EDS 401(k) PLAN
(Amended and Restated Document - January 1, 2003) (Conformed copy reflecting Amendments One through Six)
TABLE OF CONTENTS
ARTICLE 1 INTRODUCTION 1 1.1 Creation 1 1.2 Amendment and Restatement 1 1.3 Purpose 1 1.4 Merger 1 ARTICLE 2 DEFINITIONS 2 2.1 Definitions 2 2.2 Construction 17 ARTICLE 3 ELIGIBILITY, PARTICIPATION, AND BENEFICIARY DESIGNATION 18 3.1 Eligibility Period 18 3.2 Participation 18 3.3 Credited Service 18 3.4 Service 18 3.5 One -Year Break-in-Service 20 3.6 Special Rules Applicable to ATK Plan Participants, UGS Plan Participants and Certain Other Employees 21 3.7 Beneficiary Designation 22 ARTICLE 4 CONTRIBUTIONS 23 4.1 Employer Contributions 23 4.2 Elective Contributions 25 4.3 Payment of Elective Contributions to the Trust 27 4.4 Limitation on Elective Contributions for Highly Compensated Employees 27 4.5 Limitation on Employer Matching Contributions 33 4.6 Rollover Contribution 38 4.7 Transferred Assets 38 4.8 Reverting of Contribution Made by Mistake of Fact 39 4.9 Reverting of Non-Deductible Contribution 39 4.10 Limitation on Reversions 39 ARTICLE 5 ALLOCATIONS TO INDIVIDUAL ACCOUNTS 39 5.1 Individual Account 39 5.2 Charging of Payments and Distributions 40 5.3 Allocation of Adjustment 40 5.4 Allocation of Employer Contributions 40 5.5 Forfeitures 42 5.6 Maximum Additions 42 5.7 Correction For Excess Annual Additions 43 5.8 Limitation For Multiple Plan Participants 43 ARTICLE 6 VESTING AND DISTRIBUTIONS 44 6.1 Normal Retirement 44 6.2 Death 44 6.3 Disability 44 6.4 Other Termination of Service 44
i 6.5 Distribution of Benefits 45 6.6 Maximum Option Payable 50 6.7 Vesting After a Distribution 50 6.8 Benefits to Minors and Incompetents 51 6.9 Forfeiture Occurs and Restoration of Non-Vested Accrued Benefit 51 6.10 Participant' s Death Prior to Commencement of Distribution - the Five-YearRule and Exceptions Thereto 52 6.11 Life Expectancy Determination 53 6.12 Required Beginning Date 53 6.13 Special Rule Regarding Certain Distributions From EDS Stock Fund 53 6.14 Required Notifications 54 6.15 Required Minimum Distribution Rules Effective January 1, 2003 55 ARTICLE 7 WITHDRAWALS AND LOANS 57 7.1 Withdrawals and Loans Generally 57 7.2 Special Hardship Withdrawal 57 7.3 In-Service Withdrawal 60 7.4 Loans 60 7.5 Discretionary Withdrawal 63 ARTICLE 8 FUNDING 63 8.1 Trustee 63 8.2 Direction of Investments 64 8.3 Change in Direction 65 8.4 Overpayment and Underpayment of Benefits 66 ARTICLE 9 FIDUCIARIES 66 9.1 General 66 9.2 Appointment of the Benefits Administration Committee 67 9.3 Appointment of the Investment Committee 67 9.4 Compensation and Expenses, Costs and Fees 67 9.5 Secretary and Administrative Personnel of the Committees 68 9.6 Duties and Authority of Administrative Personnel 68 9.7 Action by the Benefits Administration Committee or Investment Committee 68 9.8 Duties and Authorities of the Benefits Administration Committee 69 9.9 Duties and Authorities of the Investment Committee 70 9.10 Claims Procedure and Other Rules and Regulations of the Benefits Administration Committee 71 9.11 Named Fiduciaries and Allocation of Responsibility 71 9.12 Action by Fiduciaries 71 9.13 Employment of Advisers 71 9.14 Bond 72 9.15 Indemnity 72 9.16 Missing Persons 73 9.17 Voting Employer Stock 73 ARTICLE 10 AMENDMENT AND TERMINATION 75 10.1 Amendment of Plan 75 10.2 Termination of Plan 75
ii ARTICLE 11 PROVISIONS RELATIVE TO EMPLOYERS INCLUDED IN PLAN 75 11.1 Method of Participation 75 11.2 Withdrawal 76 ARTICLE 12 TOP-HEAVY PROVISIONS 77 12.1 Top-Heavy Provisions 77 12.2 Minimum Allocations 77 ARTICLE 13 QUALIFIED DOMESTIC RELATIONS ORDERS 79 13.1 Determination of Qualified Domestic Relations Orders 79 13.2 Accounting and Allocations 79 13.3 Distribution 79 ARTICLE 14 MILITARY LEAVES OF ABSENCE 79 14.1 Military Leave of Absence 79 14.2 Elective Contributions. 79 14.3 Matching Contributions 80 14.4 Treatment of Contributions 80 ARTICLE 15 ESOP PROVISIONS 80 15.1 The EDS Stock Fund 80 15.2 Distribution Requirements 81 15.3 Voting Requirements 81 15.4 Diversification Requirements 81 15.5 Dividends 82 ARTICLE 16 MISCELLANEOUS 82 16.1 Governing Law 82 16.2 Administration Expenses, Costs and Fees 83 16.3 Participant' s Rights, Acquittance 83 16.4 Spendthrift Clause 83 16.5 Merger, Consolidation or Transfer 83 16.6 Counterparts 83 Appendix A A-1 Appendix B B-1 Appendix C C-1 Appendix D D-1 Appendix E E-1 Appendix F F-1 Appendix G G-1
