Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 1 of 28

ARTICLE VIA PENSION EQUITY PROVISIONS Effective Date. Effective January 1, 1998, the retirement benefit of all Participants, except those noted below, will be calculated in accordance with this Article VIA and not Article VI of this Plan. The following Participants will continue to have their retirement benefits calculated under Article VI or as otherwise specified in the Plan appendices: (a) Each Participant who terminated with a vested benefit prior to December 3 1, 1997 and who does not return to active employment in a position with the Company or a Participating Affiliate that is eligible to receive benefits under Article VIA. Each active Participant as of December 31, 1997 who has completed at least five years of Service as of June 30,1998 and who will be at least age 55 as of June 30,1998. Each active Participant as of December 3 1, 1997 whose age plus Service in completed years and months as of June 30, 1998 totals at least 75. Each Participant who is a member of a coIlective bargaining unit that has not bargained to receive benefits under Article VIA of the Plan. Each Participant receiving long term disability benefits from the Gannett Long Term Disability Plan as of December 31,1997 and who does not return to active employment with the Company or a Participating Affiliate in a position that is eligible to receive benefits under Article VIA. Each active Participant employed at the Detroit Newspaper Agency, TNI Partners or The Citizen on or after December 3 1,1997, provided that such Participant is not transferred to a position with the Company or a Participating Affiliate that is eligible to receive benefits under Article VIA. Each Participant who transferred to a nonparticipating Affiliate on or prior to December 3 1, 1997 a d who does not return to a position with the Company or a Participating Affiliate that is eligible to receive benefits under Article VIA.

(b:

(c) (d) (e)

(f)

(g)

Basic Retirement Amount. Subject to the provisions of Paragraphs 6A.06, 6A.07,6A.08, 6A.09 and Article XVI, a Participant's Basic Retirement Amount

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 2 of 28

under this Plan as stated as a single lump sum benefit is equal to the sum of Paragraphs (a) and (b) below. (a) The product of Paragraphs (i) and (ii): (i) (ii)
@)

The sum of the Participant's Total Basic Percentage, Starting Percentage, and Transition Percentage. The Participant's Final Average Earnings.

The product of Paragraphs (i) and (ii): (i) (ii) The Participant's Total Supplemental Percentage. The Participant's Final Average Earnings in excess of the Social Security Wage Base.

A Participant's Basic Retirement Amount will not be increased for interest or similar accruals. In no event will this Basic Retirement Amount be less than the Minimum Retirement Amount determined under Paragraph 6A.08 as of the Participant's benefit commencement date.
Special Definitions for Puruoses of Parawaph 6A.02. For purposes of calculating a Participant's Basic Retirement Amount under Paragraph 6A.02 the following special definitions apply:
(a)

"Total Basic Percentage" means the sum of the Basic Percentages a Participant earns for each year, or partial year, of Credited Service earned after December 3 1, 1997. The Basic Percentage a Participant earns for any one year of Credited Service earned after December 3 1, 1997 is based on the total years of Credited Service a Participant has earned under the Plan pursuant to the following table: Basic Percentage Earned for a Year of Credited Service after December 3 1,1997

Based on a Participant's total years of Credited Service For the Participant's first 10 years of Credited Service For the Participant's second 10 years of Credited Service For the Participant's years of Credited Service over 20

7% 9%

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 3 of 28

For partial years of Credited Service, the Basic Percentage is prorated by multiplying the Participant's partial year of Credited Service by the Basic Percentage.
(b)

For active Participants as of December 3 1, 1997 who are eligible to receive benefits under Article VIA as of January 1, 1998, "Starting Percentage'' means the percentage resulting fiom dividing (i) by (ii): (i) The Transitional Present Value as of December 3 1, 1997 of the Participant's Accrued Benefit under the Plan as in effect on December 3 1, 1997. The Participant's Final Average Earnings as of December 3 1, 1997.

(ii)

Paragraph 6A.09 and the Plan appendices set forth special rules for calculating the "Starting Percentage" for certain Participating Affiliates and in other circumstances. (c) "Transitional Present Value" means the actuarial present value of the Participant's Accrued Benefit as of December 3 1,1997 based on the Participant's age in completed years and months and the following assumptions: (i) (ii) (iii) Mortality: Interest: Retirement Age: 1983 GAM table (unisex)

5% interest per year
age 65 (age 60 for pilots)

The Participant's Accrued Benefit used for purposes of determining this present value shall be net of all prior Plan offsets and reduced for the withdrawal of any employee contributions. For Southern New Jersey, this value is calculated prior to any offset for the Carnden Profit-Sharing Plan. For former union employees, this value is calculated prior to any offset for benefits accrued under a union plan and based on service concurrent with the service credited under this Plan. (d) "Transition Percentage" means a percentage only for active Participants as of December 3 1, 1997 who meet the eligibility requirements in (i) or (ii) below, and are eligible to accrue a benefit under this Article VIA as of January 1, 1998.

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 4 of 28

(i) (ii)

The Participant has completed at least ten years of Service as of June 30,1998 and has attained at least age 45 as of June 30, 1998. The Participant has attained at least age 50 as of June 30, 1998.

The maximum Transition Percentage a Participant can earn is equal to 4% times the Participant's years of Credited Service as of December 31, 1997. An eligible Participant shall be credited with a Transition Percentage that is equal to .8% times the Participant's years of Credited Service as of December 3 1, 1997 for each Plan Year beginning on or after January 1, 1998 and ending on or before December 3 1,2002 during which the Participant has been credited with a year of Service during such Plan Year. However, an eligible Participant who attains age 55, completes 5 years of Service and is an Employee of the Company or an Affiliated Company for the period fiom January 1, 1998 until the date the Participant attains age 55 and completes 5 years of Service shall be credited with the maximum Transition Percentage upon attainment of age 55 and completion of 5 years of Service. (e) "Total Su~~lemental Percentage" means the sum of the Supplemental Percentages a Participant earns for each year, or partial year, of Credited Service earned after December 3 1, 1997. The Supplemental Percentage a Participant earns for any one year of Credited Service earned after December 3 1, 1997 is based on the total years of Credited Service a Participant has eamed under the Plan pursuant to the following table: Supplemental Percentage Earned for a Year of Credited Service after December 3 1, 1997
2%

Based on a Participant's total years of Credited Service For the Participant's first 10 years of Credited Service For the Participant's years of Credited Service in excess of 10

3%

For partial years of Credited Service, the Supplemental Percentage is prorated by multiplying the Participant's partial year of Credited Service by the Supplemental Percentage.

