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THIS AGREEMENT made as of May 31, 2001.A M O N G:
McMASTER UNIVERSITY, a corporation organized under the laws of the province of Ontario, Canada (the “University”)- and -
THE McMASTER UNIVERSITY FACULTY ASSOCIATION, THE McMASTER UNIVERSITY STAFF ASSOCIATION, THE McMASTER CLINICAL FACULTY ASSOCIATION and THE McMASTER UNIVERSITY RETIREES ASSOCIATION (the “Associations”)
-and -WHEREAS the University is the administrator of the Contributory Pension Plan for Salaried Employees of McMaster University including McMaster Divinity College, as amended from time to time, a defined benefit pension plan registered under the Income Tax Act (Canada) and the Pension Benefits Act (Ontario) under registration number 0215400 (the “Plan”) and the employer of persons who are members of the Plan and the past employer of former members of the Plan;A. Leslie Robb, Chris Butcher, Robert West, David A. Clark and John P. Evans (the “Committee” as herein defined)
-and-
KOSKIE MINSKY, Barristers and Solicitors, on behalf of all persons entitled to benefits under the Plan at any time during the period from July 1, 2000 to December 31, 2000 inclusive who retain Koskie Minsky to execute this Agreement on their behalf, all of whom, as of the date of this Agreement, are, to the knowledge of the Parties, listed on Schedule A hereto (“Koskie Minsky”)
AND WHEREAS according to the actuarial valuation report on the Plan dated October 2000 that was prepared by the Actuary (as herein defined), as at July 1, 2000, the assets of the Plan exceed the going concern and solvency liabilities of the Plan by over $320 million, the amount of such excess being an actuarial surplus under the Plan;
AND WHEREAS the University qua employer and other persons who are entitled to payments under the Plan claim an interest in all or part of the actuarial surplus under the Plan;
AND WHEREAS the Pension Benefits Act, R.S.O. 1990, c.P.8, as amended (the “PBA”), permits payment to an employer out of the actuarial surplus in a pension plan that is a continuing plan where the plan documents permit such a payment, and where the Superintendent (as herein defined) consents, and the employer obtains the consent of all persons who are entitled to receive benefits under the pension plan, including all members, and all persons in respect of whom the administrator has purchased a pension, deferred pension or ancillary benefit with respect to the Plan, other than those persons who requested the administrator make such purchase;
AND WHEREAS the Committee retained legal counsel (Koskie Minsky) and actuarial advisors (Eckler Partners Ltd.) to provide advice with respect to the use of all or part of the surplus under the Plan;
AND WHEREAS after extensive discussions among the members of the Committee and the representatives of the University in its capacity as employer and administrator under the Plan and their respective legal and actuarial advisors, the University made a proposal to the Committee and the Associations in a letter dated September 28, 2000 (which is attached as Schedule B hereto) to distribute the Surplus (as herein defined) to the University and the members of Surplus Sharing Group (as herein defined), which proposal was agreed to in principle by the Committee;
AND WHEREAS the September 28, 2000 letter contemplated the establishment of Plan 2000 (as herein defined) to facilitate the proposed surplus distribution in the event that more than 90% but less than 100% of all active and inactive Plan members consented to the proposed surplus distribution and provided for the establishment of Plan 2000 at the discretion of the University if less than 90% of the either the active or the inactive Plan members consented;
AND WHEREAS, as of May 31, 2001, 99.3% of the active members of the Plan during the period July 1, 2000 to December 31, 2000 inclusive and 97.7% of the other persons entitled to benefits under the Plan during such period consented to the proposed distribution of actuarial surplus under the Plan;
AND WHEREAS section 10.1 of the Regulation provides that where at least 90% of the former members who are in receipt of a pension under a pension plan have consented to a surplus sharing proposal for purposes of section 10, an individual who has been appointed by the Court as a representative of persons entitled to benefits under a pension plan (other than plan members) may consent for the purpose of section 10 of the Regulation on behalf of those persons in receipt of a pension from the plan who are represented by the individual appointed by the court and who have neither consented nor objected to the surplus sharing proposal;
AND WHEREAS the University has provided to the Committee, their legal counsel and their actuarial advisors for their respective review, detailed information relating to the Plan, Plan 2000 and the surplus sharing proposal;
AND WHEREAS all the parties wish to provide for the sharing and distribution of actuarial surplus in accordance with the terms of this Agreement;
NOW THEREFORE IN CONSIDERATION of the mutual covenants and agreements set forth in this Agreement, the sufficiency of which is acknowledged by all parties, IT IS AGREED AS FOLLOWS:
1. Definitions and Interpretation
