EXHIBIT 10.15
ARCBEST CORPORATION
VOLUNTARY SAVINGS PLAN
Amended and Restated Effective as of January 1, 2017
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TABLE OF CONTENTS
DEFINITIONS |
1 | ||||||
1.1 |
“Account(s)” |
1 | |||||
1.2 |
“Administrator” |
1 | |||||
1.3 |
“Alternative Earnings Rate” |
1 | |||||
1.4 |
“Annual Installment Payment” |
1 | |||||
1.5 |
“Beneficiary” |
1 | |||||
1.6 |
“Benefit” |
1 | |||||
1.7 |
“Board” |
1 | |||||
1.8 |
“Bonus” |
2 | |||||
1.9 |
“Business Day” |
2 | |||||
1.10 |
“Change in Control” |
2 | |||||
1.11 |
“Code” |
3 | |||||
1.12 |
“Code Section 409A” |
3 | |||||
1.13 |
“Company” |
4 | |||||
1.14 |
“Compensation” |
4 | |||||
1.15 |
“Compensation Deferral Contributions” |
4 | |||||
1.16 |
“Compensation Deferral Account” |
4 | |||||
1.17 |
“Contributions” |
4 | |||||
1.18 |
“Deferred Payments” |
4 | |||||
1.19 |
“Deferred Payment Date” |
4 | |||||
1.20 |
“Designated Subsidiary” |
4 | |||||
1.21 |
“Disability” |
4 | |||||
1.22 |
“Earnings” |
4 | |||||
1.23 |
“Effective Date” |
5 | |||||
1.24 |
“Election Date” |
5 | |||||
1.25 |
“Election Form” |
5 | |||||
1.26 |
“Eligible Individual” |
5 | |||||
1.27 |
“Employee” |
5 | |||||
1.28 |
“Employer” |
5 | |||||
1.29 |
“Employer Contribution” |
5 | |||||
1.30 |
“Employer Account” |
5 | |||||
1.31 |
“Entry Date” |
5 | |||||
1.32 |
“ERISA” |
6 | |||||
1.33 |
“Final Deferral Filing Date” |
6 | |||||
1.34 |
“Lump Sum” |
6 | |||||
1.35 |
“Matching Contributions” |
6 | |||||
1.36 |
“Measurement Preferences” |
6 | |||||
1.37 |
“Money Market Fund” |
6 | |||||
1.38 |
“Non‑Scheduled In‑Service Withdrawal” |
6 | |||||
1.39 |
“Participant” |
6 | |||||
1.40 |
“Plan” |
6 | |||||
1.41 |
“Plan Year” |
6 | |||||
1.42 |
“Post‑2004 Deferrals” |
6 | |||||
1.43 |
“Pre‑2005 Deferrals” |
6 |
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1.44 |
“Rules of General Application” |
6 | |||||
1.45 |
“Salary” |
6 | |||||
1.46 |
“Separates” or “Separation” |
7 | |||||
1.47 |
“Specified Employee” |
7 | |||||
1.48 |
“Third‑Party Recordkeeper |
7 | |||||
1.49 |
“Trust” |
7 | |||||
1.50 |
“Vest” or “Vesting” |
7 | |||||
1.51 |
“Year of Vesting Service” |
7 | |||||
SECTION Two |
ADMINISTRATION |
7 | |||||
2.1 |
Appointment of Administrator |
7 | |||||
2.2 |
Employer Duties |
7 | |||||
2.3 |
Authority of Administrator |
7 | |||||
2.4 |
Powers of Administrator and Company |
7 | |||||
2.5 |
Indemnification |
8 | |||||
2.6 |
Bond and Expenses |
8 | |||||
2.7 |
Reliance on Tables |
8 | |||||
SECTION Three |
PARTICIPATION |
8 | |||||
SECTION Four |
CONTRIBUTIONS |
8 | |||||
4.1 |
Compensation Deferral Contributions |
8 | |||||
4.2 |
Crediting of Compensation Deferral Contributions |
8 | |||||
4.3 |
Matching Contributions |
9 | |||||
SECTION Five |
PARTICIPANT’S ACCOUNTS AND INVESTMENTS |
9 | |||||
5.1 |
Establishment of Account |
9 | |||||
5.2 |
Earnings Credited to Accounts |
9 | |||||
5.3 |
Investment Direction |
9 | |||||
5.4 |
Statements |
10 | |||||
SECTION Six |
VESTING |
10 | |||||
6.1 |
Compensation Deferral Account |
10 | |||||
6.2 |
Employer Account |
10 | |||||
SECTION Seven |
DISTRIBUTION OF BENEFIT |