EDS 401(k) PLAN
(Amendment and Restatement effective January 1, 2003)
THIS amended and restated employee benefit plan is adopted on this 20th day of December, 2002, by Electronic Data Systems Corporation, a company organized pursuant to the laws of the State of Delaware, with its principal office in Plano, Collin County, Texas. ARTICLE 1
1.1 Creation . By authorization of its Board of Directors (" Board" ), the Company adopted the EDS Deferred Compensation Plan and Trust (the " Plan" ), effective July 1, 1983, a qualified profit-sharing plan with provisions pursuant to section 401(k) of the Internal Revenue Code of 1954. The Plan shall be administered under the supervision of the Benefits and Compensation Committee for the sole benefit of the Employee Participants and their Beneficiaries, and no part of the Trust shall ever revert to the Company or any Employer, except as hereinafter provided in Article 4 (Contributions).
1.2 Amendment and Restatement . The initial Plan document was first amended and restated effective July 1, 1984. In accordance with the intentions of the Plan and in order to secure and maintain the initial qualification of the Plan and Trust in compliance with the applicable provisions of the Internal Revenue Code of 1986, as amended (the " Code" ), it was determined that the Plan should again be completely amended and restated. The Plan has been amended since then as necessary to comply with changes in applicable law and to make certain changes to the design and operation of the Plan. This amendment and restatement of the Plan is adopted as a complete amendment of the Plan as initially created and qualified without a lapse in coverage, time or effect as a qualified Plan. 1.3 Purpose . The purpose of the Plan is to provide Employees with a retirement savings program through which they may elect to defer a portion of their salaries which their Employer will contribute to the Trust pursuant to the provisions herein. Further, the Company intends to provide the Employees with an additional incentive and retirement security by providing a uniform and nondiscriminatory plan through which contributions may be accumulated and distributed to Participants or their Beneficiaries in the case of the disability, death, attainment of age fifty-nine and one-half (59-1/2), or retirement of a Participant, as hereinafter provided. Subject to the powers reserved herein to amend and terminate the Plan, the Plan has been adopted by the Company with the intention of creating a permanent and continuing plan for the exclusive benefit of the Employees and their Beneficiaries.
1.4 Merger . This amendment and restatement reflects the merger of the Unigraphics Solutions, Inc. 401(k) Plan (the " UGS Plan" ) and the A.T. Kearney, Inc. Profit Sharing and 401(k) Retirement Plan (the " ATK Plan" ) into this Plan, which mergers are effective January 1, 2003. All of the provisions of the ATK Plan and the UGS Plan are expressly incorporated herein by this reference for purposes of determining the amount, allocation of and limitations on any
contributions that are made to this Plan for the benefit of the ATK Plan Participants and the UGS Plan Participants for the plan years ended December 31, 2002. For purposes of determining the amount and allocation of all contributions relating to plan years beginning on and after January 1, 2003, the provisions of the ATK Plan and UGS Plan shall no longer apply and the provisions of this Plan shall control. In addition to the foregoing, effective December 17, 2004, the Wendover Funding, Inc. Savings Plus Plan (the " Wendover Plan" ) is merged into this Plan and each person' s account in the Wendover Plan shall be transferred to and maintained under this Plan in accordance with its terms provided that such transferred Wendover Plan accounts shall not be available for distributions, loans or withdrawals, and shall not be subject to a former Wendover Plan participant' s investment directions, until December 20, 2004 or such later date as the Plan Administrator determines is necessary.