(a) In this Agreement:2. Segregation of Surplus(i) “Active Consenter” means for the purposes of this Agreement except section 5, a person who, at any time in the period from July 1, 2000 to December 31, 2000 inclusive, is an employee of the University who is accruing benefits under the Plan and who has provided written instructions to Koskie Minsky to enter into this Agreement on his or her behalf or has otherwise consented, in the form agreed by the parties executing this Agreement, to be bound by this Agreement, but, for greater certainty, excludes any Inactive Consenter. For the purposes of section 5 only, “Active Consenter” means any member of the Surplus Sharing Group who is accruing benefits under Plan 2000 on the day on which Regulatory Approval is received;(b) Where this Agreement provides for an individual to do any act, including, for greater certainty, provide any consent or make any election, or to receive any amount, other benefit or thing, a person who is the legal representative of the individual under a Power of Attorney or otherwise and who is duly authorized to do such act or receive such amount, other benefit or thing on behalf of the individual, may do such act or receive such amount, other benefit or thing with the same effect hereunder as if the act had been done or the amount, other benefit or thing had been received by the individual personally, unless this Agreement expressly provides for someone other than such legal representative to do such act or receive such amount, other benefit or thing.(ii) “Actuary” means a duly qualified actuary appointed by the University;
(iii) “Adjusted Going Concern Liabilities” means, with respect to a member of the Surplus Sharing Group, the Going Concern Liabilities of such member, adjusted by the Actuary to take into account any actual or deemed salary increase applicable with respect to such member’s service with the University on or before July 1, 2000 and that takes effect between the date on which the Plan Split Report described in Schedule D is completed and the date of Regulatory Approval;
(iv) “Agreement” means the surplus sharing settlement agreement set out herein including all appendices and schedules hereto;
(v) “Committee” means A Leslie Robb, Chris Butcher, Robert West, David A. Clark and John P. Evans as representatives of the McMaster University Faculty Association, the McMaster University Staff Association, members of the University management, the McMaster Clinical Faculty Association and the McMaster University Retirees Association (respectively), who comprise the McMaster Employees’ Pension Surplus Committee;
(vi) “Committee’s Actuary” means a duly qualified actuary appointed by the Committee;
(vii) “Court Proceedings” has the meaning ascribed by section 9;
(viii) “Distributable Surplus” means (A) that portion of $150 million that the Going Concern Liabilities in respect of the Surplus Sharing Group are of all Going Concern Liabilities under the Plan, as at July 1, 2000 plus (B) interest thereon at (B.1) the lesser of the valuation rate used by the Actuary in the July 1, 2000 funding valuation report on the Plan from July 1, 2000 to the end of the month prior to the month in which Regulatory Approval is received and the actual rate of return (net of investment expenses) on the assets of the Plan from July 1, 2000 to the Transfer Date and the assets of Plan 2000 from the Transfer Date until the end of the month prior to the month in which Regulatory Approval is received (provided that if such rate of return is negative, it shall be deemed for the purposes of the calculation described in this paragraph 1(a)(viii) to be zero)and (B.2) the Government of Canada 30 day treasury bill rate from the first day of the month in which Regulatory Approval is received until the date of payment or other application in accordance with this Agreement; plus (C) the amount of expenses payable in accordance with section 12; or (D) in each of subparagraph 1(a)(viii)(A), (B) and (C) above, such lesser amount as is permitted to be paid from, or otherwise applied under, Plan 2000 pursuant to Regulatory Approval;
(ix) “Going Concern Liabilities” means the present value of accrued benefits under the Plan as determined by the Actuary on the going concern basis set out in the July 1, 2000 funding valuation report on the Plan dated October, 2000 and taking into account revisions to member data derived from any corrections identified by members of the Surplus Sharing Group and from any actual or deemed salary increase applicable to Active Consenters that is retroactive to July 1, 2000 or earlier (provided notice of any such corrections and salary increases is provided to the Actuary before the completion of the Plan Split Report described in Schedule D), determined prior to any transfer to Plan 2000;
(x) “Inactive Consenter” means, for the purposes of this Agreement except section 5: (A) any person entitled to benefits under the Plan at any time in the period July 1, 2000 to December 31, 2000 inclusive who has provided written instructions to Koskie Minsky to enter into this Agreement on his or her behalf or has otherwise consented, in the form agreed by the parties executing this Agreement, to be bound by this Agreement, other than a person who was accruing benefits under the Plan at any time during such period and the University; and (B) any person in receipt of a pension payable from the Plan on July 1, 2000 who has neither personally consented nor objected to this Agreement, all of whom, as of the date of this Agreement, are, to the knowledge of the Parties, listed on Schedule C hereto. For the purposes of section 5 only, “Inactive Consenter” means any member of the Surplus Sharing Group then living who is not accruing benefits under the Plan or Plan 2000 on the date on which Regulatory Approval is received and who does not commence accruing benefits under the Plan or Plan 2000 on or before the date on which his or her Individual Surplus Share is distributed from Plan 2000;