11 | |||||
7.1 |
Election of Deferred Payments |
11 | |||||
7.2 |
Types of Deferred Payments |
11 | |||||
7.3 |
Change of Deferred Payment Date |
12 | |||||
7.4 |
Mandatory Lump Sum Distribution |
12 | |||||
7.5 |
Separation by Specified Employee |
13 | |||||
7.6 |
Change in Control |
13 | |||||
7.7 |
Hardship Distribution |
13 | |||||
7.8 |
Non‑Scheduled In‑Service Withdrawal |
14 | |||||
7.9 |
Limited Cashouts |
14 |
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7.10 |
Source of Distribution |
14 | |||||
SECTION Eight |
DESIGNATION OF BENEFICIARIES |
14 | |||||
8.1 |
Designation by Participant |
14 | |||||
8.2 |
Lack of Designation |
15 | |||||
SECTION Nine |
AMENDMENT AND TERMINATION |
15 | |||||
SECTION Ten |
GENERAL PROVISIONS |
15 | |||||
10.1 |
No Assignment |
15 | |||||
10.2 |
Incapacity |
15 | |||||
10.3 |
Claims Procedure |
16 | |||||
10.4 |
No Guaranty of Deferral |
17 | |||||
10.5 |
Communications by, and Information From, Participant |
17 | |||||
10.6 |
No Rights Implied |
18 | |||||
10.7 |
Communications by Administrator or Employer |
18 | |||||
10.8 |
Interpretations and Adjustments |
18 | |||||
10.9 |
No Liability for Good Faith Determinations |
18 | |||||
10.10 |
No Employment Rights |
18 | |||||
10.11 |
Withholding of Taxes |
19 | |||||
10.12 |
Waivers |
19 | |||||
10.13 |
Records |
19 | |||||
10.14 |
Securities Laws |
19 | |||||
10.15 |
Severability |
19 | |||||
10.16 |
Captions and Gender |
19 | |||||
10.17 |
Choice of Law |
19 | |||||
10.18 |
Effective Date and Termination Date |
19 |
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ARCBEST CORPORATION
VOLUNTARY SAVINGS PLAN
AMENDED AND RESTATED EFFECTIVE January 1, 2017
ArcBest Corporation hereby amends and restates the ArcBest Corporation Voluntary Savings Plan, previously known as the Arkansas Best Corporation Voluntary Savings Plan (the “Plan”), effective, except as stated below, as of January 1, 2017. The Plan was previously restated as of January 1, 2008. The purpose of the Plan is to give a select group of highly compensated employees the opportunity to defer a portion of their compensation and possibly receive deferred employer contributions. For purposes of the Code, the Employers intend the Plan to be an unfunded, unsecured promise to pay on the part of each Employer. For purposes of ERISA, the Employers intend the Plan to be an unfunded plan solely for the benefit of a select group of management or highly compensated employees of the Employers for the purpose of qualifying the Plan for the “top hat” plan exception under Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA.
The purpose of this amendment and restatement of the Plan is to incorporate Plan amendments and to clarify certain Plan provisions. The Plan was previously restated as of January 1, 2008 to comply with the provisions of Code Section 409A in order to avoid immediate taxation of amounts deferred hereunder, and the Plan will be interpreted accordingly. With respect to Pre‑2005 Deferrals, the Plan shall be interpreted so as to avoid having such Pre‑2005 Deferrals subject to Code Section 409A.