(f)

"Social Securitv Waee Base" means the maximum annual wage upon which retirement taxes under the Federal Insurance Contributions Act are

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 5 of 28

based for the earlier of the year of termination or the year of retirement. Such amount is frozen as of the Participant's Normal Retirement Age. Normal Form of Pavment The normal form of payment for a Participant's retirement benefits shall be as follows: (a) If a Participant does not have a Spouse on his Annuity Starting Date, his benefit will be payable in the form of a single life annuity, which is the Actuarial Equivalent of the Participant's vested Basic Retirement Amount calculated under Paragraph 6A.02. If a Participant has a Spouse on his Annuity Starting Date, his benefit will be payable in the form of a joint and 100% survivor annuity with his Spouse as the survivor annuitant. The amount of the joint and 100% survivor annuity will equal the Actuarial Equivalent of the Participant's vested Basic Retirement Amount calculated under Paragraph 6A.02.

(b)

Pavment of Benefits. A Participant shall be entitled to retirement benefits determined in accordance with the following subparagraphs: (a) If the lump sum present value of a terminated Participant's vested Basic Retirement Amount is less than $5,000, the benefit shall be paid in a lump sum. If subparagraph (a) above does not apply and a terminated Participant does not make written request for his retirement benefit to begin before his Normal Retirement Date, his benefit shall commence on his Normal Retirement Date and the amount of such benefit shall equal his vested Basic Retirement Amount calculated under Paragraph 6A.02, which shall not be less than the Actuarial Equivalent of his Accrued Benefit determined as of his Normal Retirement Date, payable as a single lump sum or as the Actuarial Equivalent immediate annuity in the normal or other optional form of payment. The consent to payment and a waiver of the normal form of benefit, if any, by the Participant and Spouse, if any, is required in accordance yith Code sections 401(a)(11) and 417. If a terminated Participant makes a written request for his retirement benefit to begin before his Early or Normal Retirement Date, his retirement benefit shall be equal to his vested Basic Retirement Amount under Paragraph 6A.02, which shall not be less than the Actuarial Equivalent of his Accrued Benefit with such value determined as of the date of benefit commencement. The Participant may elect to receive his vested Basic Retirement Amount in the form of a lump sum or Actuarial Equivalent immediate single life or joint and 100% survivor annuity. The

(b)

L

(c)

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 6 of 28

Participant shall be eligible to elect benefits under this subparagraph (c) at any point in time prior to his Early or Normal Retirement Date. The consent to payment and a waiver of the normal form of benefit, if any, by the Participant and Spouse, if any, is required in accordance with Code sections 401(a)(11) and 4 17. (d) A Participant who remains employed subsequent to his Normal Retirement Date will begin receiving benefits in accordance with Paragraph 5.03 and the amount of such benefit shall equal his vested Basic Retirement Amount calculated under Paragraph 6A.02, payable as a single lump sum or as the Actuarial Equivalent immediate annuity in the normal or other optional form of payment. The consent to payment and a waiver of the normal form of benefit, if any, by the Participant and Spouse, if any, is required in accordance with Code sections 401(a)(11) and 417.

(e)

In no event shall payments begin later than sixty days after the close of the Plan Year in which the latest of the following occurs: (1) the Participant's attainment of age 65; (2) the termination of the Participant's service with the Company; or (3) the date specified in writing to the Committee by the Participant; provided that such date is not later than the time period prescribed for commencing benefits set forth in Paragraph 5.03(a).

Adiustment For Other Oualified Retirement Plan Benefits. The amount of retirement benefits determined in accordance with any preceding paragraph of this Article VIA will be adjusted to take into account the value of any benefits to which a Participant is entitled, or which the Participant has received, under any other qualified retirement plan toward which the Company, an Affiliated Company or a predecessor employer made contributions or was obligated to contribute at any time unless adjustment for such benefits is specifically excluded under a bargaining agreement or was taken into consideration in the calculation of the Starting Percentage. For example, the Basic Retirement Amount shall be reduced by the Actuarial Equivalent of the benefit attributable to Employee contributions if withdrawn from the Plan. Any adjustment pursuant to this Paragraph 6A.06 will be made in a nondiscriminatory manner with respect to persons in similar circumstances. 6A.07 Maximum Benefit and Other Provisions. The maximum benefit and alternative maximum benefits provisions of Paragraphs 6.07 and 6.08 shall apply to any benefits paid under this Article VIA. Additionally, Paragraphs 6.09,6.10 and 6.13 shall apply to benefits paid under this Article VIA. Minimum Retirement Amount. Subject to the provisions of Paragraphs 6A.06 and bA.07 and Article XVI, an Employee who was a Participant in this Plan on or prior to January 1, 1998, and whose retirement