(xi) “ITA” means the Income Tax Act (Canada), R.S.C. 1985 c. 1 (5th Supplement) and the regulations thereunder, all as amended;
(xii) “Individual Surplus Share” means with respect to a member of the Surplus Sharing Group, his or her personal share of: (A) the Member Basic Portion, determined in accordance with section 3; and (B) the Member Interest Portion, determined by multiplying the ratio of the member’s personal share of the Member Basic Portion to the entire Member Basic Portion by the Member Interest Portion;
(xiii) “Member Basic Portion” means 50% of the amount determined under subparagraph 1(a)(viii)(A), subject to subparagraph 1(a)(viii)(D);
(xiv) “Member Interest Portion” means 50% of the amount determined under subparagraph 1(a)(viii)(B), subject to subparagraph 1(a)(viii)(D);
(xv) “Member Portion” means the sum of the Member Basic Portion and the Member Interest Portion;
(xvi) “PBA” means the Pension Benefits Act, R.S.O. 1990, c.P.8, as amended;
(xvii) “Pensioners” means persons receiving pension payments from the Plan as of July 1, 2000 who are Inactive Consenters;
(xviii) “Plan” means The Contributory Pension Plan for Employees of McMaster University including McMaster Divinity College, as amended to the date hereof and registered under the Income Tax Act (Canada) and the PBA under registration number 0215400;
(xix) “Plan 2000” means the registered pension plan to be adopted by the University, subject to Regulatory Approval, pursuant to section 6 and Schedule D hereto to receive assets and benefit liabilities under the Plan in respect of members of the Surplus Sharing Group;
(xx) “Regulation” means R.R.O. 1990, Reg. 909, as amended;
(xxi) “Regulatory Approval” means the consent of the Superintendent to the allocation and distribution of the Distributable Surplus from Plan 2000 in the manner contemplated by this Agreement;
(xxii) “Represented Consenters” means the members of the Surplus Sharing Group whose names appear on Schedule A, all of whom have retained Koskie Minsky to execute this Agreement on their behalf;
(xxiii) “Representatives” has the meaning ascribed thereto in section 9(a);
(xxiv) “Spouse” means with respect to a member of the Surplus Sharing Group, the spouse or same-sex partner of the member as defined under the Plan or Plan 2000, as the case may be;
(xxv) “Superintendent” means the Superintendent of Financial Services appointed under the Financial Services Commission of Ontario Act, 1997, R.S.O. 1997, c.28 or where the context requires, such other person or body authorized under pension standards legislation applicable to the Plan or Plan 2000 to consent to a payment of surplus to the University out of the pension fund held under the Plan or Plan 2000;
(xxvi) “Surplus” means that portion of the actuarial surplus under the Plan disclosed in the July 1, 2000 funding actuarial valuation report on the Plan determined by multiplying such actuarial surplus by the ratio of the Going Concern Liabilities under the Plan in respect of the Surplus Sharing Group as at July 1, 2000 to all of the Going Concern Liabilities under the Plan as at such date, all determined prior to any transfer of assets and liabilities to Plan 2000;
(xxvii) “Surplus Sharing Group” means:
(A) Active Consenters; andFor greater certainty, the Surplus Sharing Group excludes: (C) any person who indicates in writing that he or she does not consent to the distribution of Surplus as contemplated herein; and (D) includes those entitled to a share of Surplus under section 13.
(B) Inactive Consenters.(xxviii) “Transfer Date” has the meaning ascribed by Schedule D;
(xxix) “University Portion” means 50% of the sum of the amounts determined under subparagraph 1(a)(viii)(A) and 1(a)(viii)(B), subject to subparagraph 1(a)(viii)(D);
(c) References in this Agreement to the singular shall include the plural and vice versa, as the context requires. Headings in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement. A reference to a section, subsection, paragraph or other similar division means a section, subsection, paragraph or other division of this Agreement.
The University, may, in its sole discretion, segregate assets within the trust fund maintained in connection with the Plan representing Distributable Surplus and may, subject to compliance with the PBA, the Regulation, the Income Tax Act (Canada) and the rules, regulations and procedures governing the University’s investment of Plan assets generally, direct the investment of such assets in such manner as the University determines, which manner may differ from the manner in which the other assets of the trust fund maintained in connection with the Plan are invested.Where assets are transferred from the Plan to Plan 2000, the University may, in its sole discretion, segregate assets within the trust fund maintained in connection with Plan 2000 representing Distributable Surplus that was transferred to Plan 2000 and may, subject to compliance with the PBA, the Regulation, the Income Tax Act (Canada) and the rules, regulations and procedures governing the University’s investment of Plan assets generally, direct the investment of such assets in such manner as the University determines, which manner may differ from the manner in which the other assets of the trust fund maintained in connection with Plan 2000 are invested.