1.2 “Administrator” shall mean the person designated to administer the Plan pursuant to Section Two. |
1.3 “Alternative Earnings Rate” shall mean the Earnings of the Money Market Fund for the period of reference. |
1.4 “Annual Installment Payment” shall mean an annual distribution, in cash, of the Participant’s Benefit over a period of years as provided for in Section 7.2(a) and (b). |
1.5 “Beneficiary” shall mean the person(s), entity or entities designated by the Participant as the beneficiary of the balance of his Benefit. |
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1.10 “Change in Control” as related to Post‑2004 Deferrals shall mean the first to occur of the following: |
(i) the approval by shareholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation that would result in voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; |
(ii) the approval by shareholders of the Company of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; |
(iii) any “person” (as such is defined in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) becoming the “beneficial owner” (as defined in Rule 13d‑3 under said Act), directly or indirectly, of securities of the Company representing thirty percent (30%) or more of the total voting power represented by the Company’s then outstanding voting securities; or |
(iv) the replacement of a majority of the Board of Directors during a twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the directors before the date of the appointment or election. |
For Post‑2004 Deferrals, the determination of whether a Change in Control has occurred shall be made in accordance with Code Section 409A.
“Change in Control” as related to Pre‑2005 Deferrals shall mean the first to occur of the following:
(a) there shall be consummated any consolidation or merger or consolidation of the Company in which the Company is not the continuing or surviving corporation or pursuant to which the Company’s common stock would be converted into cash, securities, or other property, or any lease, exchange or other transfer (excluding transfer by way of pledge or hypothecation), in one transaction or a series of related transactions, of all, or substantially all, of the assets of the Company, other than any such consolidation, merger, consolidation fifty‑one percent (51%), lease, exchange or transfer in which the Company, or any of its |
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affiliates, or the holders of the Company’s common stock immediately prior to any such actions have at least a fifty‑one percent (51%) ownership of the surviving corporation after the consolidation or merger of the entity to which such assets are transferred, leased, exchanged or otherwise transferred; |
(b) the shareholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; |
(c) any “person” (as such is defined in Section 3(a)(9) or Section 13(d)(3) under the Securities Exchange Act of 1934 [the “1934 Act”]) or any “group” (as such term is used in Rule 13d‑5 promulgated under the 1934 Act) other than the Company or any successor of the Company or any subsidiary of the Company or any employee benefit plan of the Company or any subsidiary (including such plan’s trustee) becomes a beneficial owner for purposes of Rule 13d‑3 promulgated under the 1934 Act, directly or indirectly, of securities of the Company represented by thirty‑five percent (35%) or more of the Company’s then outstanding securities having the right to vote in the election of directors; |
(d) if at any time the Continuing Directors then serving on the Board cease for any reason to constitute at least a majority thereof. “Continuing Director” shall mean a Director of the Company who either (A) is a Director of the Company on January 1, 2005, or (B) whose initial appointment or initial nomination for election or election by the Company’s shareholders was approved by a majority of the Continuing Directors (including any successors elected pursuant to this Subsection (d)) then on the Board; or |
(e) any person or group (as defined in Subsection (c) above) commences a tender offer or exchange offer for all or less than all of the share of the Company’s issued and outstanding common stock that would result in, upon the consummation of such offer, the person or group, together with all of its or their affiliates, beneficially owning twenty‑five percent (25%) or more of the Company’s common stock, and which offer does not include a binding written commitment by the offeror to purchase any shares that are not tendered or exchanged for the same cash consideration (or in the event of any exchange offer, the cash equivalent of the fair market value of the securities or their property offered in the exchange, as determined by the Company’s Board in its sole discretion) within ninety (90) days following the consummation of the tender or exchange offer; provided, however, that if the tender offer or exchange offer that would have otherwise resulted in a Change in Control is canceled, terminated, withdrawn or otherwise not consummated, such offer shall be deemed never to have been made and no Change in Control shall be deemed to have occurred. |
