HomeMy WebLinkAboutResolution No. 4407, Legislative Body Relating to a Money Purchase plan Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Anna Rosenberry, Administrative Services Director
Terry Clark, HR Associate - Payroll
SUBJECT: Resolution No. 4407 – Resolution for a Legislative Body Relating to a
Money Purchase Plan
MEETING DATE: September 17, 2012
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Adopt Resolution No. 4407 – Resolution for a Legislative Body
Relating to a Money Purchase Plan.
BACKGROUND: The attached resolution is necessary for the city to amend and re-state our
existing 401(a) Defined Contribution retirement plan (previous plan number 107993; re-stated
plan number 106636), which hasn’t been utilized since 2004. This plan is part of the city’s
benefit offerings of MPERA retirement plans, and two 457 Deferred Compensation Plans.
Below is general information from the ICMA-RC website about the advantages and options
under the 401(a) plan.
401(a) Defined Contribution Plans
A 401(a) Money Purchase Plan is a retirement savings plan that allows you to set aside
money for retirement. Your 401 Plan may allow contributions to be made by your
employer, you, or both.
Your contributions may be made on either a mandatory or a voluntary basis. The
employer decides on the method of participant contribution, as well as whether
participant contributions will be made on a pre-tax (picked-up contributions) or an after-
tax basis.
The most common method our clients use is direct employer contributions with
mandatory participant contributions with the "pick-up provision." Under this scenario;
mandatory employee contributions are made on a pre-tax basis. Your plan may also
allow you to make voluntary contributions on an after-tax basis. These voluntary after-
tax contributions are limited to 25 percent of your compensation.
Employer contributions to your 401 plan may be made under one of the following
methods:
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1. The employer may contribute a fixed dollar or percentage amount, either with or
without a required employee contribution.
2. The employer may match a fixed percentage of employee contributions.
3. The employer may match the participant contribution within a given range (i.e. a
variable employee match).
What are the Benefits of participating in a 401 plan?
• You reduce your current income taxes while you boost your retirement
investments.
• You can dollar-cost average through convenient payroll deductions.*
• You have the ability to rollover your savings to another public sector employer's
401 plan, a tax-sheltered 403(b) annuity plan, a 457 plan, or an IRA if you change
employers.
• Pre-tax contributions are not subject to federal and (in most cases) state income
taxes until withdrawn.
• Earnings accumulate tax-deferred.
• You may also participate in a 457 Deferred Compensation Plan if offered by your
employer
UNRESOLVED ISSUES: After adoption of this resolution, enrollment and set-up will be
completed by Payroll.
ALTERNATIVES: As suggested by the Commission.
FISCAL EFFECTS: There is no fee to the City, as employer, to set up this account. If the
City elects to make contributions to an employee’s account, those amounts will be charged
within the appropriate department’s Personnel budget.
Attachments: Resolution No. 4407
ICMA-RC 401 Government Money Purchase Plan & Trust Basic Document
Report compiled on: Sept 6 2012
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401 Governmental Money Purchase
Plan & Trust Basic Document
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ICMA RETIREMENT CORPORATION
GOVERNMENTAL MONEY PURCHASE PLAN & TRUST
BASIC DOCUMENT
Table of Contents
I. PURPOSE ..................................................................................................................................................1
II. DEFINITIONS .........................................................................................................................................................1
III. ELIGIBILITY .............................................................................................................................................4
IV. CONTRIBUTIONS .................................................................................................................................................5
V. LIMITATION ON ALLOCATIONS ........................................................................................................7
VI. TRUST AND INVESTMENT OF ACCOUNTS ...................................................................................11
VII. VESTING ................................................................................................................................................14
VIII. BENEFITS CLAIM ..................................................................................................................................15
IX. COMMENCEMENT OF BENEFITS ....................................................................................................15
X. DISTRIBUTION REQUIREMENTS .....................................................................................................19
XI. MODES OF DISTRIBUTION OF BENEFITS ......................................................................................23
XII. SPOUSAL DEATH BENEFIT REQUIREMENTS .................................................................................24
XIII. LOANS TO PARTICIPANTS ..................................................................................................................25
XIV. PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS .......................................28
XV. ADMINISTRATION ...............................................................................................................................30
XVI. MISCELLANEOUS .................................................................................................................................31
XVII. SPOUSAL BENEFIT REQUIREMENTS ...............................................................................................33
XVIII. FINAL PAY CONTRIBUTIONS ............................................................................................................36
XIX. ACCRUED LEAVE CONTRIBUTIONS ................................................................................................37
DECLARATION OF TRUST ..............................................................................................................................39
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ICMA RETIREMENT CORPORATION
GOVERNMENTAL MONEY PURCHASE PLAN & TRUST
I. PURPOSE
The Employer hereby adopts this Plan and Trust to provide funds for its Employees’ retirement, and to
provide funds for their Beneficiaries in the event of death. The benefits pro vided in this Plan shall be paid
from the Trust. The Plan and the Trust forming a part hereof are adopted and shall be maintained for the
exclusive benefit of eligible Employees and their Beneficiaries. Except as provided in Sections 4.12 and
14.03, no part of the corpus or income of the Trust shall revert to the Employer or be used for or diverted to
purposes other than the exclusive benefit of Participants and their Beneficiaries.
II. DEFINITIONS
2.01 Account. A separate record which shall be established and maintained under the Trust for each
Participant, and which shall include all Participant subaccounts created pursuant to Article IV, plus
any Participant Loan Ac count created pursuant to Section 13.03. Each subaccount created pursuant
to Article IV shall include any earnings of the Trust and adjustments for withdrawals, and realized and
unrealized gains and losses allocable thereto. The term “Account” may also refer to any of such separate
subaccounts.
2.02 Accounting Date. Each day that the New York Stock Exchange is open for trading, and such other
dates as may be determined by the Plan Administrator, as provided in Section 6.06 for valuing the
Trust’s assets.
2.03 Adoption Agreement. The separate agreement executed by the Employer through which the
Employer adopts the Plan and elects among the various alternatives provided thereunder, and which
upon execution, becomes an integral part of the Plan.
2.04 Beneficiary. The person or persons (including a trust) designated by the Participant who shall
receive any benefits payable here under in the event of the Participant’s death. The designation of such
Beneficiary shall be in writing to the Plan Administrator. A Participant may designate primary and
contingent Beneficiaries. Where no designated Beneficiary survives the Participant or no Beneficiary is
otherwise designated by the Participant, the Participant’s Beneficiary shall be his/her surviving spouse
or, if none, his/her estate.
Notwithstanding the foregoing, the Beneficiary designation is subject to the requirements of Article
XII unless the Employer elects otherwise in the Adoption Agreement.
Notwithstanding the foregoing, where elected by the Employer in the Adoption Agreement (the
“QJSA Election”), the Beneficiary designation is subject to the requirements of Article XVII.
Notwithstanding the foregoing, to the extent permitted by the Employer, a Beneficiary receiving
required minimum distributions in accordance with Article X and not in a benefit form elected under
Article XI or XII, may designate a Beneficiary to receive the required minimum distributions that
would have otherwise been payable to the initial Beneficiary but for his or her death.
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2.05 Break in Service. A Period of Severance of at least twelve (12) consecutive months.
In the case of an individual who is absent from work for maternity or paternity reasons, the twelve
(12) consecutive month period beginning on the first an niversary of the first date of such absence
shall not constitute a Break in Service. For purposes of this paragraph, an absence from work for
maternity or paternity reasons means an absence (1) by reason of the pregnancy of the indi vidual, (2)
by reason of the birth of a child of the individual, (3) by reason of the placement of a child with the
individual in connection with the adoption of such child by such individual, or (4) for purposes of
caring for such child for a period beginning im mediately fol lowing such birth or placement.
2.06 Code. The Internal Revenue Code of 1986, as amended from time to time.
2.07 Covered Employment Classification. The group or groups of Employees eligible to make and/or
have contributions to this Plan made on their behalf, as specified by the Employer in the Adoption
Agreement.
2.08 Disability. A physical or mental impairment which is of such permanence and degree that, as
determined by the Employer, a Participant is unable because of such impairment to perform any
substantial gainful activity for which he/she is suited by virtue of his/her experience, training, or
education and that has lasted, or can be expected to last, for a continuous period of not less than
twelve (12) months, or can be expected to result in death. The permanence and degree of such
impairment shall be supported by medical evidence. If the Employer maintains a long-term disability
plan, the definition of Disability shall be the same as the definition of disability in the long-term
disability plan.
2.09 Earnings.
(a) General Rule. Earnings, which form the basis for computing Employer Contributions, are
all of each Participant’s W-2 earnings which are actually paid to the Participant during the
Plan Year, plus any contributions made pursu ant to a salary reduction agreement which are
not includible in the gross income of the Employee under section 125, 402(e)(3), 402(h)
(1)(B), 403(b), 414(h)(2), 457(b), or, effective January 1, 2001, 132(f)(4) of the Code.
Earnings shall include any pre-tax contributions (excluding direct employer contributions)
to an integral part trust of the Employer providing retiree health care benefits. Earnings shall
also include any other earnings as defined and elected by the Employer in the Adoption
Agreement. Unless the Employer elects otherwise in the Adoption Agreement, Earnings shall
exclude overtime compensation and bonuses.
(b) Limitation on Earnings. For any Plan Year beginning after December 31, 2001, the annual
Earnings of each Participant taken into account in determining allocations shall not exceed
$200,000, as adjusted for cost-of-living increases in accordance with section 401(a)(17)(B) of
the Code. Annual Earnings means Earnings during the Plan Year or such other consecutive
12-month period over which Earnings is otherwise determined under the Plan (the
determination period). The cost-of-living adjustment in effect for a calendar year applies to
annual Earnings for the determination period that begins with or within such calendar year.
If a determination period consists of fewer than twelve (12) months, the annual Earnings
limit is an amount equal to the otherwise applicable annual Earnings limit multiplied by the
fraction, the numerator of which is the number of months in the short Plan Year and the
denominator of which is twelve (12). If Earnings for any prior determination period are taken
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into account in determining a Participant’s allocations for the current Plan Year, the Earnings
for such prior year are subject to the applicable annual Earnings limit in effect for that prior
year.
(c) Limitations for Governmental Plans. In the case of an eligible participant in a
governmental plan (within the meaning of section 414(d) of the Code), the dollar limitation
shall not apply to the extent the Earnings which are allowed to be taken into account under
the Plan would be reduced below the amount which was allowed to be taken into account
under the Plan as in effect on July 1, 1993, as adjusted for increases in the cost-of-living in
accordance with section 401(a)(17)(B) of the Code. For purposes of this Section, an eligible
participant is an individual who first became a Participant in the Plan during a Plan Year
beginning before the first Plan Year beginning after December 31, 1993.
2.10 Effective Date. The first day of the Plan Year during which the Employer adopts the Plan, unless the
Employer elects in the Adoption Agreement an alternate date as the Effective Date of the Plan.