DEFINITIONS 2.1 Definitions . The following words shall, when used herein, have the following meanings unless the context indicates otherwise: (1) Account Manager means a Fiduciary appointed by the Investment Committee pursuant to Section 9.9 (Duties and Authorities of the Investment Committee) to manage any or all assets of the Plan not otherwise managed by Investment Managers.
(2) Actual Deferral Percentage is defined in Section 4.4(b) (Limitation on Elective Contributions for Highly Compensated Employees).
(3) Actual Contribution Percentage is defined in Section 4.5(b) (Limitation on Employer Matching Contributions). (4) Adjustment means, as of any Valuation Date, the gains and income minus the losses and the expenses, costs or fees actually incurred and paid from the Trust since the immediately preceding Valuation Date.
(5) Aggregation Group means two or more plans of any Controlled Group Member aggregated pursuant to the aggregation rules of Code Section 416 in order to determine whether such plans, as a group, are Top-Heavy Plans. The Aggregation Group must include any Qualified Plan sponsored by a Controlled Group Member in which a Key Employee also participates as of the Determination Date or any of the four (4) preceding Plan Years. Additionally, the Aggregation Group must include any other Qualified Plan of a Controlled Group Member which covers a Key Employee and any other Qualified Plan which enables any Qualified Plan covering a Key Employee to meet the qualification requirements pursuant to the coverage and anti-discrimination rules set forth in Code Sections 401(a)(4) and 410(b).
(6) Alternate Payee shall have the same meaning as set forth in Code Section 414(p)(8).
(7) Annual Addition shall mean, for any Limitation Year, the amount allocated to a Participant' s Individual Account which is attributable to contributions paid by an Employer to the Trustee and any forfeitures for a particular Plan Year. Annual Additions shall not include Rollover Contributions, but shall include the following:
(i) employer contributions, including Elective Contributions; (ii) employee contributions;
(iii) forfeitures; and
(iv) contributions during the Limitation Year allocated to any individual medical benefit account (within the meaning of Code Sections 415(l) and 419A(d)(2)) that is established for the Participant.
(8) Annuity Starting Date shall mean the first day of the first period for which an amount is paid as an annuity or, if payable in a form other than an annuity, the first day on which all events have occurred which entitle the Participant to such benefit under the Plan, but in no event is the Annuity Starting Date earlier than a Participant' s separation from Service. (9) ATK Plan Participant shall mean any person who was a participant in the ATK Plan on December 31, 2002 and whose account in the ATK Plan was transferred to this Plan in connection with the merger of the ATK Plan into this Plan.
(10) Beneficiary (also Designated Beneficiary) shall mean such person, or a trust created for the benefit of such a person, or the Participant' s estate, whoever or whichever is entitled to receive benefits hereunder in the event of the Participant' s death prior to the complete distribution of the balance credited to such Participant' s Individual Account.
(11) Benefit Credit shall mean amounts that would be credited to an eligible Participant' s Personal Pension Account, as defined in the EDS Retirement Plan, pursuant to Section 5.2 of the EDS Retirement Plan, determined without regard to any choice election made under Section 5.8 of that plan.
(12) Benefit Dollars shall mean those dollars provided by an Employer to an Employee during a calendar year for the purposes of purchasing certain welfare or fringe benefits through a cafeteria plan maintained by the Company pursuant to Code Section 125. The term Benefit Dollars shall not include any portion of Employer-provided dollars which are not actually used by the Employee to purchase welfare and fringe benefits and are treated as income taxable to the Employee.
(13) Benefits Administration Committee means the committee set forth in Section 9.2.
