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Article 8. Applications, Benefit
Payments and Retirement
Section 8.01 Applications
Application for benefits must be made in writing in the form, manner and time prescribed by the Trustees, and must be filed with the Fund in advance of the first month for which benefits are payable. A Participant’s application for benefits will be deemed null and void, and will be treated as if it has not been filed with the Fund for purposes of the preceding sentence, if the Fund has not received:
Section 8.02 Information
Required
Each Participant, Pensioner and Beneficiary shall furnish the Fund Office with any information or proof requested by it and reasonably required to administer the Pension Plan. If a Participant or Pensioner or other claimant to benefits
hereunder makes a materially inaccurate statement related to his claim for benefits, or furnishes materially inaccurate or incomplete information or proof relative to the
claim for benefits, then benefits not vested under this Plan (as determined
under Section 8.07) may be denied, suspended, or discontinued. The Trustees shall have the right to
recover any benefit payments made in reliance on any materially inaccurate or incomplete statement, information or proof submitted by a Participant,
Pensioner or Beneficiary. Section 8.03 Action of Trustee
(a) The Trustees shall
have the sole and absolute power, authority and discretion to determine: (1) the standard of proof required in any case; (2) the application and interpretation of this Plan; (3) entitlement to or amount of pension; (4) the disability, the timing, extent and or duration of the disability, or non-disability of Participants and the effect these determinations have on the Participant's eligibility for Disability Benefits under the Plan; (5) the crediting of Future or Past Service Credit and/or Contribution Hours; and (6)
the crediting of Hours of Work and Years of Service. (b) The decisions of the Trustees or any delegate of the Trustees with respect to any of the foregoing shall be final and binding. Wherever in the Plan the Trustees are given discretionary powers, the Trustees shall exercise such powers in a uniform and non-discriminatory manner. In addition, whenever the Trustees have delegated their power or authority to a committee or person, the delegate shall have the same power and authority as the Trustees to the extent of the Trustees’ delegation to such committee or person. Section 8.04 Right of Appeal
A Participant or Beneficiary whose application for benefits under this Plan has been denied, in whole or in part, is to be provided with adequate notice in writing setting forth the specific reasons for such denial, and shall have the right to appeal the decision by filing a written request with the Trustees within 180 days after receipt of such notice. The appeal shall be considered by the Trustees or by a person or committee designated by the Trustees. The decision shall be final and binding and shall be communicated to the claimant. No action at law or equity may be commenced against the Plan or Trustees (or any committee or person designated by the Trustees) with respect to a claim for benefits unless the claimant exhausts the Plan’s appeal process. An action at law or equity against the Plan or Trustees (or any committee or person designated by the Trustees) with respect to a claim for benefits must be filed before the earlier of: (1) the 91st day after the claim is denied, or is deemed to be denied, by the Trustees or the person or committee designated by the Trustees; or (2) the expiration of any other applicable limitations period. Section 8.05 Benefit Payments
Generally
(a) (1) A Participant who is eligible to receive benefits under this Plan and who makes application in accordance with the rules of this Plan, shall be entitled upon retirement to receive the benefits provided for under the provisions of the Plan. Benefit payments shall be payable commencing with the first day of the month following the month in which the Participant has fulfilled all of the conditions for entitlement to benefits, including the filing of an application in accordance with the requirements of Section 8.01; such first day of such month is what is meant by the “Effective Date of Pension” whenever such term is used in the Plan. If a Participant duly elects an Effective Date of Pension which precedes the date notice is provided under Section 6.02(b), the Participant shall receive a payment of benefits retroactive to Effective Date of Pension in the form of a lump sum, with simple interest at rate determined by the Board of Trustees. Monthly payments made subsequent to the lump sum payment shall be in the amount that would have been paid to the Participant had payments actually commenced on the Participant’s Effective Date of Pension. A Participant will not be deemed to have satisfied the conditions for entitlement to benefits if he has failed to complete and return all necessary forms to the Plan within the time prescribed by the Trustees. Further, no payment of benefits may commence if the notice under Section 6.02(b) was provided more than 90 days before such date, unless the delay is due solely to an administrative delay (or for such other reasons as the Internal Revenue Service may establish from time-to-time). (2) Unless the Participant elects otherwise, the payment of benefits will begin not later than the 60th day after the later of the close of the Calendar Year in which: (A) the Participant attains Normal Retirement Age, or (B)
the Participant terminates all employment with an Employer. Subject
to Section 8.12, below, a Participant may elect in writing filed with the
Trustees to receive his pension beginning at a later date, and a
Participant’s failure to file an application to commence benefits shall be
deemed an election to postpone payments to a date no later than the date
determined under Section 8.12. (3) For Effective Dates of Pension that are on or after June 1, 2003, subject to Section 8.06 below, a Participant who retires within the meaning of Section 5.01 after his attainment of Normal Retirement Age shall have his benefit actuarially adjusted in accordance with this Section 8.05(a)(3) upon the commencement of payment of his benefits. The actuarial adjustment shall be 1% for each month after the later of the date specified in Section 8.05(a)(2) above or the month he retires until the month in which the Participant reaches age 70, and 1½% for each month thereafter. (4) Except as otherwise provided in the Plan, pension payments to the Pensioner shall end with the payment for the calendar month in which the death of the Pensioner occurs. (5) Notwithstanding any other provision of the Plan, the Trustees may, in their sole discretion, recoup, by offset actuarial adjustment or other reasonable arrangement, any amounts that are paid from the Plan to a Participant, Pensioner or Beneficiary, in excess of the correct amount due, as permitted by Treas. Reg. §1.401(a)-13(c)(2)(iii). (b) Lump-Sum
Distribution (1) Notwithstanding
anything in the Plan to the contrary, if, at the time a monthly benefit
becomes payable to a Participant or Beneficiary, the Actuarial Equivalent
of such Participant’s or Beneficiary’s benefit under the Plan does not
exceed the applicable amount, as described herein, the benefit shall be
paid to the Participant or Beneficiary in the form of a single lump-sum in