2.11 Employee. Any individual who has applied for and been hired in an employment position and who
is employed by the Employer as a common law employee; provided, however, that Employee shall
not include any individual who is not so recorded on the payroll records of the Employer, including
any such person who is subsequently reclassified by a court of law or regulatory body as a common
law employee of the Employer. For purposes of clarification only and not to imply that the preceding
sentence would otherwise cover such person, the term Employee does not include any individual
who performs services for the Employer as an independent contractor, or under any other non-
employee classification.
2.12 Employer. The unit of state or local government or an agency or instrumentality of one (1) or more
states or local governments that executes the Adop tion Agreement.
2.13 Hour of Service. Each hour for which an Employee is paid or entitled to payment for the
performance of du ties for the Employer.
2.14 Nonforfeitable Interest. The nonforfeitable interest of the Participant or his/her Beneficiary
(whichever is applicable) is that percentage of his/her Employer Contribution Account balance,
which has vested pursuant to Article VII. A Participant shall, at all times, have a one hundred
percent (100%) Nonforfeitable Interest in his/her Participant Contribution, Rollover, and Voluntary
Contribution Accounts.
2.15 Normal Retirement Age. The age which the Employer specifies in the Adoption Agreement. If
the Employer enforces a mandatory retirement age, the Normal Retirement Age is the lesser of that
mandatory age or the age specified in the Adoption Agreement.
2.16 Participant. An Employee or former Employee for whom contributions have been made under the
Plan and who has not yet received all of the payments of benefits to which he/she is entitled under
the Plan. A Participant is treated as benefiting under the Plan for any Plan Year during which the
participant received or is deemed to receive an allocation in accordance with Treas. Reg. section
1.410(b)-3(a).
2.17 Period of Service. For purposes of determining an Employee’s initial or continued eligibility to
participate in the Plan or the Nonforfeitable Interest in the Participant’s Account balance derived
from Employer Contributions, an Employee will receive credit for the aggregate of all time period(s)
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commencing with the Employee’s first day of employment or reemployment and ending on the
date a Break in Service begins. The first day of employment or reemployment is the first day the
Employee performs an Hour of Service. An Employee will also receive credit for any Period of
Severance of less than twelve (12) con secutive months. Fractional periods of a year will be expressed
in terms of days.
Notwithstanding anything to the contrary herein, if the Plan is an amendment and restatement of a
plan that previously calculated service under the hours of service method, service shall be credited in
a manner that is at least as generous as that provided under Treas. Regs. section 1.410(a)-7(g).
2.18 Period of Severance. A continuous period of time during which the Employee is not employed
by the Employer. Such period begins on the date the Employee retires, quits or is discharged, or if
earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first
absent from service.
2.19 Plan. This Plan, as established by the Em ployer, including any elected provisions pursuant to the
Adoption Agreement.
2.20 Plan Administrator. The person(s) or entity named to carry out certain nondiscretionary
administrative functions under the Plan, as hereinafter described, which is the ICMA Retirement
Corporation or any suc cessor Plan Administrator.
2.21 Plan Year. The twelve (12) consecutive month period designated by the Employer in the Adoption
Agree ment.
2.22 Trust. The Trust created under Article VI of the Plan which shall consist of all of the assets of the
Plan derived from Employer and Participant contributions under the Plan, plus any income and
gains thereon, less any losses, expenses and distributions to Participants and Beneficiaries.
III. ELIGIBILITY
3.01 Service. Except as provided in Sections 3.02 and 3.03 of the Plan, an Employee within the Covered
Employment Classification who has completed a twelve (12) month Period of Service shall be
eligible to participate in the Plan at the beginning of the payroll period next commencing thereafter.
The Employer may elect in the Adoption Agreement to waive or reduce the twelve (12) month
Period of Service.
If the Employer maintains the plan of a predecessor employer, service with such employer shall be
treated as Service for the Employer.
3.02 Age. The Employer may designate a minimum age requirement, not to exceed age twenty-one (21),
for participation. Such age, if any, shall be declared in the Adoption Agreement.
3.03 Return to Covered Employment Classification. In the event a Participant is no longer a member
of Covered Employment Classification and becomes ineligible to make contributions and/or
have contributions made on his/her behalf, such Employee will become eligible for contributions
immediately upon returning to a Covered Employment Classification. If such Participant incurs a
Break in Service, eligibility will be determined under the Break in Service rules of the Plan.
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In the event an Employee who is not a member of a Covered Employment Classification becomes a
member, such Employee will be eligible to participate immediately if such Employee has satisfied the
minimum age and service requirements and would have otherwise previously become a Participant.
3.04 Service Before a Break in Service. All Periods of Service with the Employer are counted toward
eligibility, including Periods of Service before a Break in Service.
IV. CONTRIBUTIONS
4.01 Employer Contributions. For each Plan Year, the Employer will contribute to the Trust an amount
as specified in the Adoption Agreement. The Employer’s full contribution for any Plan Year shall
be due and paid not later than thirty (30) working days after the close of the Plan Year. Each
Participant will share in Employer Contributions for the period beginning on the date the Participant
commences participation under the Plan and ending on the date on which such Employee severs
employment with the Employer or is no longer a member of a Covered Employment Classification,
and such contributions shall be accounted for separately in his/her Employer Contribution Account.
Notwithstand ing anything to the contrary herein, if so elected by the Employer in the Adoption
Agreement, an Employee shall be required to make contributions as provided pursuant to Section 4.03
or 4.04 in order to be eligible for Employer Contributions to be made on his/her behalf to the Plan.
4.02 Forfeitures. All amounts forfeited by terminated Participants, pursuant to Section 7.06, shall
be allocated to a suspense account and used to reduce dollar for dollar Employer Contributions
otherwise required under the Plan for the current Plan Year and succeeding Plan Years, if necessary.
Forfeitures may first be used to pay the reasonable administrative expenses of the Plan, with any
remainder being applied to reduce Employer Contributions.
4.03 Mandatory Participant Contributions. If the Employer so elects in the Adoption Agreement, each
eligible Employee shall make contributions at a rate prescribed by the Employer or at any of a range
of specified rates, as set forth by the Employer in the Adoption Agreement, as a requirement for
his/her participation (1) in the Plan or (2) in this portion of the Plan. Once an eligible Employee
becomes a Participant and makes an election hereunder, he/she shall not thereafter have the right to
discontinue or vary the rate of such Mandatory Participant Contributions. Such contributions shall
be accounted for separately in the Participant Contribution Account. Such Account shall be at all
times nonforfeitable by the Participant.
If the Employer so elects in the Adoption Agreement, the Mandatory Participant Contributions
shall be “picked up” by the Employer in accordance with Code section 414(h)(2). Any contribution
picked-up under this Section shall be treated as an employer contribution in determining the tax
treatment under the Code, and shall not be included as gross income of the Participant until it is
distributed.
To constitute a Pick-Up Contribution, (1) the Employer must specify that the contributions are
being paid by the Employer in lieu of contributions by the Employee, and (2) the Employee must
not be given the option of choosing to receive the contributed amounts directly instead of having
them paid by the Employer to the Plan.
4.04 Employer Matching Contributions of Voluntary Participant Contributions. If the Employer
so elects in the Adop tion Agreement, Employer Matching Contributions shall be made on behalf
of an eligible Employee for a Plan Year only if the Employee agrees to make Voluntary Participant
Contributions for that Plan Year. The rate of Employer Contributions shall, to the extent specified in
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the Adoption Agreement, be based upon the rate at which Voluntary Participant Contributions are
made for that Plan Year. Employer Matching Contributions shall be accounted for separately in the
Employer Contribution Account.
4.05 Voluntary Participant Contributions. If the Employer so elects in the Adoption Agreement, an
eligible Employee may make after-tax voluntary (unmatched) contributions under the Plan for any
Plan Year in any amount up to twenty five percent (25%) of his/her Earn ings for such Plan Year.
Matched and unmatched contributions shall be accounted for separately in the Participant’s Voluntary
Contribution Account. Such Account shall be at all times nonforfeitable by the Participant.
4.06 Deductible Employee Contributions. The Plan will not accept deductible employee contributions
which are made for a taxable year beginning after December 31, 1986. Contributions made prior
to that date will be maintained in a Deductible Employee Contribution Account. The Account will
share in the gains and losses under the Plan in the same manner as described in Section 6.06 of the
Plan. Such Account shall be at all times nonforfeitable by the Participant.
4.07 Final Pay Contributions. If the Employer so elects in the Adoption Agreement, Participants shall be
eligible to make or receive Final Pay Contributions under this Plan in accordance with Article XVIII.
Notwithstanding the foregoing, this election may only be made if the Employer also elects to make
contributions under Section 4.01.
4.08 Accrued Leave Contributions. If the Employer so elects in the Adoption Agreement, eligible
Participants shall be eligible to make or receive Accrued Leave Contributions under this Plan in
accordance with Article XIX. Notwithstanding the foregoing, this election may only be made if the
Employer also elects to make contributions under Section 4.01.
4.09 Military Service Contributions. Notwithstanding any provision of the Plan to the contrary,
effective December 12, 1994, contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with section 414(u) of the Code.
Effective December 12, 1994, if the Employer has elected in the Adoption Agreement to make loans
available to Participants, loan repayments will be suspended under the Plan as permitted under
section 414(u)(4) of the Code.
4.10 Changes in Participant Election. A Participant may elect to change his/her rate of Voluntary
Participant Contributions at any time or during an election period as designated by the Employer.
A Participant may discontinue such contributions at any time or during an election period as
designated by the Employer.
4.11 Portability of Benefits.
(a) Unless otherwise elected by the Employer in the Adoption Agreement, the Plan will accept
Participant (which shall include, for purposes of this subsection, an Employee within the
Covered Employment Classification whether or not he/she has satisfied the minimum age
and service requirements of Article III,) rollover contributions and/or direct rollovers of
distributions (including after-tax contributions) made after December 31, 2001 that are
eligible for rollover in accordance with Section 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii),
or 457(e)(16) of the Code, from all of the following types of plans:
(1) A qualified plan described in Section 401(a) or 403(a) of the Code;
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(2) An annuity contract described in Section 403(b) of the Code;
(3) An eligible plan under Section 457(b) of the Code which is maintained by a state,
political subdivision of a state, or any agency or instrumentality of a state or a
political subdivision of a state; and
(4) An individual retirement account or annuity described in Section 408(a) or 408(b) of
the Code (including SEPs, and SIMPLE IRAs after two years of participating in the
SIMPLE IRA).
(b) Notwithstanding the foregoing, the Employer may reject the rollover contribution if it
determines, in its discretion, that the form and nature of the distribution from the other plan
does not satisfy the applicable requirements under the Code to make the transfer or rollover a
nontaxable transaction to the Participant;
(c) For indirect rollover contributions, the amount distributed from such plan must be rolled
over to this Plan no later than the sixtieth (60th) day after the distribution was made from the
plan, unless otherwise waived by the IRS pursuant to Section 402(c)(3) of the Code.
(d) The amount transferred shall be deposited in the Trust and shall be credited to a Rollover
Account. Such Account shall be one hundred percent (100%) vested in the Participant.