3. Payment of Member Portion
(a) Subject to sections 8, 9, 10, 11 and 12, the Member Portion shall be paid to or otherwise applied for the benefit of members of the Surplus Sharing Group out of the assets of Plan 2000 in accordance with section 5 as soon as practicable following the issuance of Regulatory Approval.4. Payment of University Portion(b) For the purpose of determining the Individual Surplus Shares of the members of the Surplus Sharing Group the following steps shall be applied to calculate a member’s personal share of the Member Basic Portion:
(i) determine the initial estimated surplus share for each member of the Surplus Sharing Group by multiplying the Member Basic Portion by the ratio of the Adjusted Going Concern Liabilities in respect of such member to the Adjusted Going Concern Liabilities in respect of all the members of the Surplus Sharing Group;(ii) increase, where necessary, the amount allocated to individual members so that:
(A) each Pensioner or person claiming through a Pensioner has at least $5,000, and(iii) multiply each member’s surplus share calculated in (i) and adjusted by (ii) by the ratio of the Member Basic Portion to the sum of the Member Basic Portion plus the increases produced in (ii); and(B) each member of the Surplus Sharing Group not included in (A) has at least $500 plus $250 for each year of service (to a maximum of 10 years) as at July 1, 2000;
(iv) take each member’s surplus share calculated in (iii) and repeat steps (ii) and (iii) until there are no further increases necessary in (ii).
Subject to sections 8, 9, 10, 11 and 12, the University Portion shall be paid out of the assets of Plan 2000 to the University as soon as practicable following the issuance of Regulatory Approval. To facilitate the timely payment of the University Portion, as soon as practicable after the end of each calendar month following the commencement of payments to the members of the Surplus Sharing Group of their individual shares of the Member Portion, an amount shall be paid out of the University Portion to the University, in cash, equal to the total of the individual shares of the Member Portion paid to the members of the Surplus Sharing Group in the calendar month, provided such payments to the University are permitted by the Superintendent. Any balance of the University Portion remaining upon the final payment of the Member Portion or provision for such payment in accordance with an order of the Superintendent or a court, including, without limitation, any part of the University Portion that the Superintendent did not permit to be distributed to the University in respect of a payment from the Member Portion in a month, shall be paid to the University in cash as soon as practicable following the final payment or provision for payment of the Member Portion.
5. Settlement of Member Portion
(a) Subject to applicable laws, including, without limitation, the PBA, the Regulation and the ITA, the approval of the Canada Customs and Revenue Agency and the Superintendent, the terms of this Agreement and the ultimate discretion of the University, which discretion shall be exercised reasonably, the Individual Surplus Share of each member of the Surplus Sharing Group may be settled in accordance with one or a combination of the following options, as elected by the member of the Surplus Sharing Group in the form and within the time agreed by the University and the Committee:(i) lump sum cash payment less statutory withholdings provided that the Individual Surplus Share of a person who elects, or is deemed to have elected a lump sum cash payment under this paragraph 5(a)(i) may be paid in two instalments, as soon as practicable following receipt by the University of Regulatory Approval, in order to permit the prudent liquidation of the assets of Plan 2000, which instalments may be paid over more than one calendar year;provided that the University shall have no obligation to make available a form of settlement other than those provided above that the University determines is likely to substantially increase the costs to the University, the Plan or Plan 2000 associated with providing benefits to members of the Surplus Sharing Group under this Agreement.(ii) direct transfer to a non-locked-in registered retirement savings plan under which the member of the Surplus Sharing Group or the member’s Spouse is the annuitant, provided the member of the Surplus Sharing Group to whom the transfer relates has sufficient registered retirement savings plan contribution room under the ITA and is under 69 years of age at the intended time of transfer;
(iii) reclassification of required contributions made by the member of the Surplus Sharing Group under the Plan prior to 1991 as additional voluntary contributions, followed by the direct transfer of such contributions, together with interest thereon to July 1, 2000 determined in accordance with the Plan, to a non-locked in registered retirement savings plan or registered retirement income fund of the member of the Surplus Sharing Group, provided that (A) he or she is an Inactive Consenter for the purposes of this section 5; (B) no transfer shall be made to a registered retirement savings plan under this paragraph 5(a)(iii) in respect of a member of the Surplus Sharing Group who is 69 years of age or more at the intended time of transfer; and (C) the total value of the required contributions that may be reclassified hereunder and the interest thereon shall in no event exceed the member’s Individual Surplus Share;
(iv) application of an amount not in excess of the Individual Surplus Share of the member of the Surplus Sharing Group to pay the cost, as set out in Schedule E hereto, of acquiring additional credited service under Plan 2000 in respect of any period prior to January 1, 2001 in which such member of the Surplus Sharing Group: (A) was eligible for membership in the Plan but had not yet become a Member as defined in the Plan; (B) was a former contributing participant under the Plan and was not accruing benefits under any registered pension plan maintained by the University, provided that he or she returned to active employment with the University and became a member of the Plan on or before December 31, 2000; or (C) was accruing benefits under the registered pension plan or deferred profit sharing plan of an employer other than the University but had no right to the employer-paid portion of any entitlement under such other employer’s plan upon ceasing to be employed by such other employer, provided in each case described in subparagraphs (A), (B) and (C) above, such additional credited service is “eligible service” within the meaning of the ITA and the member is an Active Consenter for the purposes of this section 5;
(b) Where a member of the Surplus Sharing Group fails to elect a settlement option described in subsection 5(a) for his or her Individual Surplus Share in the form and within the time prescribed for so electing, such member shall be deemed to have elected to have his or her Individual Surplus Share paid to him or her in a single lump sum cash payment less statutory withholdings, in accordance with paragraph 5(a)(i). For greater certainty, notwithstanding any other provision of this Agreement, any election under this section 5 must be filed with the University on or before the date on which the University receives Regulatory Approval pursuant to section 10.