(14) Choice Allocation Account shall mean the portion of a Participant' s Individual Account consisting of Choice Allocation Contributions allocated to such Participant pursuant to Section 5.4 (Allocation of Employer Contributions), together with Adjustments thereto, plus, in the case of a UGS Plan Participant, the amount of choice allocation contributions that are transferred to this Plan on behalf of such Participant as a result of the merger of the UGS Plan into this Plan.
(15) Choice Allocation Contribution shall mean a contribution made by an Employer pursuant to Section 4.1(c) (Employer Contributions). (16) Company shall mean Electronic Data Systems Corporation, a corporation established under the laws of the State of Delaware, its successors and assigns.
(17) Compensation shall mean for all purposes under the Plan except as otherwise provided in this section 2.1(17), total earnings prior to withholding, as reported on Internal Revenue Service Form W-2, paid to any Employee by an Employer. Compensation shall be increased by Elective Contributions made to any Qualified Plan maintained by an Employer or Controlled Group Member on behalf of such Employee. Compensation shall exclude the following:
(i) amounts not included in income pursuant to a salary deferral election made pursuant to a cafeteria plan described in Code Section 125 or, effective for Plan Years beginning on or after January 1, 2001, pursuant to a salary reduction agreement under Code Section 132(f)(4);
(ii) extraordinary expenses such as moving expenses, overseas living allowances, imputed value of group life insurance or such other similar amounts and any benefits provided through a welfare benefit fund;
(iii) Benefit Dollars;
(iv) payments in the form of Employer Stock; and (v) severance payments and benefits.
For purposes of applying the limitations of Section 5.6 and the provisions of Article 12; for purposes of determining whether an individual is a Highly Compensated Employee pursuant to Section 2.1(50); and for purposes of applying the limitations described in Sections 4.4 and 4.5; Compensation means an Employee' s Compensation required to be reported under Code Sections 6041 and 6051 (i.e., Box 1 Compensation) but determined without regard to any rules that limit remuneration included in wages based on the nature or location of the employment or the services performed, increased, effective January 1, 1998 for purposes of applying the limitations of Section 5.6 and the provisions of Article
12 and January 1, 2002 for all other purposes, by amounts excluded from compensation in lieu of benefits under a cash or deferred arrangement under Code Section 401(k), a cafeteria plan under Code Section 125 or, effective for Plan Years beginning on or after January 1, 2001, a salary reduction agreement under Code Section 132(f)(4); provided; however, that in lieu of the definition of Compensation set forth herein, the Benefits Administration Committee may elect an alternative definition of compensation permitted under Treasury regulations for purposes of applying the limitations described in Sections 4.4 and 4.5.
Notwithstanding anything herein to the contrary, for purposes of calculating an ATK Participant' s allocation of Employer Matching Contributions and Choice Allocation Contributions, Compensation shall not include any awards or payments under the 1996 Incentive Plan of Electronic Data Systems Corporation (or any predecessor or successor plan), the A.T. Kearney, Inc. Intellectual Capital Recognition Program and the A.T. Kearney Enhanced Leave of Absence program.
The maximum amount of Compensation that may be taken into account each Plan Year shall not exceed $200,000 (or $150,000 effective for Plan Years beginning prior to January 1, 2002), as adjusted pursuant to Code Section 401(a)(17).
(18) Compensation and Benefits Committee shall mean the subcommittee of the Board of Directors of the Company authorized to carry out such duties as determined by the Board of Directors and set forth in the Plan and Trust Agreement.
(19) Computation Period shall mean any twelve-consecutive-month period commencing or ending on the dates specified herein. (20) Controlled Group Member shall mean a company which is a member of a controlled group of companies, a group of trades or businesses under common control or an affiliated service group as defined, respectively, in Code Sections 414(b), (c) and (m), of which an Employer is also a member, and any other entity required to be aggregated with an Employer pursuant to Code Section 414(o). For purposes of Section 5.8, Controlled Group Member shall be determined pursuant to Code Sections 414(b), (c), (m) and (o) as amended by Code Section 415(h). (21) Credited Service is defined in Section 3.3 (Credited Service). (22) Customer shall mean any entity for which an Employer provides any trade, goods, or services. (23) Date of Employment shall mean the date on which an Employee first performs an Hour of Service for an Employer. (24) Date of Reemployment shall mean the date an Employee first performs an Hour of Service for an Employer after a termination of Service.
(25) Defined Benefit Plan means a plan as defined in ERISA section 3(35).