(e) The Plan will accept accumulated deductible employee contributions as defined in section
72(o)(5) of the Code that were distributed from a qualified retirement plan and transferred
(rolled over) pursuant to section 402(c), 403(a)(4), 403(b)(8), or 408(d)(3) of the Code.
Notwithstanding the above, this transferred (rolled over) amount shall be deposited to the
Trust and shall be credited to a Deductible Employee Contributions Account. Such Account
shall be one-hundred percent (100%) vested in the Participant.
(f) A Participant may, upon approval by the Employer and the Plan Administrator, transfer
his/her interest in another plan maintained by the Employer that is qualified under section
401(a) of the Code to this Plan, provided the transfer is effected through a one-time
irrevocable written election made by the Participant. The amount transferred shall be
deposited in the Trust and shall be credited to sources that maintain the same attributes as
the plan from which they are transferred. Such transfer shall not reduce the accrued years or
service credited to the Participant for purposes of vesting or eligibility for any Plan benefits or
features.
4.12 Return of Employer Contributions. Any contribution made by the Employer because of a mistake of
fact must be returned to the Employer within one year of the date of contribution.
V. LIMITATION ON ALLOCATIONS
5.01 Participants Only in This Plan.
(a) If the Participant does not participate in, and has never participated in another qualified
plan or a welfare benefit fund, as defined in section 419(e) of the Code, maintained by the
Employer, or an individual medical account, as defined by section 415(l)(2) of the Code,
maintained by the Employer, which provides an Annual Addition, the amount of Annual
Additions which may be cred ited to the Participant’s Account for any Limita tion Year will not
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exceed the lesser of the Maximum Permissible Amount or any other limitation con tained in
this Plan. If the Employer Con tribu tion that would otherwise be contributed or al located to
the Participant’s Account would cause the Annual Addi tions for the Limitation Year to exceed
the Maximum Permissible Amount, the amount contributed or al located will be reduced
so that the Annual Addi tions for the Limitation Year will equal the Maximum Permis sible
Amount.
(b) Prior to determining the Participant’s actual Com pensation for the Limitation Year, the
Employer may determine the Maximum Permissible Amount for a Par ticipant on the basis of
a reasonable estimation of the Participant’s Compensation for the Limita tion Year, uniformly
determined for all Participants simi larly situated.
(c) As soon as is administratively feasible after the end of the Limitation Year, the Maximum
Permissible Amount for the Limitation Year will be determined on the basis of the Partici-
pant’s actual Compensa tion for the Limitation Year.
(d) If, as a result of an inadvertent reasonable error in estimating the Maximum Permissible
Amount for a Participant in accordance with Subsection (b) or pursuant to Subsection (c) or
as a result of the allocation of forfeitures, there is an Excess Amount, the excess will be dis-
posed of as follows:
(1) Any Mandatory Participant Contributions that are not “picked up” by the Employer
or Voluntary Participant Con tribu tions, to the extent they would reduce the Excess
Amount, will be returned to the Participant;
(2) If after the application of paragraph (1) an Excess Amount still exists, and the
Participant is covered by the Plan at the end of the Limitation Year, the Excess
Amount in the Partici pant’s Account will be used to reduce Employer Contributions
(including any allocation of forfeitures) for such Participant in the next Limita tion
Year, and each succeeding Limitation Year if necessary;
(3) If after the application of paragraph (1) an Excess Amount still exists, and the
Participant is not covered by the Plan at the end of the Limitation Year, the Excess
Amount will be held unallocated in a suspense ac count. The suspense account will
be applied to reduce future Employer Contributions (including al location of any
forfeitures) for all remaining Par ticipants in the next Limita tion Year, and each suc-
ceeding Limitation Year if necessary;
(4) If a suspense account is in existence at any time during a particular Limitation Year,
all amounts in the suspense account must be al located and reallocated to Participants’
ac counts before any Employer or any Employee contributions may be made to the
Plan for that Limita tion Year. Excess Amounts in a suspense account may not be
distributed to Participants or former Participants.
5.02 Participants in Another Defined Contribution Plan.
(a) Unless the Employer provides other limitations in the Adoption Agreement, this Section
applies if, in addition to this Plan, the Participant is covered under another qualified defined
contribu tion plan maintained by the Employer, or a welfare benefit fund, as defined in
section 419(e) of the Code, maintained by the Employer, or an individual medical account,
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as defined by section 415(l)(2) of the Code, maintained by the Employer, which provides an
Annual Addition, during any Limitation Year. The Annual Addi tions which may be credited
to a Participant’s Account under this Plan for any such Limitation Year will not exceed the
Maximum Permissible Amount reduced by the Annual Additions credited to a Participant’s
Ac count under the other plans and welfare benefit funds for the same Limita tion Year. If the
Annual Additions with respect to the Par ticipant under other defined con tribu tion plans and
welfare bene fit funds main tained by the Employer are less than the Maximum Permissible
Amount and the Employer contribution that would other wise be contributed or allocated to
the Participant’s Account under this Plan would cause the Annual Additions for the Limita-
tion Year to exceed this limitation, the amount contributed or allocated will be reduced so
that the Annual Additions under all such plans and funds for the Limitation Year will equal
the Maxi mum Permissible Amount. If the Annual Addi tions with respect to the Participant
under such other defined contribu tion plans and welfare benefit funds in the aggre gate are
equal to or greater than the Maximum Per missible Amount, no amount will be contributed
or allocated to the Participant’s Ac count under this Plan for the Limitation Year.
(b) Prior to determining the Participant’s actual Com pensation for the Limitation Year, the
Employer may determine the Maximum Permissible Amount for a Par ticipant in the manner
described in Section 5.01(b).
(c) As soon as is administratively feasible after the end of the Limitation Year, the Maximum
Permissible Amount for the Limitation Year will be determined on the basis of the Partici-
pant’s actual Compensa tion for the Limitation Year.
(d) If, pursuant to Subsection (c) or as a result of the allocation of forfeitures, a Participant’s An-
nual Additions under this Plan and such other plans would result in an Excess Amount for a
Limi tation Year, the Excess Amount will be deemed to consist of the Annual Additions last
allocated, except that Annual Additions at tributable to a wel fare benefit fund or individual
medical account will be deemed to have been allocated first regardless of the actual allocation
date.
(e) If an Excess Amount was allocated to a Participant on an allocation date of this Plan which
coincides with an alloca tion date of another plan, the Excess Amount attributed to this Plan
will be the product of,
(1) The total Excess Amount allocated as of such date, multiplied by
(2) The ratio of (i) the Annual Additions al located to the Participant for the Limita-
tion Year as of such date under this Plan to (ii) the total Annual Addi tions al located
to the Par ticipant for the Limita tion Year as of such date under this and all the other
prototype qualified defined contribution plans.
(f) Any Excess Amount attributed to this Plan will be disposed in the manner described in
Section 5.01(d).
5.03 Definitions. For the purposes of this Article, the fol lowing definitions shall apply:
(a) Annual Additions: The sum of the following amounts credited to a Participant’s account for
the Limita tion Year:
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(1) Employer Contributions;
(2) Forfeitures;
(3) Employee contribu tions; and
(4) Allocations under a simplified employee pension.
Amounts allocated, after March 31, 1984, to an individual medical account, as defined in
sec tion 415(l)(2) of the Code, which is part of a pension or annuity plan maintained by the
Employer, are treated as Annual Additions to a defined contribu tion plan.
For this purpose, any Excess Amount applied under Sections 5.01(d) or 5.02(f) in the
Limita tion Year to reduce Employer Contributions will be considered Annual Additions for
such Limita tion Year.
(b) Compensation: A Participant’s wages, salaries, and fees for professional services and other
amounts received (without regard to whether an amount is paid in cash) for personal services
actually rendered in the course of employ ment with the Employer maintaining the Plan to the
extent that the amounts are includible in gross income (includ ing, but not limited to, bonuses,
fringe benefits, and reimbursements or other expense allowances under a nonaccountable plan
(as described in Treas. Reg. section 1.62-2(c))), and exclud ing the fol low ing:
(1) Employer Contributions to a plan of deferred compensa tion which are not includ ible
in the Employee’s gross income for the taxable year in which contrib uted, or Employer
Contribu tions under a simplified employee pension plan to the extent such con-
tributions are deduct ible by the Employee, or any distributions from a plan of deferred
compensation; and
(2) Other amounts which received special tax benefits, or contributions made by the
Employer (whether or not under a salary reduc tion agreement) towards the purchase
of an annuity contract described in section 403(b) of the Code (whether or not the
amounts are actually excludable from the gross income of the Employee).
(3) Notwithstanding the above, Compensation shall include:
(a) any elective deferrals (as defined in section 402(g)(3) of the Code), and
(b) any amount which is contributed or deferred by the Employer at the election
of the Employee and which is not includible in the gross income of the
Employee by reason of sections 125, 132(f)(4) or 457 of the Code.
For purposes of applying the limitations of this Article, Compen sation for a Limitation Year
is the Compensation actually paid or made available during such year.
(c) Defined Contribution Dollar Limitation: $40,000, as adjusted for increases in the cost-of-
living in accordance with section 415(d) of the Code.
(d) Employer: The Employer that adopts this Plan.
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(e) Excess Amount: The excess of the Participant’s An nual Additions for the Limitation Year
over the Maximum Permis sible Amount.
Any Excess Amount shall include allocable income. The income allocable to an Excess
Amount is equal to the sum of allocable gain or loss for the Plan Year and the allocable gain
or loss for the period between the end of the Plan Year and the date of distribution (the gap
period). The Plan may use any reasonable method for computing the income allocable to
an Excess Amount, provided that the method is used consistently for all Participants and
for all corrective distributions under the Plan for the Plan Year, and is used by the Plan for
allocating income to Participants’ Accounts.
(f) Limitation Year: A calendar year, or the twelve (12) con secutive month period elected by
the Employer in the Adoption Agree ment. All quali fied plans maintained by the Employer
must use the same Limitation Year. If the Limitation Year is amended to a different twelve
(12) consecutive month period, the new Limitation Year must begin on a date within the
Limitation Year in which the amend ment is made.
(g) Maximum Permissible Amount: The maximum Annual Addition that may be contributed
or allocated to a Participant’s Account under the Plan for any Limitation Year shall not exceed
the lesser of:
(1) The Defined Contribution Dollar Limitation, or
(2) One hundred percent (100%) (25% for Limitation Years before January 1, 2002) of
the Participant’s Compensation for the Limita tion Year.
The compensation limit referred to in (2) shall not apply to any contribution for medical
benefits after separation from service (within the meaning of section 401(h) or section
419A(f)(2) of the Code) which is otherwise treated as an annual addition.
If a short Limitation Year is created because of an amendment changing the Limitation Year
to a differ ent twelve (12 ) consecutive month period, the Maximum Permissible Amount will
not exceed the Defined Contribution Dollar Limitation multiplied by the following frac tion:
Number of months in the short Limitation Year: 12
VI. TRUST AND INVESTMENT OF ACCOUNTS
6.01 Trust. A Trust is hereby created to hold all of the assets of the Plan for the exclusive benefit of Par-
ticipants and Beneficiaries, except that expenses and taxes may be paid from the Trust as provided
in Section 6.03. The trustee shall be the Employer or such other person which agrees to act in that
capac ity hereunder.