(c) The University shall not be required to provide or arrange to provide tax or other financial advice to members of the Surplus Sharing Group. The University and the Committee shall co-operate with each other if necessary to obtain tax rulings relating to the payment of the Member Portion, but shall not be responsible for obtaining any tax rulings relating to the payment of Individual Surplus Shares and shall not be required to unduly delay implementation of this Agreement in order to obtain tax rulings or to permit the Committee or individual members of the Surplus Sharing Group to obtain tax rulings or interpretations or other regulatory advice.
6. Establishment of Plan 2000
The parties agree to the establishment of Plan 2000 in accordance with the terms set out in Schedule D, subject to receipt by the University of such regulatory approval as may be required.
7. Provision of Information
The University may, as a condition of paying an Individual Surplus Share to a member of the Surplus Sharing Group, require the member to provide such information or proof as may reasonably be required by the University, in its capacity as administrator of the Plan and Plan 2000, to pay such Individual Surplus Share.
8. Minimum Approval Required
This Agreement is conditional upon Koskie Minsky delivering to the University prior to July 31, 2001(or such other date as may be agreed upon by the Committee and the University) an affidavit or statutory declaration setting out the names of the members of the Surplus Sharing Group who have retained Koskie Minsky as of May 31, 2001 in connection with the proposed distribution of the Distributable Surplus and who represent not less than 90% of the members and not less than 90% of the former members and other persons entitled to benefits under the Plan (determined in accordance with the PBA) as at July 1, 2000.Koskie Minsky may from time to time provide the University with a supplementary affidavit or statutory declaration setting out the names of members of the Surplus Sharing Group who have retained Koskie Minsky in connection with the proposed distribution of the Distributable Surplus after May 31, 2001 and shall, at the request of the University, for the purposes of the University’s application for Regulatory Approval pursuant to section 10, provide the University with a supplementary affidavit or statutory declaration as of a date after May 31, 2001 and immediately before the date on which the University applies for Regulatory Approval pursuant to section 10, as specified by the University setting out the names of all members of the Surplus Sharing Group who have retained Koskie Minsky in connection with the proposed distribution of the Distributable Surplus.
9. Court Proceedings
(a) A. Leslie Robb and John P. Evans (the “Representatives”) agree to take all reasonable steps necessary under the Class Proceedings Act, 1992 (Ontario) to be appointed representatives in the Court Proceedings on behalf of all members, past members, annuitants and beneficiaries of the Plan at any time between July 1, 2000 and December 31, 2000, inclusive, other than the University and agree to fulfil the obligations of the Representatives under this Agreement. The University consents to the appointment of A. Leslie Robb and John P. Evans as representatives of the class certified in the Court Proceedings.10. Regulatory Proceedings(b) Upon their appointment, the Representatives shall execute the adherence agreement attached as Schedule F in order to become parties to this Agreement in their capacity as representatives of the class certified in the Court Proceedings. The parties hereto hereby agree that the Representatives will become parties to this Agreement in their capacity as representatives of the class certified in the Court Proceedings upon execution by the Representatives of such adherence agreement.
(c) For greater certainty, John P. Evans agrees to take all reasonable steps necessary to be appointed pursuant to section 10.1 of the Regulation and agrees to provide the consent contemplated in subsection 10.1(3) of the Regulation on behalf of any person who is in receipt of a pension from the Plan on July 1, 2000 and who has neither consented nor objected to the distribution of the Distributable Surplus pursuant hereto by executing the consent attached as Schedule G if so appointed. The University consents to the appointment of John P. Evans pursuant to section 10.1 of the Regulation.
