AFTRA RETIREMENT PLAN
2014 PPA RESTATEMENT
Amended and Restated as of December 1, 2013
00309252.12
AFTRA RETIREMENT PLAN
CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1
ARTICLE 1 DEFINITIONS ........................................................................................................... 2
Section 1.01. Active Participant........................................................................................ 2
Section 1.02. Actuarial Equivalence and Actuarial Present Value. .................................. 2
Section 1.03. AFTRA. ...................................................................................................... 3
Section 1.04. Base Year. ................................................................................................... 3
Section 1.05. Beneficiary. ................................................................................................. 3
Section 1.06. Collective Bargaining Agreement............................................................... 3
Section 1.07. Contribution Period..................................................................................... 3
Section 1.08. Covered Contributions. ............................................................................... 4
Section 1.09. Covered Employment. ................................................................................ 4
Section 1.10. Dancer. ........................................................................................................ 4
Section 1.11. Earnings. ..................................................................................................... 4
Section 1.12. Highly Compensated Employee. ................................................................ 5
Section 1.13. Normal Retirement Age. ............................................................................. 6
Section 1.14. Participant. .................................................................................................. 7
Section 1.15. Pensioner. .................................................................................................... 7
Section 1.16. Performers. .................................................................................................. 7
Section 1.17. Plan Year. .................................................................................................... 7
Section 1.18. Producers..................................................................................................... 7
Section 1.19. Qualified Military Service. ......................................................................... 8
Section 1.20. Retirement Fund.......................................................................................... 8
Section 1.21. Retirement Plan or Plan. ............................................................................. 8
Section 1.22. SAG-AFTRA. ............................................................................................. 8
Section 1.23. Spouse. ........................................................................................................ 8
Section 1.24. Testing Compensation. ............................................................................... 8
Section 1.25. Trust Agreement. ........................................................................................ 9
Section 1.26. Trustees. ...................................................................................................... 9
Section 1.27. Other Terms. ............................................................................................... 9
ARTICLE 2 PARTICIPATION ................................................................................................... 11
Section 2.01. Purpose...................................................................................................... 11
Section 2.02. Participation. ............................................................................................. 11
Section 2.03. Termination of Active Participation. ........................................................ 11
Section 2.04. Reinstatement of Active Participation. ..................................................... 11
Section 2.05. Initial Eligibility. ....................................................................................... 12
ARTICLE 3 REGULAR ANNUITY ELIGIBILITY AND AMOUNTS..................................... 13
Section 3.01. General. ..................................................................................................... 13
Section 3.02. Eligibility for Regular Annuity. ................................................................ 13
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Section 3.03. Amount of Regular Annuity. .................................................................... 13
ARTICLE 4 DISABILITY RETIREMENT ................................................................................. 18
Section 4.01. Applicability. ............................................................................................ 18
Section 4.02. Disability Pension Eligibility. ................................................................... 18
Section 4.03. Actuarial Adjustments. ............................................................................. 18
ARTICLE 5 YEARS OF PENSION CREDIT AND VESTING SERVICE................................ 19
Section 5.01. General. ..................................................................................................... 19
Section 5.02. Pension Credits. ........................................................................................ 19
Section 5.03. Years of Vesting Service. ......................................................................... 20
Section 5.04. Military Service. ....................................................................................... 20
ARTICLE 6 RETIREMENT ACCOUNT ANNUITY ................................................................. 22
Section 6.01. Credits to Retirement Accounts. ............................................................... 22
Section 6.02. Eligibility for a Retirement Account Benefit. ........................................... 22
Section 6.03. Lump-Sum Payment of Retirement Account Balance. ............................. 22
Section 6.04. Amount of Retirement Account Annuity. ................................................. 23
ARTICLE 7 PAYMENTS ON DEATH ....................................................................................... 24
Section 7.01. Preretirement Surviving Spouse Pension. ................................................. 24
Section 7.02. Death Benefit Before Becoming Eligible for a Regular Annuity. ............ 25
Section 7.03. Death Benefit After Becoming Eligible for a Regular Annuity. .............. 25
Section 7.04. Death After Retirement. ............................................................................ 26
Section 7.05. Payments of Death Benefits. ..................................................................... 26
Section 7.06. Regular Annuity Commencement and Termination Dates. ...................... 26
ARTICLE 8 FORMS OF ANNUITY ........................................................................................... 27
Section 8.01. General. ..................................................................................................... 27
Section 8.02. Qualified Joint and Survivor Annuity. ...................................................... 27
Section 8.03. Waiver of Qualified Joint and Survivor Annuity. ..................................... 27
Section 8.04. Options Available. .................................................................................... 28
Section 8.05. Adjustment of Optional Annuities. ........................................................... 29
Section 8.06. Conditions on Choice of Options.............................................................. 30
Section 8.07. Continuation of Annuity. .......................................................................... 31
ARTICLE 9 APPLICATIONS, BENEFIT PAYMENTS, AND RETIREMENT ....................... 32
Section 9.01. Applications. ............................................................................................. 32
Section 9.02. Information and Proof. .............................................................................. 32
Section 9.03. Action of Trustees. .................................................................................... 32
Section 9.04. Right of Appeal and Right to Sue. ............................................................ 33
Section 9.05. Benefit Payments Generally. .................................................................... 34
Section 9.06. Disability Benefit Adjustment. ................................................................. 35
Section 9.07. Vested Status and Nonforfeitability. ......................................................... 36
Section 9.08. Incompetence or Incapacity of a Participant or Beneficiary. .................... 37
Section 9.09. Non-Assignment of Benefits..................................................................... 37
Section 9.10. No Right to Assets. ................................................................................... 37
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Section 9.11.
Section 9.12.
Section 9.13.
Section 9.14.
Section 9.15.
Maximum Limitation. ............................................................................... 37
Mergers ..................................................................................................... 38
Redetermination of Benefits. .................................................................... 39
Rollover Distributions............................................................................... 39
Overpayments ........................................................................................... 41
ARTICLE 10 MISCELLANEOUS .............................................................................................. 42
Section 10.01. Non-Reversion. ......................................................................................... 42
Section 10.02. Limitation of Liability............................................................................... 42
Section 10.03. New Producer............................................................................................ 42
Section 10.04. Termination. .............................................................................................. 42
Section 10.05. Amendment. .............................................................................................. 42
Section 10.06. 42 Provisions Inconsistent with Qualified Status. .................................... 42
ARTICLE 11 TOP HEAVY PROVISIONS ................................................................................ 43
Section 11.01. Definitions................................................................................................. 43
Section 11.02. Permissive Aggregation Group. ................................................................ 44
Section 11.03. Required Aggregation Group. ................................................................... 44
Section 11.04. Determination Date. .................................................................................. 44
Section 11.05. Present Value. ........................................................................................... 45
Section 11.06. Minimum Benefit. ..................................................................................... 45
Section 11.07. Minimum Vesting Requirement. .............................................................. 46
ARTICLE 12 REQUIRED MINIMUM DISTRIBUTION RULES ............................................. 47
Section 12.01. General Rules. ........................................................................................... 47
Section 12.02. Time and Manner of Distribution. ............................................................ 47
Section 12.03. Determination of Amount to be Distributed Each Year. .......................... 48
Section 12.04. Requirements For Annuity Distributions That Commence During
Participant’s Lifetime................................................................................ 49
Section 12.05. Requirements For Minimum Distributions Where Participant Dies
Before Date Distributions Begin. .............................................................. 50
Section 12.06. Definitions................................................................................................. 50
ARTICLE 13 PUERTO RICO SUPPLEMENT ........................................................................... 52
Section 13.01. Use of Terms. ............................................................................................ 52
Section 13.02. Applicability of this Article. ..................................................................... 52
Section 13.03. Additional Definitions of Terms. .............................................................. 52
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AFTRA RETIREMENT PLAN
2014 PPA RESTATEMENT
As amended and restated December 1, 2013
INTRODUCTION
Effective as of November 16, 1955, the Trustees of the American Federation of
Television and Radio Artists (“AFTRA”) Pension Fund (the “Fund”) pursuant to the Agreement
and Declaration of Trust entered into as of November 16, 1954, established the Retirement Fund
and the Rules and Regulations under which such Fund was governed (the “AFTRA Retirement
Plan” or the “Plan”) to pay retirement benefits exclusively to participants and beneficiaries.
The Plan’s provisions have been amended and restated from time to time since the initial
effective date to ensure that the Plan remains a qualified plan in accordance with the applicable
provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”).
The Plan is hereby amended and restated, effective December 1, 2013, in its entirety to
incorporate modifications required by applicable legislative and regulatory changes, including
but not limited to the Pension Protection Act of 2006 (“PPA ‘06”), the Heroes Earnings
Assistance and Relief Tax Act of 2008 (“HEART”), and the Worker, Retiree, and Employer
Recovery Act of 2008 (“WRERA”) and other applicable legislation and published Treasury and
IRS guidance (collectively, the “PPA Amendments”), as well as other changes adopted by the
Trustees. The amended and restated Plan constitutes an amendment, effective as of December 1,
2013, to the earlier Plan and supersedes and replaces such earlier Plan provisions. The Plan
provisions in effect immediately prior to this December 1, 2013 restatement shall remain in
effect for those Plan participants (including Pensioners and Beneficiaries) who retired, died or
permanently terminated their employment with contributing employers at any time prior to
December 1, 2013; provided, however, that they may also be governed by certain provisions of
this Plan where required by law and indicated herein.
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ARTICLE 1
DEFINITIONS
Section 1.01. Active Participant. “Active Participant” shall mean a Performer who
meets the requirements for participation in the Plan as set forth in Article 2, whose participation
has not been terminated pursuant to Section 2.03, and who is not a Pensioner.
Section 1.02. Actuarial Equivalence and Actuarial Present Value.
(a)
The term “Actuarial Equivalence” means two benefits of equal “Actuarial
Present Value” based on the actuarial factors and assumptions specified in the provision in which
that phrase is used or, if not otherwise specified, based on the assumptions described in this
Section.
(b)
Unless otherwise specified in the Plan, for determinations as of any
Effective Date for a benefit that is on or after December 1, 2013, a benefit has the same
“Actuarial Present Value” as another benefit if it is based on the “Applicable Interest Rate” and
the “Applicable Mortality Table.” For this purpose:
(1)
The “Applicable Interest Rate” is, for the Base Year which
contains the Effective Date of the benefit:
(A)
For Base Years beginning prior to December 1, 2014, the
annual rate of interest prescribed in regulations under Code section 417(e) for the month
of October immediately preceding the Base Year, or
(B)
For the Base Year beginning on December 1, 2014, the
annual rate of interest prescribed in regulations under Code section 417(e) for the month
of July or October immediately preceding the Base Year, whichever rate produces the
greater benefit, or
(C)
For Base Years beginning on or after December 1, 2015,
the annual rate of interest prescribed in regulations under Code section 417(e) for the
month of July immediately preceding the Base Year;
(2)
The “Applicable Mortality Table” is the table prescribed in
regulations under Code section 417(e) for use in the Base Year which contains the Effective Date
of the benefit.
(c)
Notwithstanding any other Plan provisions to the contrary, the Applicable
Mortality Table used for purposes of adjusting any benefit or limitation under Code section
415(b)(2)(B), (C) or (D), as set forth in Section 9.11 of the Plan is the table prescribed in
regulations under Code section 417(e) for use in the Base Year which contains the Effective Date
of the benefit.
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Section 1.03. AFTRA. “AFTRA” shall mean SAG-AFTRA, and its component units,
and, prior to March 30, 2012, the American Federation of Television and Radio Artists and its
component units.
Section 1.04. Base Year. “Base Year” shall mean any consecutive twelve-month period
ending November 30th, except that: (a) Earnings for the period from November 16, 1954 through
November 30, 1954 for which Producers were obligated to contribute to the AFTRA Pension and
Welfare Funds shall be included in the Base Year ended November 30, 1955, and (b) the period
January 1, 1954 through November 15, 1954 shall comprise a Base Year, and (c) for all periods
prior to January 1, 1954, the Base Year shall be the calendar year. The Base Year is the plan
year.
Section 1.05. Beneficiary. A “Beneficiary” is a person who is entitled to receive
benefits under this Plan because of his or her designation for such benefits by a Participant under
the provisions in Articles 7 and 8, or, in the case of a Surviving Spouse, by operation of the
Preretirement Surviving Spouse Pension provisions in Article 7. A Beneficiary may also be a
legal entity, such as a trust or a charitable organization. A Participant may change his or her
Beneficiary only before the Effective Date of his or her annuity (or during the first 60 months of
payment of a Regular Annuity) by written notice filed with the Trustees; provided, however, that
with respect to a married Participant (effective prior to June 26, 2013, other than one who is
married to a same sex spouse), the designation or change in a prior designation of a Beneficiary
other than the Participant’s Spouse may only be made if the Spouse consents in writing thereto in
such form as the Trustees may prescribe, such consent acknowledges the specific non-Spouse
Beneficiary and such consent is witnessed by a Notary Public. If a Participant dies before
commencing retirement benefits (or during the first 60 months of payment of a Regular Annuity)
without a designated Beneficiary or a Surviving Spouse entitled to a Preretirement Surviving
Spouse Pension, the term “Beneficiary” shall mean the person or persons entitled to receive any
such payments under specific terms or residual disposition in the Participant’s will, or, if the
Participant dies intestate, then the Spouse, children, parents, brothers and sisters or the estate (in
that order) of the Participant.
Section 1.06. Collective Bargaining Agreement. “Collective Bargaining Agreement” or
“Agreement” shall mean the AFTRA Codes of Fair Practice for Network Television
Broadcasting, Recorded Radio Commercials, Recorded Television Commercials, Phonograph
Recording, Commercial Network Radio and Sustaining Radio or any other or future AFTRA
code to which the Trust Agreement is annexed or in which it is incorporated by reference with
the approval of the Trustees and any other agreement between AFTRA and a Producer which
requires contributions to the Retirement Fund and which is accepted by the Trustees in
accordance with the provisions of the Trust Agreement. An Agreement shall also include any
participation agreement or other agreement whereby AFTRA and the AFTRA Health and
Retirement Funds, as the employer of their employees, are obligated to make contributions to the
Retirement Fund on behalf of some or all of their employees pursuant to such agreements.
Section 1.07. Contribution Period. “Contribution Period” means, with respect to a
category of employment, the period during which the Producer is obligated by its Agreement to
contribute to the Fund with respect to the category of employment.
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Section 1.08. Covered Contributions. “Covered Contributions” shall mean Producer
contributions related to Earnings and due to the AFTRA Health Fund and the Retirement Fund,
pursuant to an Agreement, on behalf of a Performer with respect to Covered Employment.