6A.08

R151801.4

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 7 of 28

benefit is calculated under this Article VIA shall have a minimum retirement benefit expressed as a lump sum equal to the Actuarial Equivalent as of the determination date of his Accrued Benefit, including the value of any early retirement subsidies, calculated under Article VI or other applicable provisions described in the Plan appendices as of December 3 1, 1997. Coordination With Predecessor Plans and Other Special Rules. Participants who were covered by a defined benefit plan sponsored by an Affiliated Company or predecessor employer prior to the adoption of this Plan by the Affiliate may have a Starting Percentage calculated at the time this Article VIA becomes applicable to such Participants. The Starting Percentage, if any, will be based on actuarial assumptions and rules that will be adopted by the Committee on or about the time this Article VIA becomes applicable to such Participants. The Plan appendices will set forth the rules that will apply to such Participants as well as the rules that will applyto other groups of employees that become Participants i the Plan. n Special rules apply to an individual who has an Accrued Benefit under the Plan but is not an active Participant as of December 3 1, 1997 and returns to a position with the Company or a Participating Affiliate that is eligible to receive benefits under the Plan (e.g., individuals who are reemployed, transferred or return to active employment after receiving long term disability benefits fi-om the Gannett Long Term Disability Plan). The benefits for such an individual will be determined under Article VI if the individual would fiave satisfied the requirements of Paragraph 6A.01(b)or Paragraph 6A.01(c) if he were an active Participant on December 3 1, 1997 or the individual is ineligible to receive benefits under Article VIA pursuant to Paragraph 6A.01 (d) or Paragraph 6A.O1(f). Otherwise, the individual's benefit will be calculated under Article VIA. If such a Participant's benefit is calculated under Article VIA, the Participant will have a Starting Percentage calculated in accordance with Paragraph 6A.O3(b) and Paragraph 6A.O3(c) except that the "Transitional Present Value" will be calculated as of the date that the Participant becomes eligible to receive a benefit under Article VIA. Additionally, the "Transitional Present Value" will be calculated using the "applicable mortality table" as defined in Code section 417(e)(3)(A)(ii)(I) and the "applicable interest rate" as defined in Code section 417(e)(3)(A)(ii)(II) except that the "applicable interest rate" shall be the applicable interest rate for the second month preceding the first day of the Plan Year in which the Participant becomes eligible to receive a benefit under Article VIA. Such a Participant will not have the right to receive a Transition Percentage. 6A. 10 Special Rules Applicable to Particiuating Affiliates. Special rules applicable to Participating Affiliates and certain Participants are set forth in the Plan appendices.

R151801.4

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 8 of 28

Qualified Domestic Relations Orders. If a Participant's benefit is calculated under Article VIA, the alternate payee of such a Participant may receive all or a portion of the Participant's vested benefit in the form of an immediate single life annuity for the alternate payee's life or an immediate lump sum distribution pursuant to a valid qualified domestic relations order as defined in Code section 414(p).

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 9 of 28

ARTICLE VII PRE-RETIREMENT DEATH BENEFIT TO SPOUSE S~ouse's Benefit. If a Participant in the Plan whose benefit has vested should die before the earlier of his Termination Date or Normal Retirement Date, a Spouse who has been married to the Participant for at least 12 months immediately preceding the Participant's death shall be entitled to .the benefit described in Paragraph 7.02. The same benefit shall be paid to the surviving Spouse of a former Participant who terminated employment after September 4, 1974, with a vested benefit and who dies after January 1, 1985 before benefit payments have commenced. In the case of a former Participant who terminates employment on or after January 1, 1988, with a vested benefit calculated under Article VI, the Spouse's Benefit shall be elective and a charge will be made for such Benefit as described in Paragraph 7.03. No charge will be imposed for a Spouse's Benefit for a Participant whose benefit is calculated under Article VIA. Amount of S~ouse's Benefit. (a) For a Participant whose benefit is calculated under Article VI, the amount of monthly Spouse's Benefit will be determined as if the Participant

(i)
(ii)

had separated from service on his date of death, if then actively employed, or actual Termination Date, if earlier, had retired early with the Early Retirement Date in Paragraph 5.02 being the later of the first day of the month coinciding with or next following his date of death or attaining age 55, had Retirement Income payable under the Normal Form of Payment in Paragraph 6.02 or that otherwise is in effect on the Participant's Termination Date, and had died on his date of retirement.

(iii)

(iv)
(b)

For a Participant whose,benefitis calculated under Article VIA, the amount of the Spouse's Benefit will equal the Participant's Basic Retirement Amount calculated under Article VIA. The Spouse may elect to receive such benefit in the form of a lump sum payment or a single life annuity for the life of the Spouse which is the Actuarial Equivalent of the lump sum payment.

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 10 of 28

Post-1 984 Suouse's Benefit. A Participant who terminates employment on or after January 1, 1988 and whose benefit is calculated under Article VI, may elect not to be covered by the Spouse's Benefit at any time during the period beginning with the first day of the Plan Year in which the Participant reaches age 35 and ending on the date of the Participant's death; in the case of a Participant who separates from service before attaining age 35, the election period shall be a reasonable period after separation. If such Participant elects not to be covered, both the Participant and the Spouse shall sign a written statement to be furnished by the Committee in which they acknowledge the effect of the election. Such written statement shall include the Spouse's consent to waive the Spouse's Benefit and shall be witnessed by a Plan representative or notarized. This election may be revoked at any time by the Participant, and the Spouse must consent to any subsequent decision by the Participant to waive the Spouse's Benefit. If the Participant elects to continue the Spouse's Benefit coverage or to re-elect it or fails to elect not to receive it, then a charge shall be made for the Spouse's Benefit by reducing the amount of Retirement Income otherwise payable by a cost factor which will be communicated to the Participant at the time the notice of election is furnished by the Committee. Pavment of Spouse's Benefit. For a Participant whose benefit is calculated under Article VI, payment shall begin to the Spouse on the later of what would have been the Participant's Early Retirement Date or the first day of the month following the Participant's death and shall continue to be made on the first day of each month thereafter during the Spouse's lifetime. For a Participant whose benefit is calculated under Article VIA, payment shall begin as soon as administratively practicable after the Participant's death. In the event of the death of the Participant, Former Participant or Beneficiary while benefits are being paid under a schedule which meets the applicable requirements, payments shall continue pursuant to a schedule which is at least as rapid as the period selected. If benefit payments have not commenced, any death benefit shall be distributed within 5 years of death unless (i) payments are made to an individual Beneficiary designated by the Participant; (ii) payments are made for the life of such Beneficiary or over a period not extending beyond the life expectancy of the Beneficiary; .and (iii) payments commence within one year of death. The Spouse may elect a later starting date (up to the date the Participant would have attained age 70 1/2) under procedures established by the Committee.
7.05

Death Benefits in Absence of Suouse. If a participant dies before benefits commence and the Participant does not have a surviving spouse, no death benefits are payable.

