purposes of the Plan be considered the Benefits Officer
\nand all references to the Benefits Officer shall be deemed to be references to
\nsuch Assistant Benefits Officer when acting in such capacity. The Benefits
\nOfficer and the Assistant Benefits Officer may retain such counsel, agents and
\nclerical, medical, accounting and actuarial services as they may require in
\ncarrying out their functions. 6.4 Benefits
\nOfficer; Settlor and Ministerial Functions. <\/strong>The Benefits Officer shall
\nhave the duty to execute settlor and ministerial functions on behalf of the
\nCompany, including, without limitation, amending and modifying the terms of the
\nPlan and performing ministerial functions with respect to the Plan, except to
\nthe extent specifically limited by resolution of the Board or by the terms
\nherein. The Benefits Officer shall have solely ministerial and settlor
\nfunctions, and shall have no fiduciary authority, obligations or status with
\nrespect to the Plan. The Company has named the Benefits Officer for
\nadministrative efficiency; the Benefits Officer acts as the Company and not
\nindividually or independently. Prior to March 15, 2000, the Administrative
\nCommittee has the functions delegated to the Benefits Officer.
\n 6.5 Indemnification. <\/strong>The Company
\nshall, to the fullest extent permitted by law, indemnify each director, officer
\nor employee of the Company or any Affiliate (including the heirs, executors,
\nadministrators and other personal representatives of such person) and each
\nmember of the Committee against expenses (including attorneys’ fees), judgments,
\nfines and amounts paid in settlement, actually and reasonably incurred by such
\nperson in connection with any threatened, pending or actual suit, action or
\nproceeding (whether civil, criminal,<\/p>\n

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\n<\/p>\n

administrative or investigative in nature or otherwise) in which such person
\nmay be involved by reason of the fact that he or she is or was serving any
\nemployee benefit plans of the Company or any Affiliate in any capacity at the
\nrequest of such company. 6.6 Expenses of
\nAdministration. <\/strong>Any expense incurred by the Company, the Committee or
\nthe Benefits Officer relative to the administration of the Plan shall be paid by
\nthe Employing Companies in such proportions as the Company may direct.
\n 6.7 Allocation of Benefit Payment Expenses.
\n<\/strong>The expense incurred with respect to the benefit payable to a
\nParticipant pursuant to Section 4.1 shall be allocated to the Employing Company
\nwhich employs or employed such Participant for the period with respect to which
\nthe benefit is attributable. ARTICLE VII<\/strong> CLAIMS
\nPROCEDURE<\/strong> 7.1. Participant or
\nBeneficiary Request for Claim. <\/strong>Any request for a benefit payable under
\nthe Plan shall be made in writing by a Participant or Beneficiary (or an
\nauthorized representative of any of them), as the case may be, and shall be
\ndelivered to any member of the Committee. Such written request shall be deemed
\nfiled upon receipt thereof by the Committee. Such request shall be made within
\nthe time prescribed in the Plan for claiming a particular benefit or, if no time
\nis so prescribed, within a reasonable time before payment of the benefit is to
\ncommence. Effective as of January 1, 2001, such request must be made within the
\nearlier of (a) one year after payment of the benefit has commenced, or (b) one
\nyear after the claimant first knew or should have known that he had a claim for
\nbenefits under the Plan. 7.2. Insufficiency of
\nInformation. <\/strong>In the event a request for benefits contains insufficient
\ninformation, the Committee shall, within a reasonable period after receipt of
\nsuch request, send a written notification to the claimant setting forth a
\ndescription of any additional material or information necessary for the claimant
\nto perfect the claim and an explanation of why such material is necessary. The
\nclaimant’s request shall be deemed filed with the Committee on the date the
\nCommittee receives in writing such additional information.
\n 7.3. Request Notification. <\/strong>The
\nCommittee shall make a determination with respect to a request for benefits
\nwithin ninety (90) days after such request is filed (or within such extended
\nperiod prescribed below). The Committee shall notify the claimant whether his
\nclaim has been granted or whether it has been denied in whole or in part. Such
\nnotification shall be in writing and shall be delivered, by mail or otherwise,
\nto the claimant within the time period described above. If the claim is denied
\nin whole or in part, the written notification shall set forth, in a manner
\ncalculated to be understood by the claimant:<\/p>\n\n\n\n\n\n\n\n
<\/td>\n\n