Covered Contributions shall not include the following:
(a)
one-time payments to the AFTRA Health Fund made pursuant to the
AFTRA National Code of Fair Practice for Sound Recordings, or any successor thereto; or
(b)
Producer contributions due to the AFTRA Health Fund attributable to
employment for which the Producer contributions are not also due to the Retirement Fund.
Section 1.09. Covered Employment. “Covered Employment” shall mean employment
as a Performer for which a Producer is obligated to contribute to the Retirement Fund, and in the
case of a Performer eligible for credit for employment prior to the Contribution Period in
accordance with the provisions of Section 5.02 (c) or (d), in a job category for which the
Producer later becomes obligated to contribute.
Section 1.10. Dancer. “Dancer” shall mean an employee who is a Performer with
respect to whom a Producer is obligated to contribute on compensation paid pursuant to the
provisions of the applicable Collective Bargaining Agreement relating to Dancers as defined in
said Agreement.
Section 1.11. Earnings. “Earnings” shall mean the gross compensation of a Participant
in Covered Employment with respect to which Producer contributions are required to be made,
subject to such limitations as are specified in the applicable Collective Bargaining Agreement,
and subject to the limitations of Sections 3.03, 9.11 and any other similar provision of this Plan
limiting “Earnings” for purposes of benefit accrual. For a Dancer, Earnings include incidental
compensation from the Producer while engaged as a Dancer. Gross compensation is determined
before any deductions for Social Security, withholding and other taxes, charges, fees and
commissions required by law or contract or other similar deductions.
(a)
Earnings are recognized as of the date of the performance which entitles a
Participant to receive payment from the Producer. In the case of so-called “re-use” fees, such
sums become Earnings as of the date of re-use which entitles the Participant to receive such fee
from the Producer; but any such fees earned through re-use after the death of the Participant shall
be excluded in computing benefits hereunder, even if contributions are payable thereon by the
Producer.
(b)
Earnings shall not include any moneys received by a Participant pursuant
to a contract for the delivery of a program package owned by the Participant either as an
individual proprietor or in partnership with others; provided, that this shall not prevent the
Participant from receiving credit for his or her Earnings as follows:
(1)
Earnings pursuant to an employment contract with a corporation
that owns or produces the program, even though the Participant owns all or part of that
corporation’s stock, or
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(2)
Earnings pursuant to an employment contract with a Producer even
though the program on which the Participant appears is a program which the Producer acquired
by separate arrangement from the owners of the program, regardless of whether the Participant is
one of the owners.
(c)
Earnings shall be determined by substance, not form. For example, if a
Participant receives payment for a combination of services such as production, writing and
performing, the Trustees reserve the right to make an appropriate allocation of the portion fairly
attributable to Covered Employment, even if a contract provides for some other allocation to
evade the intent of the Collective Bargaining Agreement and the Plan.
(d)
For Base Years beginning after December 31, 2008, earnings shall include
“differential pay” (as defined in Code section 3401(h)(2)), if any, paid to a Participant
performing Qualified Military Service.
Section 1.12. Highly Compensated Employee.
(a)
The term “Highly Compensated Employee” includes highly compensated
Participants and highly compensated former Participants of a Producer. Whether an individual is
a Highly Compensated Employee is determined separately with respect to each Producer, based
solely on that individual’s Testing Compensation from or status with respect to that Producer.
(b)
A Highly Compensated Employee is any Participant who:
(1)
was a 5-percent owner (as defined in Temporary Treasury
Regulation section 1.414(q)-1T, Q&A 8) of the Producer at any time during the determination
year or the look-back year, or
(2)
for the look-back year:
(A)
had Testing Compensation from the Producer in excess of
$115,000 (as adjusted annually for increases in the cost-of-living in accordance with
regulations prescribed by the Secretary of the Treasury), and
(B)
was in the top-paid group of employees of such Producer
for such year. For this purpose, the top-paid group of employees shall consist of the top
20 percent of the employees when ranked on the basis of Testing Compensation paid
during such year.
(3)
For purposes of determining if a Participant’s Testing
Compensation from a Producer exceeds $115,000 (as adjusted for changes in the cost of living)
in the look-back year, the look-back year shall be the calendar year beginning within the Plan
Year immediately preceding the Plan Year for which the test is being applied.
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Section 1.13. Normal Retirement Age.
(a)
“Normal Retirement Age” means the later of the date upon which a
Participant attains age 65 or the fifth anniversary of the date upon which a Participant
commenced participation in the Plan.
(b)
In the case of a Participant with (i) no years of Vesting Service credited
for a Base Year subsequent to November 30, 1989, and less than ten years of Vesting Service in
total, or (ii) less than five years of Vesting Service in total, the date upon which the Participant
commenced participation in the Plan shall be determined without regard to any employment
which preceded a period of consecutive Base Years during which no Pension Credit was earned
if (i) the number of years in such period prior to December 1, 1985 equals or exceeds the years of
Pension Credit previously earned and not previously disregarded under this sentence by reason
of a prior period during which no Pension Credit was earned, or (ii) the number of years in such
period equals or exceeds the greater of five or the years of Pension Credit previously earned and
not previously disregarded under this sentence by reason of a prior period during which no
Pension Credit was earned.
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(c)
For periods commencing on or after December 1, 1985 during which a
Participant is absent from Covered Employment by reason of (i) her pregnancy, (ii) birth of a
child of the Participant, (iii) placement of a child with the Participant in connection with his or
her adoption of the child, or (iv) care for such child for a period beginning immediately after
such birth or placement, a Participant will be deemed credited with the dollar amount of Earnings
in the Base Year in which such absence begins, if necessary, to earn a year of Pension Credit;
otherwise, such Earnings will be deemed credited to the next Base Year. Earnings shall be
deemed credited to a Participant pursuant to this paragraph solely for purposes of ascertaining
whether years of Pension Credit previously earned should be disregarded by reason of a later
period during which no Pension Credit was earned, and shall not be taken into account for any
other provisions of this Plan. The Trustees may require, as a condition for granting such
Earnings credit, that the Participant establish in timely fashion and to the satisfaction of the
Trustees that the Participant is entitled to such Earnings credit.
Section 1.14. Participant. “Participant” shall mean an Active Participant, an Active
Participant whose participation has been terminated under Section 2.03, or a Pensioner.
Section 1.15. Pensioner. “Pensioner” shall mean a person to whom an annuity under
this Plan is being paid, other than by reason of being a Beneficiary, or to whom an annuity would
be paid but for administrative processing.
Section 1.16. Performers. “Performers” shall mean (i) the artists who perform Covered
Employment for Producers (ii) employees of AFTRA with respect to whose services AFTRA is
required to contribute to the Plan and (iii) employees of the AFTRA Health and Retirement
Funds.
Section 1.17. Plan Year. “Plan Year” shall mean any consecutive twelve-month period
ending November 30th.
Section 1.18. Producers. The term “Producers” as used herein shall mean the
Broadcasting Companies and Stations, Sponsors, Advertising Agencies, Independent Producers
and others who are parties to or bound by the AFTRA Codes of Fair Practice for Network
Television Broadcasting, Transcription, Sound Recordings, Commercial Network Radio and
Sustaining Radio or any other or future AFTRA code to which the Trust Agreement is annexed
or in which it is incorporated by reference with the approval of the Trustees. The term
“Producers” shall also include employers who enter into or become bound by other collective
bargaining agreements with AFTRA and who, pursuant to Article VI, Section 3 of the Trust
Agreement, are permitted by the Trustees to become parties to the Trust Agreement and
contribute to the Funds pursuant to the terms thereof. The term “Producers” shall also include
AFTRA as employer of its employees, and the AFTRA Health and Retirement Funds as the
employer of its employees that, as employers of their employees, enter into agreements approved
by the Trustees with respect to their contributions to the Retirement Fund and other terms and
conditions of participation herein. Effective for Base Years beginning on or after January 1,
2012, for purposes of determining the Fund’s qualified status under Section 108.01(a) of the
Puerto Rico Code, the term “Producers” shall include all corporations, partnerships and other
persons that pursuant to Section 1081.01(a)(14)(A) are deemed to be the same employer.
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Section 1.19. Qualified Military Service. “Qualified Military Service” shall mean the
same as this phrase is defined at Code section 414(u)(5).
Section 1.20. Retirement Fund. “Retirement Fund” or “Fund” shall mean the AFTRA
Retirement Fund established under the Trust Agreement.
Section 1.21. Retirement Plan or Plan. “Retirement Plan” or “Plan” shall mean the plan
document and all amendments thereto, set forth herein as adopted and amended by the Trustees.
Section 1.22. SAG-AFTRA. “SAG-AFTRA” shall mean Screen Actors GuildAmerican Federation of Radio and Television Artists.
Section 1.23. Spouse. “Spouse” or “Surviving Spouse,” shall mean, effective June 26,
2013, the individual to whom a Participant is lawfully married pursuant to a valid marriage
license according to the place where the marriage was celebrated. Prior to June 26, 2013,
“Spouse” or “Surviving Spouse” shall mean a person lawfully married to the Participant pursuant
to a valid state marriage license; provided, however, that it shall not include any same-sex
spouses where the terms of the Federal Defense of Marriage Act would have made it unlawful or
inconsistent with the Code’s requirements for tax qualification of the Plan to recognize same-sex
spouses.
Section 1.24. Testing Compensation.
(a)
Solely for the purposes of identifying Highly Compensated Employees
and establishing the limitations under Code section 415, an Active Participant’s Testing
Compensation shall mean the total wages, salaries, fees for professional services, and other
amounts received (without regard to whether or not an amount is paid in cash) as defined in
Treasury Regulation section 1.415(c)-2(b), as amended from time-to-time, including differential
wages (as defined in Code section 3401(h)), if any, paid by a Producer to an Active Participant
who is absent from Covered Employment due to Qualified Military Service. In addition, Testing
Compensation shall include any elective deferrals under Code sections 125(a), 132(f)(4),
402(e)(3), 402(h)(1)(B), 402(k), or 457(b). Testing Compensation shall not include:
(1)
Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by a Participant either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture;
(2)
Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and
(3)
Other amounts which receive special tax benefits, other than
amounts referred to in subsection (a).
(4)
Any income attributable to contributions to, and/or distributions
from, deferred compensation plans (whether or not qualified) as described in Treasury
Regulation section 1.415(c)-2(c)(1).
-8-
(5)
For Base Years beginning after November 30, 2006, Testing
Compensation shall exclude any amounts following a severance from Covered Employment,
unless such compensation is for the Participant’s services and the payment would have been paid
to the Participant if the Participant had continued in Covered Employment with the Producer,
and payment is made by the later of 2½ months following the severance date, or by the calendar
year end in which the severance occurred. .
(b)
In addition to any other applicable limitations which may be set forth in
the Plan and notwithstanding any other contrary provisions of the Plan, Testing Compensation
taken into account under the Plan for any Base Year for the purpose of calculating a Performer's
accrued benefit (including the right to an optional benefit provided under the Plan) shall not
exceed the limits set forth in Code section 401(a)(17), as adjusted for changes in the cost of
living as provided in Code sections 401(a)(17) and 415(d); provided, however, that effective for
Base Years beginning on or after December 1, 2002 and before December 1, 2007, the Testing
Compensation shall not exceed $170,000; and effective for Participants who accrue one Pension
Credit for Base Years beginning on or after December 1, 2007, the Testing Compensation shall
not exceed $200,000. The foregoing limits shall be applied to the Performer's total Testing
Compensation from all employers maintaining the Plan rather than being applied on a Producerby-Producer basis.
(c)
For the purposes specified in subsection (a), Testing Compensation shall
be considered zero in the absence of reliable information confirming a Participant’s Testing
Compensation. Information on Participants’ Testing Compensation furnished to the Trustees by
a Producer shall be deemed reliable. In addition, the Trustees may rely on information on
Testing Compensation furnished by a Participant or Beneficiary if, in the Trustees’ judgment, the
information is reliable.
(d)
Effective for Base Years beginning on or after January 1, 2012, for Puerto
Rico Employees, the Testing Compensation taken into account in any Base Year shall not exceed
the lesser of (i) the Testing Compensation limit provided in this Section 1.21, or (ii) the Testing
Compensation limit under Section 1081.01(a)(12) of the Puerto Rico Code.
Section 1.25. Trust Agreement. “Trust Agreement” shall mean the Restated Agreement
and Declaration of Trust establishing the AFTRA Health Fund and the AFTRA Retirement Fund
(As Amended and Restated as of October 30, 2002), and as thereafter amended.
Section 1.26. Trustees. “Trustees” shall mean the Trustees who are designated pursuant
to the Trust Agreement, together with their successors designated in the manner provided
therein.
Section 1.27. Other Terms. Other terms are specifically defined as follows:
Term
(a) ERISA
(b) Hour of Service
(c) Regular Annuity
(d) Pension Credits
Section(s)
Introduction
2.02
Article 3
5.02
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(e)
(f)
(g)
(h)
(i)
(j)
(k)
Years of Vesting Service
Year of Minimum Employment
Retirement Account Annuity
Qualified Joint and Survivor Annuity
Joint-and-Survivor Annuity
Effective Date
Vested Status
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5.03
6.01(c)
6.04
8.02
8.04(b)
9.05
9.07
ARTICLE 2
PARTICIPATION
Section 2.01. Purpose. This Article contains definitions to meet certain requirements of
ERISA. Once a Performer has become a Participant, Pension Credits shall be provided in
accordance with Section 5.02 for some or all of the Performer’s service with a Producer,
including service before the Performer became a Participant.
Section 2.02. Participation.
(a)
A Participant who was an Active Participant on November 30, 2013, shall
continue to be an Active Participant on and following December 1, 2013, subject to Section 2.03.
Otherwise, a Performer engaged in Covered Employment during the Contribution Period shall
become an Active Participant on the earliest December 1 or June 1, following completion of a
12-consecutive-month period during which the Performer had:
(1)
not less than 1,000 hours of service with a Producer, or
(2)
at least $15,000 of Earnings.
(b)
The required hours of service may also be performed in any other
employment with a Producer contiguous or concurrent with the Performer’s Covered
Employment with that Producer. For the purposes of this Section, hour of service shall be
defined in accordance with 29 CFR §2530.200b-2(a), and the phrase “hours of service” for
reasons other than the performance of duties shall be determined in accordance with 29 CFR
§2530.200b-2(b) and (c). For the purposes of this Section hours of service shall be credited to
computation periods in accordance with 29 CFR §2530.200b-2(c). The Department of Labor
Regulations, defining the phrase “hour of service,” are incorporated herein by this reference.
Section 2.03. Termination of Active Participation. An Active Participant who fails to
earn a year of Pension Credit in any Base Year shall cease to be an Active Participant as of the
last day of such Base Year, unless the Performer has achieved Vested Status. Notwithstanding
the previous sentence, one who is an Active Participant shall not have his or her Active
Participant status terminated because he or she has been unable to earn a year of Pension Credit
in a Base Year due to his or her performance of Qualified Military Service.