1.12 “Code Section 409A” shall mean Section 409A of the Code and the regulations and Internal Revenue Service and Treasury guidance issued thereunder. |
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1.13 “Company” shall mean ArcBest Corporation, a Delaware corporation, and its successors and assigns. |
1.19 “Deferred Payment Date” shall mean the date as of which a Participant’s Deferred Payments are made or commenced. |
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1.23 “Effective Date” of this amendment and restatement of the Plan shall mean January 1, 2017. The original effective date of the Plan was December 30, 1998. |
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(c) and (d), the date described therein; and (c) for any newly eligible Participant, the day the Participant submits his valid Election Form. |
1.33 “Final Deferral Filing Date” shall mean, subject to Section 7.3, the date that precedes a Participant’s Deferred Payment Date of reference by twelve (12) months. |
1.38 “Non‑Scheduled In‑Service Withdrawal” shall mean distributions from the Compensation Deferral Account as described in Section 7.8. |
1.39 “Participant” shall mean an Eligible Individual who participates in the Plan pursuant to Section Three. |
1.40 “Plan” shall mean the ArcBest Corporation Voluntary Savings Plan, as set forth in this document and subsequent amendments. |
1.43 “Pre‑2005 Deferrals” shall mean the portion of the Participant’s Account that is not Post‑2004 Deferrals. |
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1.47 “Specified Employee” shall mean a specified Employee of the Employer as defined in Code Section 409A. |
1.48 “Third‑Party Recordkeeper” shall mean the person or entity selected by the Administrator to maintain the records necessary to the administration of the Plan. |
1.49 “Trust” shall mean a grantor trust established between the Company and the trustee(s) named in the Trust. |
1.50 “Vest” or “Vesting” or similar forms of the term shall mean the portion of a Participant’s Employer Account that is nonforfeitable at the time of reference. |
1.51 “Year of Vesting Service” shall mean each three hundred sixty‑five (365) days of employment with an Employer as determined under Rules of General Application. |
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An Eligible Individual will become a Participant on his Entry Date by filing an Election Form prior to his applicable Election Date and will remain a Participant until he receives the payment of his entire Benefit. Being designated as an Eligible Individual for one Plan Year does not entitle such Employee to continued status as an Eligible Individual for subsequent Plan Years, but such person will remain an Eligible Individual until notified in writing by the Administrator of his removal from that status, and, following such removal, such Employee shall not be able to elect Compensation Deferral Contributions on any Entry Date on which he is not an Eligible Individual.
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payment. The portion of the Compensation Deferral Contribution amount which is deducted from Salary shall be credited to the Participant’s Compensation Deferral Account as soon as reasonably possible following the payroll date on which deducted; and, regardless of the date designated by the Administrator as of which the Bonus is earned, the full amount of the Compensation Deferral Contribution to be deducted from the Bonus shall be credited to the Participant’s Compensation Deferral Account as soon as reasonably possible following the date the Bonus actually is (or would have been) paid. If the amount of the Compensation Deferral Contributions elected to be deducted from the Participant’s Salary and/or Bonus exceeds such Salary and/or Bonus, as applicable, then the Compensation Deferral Contribution shall be reduced to equal the maximum amount of such Participant’s Salary and/or Bonus, as applicable, that is available for deferral. |
A Participant may change his Measurement Preferences as of each Business Day by filing a written Election Form with the Administrator, who will review and determine whether such direction shall be forwarded, and if the Administrator elects to follow such direction, he shall notify the Third‑Party Recordkeeper. If a Participant has not filed an Election Form with respect to his Account, he will be deemed to have elected to be invested in the Money Market Fund until the first Business Day with respect to which he has designated an investment or an Election Form.
Notwithstanding the forgoing, the Administrator shall have the power to reject some or all of the selections of Measurement Preferences selected by any one or more Participants by advising
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the affected Participant(s) in writing of such rejection within five (5) days of receiving an Election Form selecting or changing a Participant’s Measurement Preferences. If the Administrator rejects a selection, notwithstanding any provision hereof to the contrary, the portion of such Account(s) subject to such rejection shall be deemed invested in the Measurement Preferences selected by the Participant immediately prior to the rejection or, if none, the Money Market Fund until a Measurement Preference is approved.