6.02 Investment Powers. The trustee or the Plan Administra tor, acting as agent for the trustee, shall have
the powers listed in this Section with respect to investment of Trust assets, except to the extent that
the invest ment of Trust assets is controlled by Par ticipants, pursuant to Section 13.03.
(a) To invest and reinvest the Trust without distinc tion between principal and income in
common or preferred stocks, shares of regulated invest ment companies and other mutual
funds, bonds, notes, debentures, mortgages, certificates of deposit, contracts with insurance
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companies including but not limited to insurance, individual or group annu ity, deposit
administration, guaranteed inter est contracts, and deposits at reasonable rates of interest at
banking institutions including but not limited to savings accounts and certificates of deposit.
As sets of the Trust may be invested in securities that involve a higher degree of risk than
investments that have demonstrated their investment performance over an extended period of
time.
(b) To invest and reinvest all or any part of the as sets of the Trust in any common, collective or
com mingled trust fund that is maintained by a bank or other institution and that is available
to Employee plans qualified under section 401 of the Code, or any successor provisions
thereto, and during the period of time that an investment through any such medium shall
exist, to the extent of participation of the Plan, the declaration of trust of such com mon,
collective, or commingled trust fund shall constitute a part of this Plan.
(c) To invest and reinvest all or any part of the as sets of the Trust in any group annuity, deposit
administration or guaranteed interest contract is sued by an insurance company or other
financial institution on a commingled or collec tive basis with the assets of any other plan
or trust qualified under section 401(a) of the Code or any other plan described in section
401(a)(24) of the Code, and such contract may be held or issued in the name of the Plan
Administrator, or such custo dian as the Plan Administrator may appoint, as agent and
nominee for the Employer. During the period that an investment through any such contract
shall ex ist, to the extent of participation of the Plan, the terms and conditions of such
contract shall constitute a part of the Plan.
(d) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash bal-
ances, without liability for interest, in such amounts as may from time to time be deemed to
be reasonable and necessary to meet obligations under the Plan or otherwise to be in the best
interests of the Plan.
(e) To hold, to authorize the holding of, and to regis ter any investment to the Trust in the name
of the Plan, the Employer, or any nominee or agent of any of the foregoing, including the
Plan Administrator, or in bearer form, to deposit or arrange for the deposit of securities
in a qualified central depository even though, when so deposited, such securities may be
merged and held in bulk in the name of the nominee of such depository with other securities
deposited therein by any other person, and to organize corporations or trusts under the laws
of any jurisdiction for the purpose of acquir ing or holding title to any property for the Trust,
all with or without the addition of words or other action to indicate that property is held in
a fidu ciary or representative capacity but the books and records of the Plan shall at all times
show that all such investments are part of the Trust.
(f) Upon such terms as may be deemed advisable by the Employer or the Plan Administrator,
as the case may be, for the protection of the interests of the Plan or for the preservation of
the value of an invest ment, to exercise and enforce by suit for legal or equitable remedies or
by other action, or to waive any right or claim on behalf of the Plan or any default in any
obligation owing to the Plan, to renew, extend the time for payment of, agree to a reduction
in the rate of interest on, or agree to any other modification or change in the terms of any
obligation owing to the Plan, to settle, com promise, adjust, or submit to arbitration any
claim or right in favor of or against the Plan, to exer cise and enforce any and all rights
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of fore closure, bid for property in foreclosure, and take a deed in lieu of foreclosure with
or without pay ing consid eration therefor, to commence or defend suits or other legal
proceedings whenever any interest of the Plan requires it, and to represent the Plan in all suits
or legal proceedings in any court of law or equity or before any body or tribunal.
(g) To employ suitable consultants, depositories, agents, and legal counsel on behalf of the Plan.
(h) To open and maintain any bank account or ac counts in the name of the Plan, the Employer,
or any nominee or agent of the foregoing, including the Plan Administrator, in any bank or
banks.
(i) To do any and all other acts that may be deemed necessary to carry out any of the powers set
forth herein.
6.03 Taxes and Expenses. All taxes of any and all kinds whatsoever that may be levied or assessed under
existing or future laws upon, or in respect to the Trust, or the income thereof, and all commissions or
acquisitions or dispositions of securities and similar expenses of investment and reinvestment of the
Trust, shall be paid from the Trust. Such reasonable compensation of the Plan Administrator, as may
be agreed upon from time to time by the Employer and the Plan Administrator, and reimburse ment
for reasonable expenses incurred by the Plan Administrator in performance of its duties here under
(including but not limited to fees for legal, ac counting, investment and custodial services) shall also be
paid from the Trust. However, no person who is a fiduciary within the meaning of section 3(21)(A) of
ERISA and regulations promulgated thereunder, and who receives full-time pay from the Employer
may receive compensation from the Trust, except for expenses properly and actually incurred.
6.04 Payment of Benefits. The payment of benefits from the Trust in accordance with the terms of the
Plan may be made by the Plan Administrator, or by any custodian or other person so authorized
by the Employer to make such disbursement. Benefits under this Plan shall be paid only if the Plan
Administrator, custodian or other person decides in his/her discretion that the applicant is entitled
to them. The Plan Administrator, custodian or other person shall not be liable with respect to any
distribution of Trust assets made at the direction of the Employer.
6.05 Investment Funds. In accordance with uniform and nondiscriminatory rules established by the
Employer and the Plan Administrator, the Par ticipant may direct his/her Accounts to be invested in
one (1) or more investment funds available under the Plan; provided, however, that the Participant’s
invest ment directions shall not violate any investment restric tions established by the Employer and
shall not include any investment in collectibles, as defined in section 408(m) of the Code.
6.06 Valuation of Accounts. As of each Accounting Date, the Plan assets held in each investment
fund of fered shall be valued at fair market value and the investment income and gains or losses
for each fund shall be determined. Such investment income and gains or losses shall be al located
proportionately among all Account balances on a fund-by-fund basis. The allocation shall be in the
proportion that each such Account balance as of the im mediately preceding Accounting Date bears
to the total of all such Ac count balances as of that Accounting Date. For purposes of this Article, all
Account balances include the Account balances of all Participants and Beneficiar ies.
6.07 Participant Loan Accounts. Participant Loan Ac counts shall be invested in accordance with Section
13.03 of the Plan. Such Accounts shall not share in any invest ment income and gains or losses of the
investment funds described in Section 6.05.
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VII. VESTING
7.01 Vesting Schedule. The portion of a Participant’s Account attributable to Mandatory Participant
Contribu tions and Voluntary Participant Contributions, and the earnings thereon, shall be at
all times nonforfeitable by the Participant. A Participant shall have a Nonfor feitable Interest in
the percentage of his/her Employer Contribution Ac count established under Section 4.01, 4.04,
18.02(a) and 19.02(a) determined pursuant to the schedule elected by the Employer in the Adoption
Agreement.
7.02 Crediting Periods of Service. Except as provided in Section 7.03, all of an Employee’s Periods of
Service with the Employer are counted to determine the nonforfeitable percentage in the Employee’s
Ac count bal ance derived from Employer Contributions. If the Employer maintains the plan of a
predecessor employer, service with such employer will be treated as service for the Employer.
For purposes of determining years of service and Breaks in Service for the purposes of computing a
Participant’s nonforfeitable right to the Account balance derived from Employer Contributions, the
twelve (12) consecutive month period will commence on the date the Employee first performs an
hour of service and each subsequent twelve (12) consecutive month period will commence on the
anniversary of such date.
.
7.03 Service After Break in Service. In the case of a Par ticipant who has a Break in Service of at least
five (5) years, all Periods of Service after such Breaks in Service will be disregarded for the purpose
of determin ing the nonforfeitable percentage of the Employer-derived Account balance that accrued
before such Break, but both pre-Break and post-Break service will count for the purposes of vest ing
the Employer-derived Account balance that accrues after such Break. Both Accounts will share in the
earn ings and losses of the fund.
In the case of a Participant who does not have a Break in Service of at least five (5) years, both
the pre-Break and post-Break service will count in vesting both the pre-Break and post-Break
Employer-derived Account balance.
In the case of a Participant who does not have any nonforfeitable right to the Account balance
derived from Employer Contributions, years of service before a period of consecutive one (1) year
Breaks in Service will not be taken into account in computing eligibility service if the number of
consecutive one (1) year Breaks in Service in such period equals or exceeds the greater of five (5) or
the aggregate number of years of service. Such aggregate number of years of service will not include
any years of service disregarded under the preceding sentence by reason of prior Breaks in Service.
If a Participant’s years of service are disregarded pursuant to the preceding paragraph, such Participant
will be treated as a new Employee for eligibility purposes. If a Participant’s years of service may not be
disregarded pursuant to the preceding paragraph, such Participant shall continue to participate in the
Plan, or, if terminated, shall participate immediately upon reemployment.
7.04 Vesting Upon Normal Retirement Age. Notwithstanding Section 7.01 of the Plan, a Participant
shall have a Nonforfeit able Interest in his/her entire Employer Contribution Account, to the extent
that the balance of such Account has not previously been forfeited pur suant to Section 7.06 of the
Plan, if he/she is employed on or after his/her Normal Retirement Age.
7.05 Vesting Upon Death or Disability. Notwithstanding Sec tion 7.01 of the Plan, in the event of
Disability or death, a Par ticipant or his/her Beneficiary shall have a Nonforfeitable Inter est in his/
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her entire Employer Contribution Account, to the extent that the balance of such Ac count has not
previously been forfeited pursuant to Section 7.06 of the Plan.
7.06 Forfeitures. Except as provided in Sections 7.04 and 7.05 of the Plan or as otherwise provided in
this Section 7.06, a Participant who separates from serv ice prior to obtaining full vesting shall forfeit
that percentage of his/her Employer Contribution Account bal ance which has not vested as of the
date such Partici pant incurs a Break in Service of five (5) consecutive years or, if earlier, the date such
Participant receives, or is deemed under the provisions of Section 9.04 to have received, dis tribution
of the entire Nonforfeitable Interest in his/her Employer Contribution Account.
No forfeiture will occur solely as a result of a Participant’s withdrawal of Employee Contributions.
Forfeitures shall be allocated in the manner described in Section 4.02.
7.07 Reinstatement of Forfeitures. If the Participant returns to the employment of the Employer before
incur ring a Break in Service of five (5) consecutive years, any amounts forfeited pursuant to Section
7.06 shall be reinstated to the Participant’s Employer Con tribution Account on the date of repay-
ment by the Participant of the amount distributed to such Participant from his/her Employer
Contribution Account; provided, however, that if such Participant forfeited his/her Account balance
by reason of a deemed distribu tion, pursuant to Section 9.04, such amounts shall be automatically
restored upon the reemployment of such Participant. Such repayment must be made before the
earlier of five (5) years after the first date on which the Participant is subse quently reemployed by the
Employer, or the date the Par ticipant incurs a Break in Service of five (5) consecutive years.