Section 2.04. Reinstatement of Active Participation. A Participant who has lost his or
her status as an Active Participant in accordance with Section 2.03 shall again become an Active
Participant by meeting the requirements of Section 2.02 in any Base Year following the Base
Year during which participation terminated. A Participant’s Earnings prior to when he or she is
reinstated as an Active Participant in the Plan under this Section 2.04 shall not be counted in
determining whether the Participant has earned a Pension Credit in the Base Year, except that a
Participant’s Earnings during the Contribution Period in the first Base Year in which he or she is
reinstated as an Active Participant shall be counted for such purposes.
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Section 2.05. Initial Eligibility.
(a)
For the purposes of determining whether a Performer is eligible to become
an Active Participant in the Plan under Section 2.02 hereof, the initial eligibility computation
period shall be the 12 consecutive-month period beginning with the Performer’s employment
commencement date. Subsequent eligibility computation periods shall be the Base Year,
beginning with the Base Year that includes the first anniversary of a Performer’s employment
commencement date.
(b)
A Performer’s Earnings prior to when he or she becomes an Active
Participant in the Plan under Section 2.02 shall not be counted in determining whether the
Performer has earned a Pension Credit in the Base Year, except that a Performer’s Earnings
during the Contribution Period will be counted for such purposes if they would otherwise be
sufficient to earn a Pension Credit (under Section 5.02 of the Plan) in the Base Year in which the
Performer had such Earnings.
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ARTICLE 3
REGULAR ANNUITY ELIGIBILITY AND AMOUNTS
Section 3.01. General. This Article sets forth the eligibility conditions and benefit
amounts for the Regular Annuity benefits provided by this Plan. A Regular Annuity is a
monthly pension, payable in the amount determined pursuant to Section 3.03, for the life of the
Participant, minimum sixty months guaranteed, commencing at Normal Retirement Age. The
accumulation of Pension Credits and Years of Vesting Service for eligibility are subject to the
provisions of Article 5. The benefit amounts described in this Article shall be rounded to the
nearest dollar and are subject to reduction if a Qualified Joint and Survivor Annuity or some
other optional form of annuity is payable in accordance with Article 8. Entitlement to Regular
Annuity benefits is subject to application for benefits, as provided in Article 9.
Section 3.02. Eligibility for Regular Annuity.
(a)
A Participant may apply for and receive a Regular Annuity if he or she:
(1)
has attained Normal Retirement Age and performed services in
Covered Employment at any time at or after Normal Retirement Age, or
(2)
has attained age 55 and has at least 5 Pension Credits including at
least one Pension Credit earned in a Base Year subsequent to November 30, 1989.
(b)
In no event shall a Participant or Beneficiary be entitled to receive a
distribution from the Plan before the Participant’s (i) attainment of Normal Retirement Age; (ii)
termination of employment with all Producers; (iii) death; or (iv) disability.
Section 3.03. Amount of Regular Annuity.
(a)
The monthly amount of Regular Annuity, payable during the Pensioner’s
lifetime, subject to adjustments in accordance with the provisions of paragraphs (b)-(h) of this
Section, shall be equal to one-twelfth of the sum of the amounts determined for each Pension
Credit Year under whichever of the following formulae are applicable and subject to the rules in
subsection (a)(2) of this Section. The foregoing amount shall represent the Participant’s accrued
benefit, expressed as a monthly benefit payable at Normal Retirement Age. For the purposes of
this Section 3.03(a), the term Pension Credit Year shall be the accrual computation period for the
purposes of providing an accrued benefit, and shall mean a Base Year in which an Active
Participant earns a Pension Credit.
(1)
3.1% of Earnings before December 1, 1997 not in excess of
$50,000, plus
(2)
3.6% of Earnings on or after December 1, 1997 and before
December 1, 2002 not in excess of $50,000, plus
(3)
3.1% of Earnings before December 1, 2002 in excess of $50,000
but not in excess of $100,000, plus
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(4)
1.05% of Earnings before December 1, 1995 in excess of $100,000
plus
(5)
3.1% of Earnings on or after December 1, 1995 and before
December 1, 2002 in excess of $100,000, plus
(6)
3.0% of Earnings on or after December 1, 2002 and before June 1,
(7)
2.0% of Earnings on or after June 1, 2003 and before December 1,
2003, plus
2004, plus
(8)
December 1, 2007, plus
1.5% of Earnings on or after December 1, 2004 and before
(9)
1.7% of Earnings on or after December 1, 2007 and before May 1,
2009 not in excess of $50,000, plus
(10) 1.5% of Earnings on or after December 1, 2007 and before May 1,
2009 in excess of $50,000; plus,
(11)
7% of Covered Contributions credited on or after May 1, 2009 and
through November 30, 2012 (except to the extent that Covered Contributions are attributable to
Covered Employment for which no Producer contribution is due to the AFTRA Health Fund, in
which case the formula shall be such Covered Contributions multiplied by a fraction of 700 over
3,500), plus
(12) (A)
Prior to December 1, 2014, 4.86% of Covered
Contributions credited on or after December 1, 2012 and through November 30, 2014
(except to the extent that Covered Contributions are attributable to Covered Employment
for which no Producer contribution is due to the AFTRA Health Fund, in which case the
formula shall be such Covered Contributions multiplied by a fraction of 486 over 3,500);
(B)
Effective December 1, 2014, 7.55% of Covered
Contributions credited on or after December 1, 2012 and through November 30, 2014
(except to the extent that Covered Contributions are attributable to Covered Employment
for which no Producer contribution is due to the AFTRA Health Fund, in which case the
formula shall be such Covered Contributions multiplied by a fraction of 755 over 3,500);
plus
(13) 4.86% of Covered Contributions credited on or after December 1,
2014 (except to the extent that Covered Contributions are attributable to Covered Employment
for which no Producer contribution is due to the AFTRA Health Fund, in which case the formula
shall be such Covered Contributions multiplied by a fraction of 486 over 4,700).
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(b)
For purposes of the formulae in Section 3.03(a):
(1)
There shall not be taken into account Earnings or Covered
Contributions to the extent they relate to Earnings:
(A)
exceeding the maximum which may be used to calculate
pension benefits in accordance with the Code and regulations thereunder as in effect at
the beginning of the Plan Year, or
(B)
exceeding $200,000 in a Pension Credit Year ended prior to
December 1, 1992, or
(C)
exceeding $170,000 in a Pension Credit Year beginning on
or after December 1, 2002 and ended prior to December 1, 2007, or
(D)
or after December 1, 2007.
exceeding $200,000 in a Pension Credit Year beginning on
The foregoing limits shall be applied to the Participant’s total Earnings from all Producers
maintaining the Plan rather than being applied on a Producer-by-Producer basis.
(2)
In the event a Participant has Earnings exceeding the limitations in
this Section for a Base Year beginning on or after December 1, 2009, the Covered Contributions
taken into account for the Base Year shall equal the Participant’s Earnings that may be taken into
account under this Section 3.03(b) for the Base Year multiplied by a fraction, the numerator of
which is the Participant’s Covered Contributions for the Base Year without regard to this Section
3.03(b) and the denominator of which is the Participant’s Earnings for the Base Year calculated
without regard to this Section 3.03(b).
(3)
In the event a Participant has Earnings exceeding the limitations in
this Section for the Base Year beginning December 1, 2008, the Covered Contributions taken
into account for the period between May 1, 2009 and November 30, 2009 shall equal the
Participant’s Earnings that may be taken into account under this Section 3.03(b) for the Base
Year, reduced (but not below zero) by the Participant’s Earnings between December 1, 2008 and
April 30, 2009 calculated without regard to this Section 3.03(b) and then multiplied by a fraction,
the numerator of which is the Participant’s Covered Contributions from May 1, 2009 through
November 30, 2009 calculated without regard to this Section 3.03(b) and the denominator of
which is the Participant’s Earnings from May 1, 2009 through November 30, 2009 calculated
without regard to this Section 3.03(b).
(c)
Notwithstanding anything in this Plan to the contrary, the monthly amount
of the Regular Annuity calculated under Sections 3.03(a) and (b) shall not exceed the greater of
(i) the monthly amount of the Regular Annuity to the extent accrued as of November 30, 2002;
(ii) $8,000; or (iii) $9,000, effective December 1, 2007, for Participants who accrue one Pension
Credit in a Plan Year beginning on or after December 1, 2007.
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(d)
For the purposes of determining a Participant’s accrued benefit, the Plan
shall not exclude service with a Producer that is not permitted to be excluded under 29 CFR
§2530.204-1(b), 29 CFR §2530.204-2, or 29 CFR §2530.204-3.
(e)
If the Effective Date of a Participant’s Regular Annuity is subsequent to
the first day of the month coincident with or immediately following the Participant’s 65th
birthday (the “First Day”), the amount determined under Section 3.03(a) shall be increased to the
amount determined as follows:
(1)
Determine the monthly amount of the Regular Annuity as of the
First Day.
(2)
For each twelve-month period ending on an anniversary of the
First Day and prior to the actual Effective Date of the Participant’s Annuity and for the period
from the last such anniversary to the Effective Date, determine the monthly amount as of the
end of such period equal to the monthly amount as of the beginning of such period, plus the
greater of:
(A)
the actuarial increase in the monthly amount during such
period, and
(B)
the additional monthly amount determined under Section
3.03(a) based on Earnings or Covered Contributions, as applicable, in any additional year
of Pension Credit earned during such period.
(3)
If the First Day is prior to December 1, 2007, add the difference,
if any, between the amounts described under (A) and (B) of this Section 3.03(e)(3) to the
monthly amount as of the beginning of such period that includes December 1, 2007, with an
actuarial increase from December 1, 2007 to the end of such period.
(A)
The monthly amount of the Regular Annuity under Section
3.03(a) as of the First Day, disregarding any Earnings after the First Day for purposes of
Section 3.03(c), but reflecting Pension Credit earned subsequent to the First Day for
purposes of Section 3.03(c).
(B)
The monthly amount described in paragraph (1).
(4)
For purposes of Section 3.03(e) the “actuarial increase” in the
monthly amount is determined based on the following:
(A)
for determinations as of any Effective Date that is on or
after December 1, 2000 but before February 1, 2006, using a 7% interest assumption and
a mortality assumption based on the 1971 Group Annuity Mortality Tables, weighted
80% male and 20% female; and
(B)
for determinations as of any Effective Date that is on or
after February 1, 2006, using a 7% interest assumption and a mortality assumption based
on the RP-2000 Mortality Tables, weighted 80% male and 20% female.
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(5)
For purposes of this Section 3.03(e), the amount of the Regular
Annuity as of the First Day or the subsequent anniversary of any First Day shall be determined
as the amount of the Regular Annuity under Section 3.03(a) as of the beginning of the Plan Year
preceding the First Day or anniversary, plus a pro rata portion of the increase in the amount of
the Regular Annuity under Section 3.03(a) during the Plan Year including the First Day or
anniversary. Notwithstanding the preceding sentence, if the First Day or subsequent anniversary
of the First Day is within the same Plan Year as the Effective Date, the amount of the Regular
Annuity as of the First Day or subsequent anniversary shall be determined as the amount of the
Regular Annuity under Section 3.03(a) disregarding any Earnings or Covered Contributions
thereto.
(f)
With respect to Participants who have earned at least one Pension Credit
prior to June 1, 2003, if the amount of a Participant’s Regular Annuity benefit determined in
accordance with this Section 3.03 is less than $22.50 multiplied by the number of Pension
Credits (up to 10 Pension Credits) that are earned by the Participant prior to June 1, 2003, then,
in lieu of the amount determined in accordance with Sections 3.03(a) and (b), the amount of the
Regular Annuity benefit shall be $22.50 multiplied by the number of Pension Credits (up to 10
Pension Credits) that are earned by the Participant prior to June 1, 2003, subject to any
adjustments otherwise applicable to Regular Annuity payments.
(g)
Except as provided in Article 4 below, if a Participant is younger than age
65 on the Effective Date of his Regular Annuity, the amounts determined in accordance with the
provisions of subsections (a) through (f) above shall be reduced by ½ of one percent for each
month that the Participant is younger than age 65. If a Participant is younger than age 55 on his
or her date of death, for purposes of determining the Regular Annuity to which the Participant
would have been entitled for the determination of the Death Benefit under Section 7.03(a), the
amounts determined in accordance with the provisions of subsection (a) through (f) shall be
reduced by 60% to age 55 and further reduced based on the Actuarial Equivalent from age 55 to
the first of the month coincident with or next following the date of death.
(h)
If a Participant is eligible for and applies for a Retirement Account benefit
under Article 6, the amounts determined in accordance with the provisions of this Section 3.03
shall be reduced by the Retirement Account Annuity or the Actuarial Equivalent of the lumpsum Retirement Account benefit based on whichever of the following factors produces the least
amount of offset:
(1)
the 1971 Group Annuity Mortality Tables weighted 80% male and
20% female and the PBGC interest rates as of the beginning of the Plan Year, or
(2)
the Applicable Interest Rate and the Applicable Mortality Tables
referred to in the definition of Actuarial Present Value.
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ARTICLE 4
DISABILITY RETIREMENT
Section 4.01. Applicability. This Article 4 applies only to a Participant who becomes
totally disabled, as evidenced by receipt of a Social Security Disability Award, and thereafter
applies for a Regular Annuity. The date on which the Participant became totally disabled is
herein referred to as the Participant’s Disability Date.
Section 4.02. Disability Pension Eligibility. In the case of a Participant to whom this
Article 4 applies and who on such Disability Date has 10 or more Pension Credits, including at
least 2 Pension Credits earned within the period consisting of the elapsed portion of the Base
Year in which the Disability Date occurs and the 5 Base Years immediately prior thereto, no
reduction to the Participant’s Disability Pension shall be made under Section 3.03(g), and the
reduction shall, instead, be made as provided in Section 4.03.
Section 4.03. Actuarial Adjustments. Appropriate actuarial adjustments, as determined
by the Plan’s actuary, shall be made to any portion of a benefit to which this Article 4 applies
which may become payable to a Beneficiary. Appropriate actuarial adjustments, as determined
by the Plan’s actuary, to take into account any distribution in a form provided for in Article 8
shall also be made to any benefit to which this Article 4 applies. The adjustment shall be
determined based on the RP-2000 Mortality Tables, weighted 80% male and 20% female and set
forward seven years for participants and weighted 20% male and 80% female for beneficiaries, a
7% interest rate assumption, and the principle of overall Actuarial Equivalence and equitable
adjustment for the value of such annuities.
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ARTICLE 5
YEARS OF PENSION CREDIT AND VESTING SERVICE
Section 5.01. General. Pension Credits and years of Vesting Service are determined in
accordance with the provisions of Sections 5.02 and 5.03, respectively.
Section 5.02. Pension Credits.