(1)<\/p>\n<\/td>\n

<\/td>\n\n

The specific reason or reasons for the denial;<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
<\/td>\n\n

(2)<\/p>\n<\/td>\n

<\/td>\n\n

Specific reference to pertinent provisions of the Plan on which the denial is
\nbased; and<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
<\/td>\n\n

(3)<\/p>\n<\/td>\n

<\/td>\n\n

An explanation of the Plan’s claim review procedure.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

8<\/p>\n

\n<\/p>\n\n<\/table>\n

Failure by the Committee to give notification pursuant to this Section within
\nthe time prescribed shall be deemed a denial of the request for the purpose of
\nproceeding to the review stage.
\n 7.4. Extensions. <\/strong>If special
\ncircumstances require an extension of time for processing the claim, the
\nCommittee shall furnish the claimant with written notice of such extension. Such
\nnotice shall be furnished prior to the termination of the initial ninety
\n(90)-day period and shall set forth the special circumstances requiring the
\nextension and the date by which the Committee expects to render its decision. In
\nno event shall such extension exceed a period of ninety (90) days from the end
\nof such initial ninety (90)-day period.
\n 7.5. Claim Review. <\/strong>A claimant whose
\nrequest for benefits has been denied in whole or in part, or his duly authorized
\nrepresentative, may, within sixty (60) days after written notification of such
\ndenial, file with a reviewer appointed for such purpose by the Committee (or, if
\nnone has been appointed, with the Committee itself, with a copy to the
\nCommittee, a written request for a review of his claim. Such written request
\nshall be deemed filed upon receipt of same by the reviewer.
\n 7.6. Time Limitation on Review. <\/strong>A
\nclaimant who timely files a request for review of his claim for benefits, or his
\nduly authorized representative, may review pertinent documents (upon reasonable
\nnotice to the reviewer) and may submit the issues and his comments to the
\nreviewer in writing. The reviewer shall, within sixty (60) days after receipt of
\nthe written request for review (or within such extended period prescribed
\nbelow), communicate its decision in writing to the claimant and\/or his duly
\nauthorized representative setting forth, in a manner calculated to be understood
\nby the claimant, the specific reasons for its decision and the pertinent
\nprovisions of the Plan on which the decision is based. If the decision is not
\ncommunicated within the time prescribed, the claim shall be deemed denied on
\nreview. 7.7. Special Circumstances.
\n<\/strong>If special circumstances require an extension of time beyond the sixty
\n(60)-day period described above for the reviewer to render his decision, the
\nreviewer shall furnish the claimant with written notice of the extension
\nrequired. Such notice shall be furnished prior to the termination of the initial
\nsixty (60)-day period and shall set forth the special circumstances requiring
\nthe extension period. In no event shall such extension exceed a period of sixty
\n(60) days from the end of such initial sixty (60)-day period. ARTICLE
\nVIII<\/strong> AMENDMENT AND TERMINATION<\/strong>
\n 8.1. Amendments. <\/strong>The Company (for the
\nCompany and the other Employing Companies) may at any time amend the Plan by
\naction of its board of directors. In addition, any amendment of the Plan which
\nshall not result in significant cost to an Employing Company or have a material
\neffect on the benefits provided hereunder may be made by the Benefits Officer
\n(for all Employing Companies).
\n 8.2. Termination or Suspension. <\/strong>The
\ncontinuance of the Plan is not assumed as a contractual obligation of the
\nCompany or any other Employing Company. The Company reserves the right (for
\nitself and the other Employing Companies) by action of its board of<\/p>\n