VIII. BENEFITS CLAIM
8.01 Claim of Benefits. A Participant or Benefici ary shall notify the Plan Administrator in writing of a
claim of benefits under the Plan. The Plan Administra tor shall take such steps as may be necessary to
facilitate the payment of such benefits to the Par ticipant or Beneficiary.
8.02 Appeal Procedure. If any claim for benefits is initially denied by the Plan Administrator, the
claimant shall file the appeal with the Employer, whose decision shall be final, to the extent
provided by Section 15.07.
IX. COMMENCEMENT OF BENEFITS
9.01 Normal and Elective Commencement of Benefits. A Participant who retires, becomes Disabled or
incurs a severance from employment (separation from service for Plan Years beginning before 2002)
for any other reason may elect by written notice to the Plan Administrator to have his or her vested
Account balance benefits commence on any date, provided that such distribution complies with
Section 9.02. Such election must be made in writing during the ninety (90) day period ending on
the date as of which benefit pay ments are to commence. A Participant’s election shall be revocable
and may be amended by the Participant.
The failure of a Participant to consent to a distribution while a benefit is immediately distributable,
within the meaning of section 9.02 of the Plan, shall be deemed to be an election to defer
commencement of payment of any benefit.
9.02 Restrictions on Immediate Distributions. Notwithstanding anything to the contrary in Section
9.01 of the Plan, if the value of a Participant’s vested Account balance is at least $1,000, and the
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Account bal ance is immediately distribut able, the Participant must consent to any distribu tion of
such Account balance. The Participant’s consent shall be obtained in writing during the ninety (90)
day period ending on the date as of which benefit pay ments are to commence. No consent shall be
required, however, to the extent that a distribution is required to satisfy section 401(a)(9) or 415 of
the Code.
The Plan Administrator shall notify the Participant of the right to defer any distribution until the
Participant’s Account bal ance is no longer im mediately distributable. Such notifica tion shall include
a general descrip tion of the material features, and an explanation of the relative values of, the
optional forms of benefit available under the Plan in a manner that would satisfy section 417(a)(3)
of the Code, and shall be provided no less than thirty (30) and no more than ninety (90) days before
the date as of which benefit payments are to commence. However, distribution may commence less
than thirty (30) days after the notice described in the preceding sentence is given, provided (i) the
distribution is one to which sections 401(a)(11) and 417 of the Code do not apply or, if the QJSA
Election is made by the Employer in the Adoption Agreement, the waiver requirements of Section
17.04(a) are met; (ii) the Plan Administrator clearly informs the Participant that the Participant has
a right to a period of at least thirty (30) days after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if applicable, a particular distribution option); and (iii)
the Participant, after receiving the notice, affirmatively elects a distribution.
In addition, upon termination of this Plan if the Plan does not offer an annuity option (purchased
from a commercial provider) and if the Employer does not maintain another 401(a) defined
contribution plan, the Participant’s Account balance will, without the Participant’s consent,
be distributed to the Participant in a lump sum. However, if the Employer maintains another
401(a) defined contribution plan, the Participant’s Account balance will be transferred, without
the Participant’s consent, to the other plan if the Participant does not consent to an immediate
distribution.
An Account balance is immediately distributable if any part of the Account balance could be
distributed to the Participant (or surviving spouse) before the Participant at tains or would have
attained (if not deceased) the later of Normal Retirement Age or age sixty-two (62).
For purposes of determining the applicability of the foregoing consent requirements to distributions
made before the first day of the first plan year beginning after December 31, 1988, the Participant’s
vested Account balance shall not include amounts attributable to accumulated deductible employee
contributions within the meaning of section 72(o)(5)(B) of the Code.
9.03 Transfer to Another Plan.
(a) If a Participant becomes eligible to participate in another plan maintained by the Employer
that is qualified under section 401(a) of the Code, the Plan Administrator shall, at the
written election of such Participant, transfer all or part of such Participant’s Account to such
plan, provided the plan administrator for such plan certifies to the Plan Administrator that
its plan provides for the acceptance of such a transfer. Such transfers shall include those
transfers of the nonforfeitable interest of a Participant’s Account made for the purchase of
service credit in defined benefit plans maintained by the Employer. For purposes of this Plan,
any such transfer shall not be considered a distribution to the Participant subject to spousal
consent as described in Section 9.10.
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(b) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a
Distributee’s election under this Section, a Distributee may elect, at the time and in the
manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a
Direct Rollover.
(c) Definitions. For the purposes of Subsection (b), the following definitions shall apply:
(1) Eligible Rollover Distribution. Any distribution of all or any portion of
the balance to the credit of the Distributee, except that an Eligible Rollover
Distribution does not include: (i) any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually) made
for the life (or life expectancy) of the Distributee or the joint lives (or joint life
expectancies) of the Distributee and the Distributee’s designated beneficiary, or
for a specified period of ten years or more; (ii) any distribution to the extent such
distribution is required under section 401(a)(9) of the Code; and (iii) the portion
of any other distribution(s) that is not includible in gross income.
A portion of a distribution shall not fail to be an eligible rollover distribution merely
because the portion consists of after-tax employee contributions which are not
includible in gross income. However, such portion may be transferred only to an
individual retirement account or annuity described in section 408(a) or (b) of the
Code, or to a qualified defined contribution plan described in section 401(a) or 403(a)
of the Code that agrees to separately account for amounts so transferred, including
separately accounting for the portion of such distribution which is includible in gross
income and the portion of such distribution which is not so includible.
(2) Eligible Retirement Plan. (i) an individual retirement account described in section
408(a) of the Code or an individual retirement annuity described in section 408(b)
of the Code (collectively, an “IRA”); (ii) an annuity plan described in section
403(a) of the Code; (iii) an annuity contract described in section 403(b) of the
Code, (iv) an eligible plan under section 457(b) of the Code which is maintained
by a state, political subdivision of a state, or any agency or instrumentality of a
state or political subdivision of a state and which agrees to separately account for
amounts transferred into such plan from this Plan; or (v) a qualified plan described
in section 401(a) of the Code, that accepts the Distributee’s Eligible Rollover
Distribution. The definition of Eligible Retirement Plan shall also apply in the case
of a distribution to a surviving spouse, or to a spouse or former spouse who is the
alternate payee, under a qualified domestic relations order, as defined in section
414(p) of the Code.
(3) Distributee. Participant; in addition, the Participant’s surviving spouse and the
spouse or former spouse who is the alternate payee under a qualified domestic
relations order, as defined in section 414(p) of the Code, are Distributees with
regard to the interest of the spouse or former spouse.
(4) Direct Rollover. A payment by the Plan to the Eligible Retirement Plan specified
by the Distributee.
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9.04 De Minimis Accounts. Notwithstanding the foregoing provisions of this Article, prior to January
1, 2002, if a Participant terminates service, and the value of his/her Nonforfeitable Interest in his/
her Account is not greater than the dollar limit under section 411(a)(11)(A) of the Code, the
Participant’s benefit shall be paid (to the extent it constitutes an Eligible Rollover Distribution) in the
form of a direct rollover to the Plan Administrator’s designated IRA, unless he/she affirmatively elects
to receive a cash payment or a Direct Rollover in accordance with procedures established by the Plan
Administrator.
On or after January 1, 2002, if a Participant terminates service, and the value of his/her
Nonforfeitable Interest in his/her Account is less than $1,000, the Participant’s benefit shall be
paid as soon as practicable to the Participant in a single lump sum distribution. If the value of the
Participant’s Account is at least $1,000 but not more than the dollar limit under section 411(a)(11)
(A) of the Code, the Participant may elect to receive his/her Nonforfeitable Inter est in his/her Ac-
count. Such distribution shall be made as soon as practicable following the request, in a lump sum.
For purposes of this Section, if a Participant’s Nonforfeitable Interest in his/her Account is zero, the
Participant shall be deemed to have received a distribution of such Nonforfeitable Interest in his/her
Account.
9.05 Withdrawal of Voluntary Contributions. A Partici pant may upon written request withdraw a part
of or the full amount of his/her Voluntary Contribution Ac count. Such withdrawals may be made at
any time, provided that no more than two (2) such withdrawals may be made during any calendar
year. No forfeiture will occur solely as the result of any such with drawal.
9.06 Withdrawal of Deductible Employee Contributions. A Participant may upon written request
withdraw a part of or the full amount of his/her Deductible Employee Contribution Account. Such
withdrawals may be made at any time, provided that no more than two (2) such withdrawals may be
made during any calendar year. No forfeiture will occur solely as the result of any such withdrawal.
9.07 In-Service Distribution from Rollover Account. Where elected by the Employer in the Adoption
Agreement, a Participant that has a separate account attributable to rollover contributions to the
Plan, may at any time elect to receive a distribution of all or any portion of the amount held in the
Rollover Account.
9.08 In-Service Distributions. Unless otherwise elected by the Employer in the Adoption Agreement,
a Participant who has reached age 70½ regardless of his Nonforfeitable Interest in his/her entire
Employer Contribution Account, shall, upon written request, receive a distribution of a part of
or the full amount of the balance in any or all of his vested Accounts. Such distributions may be
requested at any time, provided that no more than two (2) such distributions may be made during
any calendar year.
9.09 Latest Commencement of Benefits. Notwithstanding any thing to the contrary in this Article,
benefits shall begin no later than the Participant’s Required Beginning Date, as defined under Section
10.05, or as otherwise provided in Section 10.04.
9.10 Spousal Consent. Notwithstanding the foregoing, if the Employer elected the QJSA Election in the
Adoption Agreement, a married Participant must first obtain his or her spouse’s notarized consent to
request a distribution (other than a Qualified Joint and Survivor Annuity), withdrawal, or rollover
under this Article IX.
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X. DISTRIBUTION REQUIREMENTS
10.01 General Rules.
(a) Subject to the provisions of Article XII or XVII if so elected by the Employer in the Adoption
Agreement, the requirements of this Article shall apply to any distribution of a Participant’s
interest and will take precedence over any inconsistent provisions of this Plan. Unless
otherwise specified, the provisions of this Article X apply to calendar years beginning after
December 31, 2002.
With respect to distributions under the Plan made in or for Plan Years beginning on or after
January 1, 2002 and prior to January 1, 2003, the Plan will apply the minimum distribution
requirements of section 401(a)(9) of the Code in accordance with the regulations under
section 401(a)(9) that were proposed on January 17, 2001, notwithstanding any provision of
the Plan to the contrary.
(b) All distributions required under this Article shall be determined and made in accordance
with the regulations under section 401(a)(9) of the Code, and the minimum distribution
incidental benefit requirement of section 401(a)(9)(G) of the Code.
(c) Limits on Distribution Periods. As of the first Distribution Calendar Year, distributions to a
Participant, if not made in a single-sum, may only be made over one of the fol lowing periods:
(1) The life of the Participant,
(2) The joint lives of the Participant and a desig nated Benefici ary,
(3) A period certain not extending beyond the life expectancy of the Participant, or
(4) A period certain not extending beyond the joint and last survivor expectancy of
the Par ticipant and a designated Benefici ary.
(d) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this Article
XVII, distributions may be made under a designation made before January 1, 1984, in
accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA)
and the provisions of the Plan that relate to Section 242(b)(2) of TEFRA.