an amount equal to the Actuarial Equivalent present value of the benefit
under the Plan. Such payment shall
be in lieu of the monthly benefit otherwise payable under the Plan. For purposes of this Section 8.05(b),
the applicable amount is $5,000, effective January 1, 1998. (2) Automatic
Cash-Out. Notwithstanding any provision
to the contrary, if, at the time a monthly benefit becomes payable to a
Participant or Beneficiary, the Actuarial Equivalent of such Participant’s
or Beneficiary’s pension benefit under the Plan does not exceed $1,000, the
benefit will be paid in the form of a single lump-sum in an amount equal to
the Actuarial Equivalent present value of the benefit under the Plan. Such payment shall be in lieu of the
monthly benefit otherwise payable under the Plan. (3) Optional Cash-Out. If, at the time a monthly benefit
becomes payable to a Participant or Beneficiary, the Actuarial Equivalent
of such Participant’s or Beneficiary’s pension benefit under the Plan
exceeds $1,000 but does not exceed $10,000, the Participant or Beneficiary
may elect to have the benefit paid to the Participant or Beneficiary in the
form of a single lump-sum in an amount equal to the Actuarial Equivalent
present value of the benefit under the Plan. Such payment shall be in lieu of the monthly benefit
otherwise payable under the Plan. Section 8.06 Suspension of
Benefits
A Participant receiving an Industry-Related Disability Benefit who is under age 55, and a Participant receiving a Full-Disability Benefit who is under Normal Retirement Age, will be subject to the continued eligibility and termination provisions of Article 16 before application of the provisions found in this Section 8.06. In all other respects, the provisions of this Section 8.06 will apply to a Participant receiving monthly Disability Benefits in the same manner as any other Pensioner who is receiving monthly benefits from the Plan. (a) Before Normal
Retirement Age in General (1) Except
as provided in Section 8.06(b), a Pensioner who entered Disqualifying
Employment before July 1, 2003 shall have his monthly benefit suspended for
each month prior to Normal Retirement Age in which the Pensioner is
employed in Disqualifying Employment and for an additional three (3) months
after the Pensioner ceases working in Disqualifying Employment. Except as provided in Section
8.06(b), a Pensioner who enters Disqualifying Employment on or after July
1, 2003 shall have his monthly benefit suspended for the greater of (a) the
number of months prior to Normal Retirement Age in which the Pensioner is
employed in Disqualifying Employment, or (b) three (3) months. (2) If the Pensioner has either (1) failed to notify the Fund Office within twenty-one (21) days of returning to employment that may be Disqualifying Employment in accordance with the notification requirements of subsection (e), or (2) willfully misrepresented to the Fund Office with respect to Disqualifying Employment, the monthly benefit shall be suspended for an additional period of three (3) months. This three (3) month suspension rule shall not apply to Pensioners who enter Disqualifying Employment on or after July 1, 2003. (3) In addition to any period of suspension provided in Section 8.06(a)(1), the monthly benefit shall be suspended for six (6) consecutive months for every calendar quarter in which the Pensioner was engaged in Disqualifying Employment of the type described in Section 8.06(d)(1)(E). (4) Notwithstanding the foregoing, the provisions of this subsection (a) shall not result in the suspension of the benefit for any month after the Pensioner has attained Normal Retirement Age. (b) Before Normal
Retirement Age for Certain Types of Disqualifying Employment (1) Effective August 1, 1999, if a Pensioner who has attained age 62 works in Disqualifying Employment before he attains Normal Retirement Age and such work is either (i) covered by a Collective Bargaining Agreement between the Union and the Pensioner’s Employer, or (ii) performed for a Related Organization or a joint apprenticeship training committee that is affiliated with the Union, his monthly benefit will be suspended under Section 8.06(a) only for any month in which he performs, or is paid for, more than 40 hours of such work. (2) Effective January 1, 2001, if a Pensioner who has not yet attained age 62 works in Disqualifying Employment and such work is performed for a joint apprenticeship training committee that is affiliated with the Union, his monthly benefit will be suspended under Section 8.06(a) only for any month in which he performs, or is paid for, more than 40 hours of such work. (3) Effective September 1, 2001, if a Pensioner who has not yet attained Normal Retirement Age works in Disqualifying Employment and such work is performed for the SMWIA, his monthly benefit will be suspended under Section 8.06(a) only for any month in which he performs, or is paid for, more than 40 hours of such work. (4) Effective August 1, 2003, if a Pensioner who has not yet attained Normal Retirement Age works in Disqualifying Employment and such work is performed for the Pension Fund, his monthly benefit will be suspended under Section 8.06(a) only for any month in which he performs, or is paid for, more than 40 hours. (5) Effective January 1, 2001, if a Pensioner who has not yet attained Normal Retirement Age works in Disqualifying Employment and such work is performed as a picketer for the Union or as worker for the Union on elections for officials within the Union, his monthly benefit will be suspended under Section 8.06(a) only for any month in which he performs more than 40 hours of such work. (6)
Notwithstanding the foregoing, the rules described in paragraphs (1), (2),
and (3) above shall not apply to any Pensioner whose benefit has already
been suspended pursuant to Section 8.06(a)(3), unless his benefit has
resumed in accordance with Section 8.06(g)(3), and the suspension rules
under Section 8.06(a) shall continue to apply to work performed by the
Pensioner in Disqualifying Employment that is not described in (1), (2) or
(3) above, until such time as the Pensioner attains Normal Retirement Age. (c) After Normal Retirement Age Effective
March 1, 2000, if a Pensioner has attained Normal Retirement Age, his
monthly benefit shall be suspended for any month in which he worked or was
paid for more than 40 hours in Disqualifying Employment as defined below. Before March 1, 2000, if a Pensioner has attained Normal
Retirement Age, his monthly benefit shall be suspended for any month in
which he worked or was paid for 40 hours or more in Disqualifying
Employment as defined below. (d)
Definition of
Disqualifying Employment (1) When used in Section 8.06(a) and 8.06(b), the term “Disqualifying Employment” means: (A)
employment with any
Contributing Employer; (B)
employment with any
employer in the same or related business as any Contributing Employer; (C)
self-employment in
the same or related business as a Contributing Employer; (D)
employment or
self-employment in any business which is under the jurisdiction of the
Union; or (E)
employment in the
Sheet Metal Industry that is not covered by a collective bargaining