6.1 Compensation Deferral Account. A Participant shall always be one hundred percent (100%) Vested in the amounts credited to his Compensation Deferral Account. |
6.2 Employer Account. A Participant shall Vest in the amount credited to his Employer Account upon meeting the requirements of each of the below subsections (a) and (b): |
(a) Years of Service with the Company. A Participant will be vested in his Employer Account upon the earliest of: |
(i) the Participant completing his fifth Year of Service with the Company; |
(ii) the Participant’s death; |
(iii) the Participant’s Disability; |
(iv) the Participant’s retirement at or after age sixty‑five (65); and |
(v) a Change in Control. |
(b) Matching Contributions. |
Prior to January 1, 2002 – All Matching Contributions are one hundred percent (100%) Vested, subject to Section 6.2(a).
January 1, 2002 and thereafter – All Matching Contributions are one hundred percent (100%) Vested, subject to Section 6.2(a), if the Matching Contributions’ Deferred Payment Date begins after the earliest of:
(i) the Participant’s sixtieth (60th) birthday or later; |
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(ii) five (5) years from (and including) the year in which the Participant’s Compensation Deferral Contributions pursuant to Section 4.1 are made; and |
(iii) the death, Disability, termination of employment, or Change in Control. |
If the Deferred Payment Date for a Matching Contribution fails to meet the above criteria, the Matching Contribution and associated investment earnings previously credited to a Participant’s Employer Account will be forfeited.
For the avoidance of doubt, a Deferred Payment Date may be elected (A) by reference to a specified date that is at least one (1) year after the Election Date for Compensation Deferrals for the Plan Year with respect to which the Deferred Payment Date relates, (B) the date of the Participant’s Separation, in which case the payment will be made no later than sixty (60) days following death, Disability or Separation except in the case of distribution upon Disability or Separation by a Specified Employee, in which case distributions are subject to the limitations described in Section 7.5, (C) by reference to a specified anniversary of the date of Participant’s Separation or (D) by reference to the earlier or later to occur of any combination of the events described in clauses (A), (B) or (C) of this Section 7.1.
(a) Annual Percentage Installment Payments. If Participant elects a Deferred Payment in the form of an Annual Installment Percentage Payment, each installment shall be equal to the product of (i) his Benefit attributable to the Accounts for the particular Plan Year of reference as of the Deferred Payment Date, multiplied by (ii) a fraction the numerator of which is one (1), and the denominator of which is the total number of installments originally elected less the number of installments previously paid. Without limitation, a Participant may receive multiple Annual Percentage Installment Payments, each attributable to Deferred Payments from Accounts with respect to different Plan Years. |
(b) Annual Fixed Dollar Installment Payments. If Participant elects a Deferred Payment in the form of a Fixed Dollar Annual Installment Payment, each |
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installment shall be equal to the Participant’s specified Fixed Dollar amount with a final installment equal to the remaining balance of the deferral until the entire deferral is paid. Without limitation, a Participant may receive multiple Annual Fixed Dollar Installment Payments, each attributable to Deferred Payments from Accounts with respect to different Plan Years. |
(c) Installment Payment Timing. Except as provided in Section 7.5 below, with respect to Specified Employees, if a Participant elects Deferred Payment in the form of an Annual Installment Percentage Payment or a Fixed Dollar Annual Installment Payment, the first installment payment shall be paid on its Deferred Payment Date as soon as administratively feasible (not to exceed sixty (60) days) following the Business Day on which his distributable Benefit is determined in accordance with Rules of General Application, and each subsequent installment payment shall be paid as soon as administratively feasible (not to exceed sixty (60) days following the anniversary of such Business Day. |
(d) Lump Sum Payment. Except as provided in Section 7.5 below, with respect to Specified Employees, if a Participant elects a Lump Sum distribution of his Benefit, the Lump Sum shall be paid on its Deferred Payment Date as soon as administratively feasible (not to exceed sixty (60) days) following the Business Day on which his distributable Benefit is determined in accordance with Rules of General Application. |
7.4 Mandatory Lump Sum Distribution. Subject to Section 7.5, in the event of death, Disability or Separation by a Participant: |
(i)who has not attained the age of fifty‑five (55) and completed at least ten (10) Years of Vesting Service with the Company, or
(ii)whose aggregate Benefit is less than $5,000,
he shall receive a Lump Sum distribution of his Benefit, as soon as administratively feasible (not to exceed sixty (60) days) following the Business Day on which the death, Disability or Separation occurs.
