RR DONNELLEY UNFUNDED SUPPLEMENTAL PENSION PLAN (amended and restated effective January 1, 2009) Table of Contents
Exhibit 10.11
RR DONNELLEY
UNFUNDED SUPPLEMENTAL
PENSION PLAN
(amended and restated effective January 1, 2009)
Table of Contents
| Page | ||||
| Section 1 DEFINITIONS | 1 | |||
| Section 2 SUPPLEMENTAL BENEFIT | 5 | |||
| Section 3 TIME OF PAYMENT | 5 | |||
| (a) In General | 5 | |||
| (b) Designated Age Elections | 5 | |||
| Section 4 FORM OF PAYMENT | 6 | |||
| (a) In General | 6 | |||
| (b) Optional Forms of Payment | 6 | |||
| Section 5 ADDITIONAL PAYMENT PROVISIONS | 7 | |||
| (a) Commenced Benefits and Existing Elections | 7 | |||
| (b) Small Amount Cash-outs | 7 | |||
| (c) Change in Control | 7 | |||
| (d) Tax Matters | 7 | |||
| (e) 6-Month Delay Following Separation From Service | 8 | |||
| (f) Age 65 Distributions for Certain Members | 8 | |||
| Section 6 PRE-RETIREMENT SURVIVOR BENEFITS | 8 | |||
| (a) In General | 8 | |||
| (b) Predecessor Plans | 9 | |||
| (c) Additional Benefits | 9 | |||
| (d) Small Amount Cash-out | 9 | |||
| (e) Reductions for Prior Distributions | 9 | |||
| Section 7 AMENDMENT AND TERMINATION | 9 | |||
| Section 8 APPLICATION OF ERISA | 9 | |||
| Section 9 ADMINISTRATION | 10 | |||
| Section 10 COMPANY ACTION | 10 | |||
| Section 11 NONASSIGNMENT OF BENEFITS | 10 | |||
| Section 12 NON-DUPLICATION OF BENEFITS | 10 | |||
-i-
| Section 13 NO GUARANTY OF EMPLOYMENT | 11 | |||
| Section 14 TRUST | 11 | |||
| (a) Funding | 11 | |||
| (b) Taxation and Gross-ups | 11 | |||
| Section 15 MISCELLANEOUS | 11 | |||
| (a) Applicable Law | 11 | |||
| (b) Expenses | 11 | |||
| (c) Successors and Assigns | 11 | |||
| Section 16 CLAIMS AND APPEALS PROCEDURES | 12 | |||
| (a) Authority to Submit Claims | 13 | |||
| (b) Procedure for Filing a Claim | 13 | |||
| (c) Initial Claim Review | 13 | |||
| (d) Benefit Determination on Claim | 13 | |||
| (e) Manner and Content of Notification of Adverse Benefit Determination on a Claim | 13 | |||
| (f) Authority to Submit an Appeal | 14 | |||
| (g) Procedure for Filing for a Request for Review of an Adverse Benefit Determination | 14 | |||
| (h) Review Procedures for Appeals | 14 | |||
| (i) Timing and Notification of Benefit Determination on Review | 15 | |||
| (j) Manner and Content of Notification of Adverse Benefit Determination on Appeal | 15 | |||
| (k) Collectively Bargained Benefits | 15 | |||
| (l) Limitation on Actions | 16 | |||
| (m) Failure to Exhaust Administrative Remedies | 16 | |||
| Section 17 DELIVERY AND RECEIPT | 16 | |||
| EXHIBIT A QUALIFIED PLANS | ||||
| EXHIBIT B ADDITIONAL BENEFITS | ||||
| EXHIBIT C PREDECESSOR PLANS | ||||
-ii-
INTRODUCTION
This retirement plan constitutes (a) an amendment and restatement of the RR Donnelley Unfunded Supplemental Pension Plan (formerly known as the R.R. Donnelley & Sons Company Unfunded Supplemental Benefit Plan) (the “Plan”), and (b) a merger of the Predecessor Plans (each of which was sponsored by an Affiliate), with and into the Plan, both effective January 1, 2009. The Plan primarily provides (i) benefits which, but for the Code Limitations, would have been payable under the Qualified Plans, and (ii) benefits pursuant to (A) the Predecessor Plans, and (B) additional arrangements that provide for the payment of nonqualified deferred compensation generally in the form of an annuity, in each case for the benefit of a select group of management or highly compensated employees or former employees within the meaning of ERISA. The Plan is intended to comply with the requirements of section 409A of the Code and the Treasury Regulations and other guidance thereunder. Between December 31, 2004 and the Effective Date, the Plan and the Predecessor Plans were operated in accordance with a good faith, reasonable interpretation of section 409A of the Code and the Treasury Regulations and other guidance thereunder. Prior to the Effective Date, payments under the Plan and the Predecessor Plans were generally “linked” to payments under Qualified Plans. The rights of Members whose benefits, immediately prior to January 1, 2009, have not commenced, and the rights of such Member’s Spouse or Beneficiary shall be determined solely by reference to the terms hereof.
Section 1
DEFINITIONS
As used herein the following words and phrases shall, when capitalized herein, have the following respective meanings:
(1) Actuarial Equivalent has the meaning assigned to such term in the Retirement Benefit Plan of R.R. Donnelley & Sons Company, as such definition is appropriately modified to make it applicable to the Plan (e.g., by modifying cross-references and by ignoring provisions addressing terms not applicable to the Plan), as determined in the sole discretion of the Benefits Committee.
(2) Additional Benefit. An individual’s benefit, if any, described on Exhibit B hereto.