agreement between the Union and the employer. (2) When used in Section 8.06(c), the term “Disqualifying Employment” means employment or self-employment that is (A) in an industry covered by the Plan when the Participant’s pension payments began, (B) in the geographic area covered by the Plan when the Participant’s pension began, and (C) in any trade or craft in which the Participant worked at any time under the Plan. (3) When used elsewhere in this Section 8.06, the term “Disqualifying Employment” shall have the meaning given such term in paragraph (1) or (2) above, as the context so requires. (e) Notices (1) Upon commencement of pension payments, the Trustees shall notify the Pensioner of the Plan rules governing suspension of benefits, including identity of the industries and area covered by the Plan. If benefits have been suspended and payment resumed, new notification shall, upon resumption, be given to the Participant, if there has been any material change in the suspension rules or the identity of the industries or area covered by the Plan. (2)
A Pensioner shall notify the Fund Office in writing within 21 days after starting
any work of a type that is or may be Disqualifying Employment under the
provisions of the Plan and without regard to the number of hours of such
work. If a Pensioner has worked in Disqualifying Employment in any
month and has failed to give timely notice to the Fund Office of such
employment, the Trustees shall presume that he worked for at least 40 hours
in such month and any subsequent month before the Participant gives notice
that he has ceased Disqualifying Employment. The Participant shall have
the right to overcome such presumption by establishing to the satisfaction
of the Trustees that his work was not in fact an appropriate basis, under
the Plan, for suspension of benefits. If a Pensioner has worked in Disqualifying Employment
for any number of hours for a contractor at a building or construction site
and he has failed to give timely notice to the Fund Office of such
employment, the Trustees shall presume that he has engaged in such work for
as long as the contractor has been and remains actively engaged at that
site. The Participant shall have
the right to overcome such presumption by establishing to the satisfaction
of the Trustees that his work was not in fact an appropriate basis, under
the Plan, for suspension of benefits. (3) A Pensioner whose pension has been suspended shall notify the Fund Office when Disqualifying Employment has ended. (4) A Participant may ask the Fund Office whether a particular employment will be disqualifying. The Fund Office shall provide the Participant with its determination in a timely manner. (5) The Plan shall inform a Participant of any suspension of his benefits by notice given by personal delivery or first-class mail during the first calendar month in which his benefits are withheld. Such notice shall include a description of the specific reasons for the suspension, copy of the relevant provisions of the Plan, reference to the applicable regulation of the U.S. Department of Labor, and a statement of the procedure for securing a review of the suspension. In addition, the notice shall describe the procedure for the Participant to notify the Plan when his Disqualifying Employment ends. (f) Review A Participant shall be entitled
to a review of a determination suspending his benefits by written request
filed with the Trustees within 180 days of the notice of suspension. (g) Resumption of Benefit Payments (1) Benefits will resume beginning with the first month after the last month for which benefits were suspended, with payments beginning no later than the third month after the last calendar month for which the Pensioner’s benefit was suspended, provided the Participant has complied with the notification requirements of paragraph (e)(2) and (3) above. Notwithstanding the foregoing, effective January 1, 2003, an Employee or Participant who returns to Covered Employment after working in Disqualifying Employment shall not have his benefits suspended pursuant to Section 8.06(a)(2) or 8.06(a)(3) provided he (1) terminates any Disqualifying Employment under Section 8.06(d)(1)(B)-(E); (2) returns to Covered Employment between January 1, 2002 and December 31, 2004; and (3) thereafter earns at least twelve (12) months of Future Service Credit. (2) Overpayments attributable to payments made for any month or months for which the Participant had Disqualifying Employment shall be deducted from pension payments otherwise paid or payable subsequent to the period of suspension. A deduction from a monthly benefit for a month after the Participant attained a Normal Retirement Age shall not exceed 25 percent of the pension amount (before deduction), except for the first pension payment made upon resumption after a suspension. If a Pensioner dies before recoupment of overpayments has been completed, deductions shall be made from the benefits payable to his Beneficiary, subject to the 25 percent limitation on the rate of deduction. (3) In the event that a monthly benefit is suspended pursuant to Section 8.06(a)(3), the six-month suspension periods provided for therein shall be waived if the Pensioner returns to Covered Employment and earns a number of months of Pension Credit, equal to the number of months during which he was formerly engaged for at least one (1) hour in Disqualifying Employment of the type described in Section 8.06(d)(1)(E). If such equal time is not achieved, the suspension shall be decreased on a pro rata basis determined by dividing the number of months of Pension Credit subsequently worked in Covered Employment by the number of months during which the individual previously worked at least one (1) hour in the Sheet Metal Industry in a position not covered by a collective bargaining agreement between the Union and the employer. Such percentage shall not be greater than 100%. A Participant or Employee’s
right to waiver of the suspension periods provided for in the preceding
paragraph shall be limited to his first return to Covered Employment after
being employed for at least one (1) hour in the Sheet Metal Industry in a
position not covered by a collective bargaining agreement between the Union
and the employer. If the
Participant or Employee then leaves Covered Employment again and is again
employed at least one (1) hour in the Sheet Metal Industry in a position
not covered by a collective bargaining agreement between the Union and an
employer, a subsequent return to Covered Employment shall not qualify for
the remedial provisions set forth in the preceding paragraph. (h) Amount of Benefit on Resumption of
Payment The monthly amount of pension
when resumed after suspension shall be redetermined in accordance with