(d) The Associations, the Committee, the Represented Consenters through their legal counsel and the Representatives agree that they shall support a disposition or settlement of an application commenced by the University in the Ontario Superior Court of Justice with respect to the distribution of the Surplus (the "Court Proceedings") on terms which provide for the sharing of Surplus on the basis provided for in this Agreement and shall take all steps necessary to facilitate such disposition or settlement. The Associations, the Committee, the Represented Consenters through their legal counsel and the Representatives shall consent to and support issuance of a judgment in the Court Proceedings in the form of Schedule H.
(e) It is a condition of sections 2 through 6 of this Agreement that an order binding CIBC Mellon Trust Company and all members, past members, annuitants and other beneficiaries of the Plan between July 1, 2000 and December 31, 2000, inclusive, under the Plan and Plan 2000 be obtained in the Court Proceedings disposing of or approving the settlement of the Court Proceedings on a basis satisfactory to the University in its absolute discretion and that the relevant appeal period with respect to such order have expired.
(a) It is a condition of sections 2 through 6 of this Agreement that the Superintendent and any other applicable governmental authority approve the transfer from the Plan to Plan 2000 of assets and liabilities, including a pro rata share of the Surplus, relating to the members of the Surplus Sharing Group in accordance with Schedule D hereto.11. Conditions of Agreement - Satisfaction or Waiver(b) Upon satisfaction or waiver of the conditions in sections 9(e) and 10 (a), as contemplated in subsection 11(a), the University shall prepare, make application for and pursue Regulatory Approval and shall make such application in a timely manner. The Represented Consenters, the Associations and, the Representatives shall support such application and shall take all steps necessary to facilitate such application and the receipt of Regulatory Approval. It is a condition of sections 2 through 6 and Schedule D of this Agreement that Regulatory Approval be received by the University as soon as practicable after the execution of this Agreement.
(a) The conditions set out in section 8, 9(e) and 10(a) and (b) are for the exclusive benefit of the University and may be waived by the University at any time. If these conditions are not satisfied or waived, the University shall have no obligations under sections 2 through 6 and Schedule D of this Agreement.12. Expenses(b) In the event that:
(i) the court order contemplated in section 9(e) is not obtained or the requirement therefor is not waived in accordance with section 11(a),the parties agree to take and support all steps necessary to set aside any amendments to the Plan or Plan 2000 which were adopted to implement this Agreement, subject to applicable law. The Committee shall continue to receive payment for its expenses in accordance with section 12 and under no circumstances shall the Committee, any member of the Committee or any member of the Surplus Sharing Group be liable for the payment of any costs, damages or losses to the University related to this Agreement or its termination.(ii) the approval of the transfer of assets and liabilities from the Plan to Plan 2000 contemplated in section 10(a) is not obtained or the requirement therefor is not waived in accordance with section 11(a), or
(iii) Regulatory Approval is not obtained as contemplated in section 10 (b) or the requirement therefor is not waived in accordance with section 11(a),
(c) In the event that a court or regulatory authority purports to expand the Surplus Sharing Group, this Agreement shall terminate, unless the parties otherwise agree in writing. Such termination shall be effective on the date on which the applicable decision of the court or regulatory authority and any appeal therefrom becomes final and the time for any appeal or any further appeal has expired.
(a) All fees and expenses associated with the creation of Plan 2000, the transfer of assets and liabilities from the Plan to Plan 2000, the surplus distribution process, and the investment of the assets of the Plan and Plan 2000, including the actuarial, custodial investment management and related administrative expenses and the legal and other related fees and expenses of the University and the legal fees, actuarial fees and other costs and out-of-pocket expenses incurred by the Committee and the Representatives for the purposes of settling and implementing the surplus distribution proposal provided for herein, including premiums in respect of errors and omissions or other appropriate liability insurance for the members of the Committee, shall be paid from the Distributable Surplus. Any such disbursements or expenses that are not permitted to be paid as incurred from the Distributable Surplus shall be a first charge against the Distributable Surplus.13. Special Conditions(b) All expenses payable pursuant to this section are administrative expenses of the Plan or Plan 2000, as the case may be.
(a) The Parties acknowledge that where an individual retains Koskie Minsky in connection with the proposed distribution of the Distributable Surplus or otherwise agrees in writing to be bound by this Agreement, such individual’s acceptance of the terms of this Agreement shall be irrevocable. If a court of competent jurisdiction, the Superintendent or a governmental entity with authority over the Plan finds any individual’s acceptance of the terms of this Agreement to be invalid, then, at the University’s sole discretion, such individual’s membership in Plan 2000 since the Transfer Date and such person’s written acceptance of the terms of this Agreement shall be void ab initio, he or she shall be deemed to have elected to retain all of his or her assets, liabilities and any related surplus as of the Transfer Date in the Plan and he or she shall cease to be a member of the Surplus Sharing Group.14. Privilege(b) Where, between July 1, 2000 and the Transfer Date, an individual eligible to join the Surplus Sharing Group dies before joining the Surplus Sharing Group (such person shall be referred to as the “Deceased” for the purposes of this subsection 13(b)) and a person (other than the legal representative of the Deceased) is entitled to receive benefits under the Plan in connection with the Deceased’s death, then such person is entitled to receive the Individual Surplus Share of the Deceased, provided that he or she joins the Surplus Sharing Group by retaining Koskie Minsky to execute this Agreement on his or her behalf or by otherwise consenting in writing to be bound by the terms of this Agreement on or before the Transfer Date.