(3) Adverse Benefit Determination. A Benefit Determination that is a denial, reduction, or termination of, or a failure to provide or make payment (in whole or in part) with respect to a Claim, including any such denial, reduction, termination, or failure to provide or make payment that is based on a determination of an individual’s eligibility to participate in this Plan.
(4) Affiliate. An entity (other than the Company) that is (i) a corporation which is a member of the same controlled group of corporations (within the meaning of section 414(b) of the Code) as the Company, (ii) a trade or business (whether or not incorporated) under common control (within the meaning of section 414(c) of the Code) with the Company, (iii) any organization (whether or not incorporated) which is a member of an affiliated service group (within the meaning of section 414(m) of the Code) which includes the Company, a corporation
§1(4)
described in clause (i) of this paragraph or a trade or business described in clause (ii) of this paragraph, or (iv) any other entity which is required to be aggregated with the Company pursuant to Regulations promulgated under section 414(o) of the Code.
(5) Appeal has the meaning assigned to such term in Section 16(f).
(6) Beneficiary. An individual that is designated by a Member to receive a survivor benefit, if any, under Section 4(b), and that is (i) not such Member’s Spouse and (ii) not more than 30 years younger than such Member.
(7) Benefit. A benefit provided by the Plan.
(8) Benefit Commencement Date. The first day of the month that begins coincident with, or immediately following, a Member’s Payment Event.
(9) Benefit Determination. The Benefits Committee’s decision with respect to a Claim or an Appeal.
(10) Benefits Committee. The committee created and organized pursuant to the provisions of Section 9.
(11) Change In Control. A change in ownership of the Company, a change in effective control of the Company, or a change in ownership of a substantial portion of the assets of the Company as such terms are defined in Treasury Regulation §1.409A-3(i)(5)(v), (vi), and (vii), respectively; provided, however, that such a change in ownership of a substantial portion of the assets of the Company shall constitute a “Change In Control” only if all or substantially all of the Company’s assets change ownership in connection therewith.
(12) Claim. A request for a Benefit or eligibility for a Benefit Received prior to the time the Benefits Committee has Received an Appeal with respect to the same matter, made by a Claimant in accordance with this Plan’s procedures for filing Claims, as described in Section 16(b). If the procedures described in Section 16(b) are not followed with respect to any submission by an individual, such submission will be deemed not to constitute a Claim.
(13) Claimant has the meaning assigned to such term in Section 16(a).
(14) Code. The Internal Revenue Code of 1986, as amended. If the Code is succeeded or renumbered, then references to particular sections of the Code included herein shall be deemed to be references to the appropriate renumbered sections of the Code or its successor.
(15) Code Limitations. The limitations set forth in sections 401(a)(17) and 415 of the Code.
(16) Company. R. R. Donnelley & Sons Company, a Delaware corporation, and any corporation which is substituted for such corporation as described in Section 14.
(17) Delivered has the meaning set forth in Section 17 and Delivery means Delivery pursuant to, and subject to, Section 17.
(18) Designated Age. Age 55, or such other age as may be elected by a Member pursuant to Section 3(b).
(19) Effective Date. January 1, 2009.
-2-
§1(20)
(20) Employer. Any Affiliate which is or becomes a participating employer under a Qualified Plan or which is otherwise designated by the Company as an Employer under the Plan.
(21) ERISA. The Employee Retirement Income Security Act of 1974, as amended. If ERISA is succeeded or renumbered, then references to particular sections of ERISA included herein shall be deemed to be references to the appropriate renumbered sections of ERISA or its successor.
(22) Initial Payment Date. The later to occur of (i) a Member’s Benefit Commencement Date, and (ii) the first day of the month that begins coincident with, or immediately following, the six-month anniversary of the date the Member incurs a Separation From Service.
(23) Member. An individual who is entitled to a Supplemental Benefit.
(24) Non-Early Retirement Eligible Member. A Member (a) whose employment terminated prior to the date he or she attained age 65, (b) who for at least two of the three calendar years immediately preceding his or her termination of employment was eligible to participate in the R.R. Donnelley & Sons Company Stock Purchase Plan for Selected Managers and Key Staff Employees, or would have been eligible to participate in such plan except for a disqualifying sale of stock, and (c) who, at any time within the 36-month period which began on the date of his or her termination of employment, engaged directly or indirectly in any phase of business in competition with the business of an “Employer” (as such term was defined in the January 1, 2002 Amendment and Restatement of the Retirement Benefit Plan of R.R. Donnelley & Sons Company, or the applicable predecessor version of such plan) or directly provided services to any business which supplied materials, equipment or other products or chemicals to such an employer or to any business engaged in the graphics arts industry in any part of the United States as a sole proprietor, partner, director, officer, employee, agent, consultant or advisor in any capacity whatsoever without the written consent of the Company.
(25) Notice, Notification or Notify means the Delivery or furnishing of information in a manner that satisfies applicable provisions of Section 17.
(26) Qualified Plan. A plan listed on Exhibit A hereto, effective as of the date indicated on Exhibit A.
(27) Payment Event. The later to occur of (a) a Member incurring a Separation From Service, (b) the Member attaining his or her Designated Age, and (c) with respect to a Member who incurred a Separation From Service prior to the Effective Date and whose benefits under a Qualified Plan did not commence prior to the Effective Date, the Effective Date.
(28) Plan. The RR Donnelley Unfunded Supplemental Pension Plan as herein set forth, as amended from time to time.
(29) Plan Year. The calendar year.
(30) Predecessor Benefit. An individual’s benefit, if any, under a Predecessor Plan.