(26) Defined Contribution Plan means a plan as defined in ERISA section 3(34). (27) Determination Date is defined in Section 12.1 (Top-Heavy Provisions). (28) Discretionary Profit Sharing Contribution Account shall mean the amount of nonelective contributions that are transferred to this Plan on behalf of an ATK Participant as a result of the merger of the ATK Plan into this Plan as well as any such contributions made to this Plan pursuant to Section 1.4 for the 2002 plan year. (29) Disability means a disability which entitles a Participant to benefits under the Company' s long-term disability plan.
(30) Disability Leave of Absence means an Employee' s absence from active employment with an Employer by reason of Disability.
(31) EDS Retirement Plan shall mean the EDS Retirement Plan, effective July 1, 1998.
(32) EDS Stock Fund is defined in Section 8.2 (Direction of Investments). (33) Effective Date of this restatement of the Plan is January 1, 2003 except where otherwise specified or where an earlier effective date is legally required.
(34) Election Date shall mean the date an Employee elects to participate in the Plan in accordance with Section 3.2 (Participation).
(35) Elective Contribution shall mean any amounts contributed on behalf of a Participant by an Employer on account of a Participant' s Salary Reduction Agreement made pursuant to Section 4.2 (Elective Contributions). (36) Elective Contribution Account shall mean the portion of a Participant' s Individual Account consisting of the Elective Contribution allocated to such Participant pursuant to Section 5.4 (Allocation of Employer Contributions), together with Adjustments thereto, plus, in the case of an ATK Plan Participant or UGS Plan Participant, the amount of elective contributions that are transferred to this Plan on behalf of such Participant as a result of the mergers of the ATK Plan and the UGS Plan into this Plan as well as any such contributions that are made to this Plan pursuant to Section 1.4 for the 2002 plan year.
(37) Employee means a person employed by an Employer and on the payroll of an Employer, who, effective prior to July 1, 1998, does not participate in any other
defined contribution plan as defined in ERISA Section 3(34). Unless otherwise expressly stated, no provision of the Plan shall apply to an Employee any earlier than the effective date of his or her Employer' s participation in the Plan as set forth on Schedule E. (i) The term " Employee" shall include (A) any Expatriate assigned to any Non-US Subsidiary Company who, while assigned to such Non-US Subsidiary Company, is not eligible to participate in any plan maintained by such Non-US Subsidiary Company on behalf of its employees into which the Non-US Subsidiary Company makes contributions and (B) any citizen of a country other than the United States who is employed by an Employer within the United States.
(ii) The term " Employee" shall not include the following:
(A) nonresident aliens who are not subject to United States Federal income taxation on Compensation;
(B) resident aliens who are not subject to United States Federal income taxation on Compensation;
(C) any person eligible to participate in the EDS Puerto Rico Savings Plan; (D) any leased employee or any person who performs services for an Employer pursuant to an arrangement wherein the person is designated as a consultant or independent contractor. For purposes of this subparagraph, the term " leased employee" means, effective for Plan Years beginning on or after January 1, 1997, any person who is not employed by an Employer but who provides services performed under the primary direction or control of the Employer and pursuant to an agreement between the Employer and a third party; and (E) any individual whose employment is transferred from a non-US subsidiary of A.T. Kearney, Inc. to A.T. Kearney, Inc. and who by special agreement with such non-US subsidiary remains eligible to participate in its pension or retirement plan or any individual who is employed by A.T. Kearney, Inc. and who pursuant to an agreement waives participation in the Plan. (iii) Notwithstanding anything herein to the contrary, all persons described above who are not considered an Employee are not eligible to participate in the Plan even if such persons are retroactively re-classified as an Employee by any court, the Internal Revenue Service or any other federal, state or administrative agency, even if such persons otherwise meet the eligibility provisions contained in this Plan but for these exclusions.
(iv) Notwithstanding anything herein or in a prior Plan document to the contrary, for the period from July 1, 1983, to December 31, 2001, the term " Employee" includes any citizen of a country other than the United States who is employed by an Employer within the United States, including holders of permits issued pursuant to 8 U.S.C. a7 1101 et seq. (commonly referred to as holders of green cards and work visas).
(38) Employer means, collectively or individually, as the context may indicate, the Company and any other organization which has satisfied all requirements as a signatory to the Plan and Trust Agreement pursuant to Article 11 (Provisions Relative to Employers Included in the Plan).