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 11 of 28

ARTICLE VUI NORMAL AND OPTIONAL PAYMENT FORMS OF RETIREMENT INCOME Waiver of Normal Form and Election of Optional Form of Pavment. A Participant may waive the Normal Form of payment described in Paragraph 6.02 or Paragraph 6A.04 provided that concurrently with such waiver an election is made of an optional form of payment from those provided for in Paragraph 8.04. Such waiver and election may be made only during the waiver period specified in Paragraph 8.02; otherwise payment will be made in the normal form. In the case of a married Participant, the Participant's Spouse must consent in a writing, either notarized or witnessed by a Plan representative, which acknowledges the effect of the election. Waiver Period. A Participant may waive the normal form of payment at any time during the period beginning 90 days prior to his Annuity Starting Date on a form provided by the Retirement Committee. The Committee will, when necessary, mail the form to the Participant, via certified mail, at the last address on the records of the Committee or, if deemed appropriate, through any facilities made available by the U.S. Social Security Administration. During the waiver period, the Participant may request information with respect to the effect of his waiver on the normal form of payment and the election of any available optional form of payment. Any waiver may be revoked, or election changed, at any time prior to the Participant's Annuity Starting Date, on a form approved by the Committee. Temporaw Nonpayment of Retirement Income. If a Participant fails to submit the form required under Paragraph 8.0 1 before the Participant's Annuity Starting Date, the Committee will not authorize payment of such Retirement Income until the Participant h i s h e s necessary information with respect to marital status and the age of Spouse, if any. Optional Forms of Pavrnent. For Participants whose benefits are calculated under Article VI, the forms of benefit payment available to each Participant will be the Actuarial Equivalent of their Retirement Income on a single life annuity basis. For Participants whose benefits are calculated under Article VIA, the forms of benefit payment available to each Participant will be the Actuarial Equivalent of the Participant's Basic Retirement Amount calculated under Paragraph 6A.02, which amount shall not be less than the Actuarial Equivalent of his Accrued Benefit. Except as provided in Paragraphs 6.1 1(a), 6A.O5(a) and 6A.O5(c), a Participant may not commence benefits prior to his Early Retirement Date. Payments commencing before a Participant's Early Retirement Date may only be paid in the forms and in accordance with the

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 12 of 28

provisions of Paragraphs 6.1 1(a), 6A.O5(a) and 6A.O5(c). The forms of benefit, including normal and optional forms, payable on or after a Participant's Early Retirement Date are as follows: (a) Single Life Annuity, under which Retirement Income payments are made to the Participant during the Participant's lifetime, with no further payments after the Participant's death. Contingent Annuitant Oution, under which payments are made to the Participant during the Participant's lifetime, based on Actuarial Equivalent factors approved by the Committee fiom time to time in accordance with recommendations of the Actuary, with payments from the Plan after death continued in the same or lesser amount as specified by the Participant to and for the lifetime of the person designated as the Contingent Annuitant when this option was elected. The Participant may elect to receive the contingent annuitant option in forms that provide for payments to the Contingent Annuitant equaling 50%, 66 2/3%, 75% or 100% of the payments that were made to the Participant during his lifetime. (i) If the Participant elects the contingent annuitant option and dies before it becomes effective, such election will be revoked automatically. If the Participant elects the contingent annuitant option and the Contingent h u i t a n t dies before it becomes effective, such election will be revoked automatically and any payments made will be under the normal form. If the Participant elects the contingent annuitant option and it becomes effective, Retirement Income payments thereafter will not be changed by reason of the death of the Contingent Annuitant during the lifetime of the Participant. If a Participant dies after the contingent annuitant option is effective, but prior to attainment of age 62, the Contingent Annuitant will receive the applicable percentage of the Participant's pre-62 Retirement Income until the first of the month following the date on which the Participant would have attained age 62. Thereafter, the Contingent Annuitant will receive the applicable percentage of the Participant's post-62 Retirement Income.

(b)

(ii)

(iii)

(iv)

(c)

10 Year Certain and Continuous Annuity, under which Retirement Income payments are made during the Participant's lifetime, with no W e r

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 13 of 28

payments after the Participant's death, except that if the Participant dies within 10 years from the Participant's Annuity Starting Date, payments will continue until such 10 year period expires. (d) L w Sum. under which a Participant may elect to receive his benefit in the form of a lump sum distribution. Except as provided under Paragraph 6.11, only a Participant whose benefit is calculated under Article VIA may elect to receive his benefit in the form of a lump sum payment.

General Limitation. Anythmg in this Article VIII to the contrary notwithstanding, no method of distribution will be made under a normal or optional payment form of benefit which would result in the Actuarial Equivalent of a Contingent Annuitant's or Beneficiary's interest exceeding 50% of the Actuarial Equivalent of the Participant's own interest on a single life annuity basis, both equivalents being determined as of the Participant's Annuity Starting Date. This limitation will not apply where the Contingent h u i t a n t is the Participant's Spouse. All payments must be pursuant to a schedule whereby the Participant's entire interest in the Plan is paid over a period that does not extend beyond the life of the Participant or over the lives of the Participant and any individual designated as his Beneficiary (or over the life expectancies of the Participant and Beneficiary). Notwithstanding anything in the Plan to the contrary, benefits shall be paid in accordance with regulations under Code section 401(a)(9), including Treasury Regulation 1.401(a)(9)-2, and the provisions reflecting section 40 1(a)(9) shall override any distribution options in the Plan which may be inconsistent with section 401(a)(9).