10.02 Time and Manner of Distribution
(a) Required Beginning Date. The Participant’s entire interest will be distributed, or begin to be
distributed, to the Participant no later than the Participant’s required beginning date.
(b) Death of Participant Before Distributions Begin. If the Participant dies before distributions
begin, the Participant’s entire interest will be distributed, or begin to be distributed, no later
than as follows:
(1) If the Participant’s surviving spouse is the Participant’s sole designated
Beneficiary, then, distributions to the surviving spouse will begin by December
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31 of the calendar year immediately following the calendar year in which
the Participant died, or by December 31 of the calendar year in which the
Participant would have attained age 70½, if later.
(2) If the Participant’s surviving spouse is not the Participant’s sole designated
Beneficiary, then distributions to the designated Beneficiary will begin by
December 31 of the calendar year immediately following the calendar year in
which the Participant died.
(3) If there is no designated Beneficiary as of September 30 of the year following the
year of the Participant’s death, the Participant’s entire interest will be distributed
by December 31 of the calendar year containing the fifth anniversary of the
Participant’s death.
(4) If the Participant’s surviving spouse is the Participant’s sole designated
Beneficiary and the surviving spouse dies after the Participant but before
distributions to the surviving spouse begin, this Section 10.02(b), other than
Section 10.02(b)(1), will apply as if the surviving spouse were the Participant.
For purposes of this Section 10.02(b) and Section 10.04, unless Section 10.02(b)(4)
applies, distributions are considered to begin on the Participant’s required beginning
date. If Section 10.02(b)(4) applies, distributions are considered to begin on the date
distributions are required to begin to the surviving spouse under Section 10.02(b)(1).
If distributions under an annuity purchased from an insurance company irrevocably
commence to the Participant before the Participant’s required beginning date (or to the
Participant’s surviving spouse before the date distributions are required to begin to the
surviving spouse under Section 10.02(b)(1)), the date distributions are considered to
begin is the date distributions actually commence.
(c) Forms of Distribution. Unless the Participant’s interest is distributed in the form of an
annuity purchased from an insurance company or in a single sum on or before the required
beginning date, as of the first distribution calendar year distributions will be made in
accordance with Sections 10.03 and 10.04. If the Participant’s interest is distributed in the
form of an annuity purchased from an insurance company, distributions thereunder will
be made in accordance with the requirements of Code Section 401(a)(9) and the Treasury
Regulations.
10.03 Required Minimum Distributions During Participant’s Lifetime
(a) Amount of Required Minimum Distribution For Each Distribution Calendar Year. During
the Participant’s lifetime, the minimum amount that will be distributed for each distribution
calendar year is the lesser of:
(1) the quotient obtained by dividing the Participant’s Account Balance by the
distribution period set forth in the Uniform Lifetime Table found in Section
1.401(a)(9)-9, Q&A-2, of the Final Income Tax Regulations using the
Participant’s age as of the Participant’s birthday in the distribution calendar year;
or
(2) if the Participant’s sole designated Beneficiary for the distribution calendar year
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is the Participant’s spouse, the quotient obtained by dividing the Participant’s
Account Balance by the number in the Joint and Last Survivor Table set forth
in Section 1.401(a)(9)-9, Q&A-3, of the regulations using the Participant’s
and spouse’s attained ages as of the Participant’s and spouse’s birthdays in the
distribution calendar year.
(b) Lifetime Required Minimum Distributions Continue Through Year of Participant’s Death.
Required minimum distributions will be determined under this Section 10.03 beginning
with the first distribution calendar year and continuing up to, and including, the distribution
calendar year that includes the Participant’s date of death.
10.04 Required Minimum Distributions After Participant’s Death
(a) Death On or After Date Distributions Begin.
(1) Participant Survived by Designated Beneficiary. If the Participant dies on or
after the date distributions begin and there is a designated Beneficiary, the
minimum amount that will be distributed for each distribution calendar year
after the year of the Participant’s death is the quotient obtained by dividing the
Participant’s Account Balance by the longer of the remaining life expectancy of
the Participant or the remaining life expectancy of the Participant’s designated
Beneficiary, determined as follows:
(a) The Participant’s remaining life expectancy is calculated using the age of
the Participant in the year of death, reduced by one for each subsequent
year.
(b) If the Participant’s surviving spouse is the Participant’s sole designated
Beneficiary, the remaining life expectancy of the surviving spouse
is calculated for each distribution calendar year after the year of the
Participant’s death using the surviving spouse’s age as of the spouse’s
birthday in that year. For distribution calendar years after the year of the
surviving spouse’s death, the remaining life expectancy of the surviving
spouse is calculated using the age of the surviving spouse as of the
spouse’s birthday in the calendar year of the spouse’s death, reduced by
one for each subsequent calendar year.
(c) If the Participant’s surviving spouse is not the Participant’s sole
designated Beneficiary, the designated Beneficiary’s remaining life
expectancy is calculated using the age of the Beneficiary in the year
following the year of the Participant’s death, reduced by one for each
subsequent year.
(2) No Designated Beneficiary. If the Participant dies on or after the date
distributions begin and there is no designated Beneficiary as of September
30 of the year after the year of the Participant’s death, the minimum amount
that will be distributed for each distribution calendar year after the year of the
Participant’s death is the quotient obtained by dividing the Participant’s Account
Balance by the Participant’s remaining life expectancy calculated using the age of
the Participant in the year of death, reduced by one for each subsequent year.
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(b) Death Before Date Required Distributions Begin.
(1) Participant Survived by Designated Beneficiary. If the Participant dies before
the date required distributions begin and there is a designated Beneficiary, the
minimum amount that will be distributed for each distribution calendar year
after the year of the Participant’s death is the quotient obtained by dividing
the Participant’s Account Balance by the remaining life expectancy of the
Participant’s designated Beneficiary, determined as provided in Section 10.04(a).
(2) No Designated Beneficiary. If the Participant dies before the date distributions
begin and there is no designated Beneficiary as of September 30 of the year
following the year of the Participant’s death, distribution of the Participant’s
entire interest will be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant’s death.
(3) Death of Surviving Spouse Before Distributions to Surviving Spouse Are
Required to Begin. If the Participant dies before the date distributions begin,
the Participant’s surviving spouse is the Participant’s sole designated Beneficiary,
and the surviving spouse dies before distributions are required to begin to the
surviving spouse under Section 10.02(b)(1), this Section 10.04(b) will apply as
if the surviving spouse were the Participant.
10.05 Definitions
(a) Designated Beneficiary. The individual who is designated by the Participant (or the
Participant’s surviving spouse) as the Beneficiary of the Participant’s interest under the Plan
and who is the designated Beneficiary under Code Section 401(a)(9) and Section 1.401(a)
(9)-4 of the regulations.
(b) Distribution Calendar Year. A calendar year for which a minimum distribution is required.
For distributions beginning before the Participant’s death, the first distribution calendar year
is the calendar year immediately preceding the calendar year which contains the Participant’s
required beginning date. For distributions beginning after the Participant’s death, the first
distribution calendar year is the calendar year in which distributions are required to begin
under Section 10.02(b). The required minimum distribution for the Participant’s first
distribution calendar year will be made on or before the Participant’s required beginning
date. The required minimum distribution for other distribution calendar years, including the
required minimum distribution for the distribution calendar year in which the Participant’s
required beginning date occurs, will be made on or before December 31 of that distribution
calendar year.
(c) Life Expectancy. Life expectancy as computed by use of the Single Life Table in Section
1.401(a)(9)-9, Q&A-1, of the regulations.
(d) Participant’s Account Balance. The Account Balance as of the last Accounting Date in the
calendar year immediately preceding the distribution calendar year (valuation calendar year)
increased by the amount of any contributions made and allocated or forfeitures allocated to
the Account Balance as of dates in the valuation calendar year after the Accounting Date and
decreased by distributions made in the valuation calendar year after the Accounting Date.
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The Account Balance for the valuation calendar year includes any amounts rolled over or
transferred to the Plan either in the valuation calendar year or in the distribution calendar
year if distributed or transferred in the valuation calendar year.
(e) Required Beginning Date. The Required Beginning Date of a Participant is April 1 of the
calendar year following the later of the calendar year in which the Participant attains age
seventy and one-half (70½), or the calendar year in which the Participant retires.
XI. MODES OF DISTRIBUTION OF BENEFITS
11.01 Normal Mode of Distribution. Unless an elective mode of distribution is elected as provided in
Section 11.02, benefits shall be paid to the Participant in the form of a lump sum payment.
Notwithstanding the foregoing, where the Employer made the “QJSA Election” in the Adoption
Agreement, unless an elective mode of distribution is elected in accordance with Article XVII,
benefits shall be paid to the Participant in the form provided for in Article XVII.
11.02 Elective Mode of Distribution. Subject to the require ments of Articles X, XII and XVII, a
Participant may revocably elect to have his/her Account distributed in any one (1) of the following
modes in lieu of the mode described in Section 11.01:
(a) Equal Payments. Equal monthly, quarterly, semi-annual, or annual payments in an amount
chosen by the Participant continuing until the Account is exhausted.
(b) Period Certain. Approximately equal monthly, quar terly, semi-annual, or annual payments,
calculated to continue for a period certain chosen by the Par ticipant.
(c) Other. Any other sequence of payments requested by the Participant.
(d) Lump Sum. Where the Employer did make the QJSA Election in the Adoption Agreement, a
Participant may also elect a lump sum payment.
11.03 Election of Mode. A Participant’s election of a payment option must be made in writing between
thirty (30) and ninety (90) days before the payment of benefits is to commence.
11.04 Death Benefits. Subject to Article X (and Article XII or XVII if so elected by the Employer in the
Adoption Agreement),
(a) In the case of a Participant who dies before he/she has begun receiving benefit payments,
the Participant’s entire Nonforfeitable Interest shall then be pay able to his/her Beneficiary
within ninety (90) days of the Participant’s death. A Beneficiary who is entitled to receive
benefits under this Sec tion may elect to have benefits com mence at a later date, subject to
the provisions of Article X. The Beneficiary may elect to receive the death benefit in any of
the forms available to the Participant under Sections 11.01 and 11.02. If the Beneficiary
is the Participant’s surviving spouse, and such surviving spouse dies before pay ment com-
mences, then this Section shall apply to the beneficiary of the surviving spouse as though
such surviving spouse were the Participant.
(b) Should the Participant die after he/she has begun receiving benefit payments, the
Beneficiary shall receive the remaining benefits, if any, that are payable, under the payment
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schedule elected by the Participant. Notwithstanding the foregoing, the Benefi ciary may
elect to accelerate payments of the remain ing balances, including but not limited to, a lump
sum dis tribution.
XII. SPOUSAL DEATH BENEFIT REQUIREMENTS
12.01 Application. Unless otherwise elected by the Employer in the Adoption Agreement, on or after
January 1, 2006, the provisions of this Article shall take precedence over any conflicting provision in
this Plan. The provisions of this Article, known as the “Beneficiary Spousal Consent Election,” shall
apply to any Par ticipant who is credited with any Period of Service with the Employer on or after
August 23, 1984, and such other Participants as provided in Section 12.04.