paragraphs (1) through (5) if applicable. (1) Except as provided in paragraph (3) or (5) below, upon resumption of benefits after a suspension of benefits before Normal Retirement Age, the monthly amount of the original benefit shall be recomputed based on the Pensioner’s age at the time benefits are resumed reduced by the number of months for which he had previously received benefits. (2) A Pensioner who returns to Covered Employment shall be entitled to have his original benefit, as adjusted in accordance with paragraph (1) above, increased by the amount of benefit that he accrued during his period of reemployment; provided, however, that in the event that the Pensioner incurs a One-Year Break in Service prior to his return to Covered Employment, no benefit shall accrue until the Pensioner has completed a Year of Service following his return to Covered Employment. As soon as practicable following each January 1, the Pensioner’s benefit shall be redetermined, taking into account his additional Contribution Hours earned since the later of the preceding January 1or his Effective Date of Pension, and such redetermined amount shall be payable each month of the ensuing year, retroactive to January 1 of such year. If a Pensioner works or is paid for Disqualifying Employment, as defined in Section 8.06(d), during a year, then the additional benefit described in the preceding sentence shall be reduced (but not below zero) by the Actuarial Equivalent of the total distributions made to the Pensioner by the close of the Plan Year. If the Pensioner has not attained Normal Retirement Age, the additional benefit shall be reduced in accordance with Section 5.04(c) or 5.05(b) to reflect his actual age when benefits are resumed. (3) A Pensioner who returns to Covered Employment and earns at least 5 years of Future Service Credit shall be entitled to a complete recomputation of his benefit amount in accordance with Section 5.15 as though he had not previously received any benefits. (4) A Husband-and-Wife Pension in effect immediately prior to suspension of benefits shall remain effective if the Pensioner’s death occurs while his benefits are in suspension. Notwithstanding the foregoing, if a Pensioner has returned to Covered Employment and his Effective Date of Pension was before Normal Retirement Age, and if the Pensioner’s death occurs while his benefits are in suspension, and if the Pensioner is not married to the same spouse on his date of death as he was on his Effective Date of Pension, then the additional benefits that the Pensioner accrued following his return to Covered Employment shall be paid pursuant to the terms of Section 6.03 if the Pensioner was married as of the date of his death, or pursuant to the terms of Section 7.01 if the Pensioner was not married as of the date of his death. Any additional benefits that are payable as described in the preceding sentence shall not be taken into account in determining the benefit payable under Section 6.07 or 6.09. If a Pensioner has returned to Covered Employment, and his Effective Date of Pension was on or after Normal Retirement Age, he shall not be entitled to a new election as to the form of his pension payments under Article 6 when his benefits are resumed unless he is entitled to a complete recomputation of his benefits in accordance with Section 5.15. If a Pensioner has returned to Covered Employment and his Effective Date of Pension was before Normal Retirement Age, he shall be entitled to a new election as to the Husband-and-Wife Pension (or, in the case of an unmarried Participant, as to the Lifetime Pension), but only with respect to such additional benefits the Pensioner accrued following his return to Covered Employment, unless he is entitled to a complete recomputation of his benefit in accordance with Section 5.15, in which case he shall be entitled to a new election as to the form of his pension payments under Article 6. (5) Subject to paragraph (3) above, a Pensioner who had elected a Level Income Option under Section 6.10 prior to suspension of benefits who recommences benefits before the date his pension amount would have decreased under the original level Income Option election, shall have his original benefit recomputed, after offset of the Actuarial Equivalent of the benefits received before suspension, under a Level Income Option based on his age at the time benefits recommence and the original estimated Social Security Amount. If the Pensioner recommences benefits after the date his pension
amount would have decreased under the original Level Income Option
election, then his original benefit is recomputed based on the Normal
Retirement Benefit accrued at his Effective Date of Pension, adjusted to
reflect any early retirement reduction based on his age when benefits
recommence, and offset by the Actuarial Equivalent of the benefits received
before suspension. Any reduction
for a Husband and Wife Pension originally elected shall be applied to the
recomputed benefit. Section 8.07 Vested Status
(Nonforfeitability)
(a) ERISA and the Code
require that Participants acquire a nonforfeitable interest in their
Accrued Benefit and Normal Retirement Benefit in accordance with certain
prescribed standards. (b) “Vested Status” is
attained when a Participant acquires a nonforfeitable right to his Normal
Retirement Benefit or a nonforfeitable right to 100 percent of his Accrued
Benefit in accordance with subsection (c) below. (c) A Participant shall
attain Vested Status as follows: (1) Notwithstanding
subsection (c)(2) or (c)(3) below, a Participant’s right to his Normal
Retirement Benefit shall become nonforfeitable upon attainment of Normal
Retirement Age. (2) If a Participant has one or more Hours of Work in Covered Employment or Continuous Non-Covered Employment on or after January 1, 1997, he shall acquire a non-forfeitable right to 100 percent (100%) of his Accrued Benefit upon completion of five (5) Years of Service. (3) Effective for Plan
Years beginning on or after January 1, 1989, except as provided in
subsection (c)(2) above: (A) If a Participant’s participation in the Plan is covered by a Collective Bargaining Agreement, he shall acquire a non-forfeitable right to 100 percent (100%) of his Accrued Benefit upon completion of ten (10) Years of Service. (B) If a Participant’s
participation in the Plan is not covered by a Collective Bargaining
Agreement, he shall acquire a non-forfeitable right to 100 percent (100%)
of his Accrued Benefit upon completion of five (5) Years of Service;
provided, that such Participant has one or more Hours of Work in Covered
Employment or Continuous Non-Covered Employment on or after January 1,
1989. (4) Effective September
1, 1999, each employee of Baker-Smith Sheet Metal, Inc. (“Baker-Smith”),
who was covered under the terms of the Sheet Metal Workers’ National
Pension Fund’s Standard Form of Participation Agreement for Employers that
have Agreed to Contribute on Behalf of their Non-Bargaining Unit Employees,
dated March 21, 1990 and effective March 1, 1990, between the Sheet Metal
Workers’ National Pension Fund and Baker-Smith (the “Special Class
Participation Agreement”), shall have a nonforfeitable right to that
portion of his or her Accrued Benefit which is based on Pension Credit
earned through September 1, 1999, as a result of service that was covered
under the Special Class Participation Agreement; provided, that such
Employee was a Participant as of September 1, 1999 and was not covered by
Baker-Smith’s Owner-Member Registration Statement as in effect prior to
January 1, 2002. (5) The preceding
provisions are the sole rules for attaining vested status, and a
Participant who has not attained vested status in accordance with the
preceding provisions shall not attain vested status by satisfying the
eligibility rules for an Early Retirement Pension or Disability Benefit. (d) All of a
Participant’s Years of Service with one or more Contributing Employers
shall be counted in determining the Employee’s Vested Status under this
Section 8.07 except: (1) Years of Service
during a period for which a Contributing Employer did not maintain this
Plan or a predecessor plan; and (2) Years of Service which are disregarded under Section 4.13 (relating