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 14 of 28

ARTICLE I X

. No Contributions bv Particivants. No Participant will be required to make a contribution under the Plan.

Companv Contributions. All contributions to provide benefits under the Plan will be made by the Company fiom time to time to the Fund. Any forfeiture of the interest of any Participant in the Fund will be applied to reduce the amount of Company contributions. In making contributions, the Company may rely upon actuarial estimates made or obtained by the Retirement Plan Committee of the amounts which would accomplish the purposes of the Plan. Particivant Contributions to Prior Plans. Some plans of Participating Affiliates previously provided for mandatory contributions by employees and such contributions may still be held in this Plan. Such "accumulated contributions" shall be credited with interest at the rate of five and one-half percent per annum from January 1,1976, or such other relevant date, through December 3 1, 1988 for those who terminated prior to January 1, 1989 and through December 3 1, 1987 for all others. For Participants active as January 1, 1989, on and after January 1, 1988, the rate of interest credited will be 120 percent of the Federal mid-term rate as in effect the first month of each Plan Year, starting with January 1, 1988, to the date of withdrawal. Participants shall always be filly and nonforfeitably vested in such accumulated contributions and shall always receive at least the amounts of their accumulated contributions. The accrued benefit attributable to such mandatory employee contributions shall be the amount of a Participant's accumulated contributions expressed as a single life annuity commencing at age 65, using an interest rate which would be used under the Plan under section 417(e)(3) (as of the determination date). Benefits in a form other than a single life annuity shall be the Actuarial Equivalent as determined by the Committee.

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 15 of 28

ARTICLE X FUND Trust Ameementhsurance Comuanv Contract. In order to carry out the operation of the Plan, the Company may enter into a Trust Agreement with the Trustee, andfor into a Contract with the Insurance Company. All contributions under the Plan shall be paid to the Trustee andlor Insurance Company and deposited in the Fund. All assets of the Fund shall be retained for the exclusive benefit of Participants, Contingent Annuitants and Beneficiaries, and to carry out the operation of the Plan and the payment of expenses in Paragraph 11.06. Unless all liabilities under the Plan are satisfied, no part of the Fund may revert to or inure to the benefit of the Company. 10.03 Fundine Policy. The funding policy and method under the Plan, and the procedures for carrying out such policy and method, will be in accordance with Article IX and the reports of the Actuary accepted by the Retirement Plan Committee, and will, additionally, include determination by the Retirement Plan Committee fiom time to time of expected disbursements fiom the Fund for benefit payments, or otherwise in accordance with the Plan. Assets. Except as otherwise permitted under the Plan, all assets of the Plan will be held either by the Trustee or by the Insurance Company who upon acceptance of such assets will have exclusive authority and discretion to manage and control the assets of the Plan subject to the terms of the Plan and Trust Agreement or Contract.

m.

10.04

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 16 of 28

ARTICLE XI RETIREMENT PLAN COMMITTEE AND OTHER FIDUCIARIES ADDointInent of Committee. The Board shall appoint a committee, to be known as the "Retirement Plan Committee" (herein referred to as the "Committee") to administer the Plan. Any person, including an officer, or other employee of the Company, is eligible for appointment as a member of the Committee. Such members shall serve at the pleasure of the Board. Any member may resign .by delivering a written resignation to the Board. Vacancies in the Committee arising by resignation, death, removal or otherwise, shall be filled by the Board. Named Fiduciarv and Plan Administrator. The Committee shall be the Named Fiduciary and Plan Administrator as those terns are used in the Employee Retirement Income Security Act of 1974. The Committee shall appoint one of its members as Secretary who shall also be the agent for the service of legal process. Powers and Duties of Committee. The Committee shall administer the Plan in accordance with its terms and shall have all powers necessary to carry out the provisions of the Plan, except such powers as are specifically reserved to the Board or some other person. The Committee's powers include the power to make and publish such rules and regulations as it may deem necessary to carry out the provisions of the Plan. The Committee shall have full discretionary authority to interpret the Plan and to determine all questions arising in the administration, interpretation, and application of the Plan. Any such determination by the Committee shall be conclusive and binding on all persons. Effective December 16, 1980, the Board delegated to the Committee the authority to designate and remove Investment Managers (as that term is defined in ERISA and in Paragraph 6.1 of the Gannett ~etirern&t Plan Master Trust). Effective April 1, 1991, the Committee shall vote any and all shares of the common stock of the Company held by the Trustee or shall delegate such voting power to the Trustee or to one or more Investment Managers. 11.04 ODeration of Committee. The Committee shall act by a majority of its members at the time in office, and such action may be taken either by a vote at a meeting or without a meeting. Any action taken without a meeting shall be reflected in a written instrument signed by a majority of the members of the Committee. A member of the Committee who is also a Participant shall not vote on any question relating specifically to such member. Any such question shall be decided by the majority of the remaining members of the Committee. The Committee may authorize any one or more of its members to execute any document or documents on behalf of the Committee, in which event the