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The Administrator shall evaluate the facts and circumstances of each hardship request. The Participant shall receive a single Lump Sum cash payment of the amount approved by the Administrator as soon as administratively feasible following the Administrator’s approval. If a Participant receives a hardship distribution he shall be ineligible to elect Compensation Deferral Contributions until the first enrollment period occurring after the first anniversary of the date of such withdrawal. With respect to Post‑2004 Deferrals, the determination of whether a hardship has occurred shall be made in accordance with the rules for “Unforeseeable Emergency” distributions under Code Section 409A.
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than $1,000) of his Benefit without regard to the Deferred Payment Date elected by the Participant. If a Participant elects to receive such a distribution, an amount equal to ten percent (10%) of the amount withdrawn shall be deducted from his Benefit (and irrevocably forfeited), such Participant’s current Compensation Deferral Contribution shall immediately cease, and such Participant shall be ineligible to elect to recommence Compensation Deferral Contributions until an Entry Date occurring after the first enrollment period occurring after the first anniversary of the date of such withdrawal. The amount forfeited shall inure to the benefit of the Employer in the manner determined by the Administrator. The date of the Non‑Scheduled In‑Service Withdrawal shall be the Deferred Payment Date for purposes of determining whether amounts in the Participant’s Employer Account are Vested under Section 6.2. If this occurs, the Matching Contribution associated with the Non-Scheduled In-Service Withdrawal amount will be forfeited before the Non‑Scheduled In‑Service Withdrawal is paid. |
7.9 Limited Cashouts. Notwithstanding the foregoing, the Administrator may, in its sole discretion, order a mandatory lump sum distribution of a Participant’s Account(s), provided that: |
(a) the distribution results in the termination and liquidation of the total balance of all the Participant’s Account(s), including the Participant’s interest in any other plan or arrangement that is aggregated with the Plan pursuant to Treasury Regulation Section 1.409A-1(c)(2); and |
(b) the distribution will not be greater than the applicable dollar amount under Code Section 402(g)(1)(B) (e.g., $18,000 for 2015). |
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Benefits, without crediting for either Measurement Preferences or Alternative Earnings Rate, until all rights to the unpaid Benefits are determined. Alternatively, the Administrator may direct the Employer or Trustee to pay the Benefits into any court of appropriate jurisdiction. Any such payment shall completely discharge each Employer, the Trustee, and the Administrator from any liability under the Plan. |
The Company, through its Board of Directors, may in its discretion amend the Plan from time to time, provided that no Amendment may reduce a Participant’s Benefit. Specifically, termination of the Plan shall require the approval of the Board of Directors of the Company. Notwithstanding anything herein to the contrary, the Company hereby delegates to its executive officers the authority to make any amendment (i) that does not increase the benefit costs of the Plan to the Company by more than one percent (1%) of the Plan’s prior calendar year financial statement expense or (ii) that is necessary or desirable in order to have it conform to the provisions and requirements of the Code (specifically, Code Section 409A) or any other applicable law.
In the event of a termination of the Plan, all Participants shall become one hundred percent (100%) Vested on such date of termination and, notwithstanding any provisions of the Plan to the contrary, the Benefits of such affected Participant may, in the Company’s sole discretion, be distributed in a Lump Sum as soon as administratively possible (not to exceed 60 days) following such termination with respect to Pre‑2005 Deferrals (but, with respect to Post‑2004 Deferrals, only to the extent permitted by Code Section 409A without the imposition of any additional taxes or penalties under Code Section 409A).