to Breaks in Service). (e) ERISA and the Code
provide certain limitations on any Plan amendment that may change the
Plan’s vesting schedule. In
accordance with these limitations, if the Plan’s vesting schedule is
amended or the Plan is amended in such a way that directly or indirectly
affects the computation of a Participant’s nonforfeitable percentage in his
Accrued Benefit, or if the Plan is deemed amended by an automatic change to
or from the Minimum Vesting Schedule in Section 13.05 (relating to a “Top
Heavy Plan”), each Participant with at least three (3) Years of Service may
elect within a reasonable period after adoption of the amendment, deemed
amendment or change, to have his nonforfeitable interest in his Accrued
Benefit determined under the Plan without regard to such amendment, deemed
amendment or change. If this Plan
becomes a Top Heavy Plan and then ceases to be a Top Heavy Plan, each
Participant with not less than three years of service must be permitted to
elect, within a reasonable time after the schedule in (b) above reverts to
the vesting schedule otherwise applicable, to have his nonforfeitable
percentage computed under Section 13.05(b). The period during which the
election may be made shall commence with the date the amendment, deemed
amendment or change is adopted or deemed to be made and shall end on the
latest of: (1) 60 days after the amendment is adopted; (2) 60 days after the amendment becomes effective; or (3)
60 days after the Employee is issued written notice of the amendment
by his Employer or the Plan. (f) 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 or otherwise pursuant to Treasury
Regulations. For purposes of this
subsection (f), a Plan amendment that 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 (as determined under applicable
Treasury Regulations), 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
pre-amendment 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
(within the meaning of Section 411(a)(9) of the Code), a medical benefit, a
social security supplement, or a death benefit (including life
insurance). Further, if the vesting
schedule of the Plan is amended, in the case of an Employee who is a
Participant as of the later of the date such amendment is adopted or the
date it becomes effective, the nonforfeitable percentage (determined as of
that date) of such Employee’s Accrued Benefit will not be less than the percentage
computed under the Plan without regard to such amendment. Section 8.08 Incompetence or
Incapacity of a Pensioner
In the event it is determined that any Pensioner is unable to care for his affairs because of mental or physical incapacity, the Trustees may pay the benefits due such Pensioner to his legal guardian, committee, or legal representative; or, in the absence of them, to any relative by blood or connection by marriage who is deemed by the Trustees to be equitably entitled thereto. Payment by the Trustees to such legal representative or relative of the Pensioner shall operate to discharge the Trustees from any liability to such Pensioner or to anyone representing him or his interest. Section 8.09 Non-Assignment of
Benefits
It is hereby expressly provided that no Participant, Pensioner or Beneficiary shall have the right to assign, alienate, transfer, sell, hypothecate, mortgage, encumber, pledge or anticipate any retirement payments or portions thereof and any such assignment, alienation, transfer, sale, hypothecation, mortgage, encumbrance, pledge or anticipation shall be void and of no effect whatsoever unless such action is in compliance with Treasury Regulation Section 1.401(a)-13(c)(1) or any successor regulation that allows payment of a benefit or a portion of it to a third party if the Participant’s or Pensioner’s authorization of such payment is revocable at any time and if the third party acknowledges to the Plan Administrator that it has no enforcement right in or to a benefit payment or portion thereof and provided that the Trustees, in their discretion (which discretion shall be exercised in a non-discriminatory manner) allow such action. So that such retirement payments or portions thereof shall not in any way be subject to any legal process, execution, attachment or garnishment or be used for the payment of any claim against any Participant, Pensioner or Beneficiary, or be subject to the jurisdiction of any bankruptcy court or insolvency proceedings by operation of law or otherwise, the Trustees shall have the right to terminate or postpone any pension payments to a Pensioner. Notwithstanding the foregoing or any other provision of the Plan to the contrary: (a) benefits shall be paid in accordance with the applicable requirements of any "qualified domestic relations order” as defined by Section 206(d)(3) of ERISA; and (b) the non-alienation restrictions set forth in this section shall not apply to any offset of a Participant’s or Pensioner’s benefit provided under the Plan against an amount that the Participant or Pensioner is ordered or required to pay to the Plan if the order or requirement to pay arises under a judgment, order, decree, or settlement agreement in connection with the Plan or ERISA, as described in section 401(a)(13)(C) of the Code. Any qualified domestic relations order that refers to the division of "benefits," "pension," "pension benefits" or similar formulations shall be construed to apply to Disability Benefits. Section 8.10 No Right to Trust
Assets
Except as specifically provided in this Plan, no person other than the Trustees of the Fund shall have any right, title or interest in any of the income, or property of any character received or held by or for the account of the Fund, and no person shall have any right to benefits provided by the Fund nor shall any employee be entitled to any payment or other equity in the assets of the Fund except as expressly provided herein. All contributions made to the Fund shall be held in trust for the exclusive benefit of Participants who qualify for pensions under this Plan and their Beneficiaries. No employee, group of employees, Local or Employer, ceasing to maintain his or its status as a Participant, Local or Contributing Employer shall have any right to any of the assets of the Fund nor may any contributions to the Fund on behalf of a Participant be transferred to any other pension fund, local union, or Employer (except as provided for in Articles 10 and 11 of the Plan), or be paid to any employee except in the form of pension benefits as provided for in the Plan. Section 8.11 Limitations on
Benefits
(a) In addition to
other limitations set forth in the Plan, and notwithstanding any other
provision of the Plan, the Annual Benefit otherwise payable to a
Participant at any time shall not exceed the maximum permissible amount set
forth in subsection (d) below. If
the benefit the Participant would otherwise accrue in a Plan Year would
produce an Annual Benefit in excess of the maximum permissible amount, the
rate of accrual will be reduced so that the Annual Benefit will equal the
maximum permissible amount under subsection (d) below. The rules for determining the maximum
Annual Benefit payable to a Participant for limitation years prior to January
1, 2002 are set forth in Appendix A. (b) In determining the
maximum permissible amount of Annual Benefits under the Plan, if a
Participant has Pension Credit attributable to work performed for more than