12.02 Spousal Death Benefit.
(a) On the death of a Participant, the Participant’s Vested Account Bal ance will be paid to the
Participant’s Surviving Spouse. If there is no Surviving Spouse, or if the Participant has
waived the spousal death benefit, as provided in Sec tion 12.03, such Vested Account Balance
will be paid to the Participant’s designated Beneficiary.
(b) The Surviving Spouse may elect to have distribu tion of the Vested Account Balance commence
within the ninety (90) day period following the date of the Participant’s death, or as otherwise
provided under Section 11.04. The Account bal ance shall be adjusted for gains or losses oc cur-
ring after the Participant’s death in ac cordance with the provi sions of the Plan govern ing the
adjustment of Ac count balances for other types of distributions.
12.03 Waiver of Spousal Death Benefit.
The Participant may waive the spousal death benefit described in Section 12.02 at any time;
provided that no such waiver shall be effective unless: (a) the Participant’s Spouse consents in writing
to the election; (b) the election designates a specific Beneficiary, including any class of Beneficiaries
or any contingent Beneficiaries, which may not be changed without spousal consent (or the Spouse
expressly permits designations by the Participant without any further spousal consent); (c) the
Spouse’s consent acknowledges the effect of the election; and (d) the Spouse’s consent is witnessed by
a Plan representative or notary public. If it is established to the satisfaction of a Plan representative
that there is no Spouse or that the Spouse cannot be located, a waiver will be deemed to meet the
requirements of this Section.
Any consent by a Spouse obtained under this provi sion (or establishment that the consent of a
Spouse may not be obtained) shall be effective only with respect to such Spouse. A consent that
permits designations by the Participant without any require ment of further consent by such Spouse
must acknowledge that the Spouse has the right to limit consent to a specific Beneficiary, and a
specific form of benefit where applicable, and that the Spouse voluntar ily elects to relinquish either
or both of such rights. A revocation of a prior waiver may be made by a Participant without the
consent of the Spouse at any time before the com mencement of benefits. The number of revocations
shall not be limited.
12.04 Definitions. For the purposes of this Section, the fol lowing definitions shall apply:
(a) Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the Participant, provided that a
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former Spouse will be treated as the Spouse or Surviving Spouse and a current Spouse will not
be treated as the Spouse or Surviving Spouse to the extent pro vided under a qualified domestic
relations order as described in section 414(p) of the Code.
(b) Vested Account Balance: The aggregate value of the Participant’s vested Account balances
derived from Employer and Employee contributions (including rollovers), whether
vested before or upon death, including the proceeds of insurance contracts, if any, on the
Participant’s life. The provisions of this Article shall apply to a Participant who is vested in
amounts attribut able to Employer Contributions, Employee contributions (or both) at the
time of death or distribution.
XIII. LOANS TO PARTICIPANTS
13.01 Availability of Loans to Participants.
(a) If the Employer has elected in the Adoption Agree ment to make loans available to
Participants, a Participant may apply for a loan from the Plan sub ject to the limitations and
other provisions of this Article.
(b) The Employer shall establish written guidelines governing the granting of loans, provided
that such guidelines are approved by the Plan Administrator and are not inconsistent with
the provisions of this Article, and that loans are made avail able to all Participants on a reason-
ably equivalent basis.
13.02 Terms and Conditions of Loans to Participants. Any loan by the Plan to a Participant under
Section 13.01 of the Plan shall satisfy the following requirements:
(a) Availability. Loans shall be made available to all Participants on a reasonably equivalent basis.
(b) Nondiscrimination. Loans shall not be made to highly compensated Employees in an
amount greater than the amount made available to other Employees.
(c) Interest Rate. Loans must be adequately secured and bear a reason able interest rate.
(d) Loan Limit. No Participant loan shall exceed the present value of the Participant’s
Nonforfeitable Interest in his/her Account.
(e) Foreclosure. In the event of default, foreclosure on the note and attachment of security will
not occur until a distributable event occurs in the Plan.
(f) Reduction of Account. Notwithstanding any other provision of this Plan, the portion of the
Participant’s vested Account balance used as a security interest held by the Plan by reason of
a loan outstanding to the Participant shall be taken into account for purposes of determining
the amount of the Account balance payable at the time of death or distribution, but only if
the reduction is used as repayment of the loan. If less than one hundred percent (100%) of
the Participant’s nonforfeitable Account balance (determined without regard to the preceding
sentence) is payable to the surviving spouse, then the Account balance shall be adjusted
by first reducing the nonforfeitable Account bal ance by the amount of the security used as
repay ment of the loan, and then determining the benefit payable to the surviv ing spouse.
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(g) Amount of Loan. At the time the loan is made, the principal amount of the loan plus the
outstanding balance (principal plus accrued interest) due on any other outstanding loans to
the Participant or Beneficiary from the Plan and from all other plans of the Employer that are
qualified employer plans under section 72(p)(4) of the Code shall not exceed the lesser of:
(1) $50,000, reduced by the excess (if any) of
(a) The highest outstanding balance of loans from the Plan during the one (1) year
period ending on the day before the date on which the loan is made, over
(b) The outstanding balance of loans from the Plan on the date on which such
loan is made; or
(2) One-half (½) of the value of the Partici pant’s Nonforfeitable Interest in all of his/her
Accounts under this Plan (or $10,000, if greater, for loans prior to January 1, 2006).
For the purpose of the above limitation, all loans from all qualified employer plans, including
457(b) plans, under Code section 72(p)(4) of the Code are ag gregated.
(h) Application for Loan. The Participant must give the Employer adequate written notice, as
determined by the Employer, of the amount and desired time for receiving a loan. No more
than one (1) loan may be made by the Plan to a Participant in any calendar year. No loan
shall be approved if an existing loan from the Plan to the Participant is in default to any
extent.
(i) Length of Loan. The terms of any loan issued or renegotiated after December 31, 1993,
shall require the Participant to repay the loan in substantially equal install ments of principal
and interest, at least quarterly (except as otherwise provided in Treasury Regulation section
1.72(p)-1, Q&A-9 for certain leave of absence and military leave), over a period that does
not exceed five (5) years from the date of the loan; provided, however, that if the proceeds of
the loan are applied by the Participant to acquire any dwelling unit that is to be used within a
rea sonable time after the loan is made as the princi pal residence of the Participant, the five (5)
year limit shall not apply. In this event, the period of repayment shall not exceed a reason able
period determined by the Employer. Principal installments and interest payments otherwise
due may be sus pended during an authorized leave of absence, if the promissory note so
provides, but not beyond the original term permit ted under this Subsection (i), with a revised
pay ment schedule (within such term) instituted at the end of such period of suspension. If
the Participant fails to make any installment payment, the Plan Administrator may, according
to Treasury Regulation 1.72(p)-1, allow a cure period, which cure period cannot continue
beyond the last day of the calendar quarter following the calendar quarter in which the
required installment payment was due.
(j) Prepayment. The Participant shall be permit ted to repay the loan in whole or in part at any
time prior to maturity, without penalty.
(k) Note. The loan shall be evidenced by a promis sory note executed by the Participant and
delivered to the Employer, and shall bear inter est at a reason able rate determined by the
Employer.
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Unless waived by a Participant, any plan loan that is outstanding on the date that active duty
military service begins will accrue interest at a rate of no more than 6% during the period
of military service in accordance with the provisions of the Servicemembers Civil Relief Act
(SCRA), 50 USC App. § 526 and subject to the notice requirements contained therein. This
limitation applies even if loan payments are suspended during the period of military service as
permitted under the Plan and Treasury regulations.
(l) Security. The loan shall be secured by an as sign ment of that portion the Participant’s right,
title and interest in and to his/her Employer Contribu tion Account (to the extent vested),
Participant Contribution Ac count, and Rollover Account that is equal to fifty percent (50%)
of the Participant’s Account (to the extent vested).
(m) Assignment or Pledge. For the purposes of paragraphs (h) and (i), assign ment or pledge of
any portion of the Participant’s interest in the Plan and a loan, pledge, or assign ment with
respect to any insurance contract purchased under the Plan, will be treated as a loan.
(n) Spousal Consent. If the Employer elected the QJSA Election in the Adoption Agreement,
the Participant must first obtain his or her spouse’s notarized consent to the loan.
(o) Other Terms and Conditions. The Employer shall fix such other terms and condi tions of
the loan as it deems necessary to comply with legal requirements, to maintain the qualifica-
tion of the Plan and Trust under section 401(a) of the Code, or to prevent the treat ment of
the loan for tax purposes as a distri bution to the Participant. The Employer, in its discretion
for any reason, may fix other terms and condi tions of the loan, not inconsistent with the
provisions of this Article.
13.03 Participant Loan Accounts.
(a) Upon approval of a loan to a Participant by the Employer, an amount not in excess of the
loan shall be transferred from the Participant’s other invest ment fund(s), described in Section
6.05 of the Plan, to the Participant’s Loan Ac count as of the Accounting Date immediately
preceding the agreed upon date on which the loan is to be made.
(b) The assets of a Participant’s Loan Account may be invested and reinvested only in promissory
notes received by the Plan from the Participant as con sideration for a loan permitted by
Section 13.01 of the Plan or in cash. Uninvested cash balances in a Participant’s Loan
Account shall not bear interest. No person who is otherwise a fiduciary of the Plan shall be
liable for any loss, or by reason of any breach, that results from the Participant’s exer cise of
such control.
(c) Repayment of principal and payment of interest shall be made by payroll deduction or, where
repay ment cannot be made by payroll deduction, by check, and shall be invested in one
(1) or more other invest ment funds, in accordance with Section 6.05 of the Plan, as of the
next Ac counting Date after payment thereof to the Trust. The amount so invested shall be
deducted from the Participant’s Loan Account.
(d) The Employer shall have the authority to establish other reasonable rules, not in consistent
with the provisions of the Plan, governing the establishment and maintenance of Participant
Loan Accounts.
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XIV. PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS
14.01 Amendment by Employer. The Employer reserves the right, subject to Section 14.02 of the Plan, to
amend the Plan from time to time by either:
(a) Filing an amended Adoption Agreement to change, delete, or add any optional provision, or
(b) Continuing the Plan in the form of an amended and restated Plan and Trust.
No amendment to the Plan shall be effective to the extent that it has the effect of decreasing
a Participant’s ac crued benefit. Not withstanding the preceding sentence, a Par ticipant’s
Account bal ance may be reduced to the extent permitted under section 412(c)(8) of the
Code. For purposes of this paragraph, a Plan amendment which has the effect of decreasing
a Participant’s Ac count bal ance or eliminating an optional form of benefit, with respect to
benefits attributable to service before the amendment shall be treated as reducing an ac-
crued benefit. Furthermore, if the vesting schedule of the Plan is amended, in the case of
an Employee who is a Participant as of the later of the date such amendment is adopted or
the date it becomes effective, the nonforfeitable percentage (determined as of such date) of
such Employee’s right to his/her Employer-derived accrued benefit will not be less than his
percentage computed under the plan without regard to such amendment.