-3-
§1(31)
(31) Predecessor Plan. A plan or arrangement listed on Exhibit C and any other plan or arrangement that is merged into the Plan. Exhibit C shall be updated from time to time by the Company to reflect any plan or arrangement that is merged into the Plan, but failure to so update Exhibit C shall not affect the effectiveness of any such merger. Certain of the plan documents in effect immediately prior to the Effective Date for the plans or arrangements that are Predecessor Plans as of the Effective Date are attached to Exhibit C as supplements thereto.
(32) Received has the meaning set forth in Section 17 and Receipt means Receipt pursuant to, and subject to, Section 17.
(33) Restored Benefit. With respect to an individual whose retirement benefit payable under a Qualified Plan (including benefits payable pursuant to a supplement thereto) is less than the retirement benefit that would be payable under such Qualified Plan without giving effect to the Code Limitations, an amount equal to (A) minus (B) where:
(A) equals the retirement benefit that would be payable to the individual under the Qualified Plan without giving effect to the Code Limitations; and
(B) equals the retirement benefit actually payable to the individual under the Qualified Plan.
(34) Retirement Benefit Records. Records, files or other documents maintained by an Employer or the Plan that designate, relate to the determination of, or otherwise indicate the benefit to which an individual is entitled under the Plan (including any Predecessor Plan) and any adjustments or enhancements thereto.
(35) Separation From Service. An employee’s Separation From Service with the Employers, as described in Treasury Regulation § 1.409A-1(h).
(36) Spouse. With respect to a Member, a person of the opposite sex who is the Member’s husband or wife pursuant to a marriage that is recognized by Illinois law.
(37) Supplemental Benefit. The sum of an individual’s Restored Benefit, Predecessor Benefit and Additional Benefit, as actuarially adjusted to reflect any advance of benefits paid pursuant to Section 5(d) and any amounts previously distributed to or on behalf of the Member under the Plan or a Predecessor Plan.
(38) Treasurer. The most recently elected Treasurer of the Company or such other officer of the Company which from time to time assumes the responsibilities with respect to the Plan which are, on the day immediately prior to the Effective Date, allocated to the Treasurer. In the event of the temporary absence of the Company’s officer who would otherwise be the “Treasurer” under this paragraph, whether due to illness, disability, or otherwise, or upon the resignation or removal of such officer, the substitute or successor officer to the Treasurer who performs substantially similar duties with respect to the Plan (whether assigned a different title by the Company or not), or, in the absence of such a substitute or successor, the person to whom such Treasurer would report, will be the Treasurer.
(39) Vice President. The most recently elected Senior Vice President, Compensation and Benefits, of the Company or such other officer of the Company which from
-4-
§1(39)
time to time assumes the responsibilities with respect to the Plan which are, on the day immediately prior to the Effective Date, allocated to the Vice President, Benefits. In the event of the temporary absence of the Company’s officer who would otherwise be the “Vice President” under this paragraph, whether due to illness, disability, or otherwise, or upon the resignation or removal of such officer, the substitute or successor officer to the Vice President who performs substantially similar duties with respect to the Plan (whether assigned a different title by the Company or not), or, in the absence of such a substitute or successor, the person to whom such Vice President would report, will be the Vice President.
Section 2
SUPPLEMENTAL BENEFIT
A Member’s Supplemental Benefit shall be determined as of the Member’s Benefit Commencement Date and paid to or on behalf of such Member at the time designated in Section 3 and in the manner designated in Section 4, both subject to Section 5.
Section 3
TIME OF PAYMENT
(a) In General. Subject to Section 5, the payment of a Member’s Supplemental Benefit shall begin on the Member’s Initial Payment Date.
(b) Designated Age Elections.
(i) Initial Elections.
| (I) | Initial Eligibility Elections. An individual who first accrues (or who would, but for the application of an age, service or similar requirement, first accrue) a benefit under the Plan, a Predecessor Plan or any other plan that is aggregated with the Plan for purposes of section 409A of the Code during 2008 or any Plan Year thereafter may, if permitted by, and subject to rules established by, the Company, elect to have his or her Designated Age be any age between 56 and 65, inclusive; provided, however, that any such election shall not be given effect if made after the thirtieth day of the Plan Year immediately following the Plan Year in which such Member first so accrued a benefit. |
| (II) | Transition Elections. During 2008 only, if permitted by, and subject to rules established by, the Company, a Member (or an individual who would, but for the application of an age, service or similar requirement, be a Member) whose benefits had not previously commenced, may elect to have his or her Designated Age be any age between 56 and 65, inclusive; provided, however, that such election shall not be given effect if (A) payments would have otherwise commenced during 2008, or (B) such election would have resulted in payments commencing during 2008. |
-5-
§3(b)(ii)
(ii) Subsequent Deferral Elections. If permitted by, and subject to rules established by, the Company, a Member may elect to have his or her Designated Age be any age that is both (i) at least five years after his or her then Designated Age (taking into account any election made pursuant to Section 3(b)(i) and any other election made pursuant to this Section 3(b)(ii)), and (ii) between ages 60 and 65, inclusive; provided, however, that any election made less than twelve months before the date the Member would attain his or her then Designated Age (taking into account any prior election) shall not be given effect and payment shall commence as though no such election had been made.
Section 4
FORM OF PAYMENT
(a) In General. Subject to Sections 4(b) and 5, a Member’s Supplemental Benefit shall be paid in the form of:
(i) with respect to a Member who does not have a Spouse on the Member’s Benefit Commencement Date, a single life annuity; and
(ii) with respect to a Member who has a Spouse on the Member’s Benefit Commencement Date, a joint and 50% survivor annuity (with any survivor’s benefit payable to the Member’s Spouse).
(b) Optional Forms of Payment.