(a)
Effective for Base Years beginning prior to December 1, 2002:
(1)
A Participant who had no Pension Credits as of November 30,
1989 or has achieved Vested Status will be given a year of Pension Credit for each Base Year
beginning prior to December 1, 2002 in which the Participant had Earnings of at least $5,000;
and
(2)
A Participant with at least one Pension Credit as of November 30,
1989 will be given a year of Pension Credit for each Base Year beginning prior to December 1,
2002 in which the Participant had Earnings of at least $2,000 subsequent to 1954 and prior to the
later of December 1, 1997 and the date the Participant achieves Vested Status; provided,
however, no Pension Credit shall be allowed a Pensioner based on Covered Employment after
Normal Retirement Age and during a Base Year prior to December 1, 1989.
(b)
Effective for Base Years beginning on or after December 1, 2002:
(1)
For the purposes of accrual and participation and, with respect to a
Participant not described in Section 5.02(b)(3), (4) or (5), for the purposes of vesting, a
Participant will be given a year of Pension Credit for each Base Year beginning on or after
December 1, 2009 in which the Participant had Earnings of at least $15,000.
(2)
For the purposes of accrual and participation and, with respect to a
Participant not described in Section 5.02(b)(4) or (5), for the purposes of vesting, a Participant
will be given a year of Pension Credit for each Base Year beginning on or after December 1,
2002 and before December 1, 2009 in which the Participant had Earnings of at least $7,500.
(3)
For the purposes of vesting, but not accrual (including, without
limitation, accrual of a minimum pension) or participation, a Participant not described in Section
5.02(b)(4) or (5) with at least one Pension Credit as of November 30, 2009 who has not achieved
Vested Status as of November 30, 2009 will be given a year of Pension Credit for each Base
Year beginning on or after December 1, 2009 in which the Participant had Earnings of at least
$7,500 prior to the date the Participant achieves Vested Status.
(4)
For the purposes of vesting, but not accrual (including, without
limitation, accrual of a minimum pension) or participation, a Participant not described in Section
5.02(b)(5) with at least one Pension Credit as of November 30, 2002 who has not achieved
Vested Status as of November 30, 2002 will be given a year of Pension Credit for each Base
Year beginning on or after December 1, 2002 in which the performer had Earnings of at least
$5,000 prior to the date the Participant achieves Vested Status.
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(5)
For the purposes of vesting, but not accrual (including, without
limitation, accrual of a minimum pension) or participation, a Participant with at least one Pension
Credit as of November 30, 1989 who has not achieved Vested Status as of November 30, 2002
will be given a year of Pension Credit for each Base Year beginning on or after December 1,
2002 in which the Participant had Earnings of at least $2,000 prior to the date the Participant
achieves Vested Status.
(c)
For employment with Producers whose Contribution Periods began on or
after January 1, 1958 and prior to November 30, 1989, Pension Credits will be allowed for
Covered Employment prior to the Contribution Period in accordance with regulations adopted by
the Trustees which are consistent with the rule that for employment with Producers whose
Contribution Periods began prior to January 1, 1958, no Base Year prior to 1955 shall be
included as a Pension Credit Year. In no event, however, will a Performer be credited with more
than five Pension Credit Years for employment prior to the Contribution Period of a Producer
who first became obligated to contribute to this Fund on or after January 1, 1971.
(d)
Notwithstanding the foregoing, in the event a Producer withdraws from
the Plan, and pursuant to ERISA Section 4210 does not incur withdrawal liability, no Pension
will be payable to Participants for employment with such Producer before the Producer’s
Contribution Period began, unless the Participant has commenced receipt of a Pension under the
Plan prior to the Producer’s withdrawal.
Section 5.03. Years of Vesting Service. A Participant shall be credited with one year of
Vesting Service for each year of Pension Credit earned, subject to the following conditions:
(a)
If a Participant works for a Producer outside Covered Employment and
such work immediately precedes or follows the Participant’s Covered Employment with that
Producer, such contiguous non-covered employment during the Contribution Period and after
November 30, 1976 shall be counted in determining Vesting Service.
(b)
Contiguous non-covered employment as an employee of a Producer prior
to the Producer’s Contribution Period and after November 30, 1976 shall be counted in
determining Vesting Service as determined by the Trustees, in their sole and absolute discretion.
(c)
Effective December 1, 2010, and notwithstanding anything in the Plan to
the contrary, if a Participant is not credited with a year of Pension Credit for vesting purposes
pursuant to Section 5.02 for a Base Year, the Participant shall be credited with a year of Vesting
Service for such Base Year if he or she has Earnings for at least 1,000 “hours of service,” as that
phrase is defined in 29 CFR §2530.200b-2.
Section 5.04. Military Service. Notwithstanding any provision of this Plan to the
contrary, benefits and service credited with respect to Qualified Military Service will be provided
in accordance with Code section 414(u); provided, however, that if an Active Participant who is
absent from Covered Employment due to Qualified Military Service shall die while performing
said Qualified Military Service on or after January 1, 2007, the Active Participant shall be
credited with years of Vesting Service, but not Pension Credit, for his or her period of Qualified
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Military Service up through the date of his or her death in compliance with Code section
401(a)(37).
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ARTICLE 6
RETIREMENT ACCOUNT ANNUITY
Section 6.01. Credits to Retirement Accounts.
(a)
Any Participant with Earnings prior to February 1, 1972 and any Dancer
shall have a Retirement Account which shall be credited with the following percentages of their
Base Year Earnings within a Producer’s Contribution Period and prior to November 30, 1989:
Base Year Earnings
Up to
November 30, 1965
After
November 30, 1965
and before
November 30, 1989
3%
2½
2
1½
1
3%
2¾
2½
2¼
2
First $10,000
Next $15,000
Next $25,000
Next $25,000
Excess over $75,000
(b)
Retirement Accounts shall accumulate at compound interest at the rate of
2-3/4% annually. Such interest shall be credited at the end of each Base Year on the Retirement
Account balance at the beginning of the year and up to the earlier of the date a benefit first
becomes payable under the Plan or November 30, 1989.
(c)
The Retirement Account balance shall be adjusted upon the Participant’s
retirement or death and prior to computation of any benefit based thereon for continuity of
employment on the basis of the Participant’s Years of Minimum Employment. A Participant
with Earnings prior to February 1, 1972 and any Dancer will be given a “Year of Minimum
Employment” for each Base Year during a Producer’s Contribution Period and prior to
November 30, 1989 in which his or her Earnings amounted to $1,000 or more. The Retirement
Account balance shall be reduced by 20% or $50, whichever is greater, for each year by which
the Participant falls short of five Years of Minimum Employment. The Retirement Account
balance shall be increased by $50 for each Year of Minimum Employment prior to November
30, 1989 in excess of five, except that no more than $500 will be added to the Retirement
Account balance.
Section 6.02. Eligibility for a Retirement Account Benefit. A Participant with a
Retirement Account balance who has attained age 55 upon application for a benefit under this
Article 6 shall receive a lump-sum benefit as described in Section 6.03 or a Retirement Account
Annuity as described in Section 6.04.
Section 6.03. Lump-Sum Payment of Retirement Account Balance.
(a)
If both the Actuarial Present Value of a Participant’s accrued Regular
Annuity and the Participant’s Retirement Account balance are less than $5,000, such balance or,
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if the Participant has not previously received a benefit under this Section 6.03, $100, if greater,
shall be paid in a lump-sum benefit following the Participant’s application for a benefit.
(b)
If either the Actuarial Present Value of a Participant’s accrued Regular
Annuity or the Participant’s Retirement Account balance exceeds $5,000, at the request of the
Participant and subject to the consent of the Participant’s Spouse pursuant to Section 8.03, the
Retirement Account balance shall be paid in a lump-sum benefit.
(c)
All benefit rights under this Plan of a Participant who received a lumpsum payment prior to December 1, 1989 or who has received a lump-sum payment on or after
December 1, 1989, and is not receiving a monthly annuity, unless repayment is permitted by and
timely made pursuant to paragraph (d), shall be determined as if the Participant had no Earnings,
Covered Contributions or Pension Credit prior to receipt of the lump-sum payment, except for
purposes of determining years of Vesting Service, and except that the $100 minimum under
paragraph (a) of this Section shall no longer apply.
(d)
A Participant who has received a lump-sum payment after November 30,
1976, and who returns to Covered Employment may repay to the Plan the full amount of the
lump-sum payment plus interest from the date of the distribution until the date of the repayment
compounded annually at the interest rate established under Code section 411(c)(2)(C) or such
lower rate as may be adopted by the Trustees from time to time for purposes of this paragraph.
Any such repayment must be made no later than five years after the first date upon which the
Participant returns to Covered Employment or the close of the fifth consecutive Base Year in
which the Participant earns no Pension Credit, whichever occurs first. If repayment pursuant to
this paragraph is timely made, any prior years of Pension Credit, Covered Contributions, or
Earnings shall be taken into account in any subsequent determination of benefits.
Section 6.04. Amount of Retirement Account Annuity. The monthly amount of the
Retirement Account Annuity payable during the Pensioner’s lifetime, subject to adjustment in
accordance with the provisions of Article 8, shall be the Actuarial Equivalent of the Retirement
Account balance as of the Effective Date of the Annuity, based on the Applicable Interest Rate
and Applicable Mortality Table.
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ARTICLE 7
PAYMENTS ON DEATH
Section 7.01. Preretirement Surviving Spouse Pension.
(a)
A Preretirement Surviving Spouse Pension is payable upon the death of a
Participant only if each of the following conditions is met:
(1)
the Participant has Earnings after August 22, 1984,
(2)
the Participant dies before any Regular Annuity or Retirement
Account benefit has become payable,
(3)
the Participant has (i) a Retirement Account balance greater than
zero, (ii) at least 5 years of Vesting Service or (iii) at least 5 years of Pension Credit, including at
least one Pension Credit earned in a Base Year subsequent to November 30, 1989, or (iv)
attained Normal Retirement Age and thereafter performed services in Covered Employment, and
(4)
either (i) the Participant’s Beneficiary is a Spouse to whom the
Participant has been married throughout the 12 months ending on the date of the Participant’s
death, or (ii) a Qualified Domestic Relations Order requires that the Participant’s former Spouse
be treated as the Participant’s Spouse for purposes of this benefit.
(b)
A Preretirement Surviving Spouse Pension shall be payable under the
following conditions:
(1)
If the Participant described in subsection (a) had attained age 55
prior to death, the Preretirement Surviving Spouse Pension shall be the same as the payments
which would have been payable to the Surviving Spouse if the Participant had elected a
Qualified Joint and Survivor Annuity with an Effective Date of the first of the month following
the date of the Participant’s death.
(2)
If the Participant described in subsection (a) had not attained age
55 prior to death, the Preretirement Surviving Spouse Pension shall not commence until the first
of the month following the date upon which the Participant would have attained age 55 and shall
be computed as if the Participant had survived but had no further Earnings to such date, had then
elected an immediate Qualified Joint and Survivor Annuity and died immediately thereafter. In
making such computation, the terms of the Plan in effect at the time of the Participant’s death
shall be utilized.
(3)
If the Participant described in subsection (a) had not attained age
55 prior to his or her death and the Participant’s Surviving Spouse (i) was eligible, but did not
elect under Section 7.01(c) to receive a death benefit described in Section 7.03, and (ii) dies prior
to any portion of the Preretirement Surviving Spouse Pension becoming payable, a surviving
minor child benefit shall be paid in the form of a lump sum to the Participant’s surviving
children age 21 or younger. The amount of this surviving minor child benefit (which shall be
divided per capita among such surviving children) shall be equal to the Actuarial Equivalent of
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the 60 monthly payments the Surviving Spouse would have received had the Surviving Spouse
elected under Section 7.01(c) to receive the death benefit under Section 7.03. Notwithstanding
Section 7.05, this surviving minor child benefit shall be payable in a lump sum upon application
made within 18 months of the Participant’s Surviving Spouse’s death.
(c)
The Surviving Spouse or former Spouse entitled to a Preretirement
Surviving Spouse Pension may, in lieu thereof, elect to receive the death benefit, if any, which
would otherwise be due under Section 7.02 or 7.03, plus a Preretirement Surviving Spouse
Pension reduced by the Actuarial Equivalent of said death benefit or, if the death benefit which
would otherwise be due under Section 7.02 or 7.03 exceeds the Actuarial Equivalent of such
Spouse’s Preretirement Surviving Spouse Pension computed under Section 7.01(b), to receive
the Actuarial Equivalent of such excess as a greater monthly amount of Preretirement Surviving
Spouse Pension. If the amount of the Preretirement Surviving Spouse Pension is less than $20
per month, its Actuarial Equivalent will be paid in a lump sum in lieu of monthly payments.
(d)
A Surviving Spouse (effective prior to June 26, 2013, other than a samesex spouse) may defer commencement of the survivor annuity beyond the earliest date set forth
above but not later than the date set forth in Section 9.05.
Section 7.02. Death Benefit Before Becoming Eligible for a Regular Annuity. If a
Participant with a Retirement Account balance dies before satisfying the conditions stated in
Section 7.01(a)(3)(ii) or (iii) and if either a Preretirement Surviving Spouse Pension is not
payable or an election is made under Section 7.01(c), there shall be paid to the Participant’s
Beneficiary the Participant’s Retirement Account balance or, if the Participant has received no
previous Retirement Account payments, $100, if greater.
Section 7.03. Death Benefit After Becoming Eligible for a Regular Annuity.
(a)
If a Participant who has satisfied the conditions stated in Section
7.01(a)(3)(ii) or (iii) dies before any Regular Annuity or Retirement Account benefit has become
payable, and if either a Preretirement Surviving Spouse Pension is not payable or an election is
made under Section 7.01(c), there shall be paid to the Participant’s Beneficiary the greater of (l)
the Participant’s Retirement Account balance, or (2) 60 monthly payments of the Regular
Annuity to which the Participant would have been entitled had the Participant retired
immediately prior to death.
(b)
If the Participant’s Beneficiary elects to receive the Retirement Account
balance and such amount is less than the Actuarial Equivalent of 60 monthly payments of the
Regular Annuity, such remaining balance will be converted to 60 monthly payments. If the
amount of such monthly payments is less than $20, then the entire balance will be paid as a lump
sum.
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Section 7.04. Death After Retirement. Subject to the provisions of Article 8 concerning
optional Forms of Annuity and Spousal consent.
(a)
If a Participant dies after a Retirement Account Annuity has become
payable but before the Participant has received annuity payments in an aggregate amount equal
to the Participant’s Retirement Account balance, there shall be paid to his or her Beneficiary the
difference between the Participant’s Retirement Account balance and the aggregate amount of
annuity payments theretofore paid to the Participant.