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review will be made in writing by the Administrator and delivered to the claimant within ninety (90) days after receipt of the claim or request for review, unless special circumstances require an extension of time for processing the claim or review, in which event the Administrator’s decision must be made as soon as administratively feasible thereafter but not beyond an additional ninety (90) days. If no action on an initial claim is taken within one hundred eighty (180) days, the claim will be deemed denied for purposes of permitting the claimant to proceed to the review stage. If the claim involves a determination of whether or not the Participant has experienced a Disability (a “Disability Claim”), such claim will generally be decided and the claimant notified of the decision within 45 days after receipt of the claim, provided that the Administrator may obtain two (2) forty‑five (45) day extensions if the proper written notice, which contains the information described above, is given to the Participant before the end of each applicable forty‑five (45) day period. The denial of a claim or the decision on review will specify the reasons for the denial or decision, the pertinent Plan provisions upon which the denial or decision is based, a description of any additional material or information necessary to perfect the claim and an explanation of why such information is necessary, if applicable, and a description of the Plan’s review procedures and the time limits applicable thereto, including a statement of the claimant’s rights under Section 502(a) of ERISA following an adverse benefits determination on review. If the denied claim is a Disability Claim, the following additional information will be provided with the denial notice: (a) if an internal rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination, either the specific rule, guideline, protocol, or other similar criterion, or a statement that such a rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that a copy of such rule, guideline, protocol, or other criterion will be provided free of charge to the claimant upon written request; and (b) if the adverse benefit determination is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, applying the terms of the Plan to the claimant’s medical circumstances, or a statement that such explanation will be provided free of charge upon written request. |
Within sixty (60) days after receiving a denial one hundred eighty (180) days in the case of a Disability Claim), the claimant or his authorized representative may appeal the decision by requesting a review in writing to the Administrator. On appeal, the claimant may submit in writing any comments or issues with respect to the claim and/or any additional documents or information not considered during the initial review and, upon request and free of charge, the claimant will be provided access to and copies of all documents, records and other information relevant to the claim. On appeal, the Administrator will not give deference to the initial adverse benefit determination.
If the appeal involves a Disability Claim, the following additional procedures shall apply to the review on appeal: (i) it will be conducted by a Plan fiduciary that is neither the individual who made the initial adverse benefit determination nor the subordinate of such individual; (ii) if the initial adverse decision was based in whole or in part on a medical judgment, the reviewer will consult with a health care professional who has appropriate training and experience in the field of medicine involved in the medical judgment and who is not the same person (or his or her subordinate) that was consulted in connection with the initial benefits decision; and (iii) upon request, the claimant will be provided the identification of the expert whose advice was obtained in connection with the initial benefit decision, if any, regardless of whether or not the advice was relied upon.
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A decision on appeal will normally be given within sixty (60) days forty‑five (45) days in the case of a Disability Claim) after the receipt of the appeal. If special circumstances warrant an extension as determined by the Administrator in its sole discretion, then the decision will be made no later than one hundred twenty (120) days after receipt of the appeal ninety (90) days in the case of a Disability Claim). If an extension is required, the claimant will be provided a written notice of the extension that shall indicate the special circumstances requiring the extension and the date by which the Administrator expects to render its final decision. Subject to Section 2.3, the Administrator’s decision on appeal shall be final and binding on all parties.
If a claimant’s appeal is denied in whole or in part, the notice of the decision on appeal shall include the specific reasons for the denial and reference to the relevant Plan provisions on which the denial was based, a statement that, upon request and free of charge, the claimant may review and copy all documents, records and other information relevant to the claim for benefits and the claimant’s rights under Section 502(a) of ERISA. In addition, if the appeal involved a Disability Claim, the denial notice will include the additional information for Disability Claims described above, as applicable.
The Administrator will serve as an agent for service of legal process with respect to the Plan unless the Employer, through written resolution, appoints another agent.
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10.13 Records. Records of the Company, and of the Administrator, as to any matters relating to the Plan will be conclusive on all persons. |
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