one Employer, his Annual Benefit under the Plan, and the limitations
thereon, shall be determined separately with respect to each Employer. The Annual Benefit under the Plan
attributable to a particular Employer shall be equal to the total Annual
Benefit under the Plan multiplied by the ratio of Pension Credit
attributable to such Employer to total Pension Credit. (c)
If the Annual
Benefit payable to a Participant is not more than $1,000 multiplied by the
Participant’s number of Years of Service or parts thereof (not in excess of
10 years) with the Employer, and the Employer has not maintained a defined
contribution plan, a welfare benefit plan, or an individual medical account
in which such Participant participated, then the limitation in subsection
(a) above shall not apply. (d) Maximum Permissible
Benefit (1) The maximum
permissible benefit shall be shall be $160,000 (as adjusted in accordance
with (2) below). (2) As of each January,
the dollar limitation specified in paragraph (1), above, will be
automatically adjusted by multiplying such limit by the cost-of-living
adjustment prescribed by the Secretary of Treasury pursuant to Section
415(d) of the Code in such a manner as the Secretary shall prescribe. The new limitation will apply to Plan
Years in which the date of adjustment occurs and to Plan Years thereafter. (3) If the Participant has less than 10 years of participation with the Employer, the dollar limitation specified in paragraph (1), above, is reduced by one-tenth for each Year of Participation (or part thereof) less than ten. (4) If the Annual
Benefit of a Participant commences prior to age 62, the dollar limitation
specified in paragraph (1) above (after reduction in (3), above, if necessary),
shall be the actuarial equivalent of an Annual Benefit beginning at age 62,
reduced for each month by which benefits commence before the month in which
the Participant attains age 62. To
determine actuarial equivalence for purposes of this subsection, the
interest rate assumption is the greater of the rate for determining an
Actuarially Equivalent lump-sum distribution under Section 8.05(b) or 5
percent. Any decrease in the dollar
limitation determined in accordance with this paragraph (4) shall not reflect
the mortality decrement to the extent that benefits will not be forfeited
upon the death of the Participant. (5) If the Annual Benefit of a Participant commences after age 65, the dollar limitation specified in paragraph (1), above, (after reduction in (3), above, if necessary) shall be adjusted so that it is the actuarial equivalent of an Annual Benefit of such dollar limitation beginning at age 65. To determine actuarial equivalence, under this subsection, the interest rate assumption used is the lesser of the rate for determining an Actuarially Equivalent lump-sum distribution under Section 8.05(b) or 5 percent. (e) This subsection (e)
shall apply to any Participant who is covered, or has ever been covered, by
another plan maintained by an Employer.
If a Participant is, or has ever been, covered under more than one
defined benefit plan maintained by an Employer, the sum of the
Participant’s Annual Benefits from all such plans of that Employer may not
exceed the maximum permissible amount under subsection (d). For this purpose, all qualified defined
benefit plans (without regard to whether a plan has been terminated)
maintained by an Employer will be treated as one defined benefit plan,
except that multiemployer plans (as defined in Section 414(f) of the Code),
such as the Plan, shall not be aggregated with other multiemployer plans. (f) Special Definitions For purposes of this Section
8.11, the following special definitions shall apply even to the extent that
a different definition is provided in Article I: (1) “Annual Benefit” shall mean: A retirement benefit under the Plan which is payable annually in the form of a straight life annuity. Except as provided below, a benefit payable in a form other than a straight life annuity must be adjusted to an actuarially equivalent straight life annuity before applying the limitations of this Section 8.11. The interest rate assumption used to determine actuarial equivalence under this subsection will be the greater of the rate for determining an Actuarially Equivalent lump-sum distribution under Section 8.05(b) or 5 percent. The Annual Benefit does not include any assets transferred from a qualified plan that was not maintained by an Employer. No actuarial adjustment to the benefit is required for (A) the value of a qualified joint and survivor annuity, (B) the value of benefits that are not directly related to retirement benefits (such as the qualified disability benefit, pre-retirement death benefits, and post-retirement medical benefits), and (c) the value of post-retirement cost-of-living increases made in accordance with Section 415(d) of the Code and Treasury Regulation Section 1.415-3(c)(2)(iii). (2) “Employer” shall mean: Employer shall mean a Contributing Employer and all members of a controlled group of corporations (as defined in Section 414(b) of the Code, as modified by Section 415(b) of the Code), all commonly controlled trades and businesses (as defined in Section 414(c) of the Code, as modified by Section 415(h) of the Code), or affiliated service groups (as defined in Section 414(m) of the Code) of which the Contributing Employer is a part, and any other entity required to be aggregated with the Contributing Employer pursuant to Section 414(o) of the Code. (3)
“Year of Participation” shall mean: The Participant shall be credited
with a Year of Participation (computed to fractional parts of a year) for
each Calendar Year in which (1) he is credited with at least one month of
Future Service Credit under Article 4, and (2) the Participant is included
as a Participant under the Article 3 of the Plan) for at least one day of
the Calendar Year. If these two conditions are met, the portion of a
Year of Participation credited to the Participant shall equal the amount of
Future Service Credit credited to the Participant for such Calendar
Year. A Participant who is permanently and totally disabled within
the meaning of Section 415(c)(3)(C)(i) of the Code for a Calendar Year
shall receive a Year of Participation with respect to that Calendar
Year. In addition, for a Participant to receive a Year of
Participation (or part thereof) for a Calendar Year, the Plan must be
established no later than the last day of such Calendar Year. In no
event will more than one Year of Participation be credited for any 12 month
period. (g) Miscellaneous (1) This Section 8.11
is intended to implement the requirements of Section 415 of the Code. In the event of any conflict between the
provisions of this Section 8.11 and Section 415 of the Code, the provisions
of Section 415 of the Code shall take precedence. (2) For purposes of
applying the requirements of Section 415 of the Code, the limitation year
under the Plan shall be the Plan Year.
All other qualified plans maintained by an Employer must use the
same limitation year as this Plan. Section 8.12 Required Minimum
Distributions
(a) General
Applicability Subject to the requirements of
Article 6, the requirements of this Section 8.12 shall apply to any
distribution of a Participant’s interest and shall override over any
distribution options and rules under the Plan which are inconsistent with
the requirements of this Section.