R151801.4

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 17 of 28

Committee shall notify the Trustee and/or Insurance Company in writing of such action and the name or names of its member or members so designated. The Trustee thereafter shall accept and rely upon any document executed by such member or members as representing action by the Committee until the Committee shall file with the Trustee a written revocation of such designation. The Committee may adopt such by-laws or regulations as it deems desirable for the conduct of its affairs. The Committee shall keep a record of all its proceedings and acts and shall keep all such books of account, records, and other data as may be necessary for the proper administration of the Plan. Power to Appoint Advisers. The Committee may appoint such actuaries, accountants, attorneys, specialists, and other persons as it deems necessary or desirable in connection with the administration of this Plan. Such accountants and attorneys may, but need not, be accountants and attorneys for the Company. The Committee shall be entitled to rely upon any opinions or reports which shall be furnished to it by any such actuary, accountant, attorney or other specialist. Expenses of Committee. The members of the Committee shall serve without compensation for services as such, but all reasonable expenses of the Cormnittee shall be paid by the Company and/or the Plan. Such expenses shall include any expenses incident to the functioning of the Committee, including, but not limited to, fees of actuaries, accountants, attorneys, and other specialists, and other costs of administering the Plan. Duties of Fiduciaries. All fiduciaries under the Plan and Fund shall act solely in the interests of the Participants and their Beneficiaries and in accordance with the terms and provisions of the Plan and Fund insofar as such documents are consistent with the Employee Retirement Income Security Act of 1974, and with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims. Any person may serve in more than one fiduciary capacity with respect to the Plan. 11.08 Liability of Members. No members of the Committee shall incur any liability for any action or failure to act, excepting only liability for one's own breach of fiduciary duty. The Company shall indemnify each member of the Committee and any employee acting on its behalf against any and all claims, loss, damages, expense, and liability arising fiom any action or failure to act. Allocation of Resuonsibility. The Board, Committee, and the Trustee possess certain specified powers, duties, responsibilities and obligations under the Plan and Fund. It is intended under this Elan and Fund that each be responsible solely for the proper exercise of its own functions and that each shall not be

11.09

R151801.4

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 18 of 28

responsible for any act or failure to act of another, unless otherwise responsible as a breach of its own fiduciary duty. Generally, the Board shall be responsible for appointing the Committee and the Trustee and for their removal, and for amending and terminating the Plan and Fund. The Committee is responsible for administering the Plan as described herein; and the Trustee is responsible for the management and control of the Fund as specifically provided in the Fund agreement. The Board and Committee may designate persons, including committees, other than named fiduciaries to carry out fiduciary duties (other than trustee responsibilities as defined in section 405(c)(3) of ERISA) under the Plan. 11.10 Claims Review Procedure. The Committee shall maintain a procedure under which any Participant or Beneficiary (hereinafter called "claimant") whose claim for benefits under the Plan has been denied will receive written notice which clearly sets forth the specific reason or reasons for such denial, the specific plan provision or provisions on which the denial is based, any additional information necessary for the claimant to perfect the claim, if possible, and an explanation of why such additional information is needed, and any explanation of the Plan's claims review procedure. Such procedure shall allow a claimant at least 60 days after receipt of the written notice of denial to request a review of such denied claim, and the Committee shall make its decision based on such review within 60 days (120 days if special circumstances require more time) of its receipt of the request for review. The decision on review shall be in writing and shall clearly describe the reasons for the Committee's decision.

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 19 of 28

ARTICLE X I PROVISION TO PREVENT DISCRlMINATION Prevention of Discrimination. With a view to preventing any discrimination in favor of Highly Compensated Employees and notwithstanding anyhng in the Plan to the contrary, the use of the assets under the Plan is subject to the limitations specified in this Article. 12.02 Benefit Limits to Restricted Emvlovees. Benefit payments to a "restricted employee" shall not exceed the periodic amounts payable under a single life annuity that is actuarially equivalent to the employee's entire Plan benefit. This limit shall not apply if either of the following is true: (1) Immediately after a payment of a benefit to the restricted employee Plan assets equal at least 110 percent of the Plan's current liabilities. The value of the benefit paid is less than one percent of the Plan's current liabilities.

(2)

For purposes of this Article, "benefits" means all accrued and other Plan benefits; "benefits paid" includes regular payments, and death and disability payments; and "restricted employee" means one of the highest-paid 25 of the current and former Highly Compensated Employees with benefits under the Plan. Additionally, for purposes of this Article, effective for years beginning after December 3 1, 1996, "Highly Compensated Employee" means any Employee who: (1) was a "five percent owner", as defined in Section 416(i)(I) of the Code, during the current or preceding Plan Year; or received Compensation fiom the Company or an Affiliated Company which, in total, exceeded $80,000 for the preceding Plan Year, and, if the Company so elects, was in the top-paid group for the preceding Plan Year.

(2)

The $80,000 dollar amount shall be adjusted for cost of living increases as provided under the Code. The determination of whether an Employee is a Highly Compensated Employee will be made in accordance with Code section 414(q) and the rules and regulations promulgated thereunder.

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 20 of 28

ARTICLE X E l AMENDMENT OF THE PLAN
Right to Amend. The Board reserves the right, at any time and fiom time to time, subject to the limitations hereinafter provided, to amend in whole or in part any or all provisions of the Plan. Each amendment of the Plan will be in writing, and will become effective on the date specified therein. Effective March 1,198 1, the Board delegated to the Committee the authority to amend the Plan by adding or eliminating Affiliated Companies (or divisions or units of an Affiliated Company) to or fiom the Plan and amending the appendices to the Plan which set forth the benefit provisions applicable to such Affiliated Companies (or divisions or units of an Affiliated Company). Restrictions on Amendment. No amendment of the Plan may be made which will either:
(a)

deprive any Participant, Beneficiary or Contingent Annuitant of any part of an Accrued Benefit as constituted on the effective date of such amendment; or result in the reversion to the Company of any part of the Plan assets, except in the case where all liabilities of the Plan have been met, then any excess assets may revert to the Company; or eliminate or reduce a Participant's Accrued Benefit, including an early retirement benefit, retirement-type subsidy or an optional form of benefit under the Plan with respect to the Participant's Accrued Benefit on the effective date of such amendment.