(i) Single Members. A Member who does not have a Spouse on the Member’s Benefit Commencement Date may, if permitted by, and subject to rules established by, the Company, elect to receive his or her Supplemental Benefit in the form of (A) a joint and 50% survivor annuity (with any survivor’s benefit payable to the Member’s Beneficiary), or (B) a joint and 100% survivor annuity (with any survivor’s benefit payable to the Member’s Beneficiary); provided that such options shall be the Actuarial Equivalent of the form of benefit the Member would have received pursuant to Section 4(a)(i) had no election been made.
(ii) Married Members.
| (I) | In General. Subject to Section 4(b)(ii)(II), a Member who has a Spouse on the Member’s Benefit Commencement Date may, if permitted by, and subject to rules established by, the Company, elect to receive his or her Supplemental Benefit in the form of (A) a joint and 100% survivor annuity (with any survivor’s benefit payable to the Member’s Spouse), (B) a joint and 100% survivor annuity (with any survivor’s benefit payable to the Member’s Beneficiary), (C) a joint and 50% survivor annuity (with any survivor’s benefit payable to the Member’s Beneficiary), or (D) a single life annuity; provided that such options shall be the Actuarial Equivalent of the form of benefit the Member would have received pursuant to Section 4(a)(ii) had no election been made. |
-6-
§4(b)(ii)(I)
| (II) | Election Procedures. In the case of a Member who has a Spouse on his or her Benefit Commencement Date, no election under Section 4(b)(ii)(I) shall be effective unless (1) the Member’s Spouse has consented to such election, to the satisfaction of the Company, or (2) it is established to the satisfaction of the Company that such consent cannot be obtained because the Member’s Spouse cannot be located. |
Section 5
ADDITIONAL PAYMENT PROVISIONS
(a) Commenced Benefits and Existing Elections. If a Member’s benefits under the Plan or a Predecessor Plan commenced prior to the Effective Date, then the payment of such benefits shall continue pursuant to the terms under which the payment of such benefits commenced.
(b) Small Amount Cash-outs. Notwithstanding anything herein to the contrary, if at any time following a Member’s Separation From Service the Company determines that the aggregate single sum amount that is the Actuarial Equivalent of the Member’s Supplemental Retirement Benefit would be equal to or less than the then applicable amount prescribed by section 402(g) of the Code, such benefit will be paid to the Member in a lump sum on the later of (i) the first day of the calendar month following the six-month anniversary of the Member’s Separation From Service, and (ii) the first day of the calendar month following the date the Member’s benefit is determined to be equal to or less than such applicable amount.
(c) Change In Control. Notwithstanding anything herein to the contrary, if a Member incurs a Separation From Service within twenty-four (24) months following a Change In Control, then his or her Supplemental Benefit will be paid to such Member in a lump sum on the first day of the calendar month following the six-month anniversary of such Member’s Separation From Service. If such Member is not alive on the date such benefit would have been paid to him or her, then such benefit shall be paid to his or her estate.
(d) Tax Matters.
(i) The Company or an Employer may, at the discretion of the Company, withhold from any payment of benefits hereunder any taxes that may be due in respect of such payment in such amount as the Company or such Employer may reasonably estimate to be necessary to cover any taxes which the Company or such Employer may be liable to withhold.
(ii) If a Member’s participation in the Plan results in the imposition of any employment taxes, then the Company or the Member’s Employer may remit any required employment taxes, and related income tax withholding, to the taxing authority and the Member’s Supplemental Benefit may be actuarially reduced to reflect such remittance.
-7-
§5(d)(iii)
(iii) If at any time the Plan, with respect to a particular Member, is found to fail to meet the requirements of section 409A of the Code and the Treasury Regulations thereunder, the Company or an Employer may, at the discretion of the Company, distribute an amount equal to all taxes required to be paid on the amount included in income, and the Member’s Supplemental Benefit may be actuarially reduced to reflect such distribution.
(iv) A Member shall have no discretion, and shall have no direct or indirect election, as to whether a payment will be accelerated pursuant to this Section 5(d).
(e) 6-Month Delay Following Separation From Service.
(i) Notwithstanding anything to the contrary in the other Sections of the Plan, in no event shall payment of a Member’s Benefit be made before the six-month anniversary of the Member’s Separation From Service.
(ii) If a Member’s Initial Payment Date is later than his or her Benefit Commencement Date, then the first payment made to or on behalf of the Member shall include an amount equal to the amount (without any adjustment for interest) that would have previously been paid to or on behalf of the Member had his or her Initial Payment Date been the same date as his or her Benefit Commencement Date.
(f) Age 65 Distributions for Certain Members. Notwithstanding anything herein to the contrary, in the case of a Non-Early Retirement Eligible Member, the payment of such Member’s Supplemental Benefit shall begin on the first day of the month that begins coincident with, or immediately following, the date such Member attains age 65.
Section 6
PRE-RETIREMENT SURVIVOR BENEFITS
(a) In General. If a Member dies prior to his or her Benefit Commencement Date and such Member’s surviving Spouse, if any, is entitled to payment of a pre-retirement survivor benefit under a Qualified Plan that is less than the survivor benefit that would be payable under the Qualified Plan (i) but for the Code Limitations and (ii) treating the Additional Benefits described in Part I of Exhibit B hereto as payable with respect to such Member as having accrued under a Qualified Plan, then such surviving Spouse shall be entitled to receive a supplemental survivor benefit from the Company or the deceased Member’s former Employer under this Plan in an amount equal to (A) minus (B) where:
(A) equals the survivor benefit that would be payable under the Qualified Plan if such benefit were determined (I) without giving effect to the Code Limitations and (II) by treating the Additional Benefits described in Part I of Exhibit B hereto as having accrued under the Qualified Plan; and
(B) equals the survivor benefit actually payable to such surviving Spouse under the Qualified Plan.