Except as otherwise provided below, the provisions of Section 8.12
shall apply to Calendar Years beginning on or after January 1, 1985. Notwithstanding any provision in this Section 8.12
to the contrary, except that the required beginning date of distributions
shall be as specified in Section 8.12(b), distributions required under this
Section 8.12 shall be determined and made in accordance with the rules of
Section 401(a)(9) of the Code and the regulations thereunder (whether
proposed or final), including the minimum distribution incidental benefit
requirements of Proposed Treasury Regulation Section 1.401(a)(9)–2. (b) Required
Beginning Date of Distributions Regardless of whether a Participant has applied for a distribution or has elected to receive his pension beginning on a later date, the entire interest of a Participant must be distributed or begin to be distributed not later than the Participant’s Required Beginning Date. For purposes of this Section 8.12, a Participant’s Required Beginning Date shall be the first day of April of the Calendar Year following the Calendar Year in which the Participant attains age seventy and one-half (70-1/2). (c) Limitations on Period of Distribution (1) As of the first
Distribution Calendar Year (as defined in paragraph (2) below),
distributions may only be made over one of the following periods (or a
combination thereof), unless made in the form of a lump-sum: (A) the life of the
Participant; (B) the life of the
Participant and a Designated Beneficiary; (C) a period certain
not extending beyond the life expectancy of the Participant; or (D) a period certain
not extending beyond the joint and last survivor expectancy of the
Participant and a Designated Beneficiary. (2) For purposes of
this Section 8.12 the following special definitions shall apply: (A) The term “Distribution Calendar Year” shall mean a Calendar Year for which a minimum distribution is required. For distributions beginning before the Participant’s death, the first Distribution Calendar Year is the Calendar Year immediately preceding the Calendar Year which contains the Participant’s Required Beginning Date. For distributions beginning after the Participant’s death, the first Distribution Calendar Year is the Calendar Year in which distributions are required to begin pursuant to subsection (d) below. (B) The term “Designated Beneficiary” shall mean the individual who is designated as the Beneficiary under the Plan in accordance with Section 401(a)(9) of the Code and the regulations thereunder. (C) The terms “Life Expectancy” shall mean the life expectancy (or joint
and last survivor expectancy) calculated using the attained age of the
Participant (or Designated Beneficiary) as of the Participant’s (or
Designated Beneficiary’s) birthday in the applicable Calendar Year. For this purpose, the “applicable
Calendar Year” shall be the first Distribution Calendar Year, or if annuity
payments commence before the Required Beginning Date, the “applicable
Calendar Year” shall be the year such payments commence. Life expectancy and joint and last
survivor expectancy shall be computed by use of the expected return
multiples in Tables V and VI of Treasury Regulation Section 1.72-9. (d) Determination of amount required to be distributed each
year (1) For purposes of
meeting the requirements of Section 401(a)(9) of the Code and the
regulations thereunder, when the Participant’s interest under the Plan is
paid in the form of an annuity distribution, the following requirements
shall apply: (A) the distribution
must be paid in periodic payments at intervals of no more than one year in
length; (B) the period of distribution must be over a life (or lives) or over a period certain not longer than a life expectancy (or joint life and last survivor expectancy) described in Section 401(a)(9)(a)(ii) or Section 401(a)(9)(B)(iii) of the Code, whichever is applicable; (C) the life expectancy (or joint life and last survivor expectancy) for purposes of determining the period certain shall be determined without recalculation of life expectancy; (D) once payments have begun over a period certain, the period certain may not be lengthened, even if the period certain is shorter than the maximum permitted; (E) payments must either be non-increasing or increase only as follows: (i) with any percentage increase in a specified and generally cost-of-living index; (ii) to the extent of the reduction to the amount of the Participant’s payments to provide for a survivor benefit upon death, but only if the Beneficiary whose life was being used to determine the distribution period described in subsection (b) above dies and the payments continue otherwise in accordance with that subsection over the life of the Participant (e.g., a pop-up); (iii) because of an increase in benefits under the Plan. (F) If the distribution
is the form of a life annuity (or a life annuity with a period certain not
exceeding 20 years), the amount which must be distributed on or before the
Participant’s Required Beginning Date (or, in the case of distributions
after the Participant’s death, the date distributions are required to begin
pursuant to subsection (e) below) shall be the payment which is required
for one payment interval. The
second payment need not be made until the end of the next payment interval
even if that payment interval ends in the next Calendar Year. Payment intervals are the periods for
which payments are received, (e.g., monthly or annually). (2) If the form of
distribution is an annuity made in accordance with this subsection, any
additional benefits accruing to the Participant after his Required
Beginning Date shall be distributed as a separate and identifiable
component of the annuity beginning with the first payment interval ending
in the Calendar Year in which such amount accrues. (3) If any part of a Participant’s interest is distributed in a form other than as an annuity, it shall be distributed in a manner that satisfies the requirements of the Section 401(a)(9) of the Code and the regulations thereunder. (4) For purposes of determining the minimum required distribution that shall be made to a Participant who has not filed an application for benefits, it shall be assumed that the benefit is to be paid in the form of the Husband-and-Wife Pension, and that the Participant is 3 years older than his or her spouse. A Participant who files an application for benefits under Section 8.01 after benefits commence under this subsection will have his or her benefit effective as of the first day of the month following the date of the Trustees’ receipt of his application adjusted to the extent required by the Participant’s benefit election. (e) Death Distribution Provisions (1) Distributions beginning before Participant’s death If
a Participant dies after distribution of his 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. (2) Distributions beginning after Participant’s death If a Participant dies before distribution of his 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 (A) or (B) below: (A) if any portion of the Participant’s interest is payable to a Designated 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 31st of the Calendar Year immediately following the Calendar Year in which the Participant died; (B) if the Designated Beneficiary is the Participant’s surviving spouse, the date distributions are required to begin in accordance with (A) above shall not be earlier than the later of (i) December 31 of the Calendar Year immediately following the Calendar Year in which the Participant died and (ii) December 31 of the Calendar Year in which the Participant would have attained age seventy and one-half (70-1/2). If the Participant has not made an election pursuant to this subsection (2) by the time of his death, the Participant’s Designated Beneficiary must elect the method of distribution no later than the earlier of (i) December 31 of the Calendar Year in which distributions would be required to begin under this subsection, or (ii) December 31 of the Calendar Year which contains the fifth (5th) anniversary of the date of death of the Participant. If the Participant has no Designated Beneficiary, or if the Designated Beneficiary does not elect a method of distribution, distribution of the Participant’s entire interest must be completed by December 31 of the Calendar Year containing the fifth (5th) anniversary of the Participant’s death. (3) For purposes of (2)