(39) Employer Matching Contribution shall mean a contribution made by an Employer pursuant to Section 4.1(b) (Employer Contributions).
(40) Employer Matching Contribution Account shall mean the portion of a Participant' s Individual Account consisting of the Employer Matching Contribution allocated to such Participant pursuant to Section 5.4 (Allocation of Employer Contributions), together with the Adjustments thereto, plus, in the case of a UGS Plan Participant, the amount of special contributions and Unigraphics Solutions, Inc. and Electronic Data Systems Corporation matching contributions that are transferred to this Plan on behalf of such Participant as a result of the merger of the UGS Plan into this Plan as well as any special and matching contributions that are made to this Plan pursuant to Section 1.4 for the 2002 plan year. (41) Employer Stock means the common stock, par value $0.01 per share, of Electronic Data Systems Corporation and any other security which is a Qualifying Employer Security, as such term as defined in Code Section 4975(e)(8), of Electronic Data Systems Corporation.
(42) Employment Year means any twelve (12) consecutive month period beginning on an Employee' s date of employment or any subsequent anniversary thereof. (43) Equalization Bonus is defined in Appendix B. (44) Expatriate means any Employee of the Company who, as a requirement of a temporary assignment, is located at the site of a Non-US Subsidiary Company and who has completed the necessary documentation as may be required of Expatriates by the Company.
(45) Fiduciary means any Employer, the Trustee, the Compensation and Benefits Committee, the Investment Committee, the Benefits Administration Committee, Participants, to the extent provided herein, and any individual, corporation or other entity which assumes responsibilities of the aforementioned in respect to the management or operation of the Plan or the investment or disposition of any assets held in the Trust.
(46) Fifty Percent (50%) Joint and Survivor Annuity is defined in Section 6.5(b)(i) (Distribution of Benefits).
(47) Forfeiture is defined in Section 6.9 (Forfeiture Occurs and Restoration of Non-Vested Accrued Benefit) and Section 9.16 (Missing Persons).
(48) Hardship is defined in Section 7.2 (Special Hardship Withdrawal).
(49) Highly Compensated Employee , as determined pursuant to Code Section 414(q) and the Regulations thereunder, means, effective for Plan Years beginning on or after January 1, 1997, any Employee of any employer required to be aggregated pursuant to the aggregation rules of Code Section 414(b), (c), (m) or (o), who:
(i) Was a 5-percent owner (as defined in Code Section 416(i)(1)) at any time during the Plan Year or the twelve-month period preceding the Plan Year; or
(ii) Had Compensation in excess of $80,000 (or such greater amount as results from adjustment by the Secretary of the Treasury in the same manner as under Code Section 415(d)) for the preceding Plan Year. (50) Hour of Service shall be determined and credited in the manner set forth in Department of Labor Regulation Section 2530.200-2(b) and (c). The provisions of this subsection shall be construed so as to resolve any ambiguities in favor of crediting an Employee with Hours of Service. Except as otherwise provided by any law or regulation cited in this subsection, an Hour of Service shall mean:
(i) Each hour for which an Employee is compensated, or entitled to compensation, for the performance of duties for the Employer during the applicable Employment Year;
(ii) Each hour for which disputed compensation, irrespective of mitigation of damages, is either awarded or agreed to by the Employer, provided, however, that the same Hours of Service shall not be credited under any other subsection herein, and that crediting of Hours of Service for compensation awarded or agreed to with respect to periods described in subparagraph (iii) below shall be subject to the limitation set forth in such subsection; and, (iii) Each hour for which an Employee is compensated, or entitled to compensation, by the Employer for a period of time when no duties were performed for the Employer by the Employee for reason of vacation, holiday,
illness, incapacity, disability, layoff, jury duty, military duty, or leave of absence. For purposes of this subsection:
(A) For periods prior to July 1, 1998, no more than five hundred and one (501) Hours of Service are required to be credited to an Employee during any single continuous period during which no duties are performed whether or not such continuous period occurs during one Employment Year; (B) Hours of Service are not required to be credited to the Employee for which such Employee is directly or indirectly compensated, or entitled to compensation, on account of a period during which no duties are performed, if such payment is made or due pursuant to a plan maintained solely for the purpose of complying with applicable workers' compensation or unemployment compensation