-8-
§6(a)
Any supplemental survivor benefit described in this Section 6(a) shall be paid in a lump sum on the first day of the month following the later of (i) the six-month anniversary of the Member’s death, and (ii) the date the Member would have attained age 55.
(b) Predecessor Plans. If a Predecessor Plan provides that a survivor benefit shall be paid if a participant therein dies prior to his or her Benefit Commencement Date, then any such survivor benefits shall be paid in a lump sum on the first day of the month following the later of (i) the six-month anniversary of the Member’s death, and (ii) the date the Member would have attained age 55.
(c) Additional Benefits. If an Additional Benefit described in Part II of Exhibit B provides that a survivor benefit shall be paid if the Member entitled to such Additional Benefit dies prior to his or her Benefit Commencement Date, then, unless specified otherwise therein, any such survivor benefits shall be paid in a lump sum on the first day of the month following the later of (i) the six-month anniversary of the Member’s death, and (ii) the date the Member would have attained age 55.
(d) Small Amount Cash-out. Notwithstanding anything herein to the contrary, if at any time following a Member’s death the Company determines that the single sum amount that is the Actuarial Equivalent of the aggregate supplemental survivor benefit described in Section 6(a), (b) and (c) to which any individual is entitled is equal to or less than the then applicable amount prescribed by section 402(g) of the Code, such benefits will be paid to such individual in a lump sum on the later of (i) the first day of the calendar month following the six-month anniversary of the Member’s death, and (ii) the first day of the calendar month following the date the such individual’s supplemental survivor benefit is determined to be equal to or less than such applicable amount.
(e) Reductions for Prior Distributions. Notwithstanding anything herein to the contrary, an individual’s benefit, if any, under this Section 6 shall be actuarially adjusted to reflect any amounts previously distributed under the Plan or a Predecessor Plan to or on behalf of such individual or the Member.
Section 7
AMENDMENT AND TERMINATION
This Plan shall be subject to the same reserved powers of amendment and termination as the Retirement Benefit Plan of R.R. Donnelley & Sons Company (without regard to any limitations imposed on such powers by the Code or ERISA), except that no such amendment or termination shall reduce or otherwise adversely affect the rights of Members or beneficiaries in respect of amounts accrued hereunder as of the date of such amendment or termination without their written consent.
Section 8
APPLICATION OF ERISA
This Plan is intended to be an unfunded plan maintained primarily for the purpose of providing deferred compensation to a select group of management or highly compensated employees within the meaning of sections 201(2), 301(a)(3) and 401(a)(1) of ERISA and Department of Labor Regulation § 2520.104-23. Neither the Company nor any of the Employers
-9-
§8
shall be under any obligation to set aside any funds for the purpose of making payments under this Plan. Any payments hereunder shall be made out of the general assets of the Company or the Employers, as applicable.
Section 9
ADMINISTRATION
The Benefits Committee is hereby established and shall consist, at a minimum, of the Treasurer and the Vice President. The Benefits Committee may add additional members pursuant to procedures established in its by-laws. The Benefits Committee may always act by unanimous consent, has adopted by-laws to govern its activities and may amend such by-laws from time to time. Except as the context otherwise requires, the Benefits Committee shall be charged with the administration of this Plan and shall have the same powers and duties, and shall be subject to the same limitations, as are applicable to the Benefits Committee under the Retirement Benefit Plan of R.R. Donnelley & Sons Company.
Section 10
COMPANY ACTION
“Company” when referred to in the Plan, with respect to actions taken by the Company as sponsor of the Plan will be a reference to the Benefits Committee, the board of directors of the Company, or any delegee of any of the foregoing, in each case acting as the Company; provided, however, that any action by the Company pursuant to Section 7 to amend the Plan, if taken by any of the foregoing except the board of directors of the Company, may only be taken if, in the reasonable opinion of the person taking such action, the amendment does not have a material effect on the cost to the Employers of, or benefits in the aggregate under, the Plan; and provided further, that the Plan may be terminated with respect to all Employers only by resolution duly adopted by the Company’s board of directors. Whenever in the Plan any determination or other action is to be made or taken by the Company or any other Employer, such determination or other action will be made or taken in the sole discretion of the Company or other Employer, as appropriate.
Section 11
NONASSIGNMENT OF BENEFITS
Notwithstanding anything contained in the Plan, any Predecessor Plan or any Qualified Plan to the contrary, it shall be a condition of the right to payment of Benefits that neither such Benefits nor any portion thereof shall be assigned, alienated or transferred to any person voluntarily or by operation of any law, including any assignment, division or awarding of property under state domestic relations law (including community property law).
Section 12
NON-DUPLICATION OF BENEFITS
Notwithstanding anything herein to the contrary, nothing herein shall operate to result in the duplication of any benefits under this Plan, between the Plan and any other plan or
-10-
§12
arrangement, or otherwise with respect to any Member or other individual (including, without limitation, multiple accruals based on the same “compensation”), as determined in the sole discretion of the Company.
Section 13
NO GUARANTY OF EMPLOYMENT
Nothing contained in this Plan shall be construed as a contract of employment between any Employer and any employee or as conferring a right on any employee to be continued in the employment of any Employer.
Section 14
TRUST
(a) Funding. The Company may in its sole discretion establish a trust for the purpose of administering assets of the Company and the Employers to be used for the purpose of satisfying their obligations under the Plan. Any such trust shall be established in such manner so as to be a “grantor trust” of which the Company is the grantor, within the meaning of section 671 et. seq. of the Code. The existence of any such trust shall not relieve the Company or the Employers of their liabilities under the Plan, but the obligations of the Company and the Employers under the Plan shall be deemed satisfied to the extent paid from the trust.