above, if the surviving spouse dies after the Participant, but before
payments to such spouse begin, the provisions of (2) above, with the
exception of paragraph (B), shall be applied as if the surviving spouse
were the Participant. (4) For purposes of this Section 8.12(e), any amount paid to a child of the Participant will be treated as if it had been paid to the Participant’s surviving spouse if the amount becomes payable to the surviving spouse when the child reaches the age of majority. (5) Also for purposes of this Section 8.12(e), distribution of a Participant’s interest is considered to begin on the Participant’s Required Beginning Date (or if (3) above is applicable, the date distribution is required to begin to the Participant’s surviving spouse pursuant to (2) above. If a distribution in the form of an annuity described in Section 8.12(e) above irrevocably commences to the Participant before the Required Beginning Date, the date distribution is considered to begin is the date distribution actually commences. Section 8.13 Eligible Rollover
Distributions
(a) Election Notwithstanding any provision of
the Plan to the contrary that would otherwise limit a Distributee’s
election under this Section, a Distributee may elect, at the time and in
the manner prescribed by the Trustees, to have any portion of an Eligible
Rollover Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a direct rollover. (b) Special Definitions For purposes of this Section
8.13, the following definitions shall apply: (1) “Eligible Rollover Distribution” shall mean any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not include (1) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee or the joint lives (or joint life expectancies) of the Distributee and the Distributee’s designated Beneficiary, or for a specified period of ten years or more; (2) any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; and (3) distributions that are made to correct a failed nondiscrimination test or because legal limitations on certain contributions were exceeded. (2) “Eligible Retirement Plan” shall mean an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, a tax sheltered annuity contract described in Section 403(b) of the Code, a deferred compensation plan described in Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from the Plan, or a qualified trust described in Section 401(a) of the Code that accepts the Distributee’s Eligible Rollover Distribution. With respect to any portion of an Eligible Rollover Distribution that is not includible in gross income, however, an Eligible Retirement Plan includes only an individual retirement account or annuity described in section 408(a) or 408(b) of the Internal Revenue Code or a defined contribution plan described in section 401(a) or 403(b) of the Internal Revenue Code that separately accounts for such Eligible Rollover Distribution, including accounting separately for the portion not includible in gross income. The definition of Eligible Retirement Plan shall also apply in the case of a distribution to an Employee’s or former Employee’s surviving spouse, or to a spouse or former spouse who is the Alternate Payee under a Qualified Domestic Relations Order, as defined in Section 414(p) of the Code. (3) “Distributee” shall include an Employee or former Employee. In addition, the Employee’s or former Employee’s surviving spouse and the Employee’s or former Employee’s spouse or former spouse who is the Alternate Payee under a Qualified Domestic Relations Order, as defined in Section 414(p) of the Code, are Distributees with regard to the interest of the spouse or former spouse. (4) “Direct Rollover” shall mean payment by the Plan to the Eligible Retirement Plan specified by the Distributee. Section 8.14 Mergers
In the case of any merger or consolidation with, or transfer of
assets or liabilities to, any other plan each Participant shall (if the
plan then terminated) receive a benefit immediately after the merger,
consolidation or transfer which is equal to or greater than the benefit he
would have been entitled to receive immediately before the merger,
consolidation, or transfer (as if this Plan had then terminated). Section 8.15 Restrictions for
Highly Compensated Employees
Notwithstanding any provision to the contrary, the following
restrictions shall apply for Plan Years beginning on or after January 1,
1994. (a) Restriction of Benefits upon Plan Termination. In the event that the Plan is
terminated, the benefit of any Highly Compensated Employee (and any Former
Highly Compensated Employee) shall be limited to a benefit that is
nondiscriminatory under Section 401(a)(4) of the Code. (b) Restrictions on distributions. Except as provided in (c) below, in any Plan Year, the payment of benefits to or on behalf of a Restricted Employee shall not exceed an amount equal to the payments that would be made to or on behalf of the Restricted Employee in that Plan Year under: (i) a straight life annuity that is the Actuarial Equivalent of the Accrued Benefit and other benefits to which the Restricted Employee is entitled under the Plan (other than a social security supplement); and (ii) a social security supplement, if any, that the Restricted Employee is entitled to receive. (c) The restrictions of (b) above shall not apply if any one of the
following requirements is satisfied: (1) After taking into account payment to or on behalf of the Restricted
Employee of all benefits payable to or on behalf of that Restricted
Employee under the Plan, the value of the Plan’s assets must equal or
exceed 110 percent of the value of the Plan’s current liabilities, as
defined in Section 412(l)(7) of the Code; (2) The value of the benefits payable to
or on behalf of the Restricted Employee must be less than one percent (1%)
of the value of the Plan’s current liabilities before distribution; or (3) The value of the benefits payable to or on behalf of the restricted
employee must not exceed the amount described in Section 411(a)(11)(A) of
the Code. For purposes of the foregoing,
the Plan may use any reasonable and consistent method for determining the
value of the Plan’s current liabilities and the value of the Plan’s assets. (d) The following definitions shall apply for purposes of this Section
8.15: (1) The term “Highly Compensated Employee” shall have the same meaning
given such term in Section 414(q) of the Code. (2) The term “Former Highly Compensated Employee” shall mean a former
Employee who is treated as a Highly Compensated Employee under Section
414(q) of the Code. (3) The term “Restricted Employee” generally
means any Highly Compensated Employee or Former Highly Compensated Employee. However, a Highly Compensated Employee
or Former Highly Compensated Employee will not be treated as a Restricted
Employee in the current Plan Year if the Highly Compensated Employee or
Former Highly Compensated Employee is not one of the 25 nonexcludable
employees (as such term is defined in Treasury Regulation
Section 1.401(a)(4)-12) and former Employees with the largest amount
of compensation in the current or any prior Plan Year. (e) This Section shall be construed in a manner consistent with Treasury Regulation Section 1.401(a)(4)-5(b). |
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