(c) Where, between July 1, 2000 and the Transfer Date, an individual eligible to join the Surplus Sharing Group dies before joining the Surplus Sharing Group (such person shall be referred to as the “Deceased” for the purposes of this subsection 13 (d)) and no person (other than the legal representative of the Deceased) is entitled to receive benefits under the Plan in connection with the Deceased’s death and such Deceased had not, prior to his or her death, indicated that he or she did not consent to the surplus distribution contemplated by this Agreement, then the estate of the Deceased shall be a member of the Surplus Sharing Group and shall be entitled to receive the Individual Surplus Share of the Deceased, provided the legal representative of the Deceased joins the Surplus Sharing Group on behalf of the estate of the Deceased by retaining Koskie Minsky to execute this Agreement on his or her behalf or by otherwise consenting in writing to be bound by the terms of this Agreement on or before the Transfer Date.
(d) Where a member of the Surplus Sharing Group dies prior to the Transfer Date (such person shall be referred to as the “Deceased” for the purposes of this subsection 13(c)) and a person (other than the legal representative of the Deceased) is entitled to receive benefits under the Plan in connection with the Deceased’s death, then such person is entitled to receive the Individual Surplus Share of the Deceased provided that he or she joins the Surplus Sharing Group by retaining Koskie Minsky to execute this Agreement on his or her behalf or by otherwise consenting in writing to be bound by the terms of this Agreement on or before the date of distribution of the member’s Individual Surplus Share. If the person entitled to receive benefits under the Plan in connection with the Deceased’s death does not so join the Surplus Sharing Group, no benefits of such person under the Plan shall be transferred to Plan 2000 pursuant to this Agreement.
(e) Where, prior to the date of distribution of the member’s Individual Surplus Share, a member of the Surplus Sharing Group dies (such person shall be referred to as the “Deceased” for the purposes of this subsection 13(e)) and no person (other than the legal representative of the Deceased) is entitled to receive benefits under the Plan or Plan 2000 in connection with the Deceased’s death, then the estate of the Deceased shall be a member of the Surplus Sharing Group and shall be entitled to receive the Individual Surplus Share of the Deceased.
(f) Where, after the Transfer Date but prior to the date of distribution of the applicable Individual Surplus Share, a member of the Surplus Sharing Group or an individual eligible to join the Surplus Sharing Group who is neither a member nor an individual who has indicated that he or she does not consent to the surplus distribution contemplated in this Agreement dies (such person shall be referred to as the “Deceased” for the purposes of this subsection 13(e)), the individual who is entitled to receive benefits under the Plan or Plan 2000, as the case may be, in connection with the Deceased’s death, or, where there is no such individual, the estate of the Deceased, shall, subject to any necessary regulatory approval, including the approval of any transfer of assets from the Plan to Plan 2000 in respect of the Deceased, and such other reasonable conditions as the Committee and the University may determine, be entitled to receive the Individual Surplus Share of the Deceased or, where applicable, the amount that would have been the Individual Surplus Share of the Deceased had he or she been a member of the Surplus Sharing Group.
(g) For greater certainty, any person who becomes a member of the Surplus Sharing Group pursuant to this section shall be deemed to have consented to any surplus distribution from Plan 2000 pursuant to this Agreement.
All legal or actuarial opinions or advice obtained by a party or related person and paid for from the Plan fund or Distributable Surplus as set out above shall be treated as privileged and confidential and, subject to applicable law requiring disclosure, shall not be required to be disclosed to any other party or person, unless the privilege is expressly waived by the party obtaining the opinion and advice.
15. McMaster University Futures Fund
The McMaster University Futures Fund (“MUFF”) shall not be continued after April 30, 2001. Money allocated to the MUFF prior to that date will remain in the MUFF until spent on then-existing initiatives, as determined by the committee established to administer the MUFF.
16. General Provisions
(a) All parties shall co-operate with each other whenever necessary or desirable and use their best efforts to give timely effect to the terms and conditions of this Agreement. Without limiting the generality of the foregoing, the Associations, the Committee, the Represented Consenters through their legal counsel and the Representatives undertake to use their best efforts to ensure that the Member Portion and the University Portion are distributed as soon as practicable.IN WITNESS WHEREOF the parties have executed this agreement.(b) This Agreement has been entered into in the context set forth in the above Recitals, the truth and accuracy of which is acknowledged by the parties. The Recitals shall form part of the Agreement.