(b)

(c)

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 21 of 28

ARTICLE XIV TERMMATION OF THE PLAN Events Constituting Termination: (a) It is expressly declared to be the desire and intention of the Board to continue the Plan in existence for an indefinite period of time. However, circumstances not now anticipated or foreseeable may arise in the future, as a result of which the Board may deem it to be impracticable or unwise to continue the Plan. The Board, therefore, reserves the right to terminate the Plan at any time. The Plan may also terminate in operation. With respect to the Company, its filing for bankruptcy or insolvency; its making of a general assignment for the benefit of creditors; its dissolution, merger, consolidation, other reorganization or discontinuance of business, continued by a Successor Company; or its complete unless the P1an.i~ discontinuance of contributions, will operate to terminate the Plan. Subject to applicable requirements of notice to the Pension Benefit Guaranty Corporation, governing termination of employee pension benefit plans, the Retirement Plan Committee will direct the Trustee or Jnsurance Company to prepare for payment of benefits in accordance with the provisions of this Article.

(b)

(c)

14.02

Partial Termination. Upon a partial termination of the Plan with respect to a group of Participants or the termination of a portion of the Plan due to the cessation of participation by a Participating Affiliate, the Retirement Plan Committee will direct the Actuary to determine the proportionate interests of the Participants affected by such termination. After such proportionate interests have been determined, the Retirement Plan Committee will direct the Trustee or Insurance Company to segregate the Plan assets allocable to such group of Participants, for payment of benefits in accordance with the provisions of this Article; subject to applicable requirements of notice to the Pension Benefit Guaranty Corporation. Allocation of Assets. Upon termination or partial termination under Paragraphs 14.01 and 14.02, each affected Participant shall become 100% vested in his Accrued Benefit to the extent funded, and the Plan assets will be used to provide the benefits of this Plan in the order of priority as follows:

14.03

(1)
R151801.4

Benefits of each Participant, Spouse, Contingent Annuitant or Beneficiary which were in pay status as of the beginning of the 3-year period ending

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 22 of 28

on the date of termination or complete discontinuance of contributions (or which would have been in pay status as of such date if the Participant had elected to retire as of the earliest date on which the Participant was eligible to retire and receive benefits) based on the provisions of the Plan (as in effect during the 5-year period ending on the termination or complete discontinuance of contributions date) under which such benefit would be the least.
(2)

Benefits of each Participant, Spouse, Contingent Annuitant or Beneficiary, in excess of the amounts covered by (1) above, to the extent such benefits are guaranteed by the Pension Benefit Guaranty Corporation. Benefits vested under the provisions of Article V of this Plan in excess of the benefits provided under (1) and (2) above. Any benefits accrued under this Plan which are not covered by (1) through (3) above.

(3)

(4)

If the assets to be allocated are insufficient to provide in full for the benefits in classes (I), (2) and (4) above, the benefits of all Participants, Spouses, Contingent Annuitants and Beneficiaries in such class will be reduced pro rata. If the assets to be allocated are insufficient to provide in full for the benefits of all Participants, Spouses, Contingent h u i t a n t s and Beneficiaries in class (3), the allocation of assets within such class will be established on the basis of the following order of priorities: (1) Benefits as provided under the Plan as it was in effect during the 5-year period ending on the termination or complete discontinuance. Benefits as provided under the Plan as it was in effect in accordance with the first amendment made to the Plan during such 5-year period to the extent they exceed the benefits provided for under (1). Benefits as provided under the Plan as it was in effect in accordance with the second and each subsequent amendment made to the Plan during such 5-year period, respectively to the extent they exceed the benefits provided for under prior priority classes. The benefits for the priority group within class (3) that result in exhaustion of Plan assets will be reduced pro rata. If any assets remain after providing in fill the benefits for all classes, the remaining assets will be paid to the Company.

(2)

(3)

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 23 of 28

Manner of Distribution. Subject to the foregoing provisions of this Article XTV, any distribution after termination of the Plan may be made, in whole or in part, to the extent that no discrimination results, in cash, securities or other assets in kind (based on their fair market value as of the date of distribution), or in nontransferable annuity contracts, as the Retirement Plan Committee in its discretion will determine. Intemal Revenue Service Approval for Distribution. Notwithstanding any provision of the Plan to the contrary, no person shall have any right or claim to any Plan assets before it is determined by the Internal Revenue Service that the proposed distribution of assets under this Article does not result in the discrimination prohibited by section 401(a)(4) of the Code. Special Allocation Rule for Plan Mergers. If one or more qualified defined benefit plans are merged into the Plan in a Plan Year and the total liabilities that are merged into the Plan are less than 3% of the Plan's assets a special allocation rule will apply in the event of a spinoff or termination of the Plan within 5 years following the merger. Under this rule, Plan assets will be allocated first for the participants of the plan or plans that were merged into the Plan to the extent of such participants' benefits calculated on a termination basis just prior to the merger. Nondiscrimination in Pavment of Benefits. In the event of plan termination, the benefits paid from this Plan to any current or former Highly Compensated Employee shall be limited as necessary to satisfy the nondiscrimination requirements of Code section 401(a)(4).

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 24 of 28

ARTICLE XV MISCELLANEOUS PROVISIONS No Assignment of Benefit. No benefit under the Plan, nor any other interest hereunder of any Participant, Beneficiary or Contingent Annuitant, will be assignable, transferable or subject to sale, mortgage, pledge, hypothecation, commutation, anticipation, garnishment, attachment, execution, or levy of any kind. Any attempt to assign, transfer, sell, mortgage, pledge, hypothecate, commute, anticipate or otherwise encumber any such benefits, whether presently or thereafter payable will be void. Nothing in this Paragraph shall preclude payment of Plan benefits pursuant to a qualified domestic relations order as defined in Code section 414(p). No Implied Rinhts to Emulovment. Neither this Plan, the payment of contributions by the Company, nor the payment of any benefits pursuant to the Plan will be construed to create any obligation upon the Company to continue to make contributions to the Plan or to give any present or future Employee any right to continued employment. Return of Contributions to Comvany. The Plan is created for the exclusive benefit of Participants, their Beneficiaries, and Contingent Annuitants. Except as provided in subparagraphs (a) and (b) below, at no time prior to the satisfaction of all liabilities under the Plan with respect to Participants, their Beneficiaries and Contingent Annuitants will any contributions to the Plan by the Company or any Plan assets ever revert to or be used by the Company. (a)

In the case of a contribution that is made by the Company by a mistake of fact, the Retirement Plan Coxnmittee may direct the return to it of such contribution within one year after the payment of the contribution.
Contributions by the Company are conditioned upon initial qualification of the Plan under section 401(a) of the Code and the deductibility of each such contribution under.section 404 of the Code, and the Retirement Plan Committee may direct the return to it of any contribution (to the extent disallowed) within one year after the disallowance.