(b) Taxation and Gross-ups. If any Member incurs a tax due to the application of section 409A(b)(3) of the Code in connection with the transfer of assets to any trust, the Company shall pay to such Member an amount such that after payment by the Member of all related taxes (including additional taxes imposed upon such payment to the Member) the Member retains an amount equal to the taxes imposed as a result of the application of section 409A(b)(3) of the Code. Any such payment shall be made no later than the fifteenth day of the third month following the calendar year in which such Member incurs such taxes.
Section 15
MISCELLANEOUS
(a) Applicable Law. This Plan and all rights hereunder and all determinations made and actions taken pursuant hereto, to the extent not otherwise governed by the Code or the laws of the United States, shall be governed by the laws of the State of Illinois and construed in accordance therewith without giving effect to its principles of conflict of laws.
(b) Expenses. All costs and expenses incurred in administering this Plan, including the expenses of the Benefits Committee, the fees of counsel and any agents of the Benefits Committee and other administrative expenses shall be paid by the Company and the Employers. The Company, in its sole discretion, having regard to the nature of a particular expense, shall determine the portion of such expense which is to be borne by the Company or a particular Employer.
(c) Successors and Assigns. The provisions of this Plan shall bind and inure to the benefit of the Company and each Employer and their successors and assigns, as well as each Member and his or her Spouse or other beneficiary and successors.
-11-
§16
Section 16
CLAIMS AND APPEALS PROCEDURES
-12-
§16(e)
(a) Authority to Submit Claims. Any individual who believes that he or she is entitled to receive a Benefit under this Plan, including one greater than that initially determined by the Benefits Committee, may (or his or her duly authorized representative may) file a Claim in writing with the Benefits Committee. The Benefits Committee will determine whether an individual is duly authorized to act on behalf of another individual, and may establish reasonable procedures for making this determination. Any such individual is referred to in this Plan as a Claimant.
(b) Procedure for Filing a Claim. In order for a communication from a Claimant to constitute a valid Claim, it must satisfy all the requirements of this Section 16(b), and if it does, it will constitute a valid Claim whether or not all the information necessary to make a Benefit Determination accompanies the communication.
(i) Any Claim must be Delivered to the Benefits Committee by a Claimant, in writing, and on the appropriate Claim form, or in such other form as may be acceptable to the Benefits Committee; and
(ii) Any Claim must be identified in writing as a formal Claim for a Benefit under the Claims and Appeals Procedures.
(c) Initial Claim Review. The initial Claim review will be conducted by the Benefits Committee, with or without the presence of the Claimant, as determined by the Benefits Committee in its discretion. The Benefits Committee will consider the applicable terms and provisions of this Plan and amendments to this Plan, information and evidence that is presented by the Claimant and any other information it deems relevant. In reviewing the Claim, the Benefits Committee will also consider and be consistent with prior determinations of Claims from other Claimants who were similarly situated and which have been processed through this Plan’s Claims and Appeals procedures within the past 24 months.
(d) Benefit Determination on Claim.
(i) The Benefits Committee will make a Benefit Determination regarding the Claim and Notify the Claimant of such Benefit Determination within a reasonable period of time, but in any event (except as described in Section 16(d)(ii) below) within 90 days after Receipt of the Claim by the Benefits Committee.
(ii) The Benefits Committee may extend the period for making the Benefit Determination on the Claim by up to 90 days if it determines that special circumstances require an extension of time, and if it Notifies the Claimant, prior to the end of the initial 90-day period, of the special circumstances requiring the extension of time and the date by which the Benefits Committee expects to render a Benefit Determination.
(e) Manner and Content of Notification of Adverse Benefit Determination on a Claim.
(i) The Benefits Committee will provide a Claimant with written or electronic Notice of any Adverse Benefit Determination on the Claim.
(ii) The Notification will set forth in a manner calculated to be understood by the Claimant:
-13-
| (I) | the specific reason or reasons for the Adverse Benefit Determination; |
| (II) | reference to the specific provision(s) of this Plan on which the Adverse Benefit Determination is based; |
| (III) | description of any additional material or information necessary for the Claimant to perfect the Claim and an explanation of why such material or information is necessary; and |
| (IV) | a description of this Plan’s review procedures and the time limits applicable to such procedures, including a statement describing the Claimant’s right to bring a civil action under section 502(a) of ERISA following an Adverse Benefit Determination on review. |
(f) Authority to Submit an Appeal. Any Claimant who receives an Adverse Benefit Determination with respect to a Claim may file a request for review of such Adverse Benefit Determination (an “Appeal”).
(g) Procedure for Filing for a Request for Review of an Adverse Benefit Determination. In order for a communication from a Claimant to constitute a valid Appeal, it must satisfy all the requirements of this Section 16(g), and if it does, it will constitutes a valid Appeal whether or not all the information necessary to make a Benefit Determination on Appeal accompanies the request.
(i) Any Appeal must be submitted by a Claimant, in writing, and on the appropriate form, or in such other form as may be acceptable to the Benefits Committee.
(ii) Any Appeal must be Delivered to the Benefits Committee within 60 days of Receipt by the Claimant of the Notice of the Adverse Benefit Determination on the Claim.
If the Benefits Committee does not Receive a valid Appeal within 60 days of Delivery to the Claimant of the Notice of Adverse Benefit Determination for the related Claim, the Claimant will be barred from filing any Appeal thereafter and he or she will be deemed to have failed to exhaust all administrative remedies under this Plan.
(h) Review Procedures for Appeals.