(b)
If a Participant dies after a Regular Annuity has become payable but
before receipt of 60 monthly benefit payments, there shall be paid to his or her Beneficiary the
greater of: (i) the balance of such 60 monthly payments, or (ii) any excess of the Participant’s
Retirement Account balance over the aggregate amount of annuity payments received.
Section 7.05. Payments of Death Benefits. The death benefit payments provided by this
Article, other than the Preretirement Surviving Spouse Pension, shall be paid to the Beneficiary,
upon application made within 18 months of the Participant’s death, in a lump sum or monthly
installment payments, not exceeding 60 in total, if applicable, unless the Participant has elected
in a written application filed with the Trustees that it is to be paid as an Actuarially Equivalent
annuity for the lifetime of the Beneficiary or for a specified period of years. However, no such
election will be effective if the monthly payment to the Beneficiary would be less than $20.
Section 7.06. Regular Annuity Commencement and Termination Dates.
(a)
In no event, unless the Participant elects otherwise, shall benefits be
payable later than the 60th day after the later of:
(1)
The close of the Base Year in which the Participant attains his or
her Normal Retirement Age; or
(2)
Covered Employment.
The close of the Base Year in which the Participant terminates all
(b)
The failure to file an application for benefits shall constitute an election to
defer benefits, but such election cannot defer payment beyond the required beginning date (as
described in Section 12.06(d)).
(c)
Benefit payments shall end with the payment for the month in which the
death of the Participant occurs, except as provided in accordance with Sections 7.01 through
7.05.
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ARTICLE 8
FORMS OF ANNUITY
Section 8.01. General. A Participant who is married on the Effective Date of his or her
annuity shall be deemed to have elected a Qualified Joint and Survivor Annuity under Section
8.02, and designated his or her Spouse as Beneficiary, unless the Participant has waived the
Qualified Joint and Survivor Annuity in the manner prescribed in Section 8.03 and has made a
valid and timely election to receive the Regular Annuity, or one of the optional forms of annuity
set forth in Section 8.04. The Trustees shall be entitled to rely on the written representation last
filed by the Participant before the Effective Date of his or her annuity as to whether the
Participant is married and, if so, to whom. This reliance shall include the right to deny benefits
to a person claiming to be the Spouse of a Participant in contradiction to the Participant’s written
representation before the Effective Date of his or her annuity.
Section 8.02. Qualified Joint and Survivor Annuity. A Qualified Joint and Survivor
Annuity means that the Participant will receive an adjusted monthly amount for life and, if the
Participant dies before his or her Spouse, the Surviving Spouse will receive a monthly benefit for
his or her life equal to 50% of the Participant’s adjusted monthly amount. The Participant’s
adjusted monthly amount shall be a percentage of the full monthly amount otherwise payable as
a Regular or Retirement Account Annuity (after adjustment, if any, for early retirement) as
follows:
(a)
The percentage shall be determined based on the RP-2000 Mortality
Tables, weighted 80% male and 20% female for Participants and, weighted 20% male and 80%
female for Beneficiaries, a 7% interest rate assumption, and the principle of overall Actuarial
Equivalence and equitable adjustment for the value of such annuities; and
(b)
The adjusted monthly amount of the Participant’s annuity shall be rounded
up to the closest dollar multiple.
Section 8.03. Waiver of Qualified Joint and Survivor Annuity.
(a)
Except as provided in paragraph (2) of this subsection, the Qualified Joint
and Survivor Annuity may be waived in favor of another form of distribution only as follows:
(1)
The Participant files the waiver in writing in such form as the
Trustees may prescribe, and the Participant’s Spouse acknowledges the effect of the
waiver and consents to it in writing, witnessed by a Notary Public or such representative
of the Plan as the Trustees may designate for that purpose; or
(2)
The Participant establishes to the satisfaction of the Trustees that:
(A)
he or she is not married;
(B)
the Spouse whose consent would be required cannot be
located; or
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(C)
consent of the Spouse cannot be obtained because of
extenuating circumstances, as provided in Treasury regulations.
(b)
The waiver and any required consent must be executed and filed with the
Trustees within the 180-day period ending on (i) the first day of the first period for which an
amount is payable as an annuity, or (ii) in the case of a benefit not payable in the form of an
annuity, the first day on which all events have occurred which entitle the Participant to such
benefit. The Participant may file a new waiver or revoke a previous waiver at any time during
that 180-day period.
(c)
A Spouse’s consent to a waiver of the Qualified Joint and Survivor
Annuity shall be effective only with respect to that Spouse, and shall be irrevocable unless the
Participant revokes the waiver to which it relates; provided, however, that the Spouse timely
received a written explanation of: (i) the terms and conditions of a Qualified Joint and Survivor
Annuity; (ii) the Participant’s right to make and the effect of an election to waive the Qualified
Joint and Survivor Annuity; (iii) the rights of the Spouse; (iv) the right to make, and the effect of,
a revocation of a previous election to waive the Qualified Joint and Survivor Annuity; and (v) the
relative values of the various optional forms of benefits listed in Section 8.04, as provided in
Treasury Regulation section 1.417(a)-3.
(d)
The Qualified Joint and Survivor Annuity may be waived, without consent
of the Spouse, in favor of any other form of benefit for which the Participant qualifies under the
Plan if it would provide the Participant’s Spouse with a lifetime annuity for the period, if any,
that he or she survives the Participant, no additional conditions are imposed on the Surviving
Spouse’s right to the benefit, and the amount of such survivor annuity would be greater than the
amount that would be payable as a Qualified Joint and Survivor Annuity.
Section 8.04. Options Available. Subject to the provisions set forth in Section 8.01, in
lieu of any other annuity and any death benefit which might otherwise be payable under Section
7.04, a Participant may elect to receive one of the optional forms of annuity payments specified
in this Section 8.04, subject to the conditions set forth.
(a)
Option A. Life Benefits; No Death Benefits. Under this option, in return
for the waiver of the payment on death, the Participant’s annuity shall be increased by the
Trustees on the basis of Actuarial Equivalence.
(b)
Option B. Joint-and-Survivor Annuity. Under this option a Participant
may select either a 100% Joint-and-Survivor Annuity pursuant to which the annuity shall,
without further reduction upon the Participant’s death, continue to be paid to a Beneficiary for
life, or a 50% Joint-and-Survivor Annuity pursuant to which one-half of the monthly amount of
the Participant’s annuity shall continue to be paid to a Beneficiary for life. In addition, the
Participant may elect a 75% Qualified Optional Joint-and-Survivor Annuity, pursuant to which
three-quarters of the monthly amount of the Participant’s annuity shall continue to be paid to a
Beneficiary for life. Election of this Option B Joint-and-Survivor Annuity is subject to
automatic revocation if the Beneficiary dies before the Participant has attained age 65 and before
the Participant has received annuity payments for twelve months, Option B shall be
automatically revoked, and the Participant’s annuity shall be restored as if this option had not
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been chosen, including retroactive adjustment and annuity payments shall be made to the
Participant under the provisions of Option A.
(c)
Option C. Level Income. A Participant may elect that, if his or her
annuity payments commence prior to his or her entitlement to benefits payable under Title II of
the Social Security Act, the amount shall be adjusted so as to anticipate to the extent feasible the
Participant’s Primary Social Security Benefit by providing higher annuity payments prior to the
entitlement to benefits payable under Title II of the Social Security Act, and lower payments
thereafter.
(d)
Option D. A Participant may elect a combination of Option B with Option
C.
(e)
Option E. A Participant may elect to receive an annuity payable to the
Participant in equal monthly payments until the earlier of the Participant’s death or the death of
the person to whom the Participant is married on the Effective Date of the Participant’s annuity
(herein the “Option E Spouse”), and thereafter:
(1)
if the Participant dies before the Option E Spouse, continuing
monthly payments, each in an amount equal to one-half the amount of the monthly payment
made during their joint lives, to the Option E Spouse until the death of the Option E Spouse, or
(2)
if the Option E Spouse dies before the Participant, (i) continuing
monthly payments to the Participant, each in an amount equal to the monthly payment to which
the Participant would have been entitled commencing on the Effective Date if no option or
election under this Article 8 had been made and (ii) upon the Participant’s death, Section 7.04
shall be applicable in determining any death benefit payable to the Participant’s Beneficiary.
Section 8.05. Adjustment of Optional Annuities. When any optional annuity under
Section 8.04 becomes effective, the amount of the Participant’s monthly payment shall be
adjusted as follows:
(a)
For determinations as of any Effective Date that is before February 1,
2006, the amount of the Participant’s monthly payment shall be adjusted in accordance with
formulae adopted by the Trustees based on the 1971 Group Annuity Mortality Table, weighted
80% male and 20% female, a 7% interest rate assumption, and the principle of overall Actuarial
Equivalence and equitable adjustment for such annuities.
(b)
For determinations as of any Effective Date that is on or after February 1,
2006, the amount of the Participant’s monthly payment shall be adjusted based on the RP-2000
Mortality Tables, weighted 80% male and 20% female, a 7% interest rate assumption, and the
principle of overall Actuarial Equivalence and equitable adjustment for the value of such
amenities.
(c)
In addition, the amount of Option C (Level Income) annuity shall not be
less than the amount determined based on the “Applicable Interest Rate” and the “Applicable
Mortality Table” described in Section 1.02; and
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(d)
The adjusted amount of the Participant’s monthly payment shall be
rounded to the closest dollar multiple.
(e)
The adjustments may be made applicable from year to year by the
Trustees to determine the amount of adjustment for:
(1)
any annuity the Effective Date of which falls within the Base Year,
and
(2)
any election of such annuity made by the Participant within the
year. However, such adjustments are not otherwise in any respect to be deemed a vested right of
any Participant nor part of his or her accrued benefit, and are subject to change by the Trustees
for annuities commencing later or for later elections, rejections or revocations; provided that no
change in the adjustments shall reduce the accrued benefit of a Participant as of the date of such
change.
Section 8.06. Conditions on Choice of Options.
(a)
No option can be selected if it would reduce the annuity to less than $20 a
(b)
Option A or C or E may be elected at any time prior to the Effective Date
month.
of the annuity.
(c)
Option B or D may not be elected for a Disability Pension unless it was
elected in writing at least three years in advance of the Effective Date of the annuity.
(d)
Prior to June 26, 2013, notwithstanding the subsection (c), Option B may
be elected for a Disability Pension by a Participant if it is a 50% Joint and Survivor Annuity and
the Beneficiary is the Participant’s same-sex Spouse.
(e)
The form elected may not be changed after the Effective Date of the
annuity.
(f)
Once an option has been elected it may not be revoked and the choice of a
Beneficiary to whom an annuity may become payable under Option B may not be changed, with
the following exceptions:
(1)
Option A or C or E may be revoked in writing at any time prior to
the Effective Date of the annuity.
(2)
If the Participant or Beneficiary dies at any time prior to the
Effective Date of the Participant’s annuity, Option B or D shall be canceled. If it is the death of
the Participant which is involved, death benefit payments shall be made as provided by Article 7.
If the Beneficiary’s death is involved, the Participant may, within six months thereafter, elect any
form of annuity and name another Beneficiary, subject to the provisions of Section 1.05.
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(3)
Option B or D may be revoked prior to the Effective Date of the
annuity if the Beneficiary was the Participant’s Spouse and the Spouse has been divorced or, if
the Participant elects a Qualified Joint and Survivor Annuity subject to the provisions of Section
1.05, Section 8.02 and Section 8.03.
Section 8.07. Continuation of Annuity. The monthly amount of any annuity, once it has
become payable, shall not be increased if the Spouse is subsequently divorced from the
Pensioner or, except in accordance with the provisions of Section 8.04(b) or 8.04(e), if the
Beneficiary or Option E Spouse predeceases the Pensioner.
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ARTICLE 9
APPLICATIONS, BENEFIT PAYMENTS, AND RETIREMENT
Section 9.01. Applications.
(a)
All benefits must be applied for in writing, in the form and manner
prescribed, filed with the Trustees (or a person or committee designated by the Trustees) in
advance of any payment thereof, except as specifically provided in Section 9.05. In the case of a
benefit payable to a Participant who has not attained age 65, such application must include a
representation as to the Participant’s retirement in a form satisfactory to the Trustees. A decision
regarding the claim will be made by the Trustees (or a person or committee designated by the
Trustees) within 90 days from the date the claim is received by the Fund Office, unless it is
determined that special circumstances require an extension of time for processing the claim, not
to exceed an additional 90 days. If such an extension is required, written notice of the extension
will be furnished to the claimant prior to expiration of the initial 90-day period. The notice of
extension will indicate the special circumstances requiring the extension of time and the date by
which the Trustees (or a person or committee designated by the Trustees) expect to make a
determination with respect to the claim. If the extension is required due to the claimant’s failure
to submit information necessary to decide the claim, the period for making the determination will
be tolled from the date on which the extension notice is sent to the claimant until the date on
which the claimant responds to the Fund Office’s request for information.
(b)
If a claim for benefits under the Plan has been denied, in whole or in part
(or, any other adverse benefit determination has been made), the claimant will be provided with
written notice of the determination, setting forth: (i) the specific reason(s) for the denial or other
adverse benefit determination, with references to the specific Plan provisions on which the
determination is based; (ii) a description of any additional material or information necessary for
the claimant to perfect the claim (including an explanation as to why such material or
information is necessary); (iii) a description of the Plan’s review procedures and the applicable
time limits; and (iv) a statement of the claimant’s right to bring a civil action under ERISA
following an adverse benefit determination on review.
Section 9.02. Information and Proof. Every Performer and Beneficiary shall furnish, at
the request of the Trustees (or such person or committee designated by the Trustees), any
information or proof reasonably required to determine benefit rights. If the claimant makes a
willfully false statement or furnishes fraudulent information or proof material to a claim, any
benefits not vested under this Plan in accordance with Section 9.07 may be denied, suspended or
discontinued. The Trustees shall have the right to recover any benefit payments made in reliance
on any false or fraudulent statements, information or proof submitted by a Performer or
Beneficiary and may require the payment of interest at the legal rate then prevailing on amounts
recoverable and may also seek the payment of any attorneys’ fees incurred.
Section 9.03. Action of Trustees. The Trustees shall have the exclusive right, power,
and authority, in their sole and absolute discretion, to administer, apply and interpret the Plan and
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any other Plan documents and to decide all matters arising in connection with the operation or
administration of the Plan. Without limiting the generality of the foregoing, the Trustees shall
have the sole and absolute discretionary authority to: (1) take all actions and make all decisions
with respect to the eligibility for, and the amount of, benefits payable under the Plan; (2)
formulate, interpret and apply rules, regulations and policies necessary to administer the Plan in
accordance with its terms; (3) decide questions, including legal or factual questions, relating to
the calculation and payment of benefits under the Plan; (4) resolve and/or clarify any
ambiguities, inconsistencies and omissions arising under the Plan or other Plan documents; and
(5) process, and approve or deny, benefit claims and rule on any benefit exclusions and
determine the standard of proof in any case. The Trustees shall also have the discretion and
authority to interpret Plan terms to reflect the Plan sponsor’s intent. In the event of a scrivener’s
error that renders a Plan term inconsistent with the Plan sponsor’s intent, the Plan sponsor’s
intent shall control, and any inconsistent Plan provisions are expressly subject to this
requirement. All determinations and interpretations made by the Trustees with respect to any
matter arising under the Plan and any other Plan documents shall be final and binding on all
affected Participant’s (and their Beneficiaries) and other individuals claiming benefits under the
Plan. Any determination made by the plan administrator shall be given deference in the event it
is subject to judicial review and shall be overturned only if the said determination is deemed to
be arbitrary and capricious. The Trustees may delegate any other such duties or powers as they
deem necessary to carry out the administration of the Plan.