9<\/p>\n

\n<\/p>\n

directors, to terminate or suspend the Plan, or to terminate or suspend the
\nPlan with respect to itself or an Employing Company to the extent such
\ntermination is permitted under Section 409A of the Code. Any Employing Company
\nmay terminate or suspend the Plan with respect to itself by executing and
\ndelivering to the Company or the Benefits Officer such documents as the Company
\nor Benefits Officer shall deem necessary or desirable.
\n 8.3. Participants’ Rights to Payment.
\n<\/strong>No termination of the Plan or amendment thereto shall deprive a
\nParticipant or Beneficiary of the right to an aggregate benefit from the Plan
\nand the Pension Plan which is being paid in accordance with the terms of the
\nPlan and the Pension Plan as of the date of such termination or amendment or any
\naggregate amount which would have been payable to such Participant or
\nBeneficiary under the Plan and the Pension Plan if immediately prior to the
\nadoption of such amendment or termination the person had terminated employment
\nand was entitled to receive benefits under the Pension Plan; provided, however,
\nthat in the event of termination of the Plan, or termination of the Plan with
\nrespect to the Company or one or more other Employing Companies, the Benefits
\nOfficer accelerate the payment on a uniform basis for all Participants or, in
\nthe case of termination of the Plan with respect to one or more Employing
\nCompanies, for all Participants of the Company or such other Employing Companies
\nonly. ARTICLE IX<\/strong> PARTICIPATING COMPANIES<\/strong>
\n 9.1. Adoption by Other Entities.
\n<\/strong>Upon the approval of the Company or the Benefits Officer, the Plan may
\nbe adopted by any Affiliate by executing and delivering to the Company or the
\nBenefits Officer such documents as the Company or Benefits Officer shall deem
\nnecessary or desirable. The provisions of the Plan shall be fully applicable to
\nsuch entity except as may otherwise be agreed to by such adopting company and
\nthe Company or Benefits Officer. ARTICLE X<\/strong> GENERAL
\nPROVISIONS<\/strong> 10.1. Participants’ and
\nBeneficiaries’ Rights Unsecured. <\/strong>The right of any Participant or
\nBeneficiary to receive future payments under the provisions of the Plan shall be
\nan unsecured claim against the general assets only of that Employing Company
\nwhich employed the Participant for the period with respect to which such
\npayments are attributable. The Company and any other Employing Company or former
\nEmploying Company shall not guarantee or be liable for payment of benefits to
\nthe employees of any other Employing Company or former Employing Company under
\nthe Plan. 10.2. Non-Assignability.
\n<\/strong>The right of any person to receive any benefit payable under the Plan
\nshall not be subject in any manner to anticipation, alienation, sale, transfer,
\nassignment, pledge, encumbrance, lien or charge, and any such benefit shall not,
\nexcept to such extent as may be required by law, in any manner be liable for or
\nsubject to the debts, contracts, liabilities, engagements or torts of the person
\nwho shall be entitled to such benefits, nor shall it be subject to attachment or
\nlegal process for or against such person.<\/p>\n