(b)

15.04

Plan Assets. Merger or Transfer. On and after September 2, 1974 there shall be no merger or consolidation with, or transfer of assets or liabilities of the Plan to, any other plan unless each Participant in the Plan would, if the Plan terminated after such merger, consolidation, or transfer of assets or liabilities, receive a benefit immediately thereafter equal to or greater than the benefit that

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 25 of 28

the Participant would have been entitled to receive immediately before such merger, consolidation or transfer if the Plan had then terminated.

n Effectuation of Interest. I the event it should become impossible for the Company or the Committee to perform any act required by the Plan, the Company or the Committee may perform such other act as it in good faith determines will most nearly carry out the intent and purpose of the Plan.
15.06

CODY Plan. An executed copy of the Plan will be available for of inspection by any Employee or other person entitled to benefits under the Plan at reasonable times at the office of the Company. Governing Law. Except as otherwise required by federal law, the Plan and all matters arising thereunder will be governed by the laws of the Commonwealth of Virginia. Special Provisions for Militarv Personnel. Notwithstanding any provision of this Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with section 4 14(u) of the Code.

15.07

15.08

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 26 of 28

ARTICLE XVI TOP HEAVY PROVISIONS Tou Heavv Rules Notwithstanding any other relevant provisions of this Plan to the contrary, in the event this Plan becomes "top-heavy" (as defined in Paragraph 16.02) for any Plan Year the following rules will apply: (a) Vesting. The vesting provisions of Paragraph 5.04 shall be disregarded and in their place an employee will become 100% vested at the rate of 20 percent after two Years of Service and 20 percent each year thereafter until 100 percent vesting is achieved after five Years of Service. Minimum Benefits. The minimum benefit to a non-key employee shall, for each top-heavy year, be the product of the employee's average compensation for the five consecutive years when the employee had the highest aggregate compensation from the Company times the lesser of 2 percent per Year of Service or 20 percent. The minimum benefit is payable as a life annuity commencing at Normal Retirement Age. If the benefit is paid in another form or at another time, the benefit shall be the Actuarial Equivalent of a life annuity payable at Normal Retirement. Limitations on Benefits. In applying the dollar limitations under section 415 of the Code, as described in Paragraph 6.07, the 1.25 limitation shall be supplanted by a 1.0 limitation, provided that the 1.25 limitation shall continue to apply if (i) (ii) the benefits under this Plan for key employees do not exceed 90 percent of total plan benefits; and the minimum benefits for non-key employees are determined under (b) above but by replacing 2 percent with 3 percent and 20 percent with 20 percent plus 1percent for each year (up to a maximum of ten) the Plan is considered "top-heavy."

(b)

(c)

(d)
(e)

Distributions to Kev Emplovees. No amounts shall be distributed to a key employee prior to age 59-112, death or disability. Maximum Comvensation. In computing each employee's benefit, the maximum annual compensation that may be taken into account under the Plan shall not exceed $150,000 (or such other as may be permitted under the Code).

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 27 of 28

(0

Timing of Benefits. Benefits to any key employee shall commence no later than his taxable year in which he attains age 70-112 even if he continues in employment with the Company.

TOR Heavy Definition. For purposes of this Article, the Plan will be considered "top heavy" if on any given determination date (the last day of the n preceding Plan year or, i the case of the Plan's first year, the last day of such Year) the sum of the present value of the accrued benefits for key employees is more than 60 percent of the sum of the present value of the accrued benefits of all employees, excluding former key employees. The present value of accrued benefits will include distributions made during any given Plan Year and the preceding four Plan Years. The determination of the top heavy ratio shall be made in accordance with Code section 416 using for the calculation of the present value of accrued benefits the Plan's definition of accrued benefit and the actuarial assumptions employed for calculating the Plan's funding. Kev Emulovee Definition. A key employee will be, for the purpose of this Article, any employee or former employee who at any time during the Plan Year or the four preceding Plan Years is such within the meaning of the Code n section 416. I general, the tern key employee means (a)
(b)

An officer of the Company whose annual compensation exceeds $45,000 (but no more than the lesser of 50 or 10% of all employees),
One of the ten employees whose annual compensation exceeds $30,000 owning the largest interests in the Company,
A 5 percent owner of the Company, or

(c)

(d)
16.04

A l percent owner of the Company having an annual compensation of more than $150,000.

Vestinq. If the Plan's top heavy status changes and this change alters the Plan's normal vesting schedule no Participant's vested accrued benefit immediately prior to such change in status shall be diminished on account of the change in the vesting schedule. In addition, the vesting for each Participant in the Plan at the time of the change in status shall be determined under whichever schedule provides the greatest vested benefit at any particular point in time. No Duulication. A non-key employee who participates in both this Plan and another top heavy plan maintained by the Company, shall not be entitled to receive minimum benefits andlor minimum contributions under all such plans. Instead, the employee shall receive whatever combination of benefits and

16.05

Case 1:03-cv-02671-RPM

Document 32-4

Filed 03/30/2006

Page 28 of 28

contributions fiom all such plans that, in the discretion of the Committee, will satisfy the minimum benefitlcontribution requirements of Code section 41 6.

IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its
authorized and its corporate seal to be hereunto affixed, as of thezAday of

Its

q/k&