Section 9.04. Right of Appeal and Right to Sue.
(a)
If a claim is denied, in whole or in part, (or any other adverse benefit
determination is made) pursuant to Section 9.01, the claimant (or his/her duly authorized
representative) may request a review of the determination. All requests for review must be sent
in writing to the Fund within sixty (60) days after receipt of the notice of denial or other adverse
benefit determination. In connection with the request for review, the claimant (or his/her duly
authorized representative) may submit written comments, documents, records and other
information relating to the claim. The claimant will be provided, upon written request and free
of charge, with reasonable access to (and copies of) all documents, records and other information
relevant to the claim. The review by the Trustees will take into account all comments,
documents, records, and other information submitted by the claimant relating to the claim.A
decision on review will be made by the Trustees (or a committee designated by the Trustees) at
its next regularly scheduled meeting following receipt of the request for review, unless the
request is filed less than thirty (30) days prior to the next regularly scheduled meeting, in which
case a decision will be made by no later than the date of the second regularly scheduled meeting
following receipt of such request. If special circumstances require an extension of time for
processing the request for review, the decision will be made at the third meeting following
receipt of such request. The claimant will be notified in advance of any such extension. The
notice will describe the special circumstances requiring the extension and will inform the
claimant of the date as of which the determination will be made. If the extension is required due
to the claimant’s failure to submit information necessary to decide the claim, the period for
making the determination will be tolled from the date on which the extension notice is sent to the
claimant until the date on which the claimant responds to the Fund Office’s request for
information. The claimant will be notified in writing of the determination on review. Notice of
the determination on the review will be provided within 5 days after the determination is made.
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If an adverse benefit determination is made on review, the notice will include the specific
reason(s) for the determination, with references to the specific Plan provisions on which it is
based. The notice will also include (i) a statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to (and copies of) all documents, records and other
information relevant to the claim; and (ii) a statement of the claimant’s right to bring a civil
action under Section 502(a) of ERISA. The decision of the Trustees (or its designated
committee) on review shall be final and binding on all parties.
(c)
If an appeal pursuant to Section 9.04(a) is denied, in whole or in part (or
any other adverse benefit determination is made as a result of an appeal), the claimant (or his/her
duly authorized representative) may, to the extent provided by law, file suit in a court of
appropriate jurisdiction challenging such denial or adverse benefit determination; provided,
however, no court action seeking to recover benefits under the terms of the Plan, to enforce
rights under the Plan, or to clarify the rights to future benefits under the terms of the Plan may be
commenced by the claimant without first having exhausted the claims and appeals procedures set
forth herein. No such lawsuit may be filed after the earlier of the term of the applicable statute of
limitations within the jurisdiction in which the lawsuit is filed or 365 days from the date of denial
of the appeal (or other adverse benefit determination as a result of an appeal).
Section 9.05. Benefit Payments Generally.
(a)
A Participant who is eligible to receive monthly benefits under this Plan
and makes application in accordance with its rules shall be entitled to receive such benefits for
the remainder of his or her lifetime, subject to the provisions of the Plan.
(b)
Benefits shall be payable commencing with the first month following the
month in which the claimant has fulfilled all the conditions for entitlement to benefits, including
the requirement of Section 9.01 for the filing of an application and notice of retirement with the
Fund Office. The first day of such first month is what is meant by the “Effective Date” of the
annuity. A Participant may, however, elect in writing filed with the Trustees to postpone the
Effective Date of an annuity, provided that no such election may postpone the commencement of
benefits to a date later than April 1 following the calendar year in which the Participant reaches
age 70½.
(c)
If the Participant’s Beneficiary is the Participant’s Surviving Spouse, the
payment of any benefits under the Plan that become payable on account of the Participant’s
death shall begin no later than by the December 31st of the calendar year immediately following
the calendar year in which the Participant died, or by December 31st of the calendar year in
which the Participant would have attained age 70½, if later. If a Participant’s Beneficiary is not
the Participant’s Surviving Spouse, the payment of any benefits under the Plan that become
payable on account of the Participant’s death shall begin no later than one year from the date of
death or, if later, as soon as practicable after the Trustees learn of the death. Prior to June 26,
2013, for purposes of this Section, a “Participant’s Surviving Spouse” shall not include a samesex Spouse.
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(d)
Notwithstanding any provision of the Plan to the contrary, a Participant’s
benefits payable under this Plan shall be distributed to the Participant, or his or her Beneficiary,
at a date no later than, and for a period not exceeding, that which is specified in Article 12.
Section 9.06. Disability Benefit Adjustment.
(a)
If a Participant has commenced receipt of a benefit reduced in accordance
with Section 3.03(g) and satisfies each of the following conditions, such Participant or the
Participant’s Beneficiary shall be entitled to the adjustments described in subsection (b) of this
Section 9.06:
(1)
on the Participant’s Disability Date the Participant met the
requirements of Section 4.01 and the requirements of Section 4.02 or Section 4.03,
(2)
prior to the Effective Date of the Participant’s benefit, the
Participant notified the Fund Office in writing that application had been made for a Social
Security Disability Award,
(3)
the Participant elected payment of such benefit in monthly
payments (as opposed to a lump sum) and, if the Participant is married and not receiving his or
her benefit in the form of a Qualified Joint and Survivor Annuity (or other form of benefit for
which spousal consent is not required under Section 8.03(b) of the Plan), submitted spousal
consent acknowledging and accepting the possibility of subsequent adjustment.
(4)
the effective date of such Award is within the six-month period
following the Effective Date of the Participant’s benefit and prior to the Participant’s death, and
(5)
evidence of such Award is submitted to the Fund Office within six
months after notification by the Social Security Administration to the Participant or the
Participant’s Beneficiary of such Award.
(b)
The adjustments referred to in subsection (a) of this Section 9.06, which
shall be made as of the first day of the month next following the month in which all of the
conditions described in subsection (a) are satisfied (the “Adjustment Date”) are:
(1)
the monthly benefit payable to the Participant or the Participant’s
Beneficiary on and after the Adjustment Date shall be increased to equal the monthly amount the
Participant or Beneficiary would then be entitled to receive if the Effective Date of Participant’s
benefit had been the effective date of the Social Security Disability Award and Section 4.02 or
Section 4.03 had applied, and
(2)
there shall be paid in a lump sum to the Participant or, if the
Participant has died prior to the Adjustment Date and prior to the death of the Beneficiary to the
Beneficiary, an additional benefit amount equal to the excess, if any, of (i) the sum of the
monthly amounts which would have been payable to the Participant and the Beneficiary prior to
the Adjustment Date, if the Participant had received a benefit to which Section 4.02 or 4.03
applied with an Effective Date of the later of the effective date of the Participant’s Benefit or the
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effective date of the Social Security Disability Award, over (ii) the sum of all benefit amounts
actually paid to the Participant and the Beneficiary for all months prior to the Adjustment Date.
(c)
Pension include:
Conditions and procedures for an Advance Application for a Disability
(1)
A Participant who becomes disabled prior to attaining age 55 and
who has met the service requirements in Section 4.02 may, after applying for a Social Security
Disability Award, submit an advance application for a Regular Annuity, payable in monthly
installments, commencing on the date to be determined as set forth herein (an “Advance
Application”). A Participant who has submitted an Advance Application and receives a Social
Security Disability Award must submit evidence of such Award to the Fund Office within six
months after notification by the Social Security Administration to the Participant of such Award.
(2)
If a Participant who has submitted an Advance Application attains
age 55 prior to receipt by the Fund Office of evidence that the Participant has received a Social
Security Disability Award, the Advance Application shall be treated as an application for a
Regular Annuity commencing on the first day of the first month following the Participant’s 55th
birthday.
(3)
In the case of a Participant who has complied with the procedures
in the first paragraph of this Section 9.06(c), if the effective date of the Participant’s Social
Security Disability Award is within the six-month period immediately following the date the
Participant submitted his or her Advance Application, the Regular Annuity for which the
Participant qualifies shall be deemed to have an Effective Date which is the later of the first day
of (i) the first month commencing at least 30 days after the Participant submitted the Advance
Application or (ii) the month including the effective date of the Award. The monthly payments
due from the deemed Effective Date to the date regular monthly payments of the Regular
Annuity commence shall be made in a lump sum.
(4)
All payments hereunder shall be subject to Spousal consent (prior
to June 26, 2013, only in the case of a married Participant married to a Spouse of the opposite
sex), except that Spousal consent shall not be required if the form of benefit is a Qualified Joint
and Survivor Annuity (or other form of benefit for which Spousal consent is not required under
Section 8.03(d) of the Plan).
Section 9.07. Vested Status and Nonforfeitability.
(a)
A Participant attains Vested Status when he or she has met all of the
requirements for a Regular Annuity, other than the age requirement. The benefit of a Participant
is nonforfeitable after the Participant has at least five years of Vesting Service or has attained
Normal Retirement Age. For the purposes of determining a Participant’s years of Vesting
Service, the Plan shall not exclude service with a Producer that is not permitted to be excluded
under Code section 411(a)(4) or 26 CFR §1.411(a)-6.
(b)
No amendment of this Plan may take away a Participant’s Vested Status if
the Participant has already earned it at the time of the amendment.
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Section 9.08. Incompetence or Incapacity of a Participant or Beneficiary. In the event it
is determined to the satisfaction of the Trustees that a Participant or Beneficiary is unable to care
for his or her affairs because of mental, physical or legal incapacity, any payment due may be
made to the legally-appointed guardian, committee, or other legal representative appropriate to
receive such payments on behalf of the Participant or Beneficiary.
Section 9.09. Non-Assignment of Benefits.
(a)
No Participant or Beneficiary entitled to any benefits under this Plan shall
have the right to assign, alienate, transfer, encumber, pledge, mortgage, hypothecate, anticipate,
or impair in any manner his or her legal or beneficial interest, or any interest in assets of the
Fund, or benefits of this Plan. Neither the Fund nor any of the assets thereof shall be liable for
the debts of any Participant or Beneficiary entitled to any benefits under this Plan, nor be subject
to attachment or execution or process in any court action proceeding.
(b)
Notwithstanding subsection (a) or any other provision of the Plan, benefits
shall be paid in accordance with a Qualified Domestic Relations Order as defined in Section
206(d)(3) of ERISA and with written procedures adopted by the Trustees in connection with
such Orders, which shall be binding on all Participants, Beneficiaries and other parties. In no
event shall the existence or enforcement of a Qualified Domestic Relations Order cause the Fund
to pay benefits with respect to a Participant in excess of the Actuarial Present Value of the
Participant’s benefits without regard to the Order, and benefits otherwise payable under the Plan
shall be reduced by the Actuarial Present Value of any payment ordered to be made under a
Qualified Domestic Relations Order. Section 1.02 shall apply to determine the Actuarial Present
Value of a benefit in connection with a Qualified Domestic Relations Order, if necessary. Prior
to June 26, 2013, for the purposes of this Section, a domestic relations order which names a
same-sex Spouse as an “alternate payee” shall not be considered as a Qualified Domestic
Relations Order.
Section 9.10. No Right to Assets. 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 funds received or held by
or for the account of the Retirement Fund, and no person shall have any right to benefits
provided by the Retirement Plan except as expressly provided herein.
Section 9.11. Maximum Limitation.
(a)
General Rule.
(1)
Notwithstanding any other provision of the Plan to the contrary,
the annual benefit otherwise payable as an annuity to a Pensioner in any limitation year under the
Plan shall not exceed the limitation under Code section 415(b), as annually adjusted for cost-ofliving under Code section 415(d); nor shall any Participant accrue a benefit under the Plan in any
limitation year under the Plan in excess of the limitation under Code section 415(b), as annually
adjusted for cost-of-living under Code section 415(d). For purposes of this Section 9.11, the
phrase “limitation year” shall mean the calendar year.
(2)
In addition to subsection (1), the Plan hereby incorporates by
reference the Treasury Regulations under Code section 415, specifically Treasury Regulations
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section 1.415(b)-1, for purposes of administering the annual limitation on benefit accruals,
including all applicable default provisions thereunder, except as set forth below:
(A)
For purposes of Code section 415(b)(1)(B) limitation of
100 percent of a Participant’s average Testing Compensation for his or her high 3 years, a
Participant’s average Testing Compensation is deemed to be increased in each limitation
year following his or her termination of service with the Producer for increases in the
cost-of-living in accordance with Code section 415(d).
(B)
Benefit payments that are limited by this Section shall be
increased annually to the cost-of-living adjusted level permitted by the limitations of this
Section as adjusted for later years in accordance with this paragraph, but in no event to a
level higher than the benefits attributable to Pension Credits earned by the Participant.
(C)
The benefit limitations applied in this Section 9.11 will be
applied by considering the Participant’s benefits, service, Plan participation and Testing
Compensation as if attributable to a single Producer, to the extent that the resulting
benefits payable to the Participant are no less than what would otherwise be payable.
(b)
Application of 415(b) adjustments as in effect prior to EGTRRA.
Notwithstanding any provision of the Plan or Code to the contrary, effective December 1, 2001,
(i) the defined benefit dollar limitation on annual benefits paid to a Pensioner shall remain at
$140,000, as in effect as of November 30, 2001, notwithstanding any increase to such limit
permitted under Code section 415(b), as amended by EGTRRA, and (ii) the adjustment to such
limitation where a retirement income benefit under the Retirement Plan begins before Social
Security age, as in effect as of November 30, 2001, shall continue to apply, notwithstanding any
change to such adjustment permitted under Code section 45(b), as amended by EGTRRA.
(c)
Interest Rate Assumptions for Testing Optional Payment Forms. The
interest rate assumption must not be less than the greater of: (A) 5.5%, (B) the interest rate
specified under the Plan, or (C) the rate that provides a benefit of not more than 105% of the
benefit that would be provided using the applicable interest rate under Code section 417(e)(3).
(d)
Effective for Base Years commencing on or after January 1, 2012, the
total annual benefit payable to any Puerto Rico Performer under this Plan and all other qualified
defined benefit plans required to be aggregated with this Plan shall not exceed the lesser of (i)
the defined benefit limitation on annual benefits provided in Section 9.11(a)(1) above, or (ii) the
limitations on such benefits provided under Section 1081.01(a)(11) of the Puerto Rico Code.