10<\/p>\n

\n<\/p>\n

10.3. Affiliate Ceasing to be Such.
\n<\/strong>(a) In the event that a corporation or other entity ceases at any time
\nto meet the definition of an Affiliate, such entity shall cease as of such time
\nto be an Employing Company, if it had been such, and those of its Employees who
\nwould have been eligible under the Plan shall cease to be eligible, in each
\ncase, to the extent that the event causing such entity to no longer be an
\nAffiliate constitutes a change in ownership or effective control of such entity
\nwithin the meaning of Section 409A(a)(2)(A)(v) of the Code.
\n (b) Payments to Participants employed by any entity which
\nceases to be an Affiliate under the circumstances described under
\nSection 10.3(a) shall be made pursuant to Article V as if the Participant had a
\nSeparation From Service. 10.4. No Rights
\nAgainst the Company. <\/strong>The establishment of the Plan, any amendment or
\nother modification thereof, or any payments hereunder, shall not be construed as
\ngiving to any Employee, Participant or Beneficiary any legal or equitable rights
\nagainst the Company or any other Employing Company or former Employing Company,
\nits shareholders, directors, officers or other employees, except as may be
\ncontemplated by or under the Plan including, without limitation, the right of
\nany Participant or Beneficiary to be paid as provided under the Plan.
\nParticipation in the Plan does not give rise to any actual or implied contract
\nof employment. A Participant or Beneficiary may be terminated at any time for
\nany reason in accordance with the procedures of the Employing Company.
\n 10.5. Withholding. <\/strong>Each Employing
\nCompany or former Employing Company or paying agent shall withhold any federal,
\nstate and local income or employment tax (including F.I.C.A. obligations for
\nboth social security and Medicare) which by any present or future law it is, or
\nmay be, required to withhold with respect to any payment pursuant to the Plan,
\nwith respect to any of its former or present Employees. The Benefits Officer
\nshall provide or direct the provision of information necessary or appropriate to
\nenable each such company to so withhold.
\n 10.6. No Guarantee of Tax Consequences.
\n<\/strong>The Benefits Officer, the Committee, the Company and any Employing
\nCompany or former Employing Company do not make any commitment or guarantee that
\nany amounts accrued for the benefit of a Participant or Beneficiary will be
\nexcludible from the gross income of the Participant or Beneficiary the year
\naccrued or paid for federal, state or local income or employment tax purposes,
\nor that any other federal, state or local tax treatment will apply to or be
\navailable to any Participant or Beneficiary. It shall be the obligation of each
\nParticipant or Beneficiary to determine whether any accrual under the Plan is
\nexcludible from his or her gross income for federal, state and local income or
\nemployment tax purposes, and to take appropriate action if he or she has reason
\nto believe that any such accrual is not so excludible.
\n 10.7. Severability. <\/strong>If a provision of
\nthe Plan shall be held illegal or invalid, the illegality or invalidity shall
\nnot affect the remaining parts of the Plan, and the Plan shall be construed and
\nenforced as if the illegal or invalid provision had not been included in the
\nPlan. 10.8. Governing Law. <\/strong>The
\nprovisions of the Plan shall be governed by and construed in accordance with the
\nlaws of the State of New York, to the extent not preempted by the laws of the
\nUnited States.<\/p>\n

11<\/p>\n

\n<\/p>\n

10.9. Compliance with Section 409A of the
\nCode<\/strong>. This Plan is intended to comply with Section 409A of the Code and
\nwill be interpreted in a manner intended to comply with Section 409A of the
\nCode. In furtherance thereof, no payments may be accelerated under the Plan
\nother than to the extent permitted under Section 409A of the Code. To the extent
\nthat any provision of the Plan violates Section 409A of the Code such that
\namounts would be taxable to a Participant prior to payment or would otherwise
\nsubject a Participant to a penalty tax under Section 409A, such provision shall
\nbe automatically reformed or stricken to preserve the intent hereof.
\nNotwithstanding anything herein to the contrary, (i) if at the time of a
\nParticipant’s Separation From Service the Participant is a “specified employee”
\nas defined in Section 409A of the Code (and any related regulations or other
\npronouncements thereunder) and the deferral of the commencement of any payments
\nor benefits otherwise payable hereunder as a result of such Separation From
\nService is necessary in order to prevent any accelerated or additional tax under
\nSection 409A of the Code, then the Company shall defer the commencement of the
\npayment of any such payments or benefits hereunder (without any reduction in
\nsuch payments or benefits ultimately paid or provided to the Participant) until
\nthe date that is six months following the Participant’s Separation From Service
\n(or the earliest date as is permitted under Section 409A of the Code) and
\n(ii) if any other payments due to a Participant hereunder could cause the
\napplication of an accelerated or additional tax under Section 409A of the Code,
\nsuch payments or other benefits shall be deferred if deferral will make such
\npayment compliant under Section 409A of the Code, or otherwise such payment
\nshall be restructured, to the extent possible, in a manner, determined by the
\nBenefits Officer or the Committee, that does not cause such an accelerated or
\nadditional tax. The Benefits Officer and the Committee shall implement the
\nprovisions of this Section 10.9 in good faith; provided that none of the
\nCompany, the Benefits Officer, the Committee nor any of the Company’s or its
\nsubsidiaries’ employees or representatives shall have any liability to
\nParticipants with respect to this Section 10.9.<\/p>\n

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