(c) The division of this Agreement into sections is for the convenience of reference only and shall not affect the construction or interpretation hereof.
(d) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.
(e) No provision of this Agreement shall be construed as an admission by any party of the existence of any liability to another party with respect to any matter whatsoever.
(f) The Associations, the Committee, the Represented Consenters through their legal counsel and the Representatives agree that the Plan, including any funding medium relating to the Plan, provides for the transfer of the Transfer Amount to Plan 2000 in accordance with this Agreement. The Associations, the Committee, the Represented Consenters through their legal counsel and the Representatives agree to support any application for an order or declaration that the Plan provides for the transfer of the Transfer Amount in accordance with this Agreement and hereby consent, subject to consultation by the Associations and the Committee with the University, to any reasonable amendments to the Plan which may be necessary or desirable to give effect to this Agreement or to obtain Regulatory Approval or both. Subject to consultation with Associations and the Committee, the University shall take all reasonable steps to make any amendments to the Plan which may be necessary or desirable to give effect to this Agreement or to obtain Regulatory Approval or both.
(g) The Associations, the Committee, the Represented Consenters through their legal counsel and the Representatives agree that Plan 2000, including any funding medium relating to Plan 2000, provides for payment, in accordance with this Agreement, of the University Portion to the University within the meaning of subsection 79(1)(b) of the PBA. The Associations, the Committee, the Represented Consenters through their legal counsel and the Representatives agree to support any court application for an order or declaration that Plan 2000 provides for payment, in accordance with this Agreement, of the University Portion to the University on a continuing plan basis within the meaning of subsection 79(1)(b) of the PBA and, hereby consent, subject to consultation by the Associations and the Committee with the University, to any reasonable amendments to Plan 2000, or any funding medium, relating to Plan 2000, which may be necessary or desirable to give effect to this Agreement or to obtain Regulatory Approval or both. Subject to consultation with Associations and the Committee, the University shall take all reasonable steps to make any amendments to the Plan 2000 which may be necessary or desirable to give effect to this Agreement or to obtain Regulatory Approval or both.
(h) The parties hereto agree that subsections 16(f) and (g) shall be without prejudice to any party’s rights with respect to any surplus under the Plan or Plan 2000 on the wind-up of the Plan or Plan 2000, as the case may be, or with respect to any withdrawal of surplus from the Plan or Plan 2000 that is not specifically provided for under this Agreement. This Agreement shall not bind any party hereto to enter into any subsequent agreement dealing with surplus under the Plan or Plan 2000.
(i) The parties hereto agree that Plan 2000 shall provide that, in the event that Regulatory Approval is obtained and the Member Portion and University Portion are distributed in accordance with this Agreement, the entitlement of any person, including the University, to surplus existing in Plan 2000 at any time after such distribution shall be determined by agreement between the University and such persons or associations as may be required under then existing agreements or otherwise by law, provided that if no such agreement is made, entitlement to surplus existing in Plan 2000 after the distribution of the Member Portion and University Portion pursuant hereto shall be determined in a proceeding in the Ontario Superior Court of Justice (or any successor thereto).
(j) This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof. There are no oral warranties or representations or other agreements between the parties in connection with the subject matter hereof, except as expressly set forth and referred to herein. This Agreement may only be amended by the written agreement of the parties executing this Agreement. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision nor shall any such waiver constitute a continuing waiver unless otherwise expressed to provide it.
(k) This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors, assigns, heirs, administrators and executors.
(l) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
(m) All amounts stated herein are in Canadian currency.
(n) Each party signing this agreement on behalf of a named party represents that it is properly authorized and empowered to sign it.
McMASTER UNIVERSITY
Name: Karen Belaire
Title: Vice-President (Administration)THE McMASTER UNIVERSITY
FACULTY ASSOCIATION
Name: T. M. K. Davison
Title: PresidentTHE McMASTER UNIVERSITY STAFF
ASSOCIATION
Name: Barry Diacon
Title: PresidentTHE McMASTER CLINICAL
FACULTY ASSOCIATION
Name: John F. Gately
Title: PresidentTHE McMASTER UNIVERSITY
RETIREES ASSOCIATION
Name: Frank Drieman
Title: PresidentTHE McMASTER EMPLOYEES’
PENSION SURPLUS COMMITTEE
A. Leslie Robb
Chris Butcher
Robert West
David A. Clark
John P. EvansKOSKIE MINSKY, Barristers and Solicitors, on
behalf of the Represented Consenters
Name: Michael Mazzuca
Title: Partner
MUFA - pdk
August 9, 2001