Section 9.12. 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 the Participant
would have been entitled to receive immediately before the merger, consolidation, or transfer (if
this Plan had then terminated).
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Section 9.13. Redetermination of Benefits.
(a)
If a Pensioner returns to Covered Employment and earns additional
Pension Credits, the benefit payable will be redetermined annually as follows. Where a
Pensioner is receiving Regular Annuity benefits and the Participant’s Earnings during the
immediately preceding Base Year are sufficient for a year of Pension Credit, an additional
monthly benefit will be calculated on the basis of such Earnings, and the benefit accrual rates
applicable to Pensioners with an Effective Date on the June 1 next following the close of such
immediately preceding Base Year and any early retirement reduction based on the Pensioner’s
age on such day.
(b)
Except as stated in the following sentence, the additional monthly benefit
shall be payable in the same form or option as the Regular Annuity benefits the Pensioner had
previously been receiving. In the event that a Participant elected that benefits be paid in the form
of a Qualified Joint and Survivor Annuity or under some other survivor benefit option and the
Beneficiary is no longer alive, the amount of additional benefit will be calculated without the
adjustment for the original optional form of benefit. The adjustment for the original optional
form of benefit, if any, shall be the same as that adjustment that applied at the original Effective
Date.
Section 9.14. Rollover Distributions.
(a)
A Distributee may elect at the time and in the manner prescribed by the
Trustees, to have all or a portion not less than $500.00 of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the Distributee.
(b)
For purposes of this Section: “Eligible Rollover Distribution” means any
benefit payment which except for an election under this Section would be payable to the
Distributee, excluding any payment which is one of a series of substantially equal periodic
payments (not less frequently than annually) continuing for the life of the Distributee and also
excluding any portion of a benefit to the extent such portion is required to be distributed under
Code section 401(a)(9).
(c)
“Eligible Retirement Plan” means an individual retirement account,
described in Code section 408(a), an individual retirement annuity described in Code section
408(b), a qualified trust described in Code section 401(a), an annuity plan described in Code
section 403(a), an annuity contract described in Code Section 403(b) and an eligible plan
described under Code section 457(b) 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 any amounts transferred into such plan from this Plan. The
definition of “Eligible Retirement Plan” shall also apply in the case of a distribution to a
Surviving Spouse, or to a Spouse or former Spouse who is the alternate payee under a qualified
domestic relations order, as defined in Code section 414(p) of the Code. An Eligible Rollover
Distribution may be paid on account of a designated non-Spouse Beneficiary, provided,
however, that the Eligible Rollover Distribution is paid to only to either an individual retirement
account or an individual retirement annuity (described in Code section 408(a) and 408(b),
respectively (hereinafter “IRA”)) that is established on behalf of the designated Beneficiary as an
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inherited IRA as described in Code section 402(c)(11). A Participant or an individual
Beneficiary will be eligible for a Direct Rollover of his or her Eligible Rollover Distribution to a
Roth IRA (as defined in Code section 408A(b)).
(d)
“Distributee” means a Participant, or other person entitled to a benefit
payment as a Participant’s Surviving Spouse, a Participant’s Spouse or former Spouse who is the
alternate payee under a qualified domestic relations order, or an individual Beneficiary for
Eligible Rollover Distributions. Prior to June 26, 2013, for the purposes of this Section, a
“Spouse” shall not include a same-sex Spouse.
(e)
The election provided in this section may not be made by a Distributee
expected to receive less than $200.00 in benefits under the Plan in the calendar year.
(f)
An Eligible Rollover Distribution may not be divided among multiple
Eligible Retirement Plans.
(g)
Direct Rollover Distributions For Puerto Rico Performers.
(1)
The following provisions shall apply to distributions from the Plan:
(A)
If a Puerto Rico Performer or a Beneficiary of a Puerto
Rico Performer (referred to collectively as the “distributee”) is entitled to a distribution
under the Plan that constitutes an “eligible rollover distribution” as defined below, the
distribution shall be eligible for direct rollover.
(B)
At the written request of such distributee, and upon receipt
of the written direction of the Trustees (or a person or committee designated by the
Trustees), the Trustees shall make a Direct Rollover Distribution of the amount requested
by such distributee in accordance with Section 1081.01(b)(2)(A) of the Puerto Rico Code,
to an eligible retirement plan (as defined below).
(C)
For purposes of this Section 9.14 (g), an “eligible rollover
distribution” is a single lump sum payment, as defined in Section 1081.01(b)(1) of the
Puerto Rico Code.
(D)
For purposes of this Section 9.14 (g), an “eligible
retirement plan” is an individual retirement account described in Section 1081.02(a) of
the Puerto Rico Code, an individual retirement annuity described in Section 1081.02(b)
of the Puerto Rico Code, or a qualified trust described in Section 1081.01(a) of the Puerto
Rico Code that accepts direct rollovers.
(2)
All Direct Rollover Distributions shall be made in accordance with
the following:
(A)
A Direct Rollover Distribution may be divided and made
only between two eligible retirement plans. A Direct Rollover Distribution may not be
divided among more than two eligible retirement plans.
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(B)
Direct Rollover Distributions shall be made in cash to the
trustee of the eligible retirement plan, in accordance with procedures established by the
Trustees (or a person or committee designated by the Trustees) to make direct rollovers
under Section 1081.01(b)(2)(A) of the Puerto Rico Code.
(C)
Direct Rollover Distribution shall not be made unless the
distributee furnishes the Trustees (or a person or committee designated by the Trustees)
with such information as the Trustees (or a person or committee designated by the
Trustees) shall require and deems to be sufficient.
(D)
Direct Rollover Distributions shall be treated as all other
distributions under the Plan. They shall not be treated as a direct trustee-to-trustee
transfer of Plan assets and liabilities.
Section 9.15. Overpayments
(a)
Obligation to Pay Excess Amounts: A Performer or Beneficiary who
receives any payment from the Plan in excess of the amount which such individual is entitled to
receive under the Plan, including, without limitation, due to mistake of fact or law, reliance on
false or fraudulent statements, information or proof submitted by a claimant, or continuation of
payments after the death of a Participant or Beneficiary (“Excess Payments”), shall be obligated
to repay such Excess Payments to the Plan upon receipt of a written notice by the Trustees (or
such person or committee designated by the Trustees) requesting repayment.
(b)
Recovery by Plan: The Trustees shall have full authority, in their sole
discretion, to recover the amount of any Excess Payments (plus interest and costs) paid by the
Plan to or on behalf of any Performer or Beneficiary. Such authority (either individually or in
combination) shall include, but shall not be limited to, the right to:
(1)
Seek the Excess Payment in a lump sum from such individual;
(2)
Reduce future benefits payable to the individual who received the
overpayment;
(3)
Reduce future benefits payable to a Beneficiary who is, or may
become, entitled to receive payments under the Plan; and
(4)
Initiate legal action or take such other legal action as may be
necessary or appropriate to recover any overpayment (plus interest and costs).
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ARTICLE 10
MISCELLANEOUS
Section 10.01. Non-Reversion. It is expressly understood that in no event shall any of the
corpus or assets of the Fund revert to the Producers or be subject to any claims of any kind or
nature by the Producers, except for the return of an erroneous contribution within the time limits
prescribed by law.
Section 10.02. Limitation of Liability. This Plan has been established on the basis of an
actuarial calculation, which has established to the extent possible that the contributions will, if
continued, be sufficient to maintain the Plan on a permanent basis, fulfilling the funding
requirements of ERISA. Except for liabilities which may result from provisions of ERISA,
nothing in this Plan shall be construed to impose any obligation to contribute beyond the
obligation of the Producer to make contributions as stipulated in its Collective Bargaining
Agreement. There shall be no liability upon the Trustees individually or collectively, or upon
AFTRA or the Producers to provide the benefits established by this Plan, if the Retirement Fund
does not have assets to make such payments.
Section 10.03. New Producer. If a Producer is sold, merged or otherwise undergoes a
change of company identity, the successor company shall participate as to the employees
theretofore covered in the Plan just as if it were the original company, provided it remains a
Producer as defined in Section 1.04.
Section 10.04. Termination.
(a)
The Trustees shall have the right to discontinue or terminate this Plan in
whole or in part. The rights of all affected Participants to benefits accrued to the date of
termination, partial termination, or discontinuance to the extent funded as of such date shall be
nonforfeitable.
(b)
In the event of a discontinuance or termination of the Plan, the Trustees
shall take such steps as they deem necessary or desirable to comply with Sections 4041A and
4281 of ERISA.
Section 10.05. Amendment. This Plan may be amended by the Trustees, consistent with
the provisions of the Trust Agreement. Notwithstanding the foregoing, no amendment to the
Plan shall decrease the accrued benefit of any Participant unless the amendment satisfies the
requirements of Code section 412(d)(2).
Section 10.06. Provisions Inconsistent with Qualified Status.
This Plan is intended to be a qualified plan under the Code. Any provision of this Plan
that would cause the Plan to fail to comply with the requirements for qualified plans under the
Code shall, to the extent necessary to maintain the qualified status of the Plan, be null and void
ab initio, and of no force and effect, and the Plan shall be construed as if the provision had never
been inserted in the Plan.
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ARTICLE 11
TOP HEAVY PROVISIONS
If the Plan (when aggregated with other plans, if so elected) is or becomes top-heavy with
respect to any contributing Producer in any Base Year, the provisions of this Article will
supersede any conflicting provisions in the Plan.
Section 11.01. Definitions.
(a)
Key Employee. A Key Employee means any Participant or former
Participant (including any deceased Participant) who at any time during the Base Year that
includes the determination date was an officer of the Producer having annual compensation
greater than $130,000 (as adjusted under Code section 416(c) for Plan Credit Years beginning
after December 31, 2002), a 5-percent owner (as defined in Treasury Regulation section 1.416-1,
T-17) of the Producer, or a 1-percent owner of the Producer having annual compensation of more
than $150,000. For this purpose, annual compensation means compensation within the meaning
of Code section 415(c)(3). The determination of who is a Key Employee will be made in
accordance with Code section 416(i)(1) and the applicable regulations and other guidance of
general applicability issued thereunder.
(b)
Top-Heavy Plan. The Plan is top-heavy with respect to a contributing
Producer if this Plan is part of a required aggregation group and the top-heavy ratio for the group
exceeds 60%, and the Plan is not part of a permissive aggregation group with respect to such
Producer the top-heavy ratio for which is less than 60%.
(c)
Top-Heavy Ratio.
(1)
If the contributing Producer has not maintained a defined
contribution plan (including any Simplified Employee Pension Plan) which during the 5-year
period ending on the determination date has or has had account balances, the top-heavy ratio is a
fraction, the numerator of which is the sum of the present values of the accrued benefits of all
Key Employees of the contributing Producer as of the determination date (including any part of
any accrued benefit distributed in the 5-year period ending on the determination date) and the
denominator of which is the sum of the present value of accrued benefits (including any amount
distributed in the 5-year period ending on the determination date), determined in accordance with
Code section 416 and the regulations thereunder.
(2)
If the contributing Producer maintains or has maintained one or
more defined contribution plans (including any Simplified Employee Pension Plan) which during
the 5-year period ending on the determination date has or has had any account balances, the topheavy ratio is a fraction, the numerator of which is the sum of the present value of accrued
benefits under the aggregated defined benefit plans, including this Plan, for all Key Employees
(determined as in paragraph (1) above), and the sum of account balances under the aggregated
defined contribution plans for all Key Employees of the contributing Producer as of the
determination date, and the denominator of which is the sum of the present value of accrued
benefits for all Participants under the defined benefit plans of the contributing Producer, and the
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account balances under the aggregated defined contribution plans for all Participants as of the
determination date, all determined in accordance with Code section 416 and the regulations
thereunder. The account balances under defined contribution plans in both the numerator and
denominator of the top-heavy ratio are increased for any distribution of an account balance made
in the 5-year period ending on the determination date.
(3)
For purposes of paragraphs (1) and (2) the value of account
balances and the present value of accrued benefits will be determined as of the most recent
valuation date that falls within or ends with the 12-month period ending on the determination
date. The account balance and accrued benefits of a Participant (1) who is not a Key Employee
but who was a Key Employee in a prior year or (2) who has not been credited with at least one
hour of service with a contributing Producer at any time during the 5-year period ending on the
determination date will be disregarded.
(4)
The accrued benefit of Participant who is not a Key Employee
shall be determined under (A) the method, if any, that applies for accrual purposes under all
defined benefit plans maintained by the Producer, or (B) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrued rate permitted under the fractional rule
of Code section 411(b)(1)(c).
(5)
The term “Top-Heavy Ratio,” as defined in this subsection and in
accordance with Section 11.02 through Section 11.05, inclusive, is the comparison of present
values of accrued benefits for Key Employees to the present value for all Participants exceeding
60% and taking into account all distributions made during a 1-year period ending on the most
recent determination date and not taking into account any accrued benefit or account balance of
an individual who has not performed services for a Producer during a 1-year period ending on
the determination date, except that in the case of a distribution made for a reason other than
severance of employment, death, or disability, this paragraph shall be applied by substituting 5year period for 1-year period.
Section 11.02. Permissive Aggregation Group. The required aggregation group of plans
with respect to a Contributing Producer plus any other plan or plans maintained by such
Producer which, when considered together with the required aggregation group, would continue
to satisfy the requirements of Code sections 401(a)(4) and 410.
Section 11.03. Required Aggregation Group. Each qualified plan maintained by the
contributing Producer in which at least one Key Employee participates or participated at any
time during the determination period (regardless of whether the plan has terminated), and (2) any
other qualified plan of the contributing Producer which enables a plan described in (1) to meet
the requirements of Code sections 401(a)(4) or 410.
Section 11.04. Determination Date. The determination date with respect to any Base
Year shall be the last day of the preceding Base Year.
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Section 11.05. Present Value.
(a)
Determination of Present Values and Amounts. This subsection (g) shall
apply for purposes of determining the present values of accrued benefits and the amounts of
account balances of Participants as of the determination date.
(b)
Distributions During the Year Ending on the Determination Date. The
present value of accrued benefits and the amounts of account balances of a Participant as of the
determination date shall be increased by the distributions made with respect to the Participant
under the Plan and any plan aggregated with the Plan under Code section 416(g)(2) during the
one-year period ending on the determination date. The preceding sentence also shall apply to
distributions under a terminated plan which, had it not been terminated, would have been
aggregated with the Plan under Code section 416(g)(2)(A)(i). In the case of a distribution made
for a reason other than severance from employment, death, or disability, this provision shall be
applied by substituting “5-year period” for “1-year period.”