(i) The Appeal review will be conducted by the Benefits Committee, with or without the presence of the Claimant, as determined by the Benefits Committee in its discretion. The Benefits Committee will consider the applicable terms and provisions of this Plan and amendments to this Plan, information and evidence that is presented by the Claimant (including all comments, documents, records and other information submitted by the Claimant without regard to whether such information was submitted or considered in the initial Benefit Determination) and any other information it deems relevant. In reviewing the Appeal, the Benefits Committee, where appropriate, will also consider and be consistent with prior determinations of Appeals from other Claimants who were similarly situated and which have been processed through this Plan’s Claims and Appeals procedures within the past 24 months.
-14-
§16(j)(ii)(III)
(ii) The Claimant will be provided, upon request and free of charge, reasonable access to and copies of all Relevant Documents.
(iii) The review procedure will involve only one level of review.
(iv) The Claimant will be allowed to submit any supporting comments, documents, records and other information.
(i) Timing and Notification of Benefit Determination on Review.
(i) The Benefits Committee will make a Benefit Determination regarding the Appeal and Notify the Claimant of such Benefit Determination within a reasonable period of time, but in any event (except as described in Section 16(i)(ii) below) within 60 days after Receipt of the Appeal by the Benefits Committee.
(ii) The Benefits Committee may extend the period for making the Benefit Determination on the Appeal by up to 60 days if it determines that special circumstances require an extension of time, and if it Notifies the Claimant, prior to the end of the initial 60-day period, of the special circumstances requiring the extension of time and the date by which the Benefits Committee expects to render a decision. If such an extension is necessary due to a failure of the Claimant to submit information necessary to decide the Appeal, the period in which the Benefits Committee is required to make a decision shall be tolled by the Benefits Committee from the date on which the Notification is sent to the Claimant until the Benefits Committee has Received from the Claimant a response to the request for additional information. If the Claimant fails to respond to the Benefits Committee’s request for additional information within a reasonable time, the Benefits Committee may, in its discretion, render a Benefit Determination on the Appeal based on the record before the Benefits Committee.
(j) Manner and Content of Notification of Adverse Benefit Determination on Appeal.
(i) The Benefits Committee will provide a Claimant with written or electronic Notice of any Adverse Benefit Determination on the Appeal.
(ii) The Notification will set forth in a manner calculated to be understood by the Claimant:
| (I) | The specific reason or reasons for the Adverse Benefit Determination; |
| (II) | Reference to the specific provision(s) of this Plan on which the Adverse Benefit Determination is based; |
| (III) | A statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to and copies of all Relevant Documents; and |
| (IV) | A statement describing the Claimant’s right to bring a civil action under section 502(a) of ERISA following an Adverse Benefit Determination on review. |
(k) Collectively Bargained Benefits. Where benefits are provided pursuant to a collective bargaining agreement and
-15-
(i) such collective bargaining agreement maintains or incorporates by specific reference (i) provisions concerning the filing and disposition of Claims; and (ii) a grievance and arbitration procedure to which Appeals are subject, then Section 16(b) through and including Section 16(j) will not apply to Claims covered by such collective bargaining agreement; or
(ii) such collective bargaining agreement maintains or incorporates by specific reference a grievance and arbitration procedure to which Appeals are subject, then Section 16(g) through and including Section 16(j) will not apply to such Appeal.
(l) Limitation on Actions. No legal action, including without limitation any lawsuit, may be brought for a Benefit by a Claimant more than (a) two years after the date the related Claim is Received by the Benefits Committee, or (b) if the Claimant has Received a denial of his or her related Appeal during such time, two years after such Receipt.
(m) Failure to Exhaust Administrative Remedies. No legal action for a Benefit, including without limitation any lawsuit, may be brought by a Claimant who has not timely filed a Claim and an Appeal for such Benefit and otherwise exhausted all administrative remedies under this Plan.
Section 17
DELIVERY AND RECEIPT
For purposes of Section 17, any Notice, Notification, Claim, or other thing(s) or document(s) may be delivered in person, via messenger or courier service, or via United States Mail; provided, however, that any Notice sent by the Benefits Committee related to a Claim may be sent via fax if (a) Receipt of the fax is confirmed by a print out from the sending fax machine indicating that the transmission was Received, and (b) the fax transmission is followed by a hard copy sent via next business day courier service sent no later than the business day after the fax is transmitted. Any such item sent to the Benefits Committee must be sent to the address specified for the benefits committee of the Retirement Benefit Plan of R.R. Donnelley & Sons Company in the summary plan description of such plan. Any such item sent by the Benefits Committee, the Company or an Employer may be sent to the last known address of the intended recipient, as determined by reference to the records of this Plan, the Company or an Employer. Any such item which meets the above-requirements will be deemed “Delivered” and “Received” on the earlier of (a) the date of actual Receipt, if Receipt is evidenced by a written Receipt, (b) 10 days after deposit in the United States Mail, first class postage prepaid and return Receipt requested, and (c) the date of confirmation of successful transmission via fax. If the above-specified procedures are not followed, the item will be deemed not Delivered or Received and it will not be effective.