(c)
Participants Not Performing Services During the Year Ending on the
Determination Date. The accrued benefits and account of any individual who has not performed
services for the Producer during the 1-year period ending on the determination date shall not be
taken into account.
Section 11.06. Minimum Benefit.
(a)
Notwithstanding any other provision of this Plan and except as provided in
subsection (b) or (c) of this Section, for any year in which the Plan is Top-Heavy with respect to
a contributing Producer, each Participant of such Producer who (1) is neither (A) a Key
Employee nor (B) a Participant in the Plan pursuant to a Collective Bargaining Agreement to
which such contributing Producer is a party and (2) completes 1,000 hours of service in such
Base Year will accrue a benefit (to be provided solely by Producer contributions and expressed
as a life annuity beginning at normal retirement age) of not less than two percent (2%) of his or
her highest average compensation for the five consecutive years for which such Participant had
the highest compensation. For purposes of this subsection compensation shall be defined as in
Section 1.11, the definition of the term “Earnings”.
(b)
No additional benefit accruals shall be provided pursuant to (a) above to
the extent that the total accruals on behalf of the Participant attributable to Producer
contributions will provide a benefit expressed as a life annuity commencing at normal retirement
age that equals or exceeds twenty percent (20%) of the Participant’s highest average
compensation for the five consecutive years for which the Participant had the highest
compensation. For this purpose, the total Producer-derived accrued benefit shall include any
benefit accrued in years before the Plan became Top-Heavy with respect to such contributing
Producer.
(c)
The provisions of subsection (a) shall not apply to any Participant to the
extent such Participant is covered under any other plan or plans of the contributing Producer and
such other plan or plans provides for the minimum benefit required pursuant to subsection (a).
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(d)
Minimum Benefits. For purposes of satisfying the minimum benefits
requirements of Code section 416(c)(1) and the Plan, in determining years of service with the
Producer, any service with the Producer shall be disregarded to the extent that such service
occurs during a Plan Credit Year when the Plan benefits (within the meaning of Code section
410(b)) no Key Employee or former Key Employee.
Section 11.07. Minimum Vesting Requirement. For any Base Year in which this Plan is
Top-Heavy with respect to a contributing Producer, the following vesting schedule shall be
applicable to the accrued benefit of each Participant of such contributing Producer other than a
Participant who participates in this Plan pursuant to a Collective Bargaining Agreement to which
such Contributing Producer is a party:
Years of
Vesting Service
Percentage of
Accrued Benefit Vested
2
3
4
5
6 or more
20
40
60
80
100
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ARTICLE 12
REQUIRED MINIMUM DISTRIBUTION RULES
Section 12.01. General Rules.
(a)
Effective Date. The provisions of this Article 12 shall apply for purposes
of determining required minimum distributions for calendar years beginning with the 2003
calendar year.
(b)
Precedence. The requirements of this Article 12 shall take precedence
over any inconsistent provisions of the Plan.
(c)
Requirements of Treasury Regulations Incorporated. All distributions
required under this Article 12 shall be determined and made in accordance with the Treasury
regulations under Code section 401(a)(9).
(d)
TEFRA Section 242(b)(2) Elections. Notwithstanding the other
provisions of this Article 12, other than paragraph (c) above, distributions may be made under a
designation made before January 1, 1984, in accordance with section 242(b)(2) of the Tax Equity
and Fiscal Responsibility Act (TEFRA) and the provisions of the Plan that relate to section
242(b)(2) of TEFRA.
Section 12.02. Time and Manner of Distribution.
(a)
Required Beginning Date. The Participant’s entire interest will be
distributed, or begin to be distributed, to the Participant no later than the Participant’s required
beginning date.
(b)
Death of Participant Before Distributions Begin. If the Participant dies
before distributions begin, the Participant’s entire interest will be distributed, or begin to be
distributed, no later than as follows:
(1)
If the Participant’s Surviving Spouse is the Participant’s sole
designated Beneficiary, then distributions to the Surviving Spouse will begin by December 31 of
the calendar year immediately following the calendar year in which the Participant died, or by
December 31 of the calendar year in which the Participant would have attained age 70½ , if later.
(2)
If the Participant’s Surviving Spouse is not the Participant’s sole
designated Beneficiary, then distributions to the designated Beneficiary will begin by December
31 of the calendar year immediately following the calendar year in which the Participant died.
(3)
If there is no designated Beneficiary as of September 30 of the year
following the year of the Participant’s death, the Participant’s entire interest will be distributed
by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.
(4)
If the Participant’s Surviving Spouse is the Participant’s sole
designated beneficiary and the Surviving Spouse dies after the Participant but before
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distributions to the Surviving Spouse begin, this Section 12.02, other than Section 12.02(b)(1),
will apply as if the Surviving Spouse were the Participant.
For purposes of this subsection (b) and Section 12.05, distributions are considered to begin on
the Participant’s required beginning date (or, if Section 12.02(b)(iv) applies, the date
distributions are required to begin to the Surviving Spouse under Section 12.02(b)(i)). If annuity
payments irrevocably commence to the Participant before the Participant’s required beginning
date (or to the Participant’s Surviving Spouse before the date distributions are required to begin
to the Surviving Spouse under Section 12.02(b)(1)), the date distributions are considered to begin
is the date distributions actually commence.
(c)
Form of Distribution. Unless the Participant’s interest is distributed in the
form of an annuity purchased from an insurance company or in a single sum on or before the
required beginning date, as of the first distribution calendar year distributions will be made in
accordance with Sections 12.03, 12.04 and 12.05 of this Article 12. If the Participant’s interest is
distributed in the form of an annuity purchased from an insurance company, distributions
thereunder will be made in accordance with the requirements of Code section 401(a)(9) and the
Treasury regulations. Any part of the Participant’s interest which is in the form of an individual
account described in Code section 414(k) will be distributed in a manner satisfying the
requirements of Code section 401(a)(9) and the Treasury regulations that apply to individual
accounts.
Section 12.03. Determination of Amount to be Distributed Each Year.
(a)
General Annuity Requirements. If the Participant’s interest is paid in the
form of annuity distributions under the Plan, payments under the annuity will satisfy the
following requirements:
(1)
the annuity distributions will be paid in periodic payments made at
intervals not longer than one year;
(2)
the distribution period will be over a life (or lives) or over a period
certain not longer than the period described in Section 12.04 or 12.05;
(3)
once payments have begun over a period certain, the period certain
will not be changed even if the period certain is shorter than the maximum permitted;
(4)
payments will either be nonincreasing or increase only as follows:
(A)
by an annual percentage increase that does not exceed the
annual percentage increase in a cost-of-living index that is based on prices of all items
and issued by the Bureau of Labor Statistics;
(B)
to the extent of the reduction in 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
Section 12.04 dies or is no longer the Participant’s Beneficiary pursuant to a qualified
domestic relations order within the meaning of Code section 414(p);
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(C)
the Participant’s death; or
(D)
to provide cash refunds of Participant contributions upon
to pay increased benefits that result from a Plan
amendment.
(b)
Amount Required to be Distributed by Required Beginning Date. The
amount that must be distributed on or before the Participant’s required beginning date (or, if the
Participant dies before distributions begin, the date distributions are required to begin under
Section 12.02(b)(1) or (2)) is the payment that 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., bi-monthly, monthly, semi-annually, or annually. All of the Participant’s benefit
accruals as of the last day of the first distribution calendar year will be included in the calculation
of the amount of the annuity payments for payment intervals ending on or after the Participant’s
required beginning date.
(c)
Additional Accruals After First Distribution Calendar Year. Any
additional benefits accruing to the Participant in a calendar year after the first distribution
calendar year will be distributed beginning with the first payment interval ending in the calendar
year immediately following the calendar year in which such amount accrues.
Section 12.04. Requirements For Annuity Distributions That Commence During
Participant’s Lifetime.
(a)
Joint Life Annuities Where the Beneficiary Is Not the Participant’s
Spouse. If the Participant’s interest is being distributed in the form of a joint and survivor
annuity for the joint lives of the Participant and a non-Spouse Beneficiary, annuity payments to
be made on or after the Participant’s required beginning date to the designated Beneficiary after
the Participant’s death must not at any time exceed the applicable percentage of the annuity
payment for such period that would have been payable to the Participant using the table set forth
in Q&A-2 of section 1.401(a)(9)-6 of the Treasury regulations. If the form of distribution
combines a joint and survivor annuity for the joint lives of the Participant and a non-Spouse
beneficiary and a period certain annuity, the requirement in the preceding sentence will apply to
annuity payments to be made to the designated Beneficiary after the expiration of the period
certain.
(b)
Period Certain Annuities. Unless the Participant’s Spouse is the sole
designated Beneficiary and the form of distribution is a period certain and no life annuity, the
period certain for an annuity distribution commencing during the Participant’s lifetime may not
exceed the applicable distribution period for the Participant under the Uniform Lifetime Table
set forth in section 1.401(a)(9)-9 of the Treasury regulations for the calendar year that contains
the annuity starting date. If the annuity starting date precedes the year in which the Participant
reaches age 70, the applicable distribution period for the Participant is the distribution period for
age 70 under the Uniform Lifetime Table set forth in section 1.401(a)(9)-9 of the Treasury
regulations plus the excess of 70 over the age of the Participant as of the Participant’s birthday in
the year that contains the annuity starting date. If the Participant’s Spouse is the Participant’s
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sole designated Beneficiary and the form of distribution is a period certain and no life annuity,
the period certain may not exceed the longer of the Participant’s applicable distribution period,
as determined under this Section 12.04(b), or the joint life and last survivor expectancy of the
Participant and the Participant’s Spouse as determined under the Joint and Last Survivor Table
set forth in section 1.401(a)(9)-9 of the Treasury regulations, using the Participant’s and
Spouse’s attained ages as of the Participant’s and Spouse’s birthdays in the calendar year that
contains the annuity starting date.
Section 12.05. Requirements For Minimum Distributions Where Participant Dies Before
Date Distributions Begin.
(a)
Participant Survived by Designated Beneficiary. If the Participant dies
before the date distribution of his or her interest begins and there is a designated Beneficiary, the
Participant’s entire interest will be distributed, beginning no later than the time described in
Section 12.02(b)(1) or (2), over the life of the designated Beneficiary or over a period certain not
exceeding:
(1)
unless the annuity starting date is before the first distribution
calendar year, the life expectancy of the designated Beneficiary determined using the
Beneficiary’s age as of the Beneficiary’s birthday in the calendar year immediately following the
calendar year of the Participant’s death; or
(2)
if the annuity starting date is before the first distribution calendar
year, the life expectancy of the designated Beneficiary determined using the Beneficiary’s age as
of the Beneficiary’s birthday in the calendar year that contains the annuity starting date.
(b)
No Designated Beneficiary. If the Participant dies before the date
distributions begin and there is no designated Beneficiary as of September 30 of the year
following the year of the Participant’s death, distribution of the Participant’s entire interest will
be completed by December 31 of the calendar year containing the fifth anniversary of the
Participant’s death.
(c)
Death of Surviving Spouse Before Distributions to Surviving Spouse
Begin. If the Participant dies before the date distribution of his or her interest begins, the
Participant’s Surviving Spouse is the Participant’s sole designated Beneficiary, and the Surviving
Spouse dies before distributions to the Surviving Spouse begin, this Section 12.05 will apply as
if the Surviving Spouse were the Participant, except that the time by which distributions must
begin will be determined without regard to Section 12.02(b)(1).
Section 12.06. Definitions.
(a)
Designated Beneficiary. The individual who is designated as the
Participant’s Beneficiary under the Plan and is the designated Beneficiary under Code section
401(a)(9) and section 1.401(a)(9)-1, Q&A-4, of the Treasury regulations.
(b)
Distribution calendar year. A calendar year for which a minimum
distribution is required. For distributions beginning before the Participant’s death, the first
distribution calendar year is the calendar year immediately preceding the calendar year which
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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 Section 12.02(b).
(c)
Life expectancy. Life expectancy as computed by use of the Single Life
Table in Section 1.401(a)(9)-9 of the Treasury regulations.
(d)
Required beginning date. The required beginning date shall be the April
1st of the calendar year following the calendar year the Participant attains age 70½.
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ARTICLE 13
PUERTO RICO SUPPLEMENT
Pertaining to Puerto Rico Performers of any Producer as defined in Article I of the Plan.
Section 13.01. Use of Terms.
All terms and provisions of the Plan shall apply to the participation in the Plan by Puerto
Rico Performers, except that where the terms and provisions of the Plan and this Puerto Rico
Supplement conflict, the terms of the Puerto Rico Supplement shall govern the participation in
the Plan of Puerto Rico Performers.
Section 13.02. Applicability of this Article.
This Article 13 amends the provisions of the Plan only to the extent that it is applicable to
a Puerto Rico Performer. In no case shall any provision of this Article 13 cause the reduction or
elimination of any Performer’s accrued benefit (including optional forms of benefit and the
manner and timing thereof) in violation of Section 411(d)(6) of the Code or Section 204(g) of
ERISA.
Section 13.03. Additional Definitions of Terms.
(a)
“Puerto Rico Code” means the Puerto Rico Internal Revenue Code of
2011, as amended, or any successor statute enacted in its place.
(b)
“Direct Rollover Distribution” means a distribution which constitutes an
eligible rollover distribution as defined in Puerto Rico Code Section 1081.01(b)(2)(A) and which
is rolled over to an eligible retirement plan in accordance with Section 13.04(b) below, as
amended herein.
(c)
“Highly Compensated Puerto Rico Employee” means any Puerto Rico
Performer who (a) is an officer of a Producer; (b) owns more than five percent (5%) of the stock
entitled to vote or of the total value of all classes of stock of a Producer; (c) owns more than five
percent (5%) of the capital or of the interest in the profits of a Producer; or (d) had Testing
Compensation from a Producer for the preceding taxable year in excess of the applicable limits
determined for such taxable year under Section 414(q)(1)(B) of the Code, as amended from time
to time or as adjusted by the Internal Revenue Service. To determine whether a Puerto Rico
Performer owns more than five percent (5%) of the stock, capital or interest in the profits of a
Producer, the provisions under 1081.01(a)(14)(A) of the Puerto Rico Code shall apply. This
definition shall be interpreted consistently with Section 1081.01(d)(3)(e)(iii) of the Puerto Rico
Code and any optional rules permitted by Puerto Rico law in identifying Highly Compensated
Puerto Rico Employees shall be incorporated into this definition.
(d)
“Puerto Rico Performer” means a Performer who is a bona fide resident of
Puerto Rico for purposes of Section 937 of the Code and whose compensation is included in
gross income for purposes of Section 1031.01 of the Puerto Rico Code.
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IN WITNESS WHEREOF, the undersigned have caused this instrument to be duly
executed on this ____ day of _______________, 2014.
_____________________________
Christine Dubois,
Chief Executive Officer
AFTRA Health & Retirement Funds
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