-16-
EXHIBIT A
QUALIFIED PLANS
| Name of Plan | Effective Date of becoming a | |
| Retirement Benefit Plan of R.R. Donnelley & Sons Company | Inception of Plan | |
| Retirement Income Plan of Moore Wallace North America, Inc. | January 1, 2005 | |
| Banta Corporation Employees Pension Plan | April 1, 2007 | |
-A1-
EXHIBIT B
ADDITIONAL BENEFITS
PART I—BENEFITS INCLUDED IN SECTION 6(A) PRE-RETIREMENT SURVIVOR BENEFITS
1. Compensation-Based Benefits Derived from Nonqualified Deferred Compensation Plans.
(a) Sales Representative Plan. With respect to an individual who is a participant in the R. R. Donnelley & Sons Company Global Capital Markets and Global Investment Markets Business Units of the Financial Business Unit Sales Representative Deferred Compensation Plan (the “Sales Representatives Plan”), if the retirement benefit payable to such individual under a Qualified Plan is less than the retirement benefit that would be payable under the Qualified Plan if compensation deferred by the individual under the Sales Representatives Plan that would have otherwise been received as salary or bonus were included in the Member’s compensation used to determine the amount of his or her accrued benefit under the Qualified Plan, without giving effect to the Code Limitations, then such individual shall be entitled to an Additional Benefit in an amount equal to (A) minus (B) where:
(A) equals the retirement benefit that would be payable under the Qualified Plan if such benefit were determined by including compensation deferred by the individual under the Sales Representatives Plan and without giving effect to the Code Limitations; and
(B) equals the sum of the retirement benefit actually payable to the individual under the Qualified Plan and the individual’s Restored Benefit.
(b) RRD Deferred Compensation Plan. With respect to an individual who is a participant in the R.R. Donnelley & Sons Company Nonqualified Deferred Compensation Plan (the “RRD Deferred Compensation Plan”), if the retirement benefit payable to such individual under a Qualified Plan is less than the retirement benefit that would be payable under the Qualified Plan if compensation deferred by the individual under the RRD Deferred Compensation Plan that would have otherwise been received as salary or bonus during 2005 or any later year were included in the individual’s compensation used to determine the amount of his or her accrued benefit under the Qualified Plan, without giving effect to the Code Limitations, then such individual shall be entitled to an Additional Benefit in an amount equal to (A) minus (B) where:
(A) equals the retirement benefit that would be payable under the Qualified Plan if such benefit were determined by including compensation deferred by the individual under the RRD Deferred Compensation Plan and without giving effect to the Code Limitations; and
(B) equals the sum of the retirement benefit actually payable to the individual under the Qualified Plan and the individual’s Restored Benefit.
-B1-
2. Past Service Improvements. Each Member designated in the Retirement Benefit Records as entitled to receive a “Past Service Improvement”, “Cost of Living Adjustment” or similar adjustment under the Plan or a Predecessor Plan for reasons other than on account of the Code Limitations shall be entitled to an Additional Benefit determined in the manner and in the amount designated in the Retirement Benefit Records with respect to such Member.
3. Early Retirement Window Benefits. Each Member designated in the Retirement Benefit Records as eligible for, and who elected to participate in, an early retirement window program offered to such Member and providing enhanced retirement benefits that are designated by the Company as payable under this Plan for reasons other than on account of the Code Limitations shall be entitled to an Additional Benefit determined in the manner and in the amount designated in the Retirement Benefit Records with respect to such Member.
4. Additional Benefits for Eligible Stream Employees. (a) Amount of Additional Benefit. An Eligible Stream Employee, as hereinafter defined, who as of April 21, 1995 (i) had at least five years of RRD Continuous Service, as hereinafter defined, and (ii) had attained age 40 shall be entitled to an Additional Benefit in an amount equal to the amount designated in the Retirement Benefit Records as payable to such Eligible Stream Employee in connection with a transfer of employment from an Employer to Stream International, Inc.
(b) Definitions.
(i) The term “Eligible Stream Employee” shall mean any individual designated in the Retirement Benefit Records as eligible to receive a benefit under this Plan and who immediately prior to April 21, 1995 was employed in the United States (including expatriates deemed to be employed in the United States) at a facility included in the RRD GSS Assets or RRD Norwest GSS Assets, as hereinafter defined, or was otherwise assigned thereto prior to such date and who transfers or transferred to Stream International Inc. on or after such date.
(ii) The term “GSS Business” means, as of April 21, 1995, the business of providing computer and computer software related documentation services, including printing and binding, media replication, kitting assembly, packaging, translation and localization, electronic exchange, licensing and fulfillment, as engaged in by the Company directly through its Global Software Services division and indirectly through a division of R. R. Donnelley Norwest Inc.
(iii) The term “RRD GSS Assets” means all of the assets and properties of the Company of every kind and description, wherever located, real, personal or mixed, tangible or intangible, used primarily in connection with the GSS Business as the same existed on April 21, 1995.
(iv) The term “RRD Norwest GSS Assets” means all of the assets and properties of R. R. Donnelley Norwest Inc. of every kind and description, wherever located, real, personal or mixed, tangible or intangible, used primarily in connection with the GSS Business as the same existed on April 21, 1995.
(v) The term “RRD Continuous Service” shall mean the continuous employment of such person with the Company, plus periods of up to 30 days
-B2-
when such person is not so employed, but excluding any period of employment with any company prior to the Company’s acquisition thereof or assets relating thereto.
PART II—BENEFITS NOT INCLUDED IN §6(A) PRE-RETIREMENT SURVIVOR BENEFITS
-B3-
EXHIBIT C
PREDECESSOR PLANS
1. Werthan Industries, Inc. Supplemental Retirement Plan (a/k/a Check Printers Supplemental Retirement Plan)
2. Moore Wallace North America, Inc. Non-Qualified Retirement Income Plan
3. Supplemental Unfunded Retirement Income Plan for Employees of Meredith/Burda Corporation
4. Supplemental Unfunded Retirement Income Plan for Employees of Meredith/Burda Company, Limited Partnership
5. Each other nonqualified deferred compensation plan maintained by an Affiliate that provides benefits in the form of an annuity, other than the Banta Corporation Supplemental Retirement Plan for Key Employees.
-C1-