No amendment to the Plan shall be effective to eliminate or restrict an optional form of
benefit. The preceding sentence shall not apply to a Plan amendment that eliminates or
restricts the ability of a Participant to receive payment of his or her Account balance under
a particular optional form of benefit if the amendment provides a single-sum distribution
form that is otherwise identical to the optional form of benefit being eliminated or restricted.
For this purpose, a single-sum distribution form is otherwise identical only if the single-sum
distribution form is identical in all respects to the eliminated or restricted optional form of
benefit (or would be identical except that it provides greater rights to the Participant) except
with respect to the timing of payments after commencement.
The Employer may (1) change the choice of options in the Adoption Agreement, (2) add
overriding language in the Adoption Agreement when such language is necessary to satisfy
sections 415 or 416 of the Code because of the required aggregation of multiple plans,
(3) amend administrative provisions of the trust or custodial document in the case of a
nonstandardized plan and make more limited amendments in the case of a standardized plan
such as the name of the plan, employer, trustee or custodian, plan administrator and other
fiduciaries, the trust year, and the name of any pooled trust in which the Plan’s trust will
participate, (4) add certain sample or model amendments published by the Internal Revenue
Service or other required good faith amendments which specifically provide that their
adoption will not cause the plan to be treated as individually designed, and (5) add or change
provisions permitted under the Plan and/or specify or change the effective date of a provision
as permitted under the Plan and correct obvious and unambiguous typographical errors and/
or cross-references that merely correct a reference but that do not in any way change the
original intended meaning of the provisions.
14.02 Amendment of Vesting Schedule. If the Plan’s vest ing schedule is amended, or the Plan is amended
in any way that directly or indirectly affects the computation of the Participant’s nonforfeitable
percentage, each Participant may elect, within a reasonable period after the adoption of the amend-
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ment or change, to have the nonforfeitable percent age computed under the Plan without regard to
such amend ment or change.
The period during which the election may be made shall commence with the date the amendment is
adopted or deemed to be made and shall end on the latest of:
(a) Sixty (60) days after the amendment is adopted;
(b) Sixty (60) days after the amendment becomes ef fec tive; or
(c) Sixty (60) days after the Participant is issued writ ten notice of the amendment by the
Employer or Plan Administrator.
14.03 Termination by Employer. The Employer reserves the right to terminate this Plan. However, in the
event of such termination no part of the Trust shall be used or diverted to any purpose other than for
the exclusive benefit of the Participants or their Beneficiaries, except as provided in this Section.
Upon Plan termination or partial termination, all Account balances shall be valued at their fair
market value and the Participant’s right to his/her Employer Contribution Account shall be one
hundred percent (100%) vested and nonforfeitable. Such amount and any other amounts held in the
Partici pant’s other Ac counts shall be maintained for the Par ticipant until paid pursuant to the terms
of the Plan.
Any amounts held in a suspense account, after all liabilities of the Plan to Participants and
Beneficiaries have been satisfied or provided for, shall be paid to the Employer in accordance with the
Code and regulations thereunder.
In the event that the Commissioner of Internal Revenue determines that the Plan is not initially
qualified under the Internal Revenue Code, any contribution made by the Employer incident to
that initial qualification must be returned to the Employer within one year after the date the initial
qualification is denied, but only if the application for the qualification is made by the time prescribed
by law for filing the Employer’s return for the year in which the Plan is adopted, or such later date as
the Secretary of the Treasury may prescribe.
14.04 Discontinuance of Contributions. A permanent dis con tinuance of contributions to the Plan by the
Employer, unless an amended and restated Plan is established, shall constitute a Plan termination. In
the event of a complete discontinuance of contributions under the Plan, the Account balance of each
affected Participant shall be nonforfeitable.
14.05 Amendment by Plan Administrator. The Plan Administrator may amend this Plan upon thirty
(30) days writ ten notification to the Employer; provided, however, that any such amendment must
be for the express purpose of maintaining compliance with applicable federal laws and regulations
of the Internal Revenue Service. Such amendment shall become effective unless, within such 30-day
period, the Employer notifies the Administrator, in writing, that it disapproves such amendment,
in which case such amendment shall not become effective. In the event of such disapproval, the
Administrator shall be under no obligation to continue acting as Administrator hereunder.
14.06 Optional Provisions. Any provision which is optional under this Plan shall become effective if and
only if elected by the Employer and agreed to by the Plan Administrator.
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XV. ADMINISTRATION
15.01 Powers of the Employer. The Employer shall have the fol lowing powers and duties:
(a) To appoint and remove, with or without cause, the Plan Administrator;
(b) To amend or terminate the Plan pursuant to the pro visions of Article XIV;
(c) To appoint a committee to facilitate administra tion of the Plan and communications to Participants;
(d) To decide all questions of eligibility (1) for Plan participation, and (2) upon appeal by any Par -
ticipant, Employee or Beneficiary, for the pay ment of benefits;
(e) To engage an independent qualified public ac count ant, when required to do so by law, to
prepare an nually the audited financial state ments of the Plan’s operation;
(f) To take all actions and to communicate to the Plan Administrator in writing all necessary
information to carry out the terms of the Plan and Trust; and
(g) To notify the Plan Administrator in writing of the termination of the Plan.
15.02 Duties of the Plan Administrator. The Plan Administrator shall have the following powers and duties:
(a) To construe and interpret the provisions of the Plan;
(b) To maintain and provide such returns, reports, schedules, descriptions, and individual Account
statements, as are required by law within the times prescribed by law; and to furnish to the
Employer, upon request, copies of any or all such materials, and further, to make copies of
such instruments, reports, descrip tions, and statements as are required by law available for
examination by Par ticipants and such of their Beneficiaries who are or may be entitled to
benefits under the Plan in such places and in such manner as required by law;
(c) To obtain from the Employer such information as shall be necessary for the proper
administration of the Plan;
(d) To determine the amount, manner, and time of pay ment of benefits hereunder;
(e) To appoint and retain such agents, counsel, and accountants for the purpose of properly
administer ing the Plan;
(f) To distribute assets of the Trust to each Par ticipant and Beneficiary in accordance with Article
X of the Plan;
(g) To pay expenses from the Trust pursuant to Sec tion 6.03 of the Plan; and
(h) To do such other acts reasonably required to admin ister the Plan in accordance with its provi-
sions or as may be provided for or required by law.
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15.03 Protection of the Employer. The Employer shall not be liable for the acts or omissions of the Plan
Administra tor, but only to the extent that such acts or omissions do not result from the Employer’s failure
to provide ac curate or timely information as required or necessary for proper administration of the Plan.
15.04 Protection of the Plan Administrator. The Plan Adminis trator may rely upon any certificate,
notice or direction purporting to have been signed on behalf of the Employer which the Plan
Administrator believes to have been signed by a duly designated official of the Employer.
15.05 Resignation or Removal of Plan Administrator. The Plan Administrator may resign at any time
effective upon sixty (60) days prior written notice to the Employer. The Plan Administrator may
be removed by the Employer at any time upon sixty (60) days prior written notice to the Plan
Administrator. Upon the resignation or removal of the Plan Administrator, the Employer may
appoint a successor Plan Administrator; failing such appointment, the Employer shall assume the
powers and duties of Plan Administrator. Upon the resignation or removal of the Plan Administrator,
any Trust assets invested by or held in the name of the Plan Administrator shall be trans ferred to the
trustee in cash or property, at fair market value, except that the return of Trust assets invested in a
contract issued by an insurance company shall be gov erned by the terms of that contract.
15.06 No Termination Penalty. The Plan Administrator shall have no authority or discretion to impose
any termination penalty upon its removal.
15.07 Decisions of the Plan Administrator. All constructions, determinations, and interpretations made
by the Plan Administrator pursuant to Section 15.02(a) or (d) or by the Employer pursuant to
Section 15.01(d) shall be final and binding on all persons participating in the Plan, given deference
in all courts of law to the greatest extent allowed by applicable law, and shall not be overturned or set
aside by any court of law unless found to be arbitrary or capricious, or made in bad faith.
XVI. MISCELLANEOUS
16.01 Nonguarantee of Employment. Nothing contained in this Plan shall be construed as a contract of
employment between the Employer and any Employee, or as a right of an Employee to be continued
in the employment of the Employer, as a limitation of the right of the Employer to discharge any of
its Employees, with or without cause.
16.02 Rights to Trust Assets. No Employee or Beneficiary shall have any right to, or interest in, any assets
of the Trust upon termination of his/her employment or other wise, except as provided from time
to time under this Plan, and then only to the extent of the benefits payable under the Plan to such
Employee or Beneficiary out of the assets of the Trust. All payments of benefits as pro vided for in
this Plan shall be made solely out of the assets of the Trust and none of the fiduciaries shall be liable
therefor in any manner.
16.03 Nonalienation of Benefits. Except as provided in Sections 16.04 and 16.06 of the Plan, benefits
payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer,
assign ment, pledge, encumbrance, charge, garnishment, execution, or levy of any kind, either vol-
untary or involuntary, prior to actually being received by the person entitled to the benefit under the
terms of the Plan; and any attempt to anticipate, alien ate, sell, transfer, assign, pledge, encumber,
charge or otherwise dispose of any right to benefits payable here under, shall be void. The Trust shall
not in any manner be liable for, or subject to, the debts, contracts, li abilities, engagements or torts of
any person entitled to benefits hereunder.
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16.04 Qualified Domestic Relations Order. Notwithstand ing Sec tion 16.03 of the Plan, amounts may be
paid with respect to a Participant pursuant to a domestic relations order, but if and only if the order
is determined to be a quali fied domestic relations order within the meaning of sec tion 414(p) of the
Code or any domestic relations order entered before January 1, 1985.
16.05 Nonforfeitability of Benefits. Subject only to the spe cific provisions of this Plan, nothing shall
be deemed to deprive a Participant of his/her right to the Nonforfeit able Interest to which he/she
becomes entitled in accord ance with the provisions of the Plan.
16.06 Incompetency of Payee. In the event any benefit is pay able to a minor or incompetent, to a person
otherwise under legal disability, or to a person who, in the sole judgment of the Employer, is by
reason of advanced age, illness, or other physical or mental incapacity incapable of handling the
disposition of his/her property, the Employer may apply the whole or any part of such benefit
directly to the care, comfort, maintenance, sup port, educa tion, or use of such person or pay or
distribute the whole or any part of such benefit to:
(a) The parent of such person;
(b) The guardian, committee, or other legal repre senta tive, wherever appointed, of such person;
(c) The person with whom such person resides;
(d) Any person having the care and control of such per son; or
(e) Such person personally.
The receipt of the person to whom any such payment or distribution is so made shall be full and
complete dis charge therefor.
16.07 Inability to Locate Payee. Anything to the contrary herein notwithstanding, if the Employer
is unable, after reasonable effort, to locate any Participant or Benefici ary to whom an amount is
payable hereunder, such amount shall be forfeited and held in the Trust for application against
the next suc ceeding Employer Contribution or con tribu tions required to be made hereunder.
Notwithstanding the foregoing, however, such amount shall be rein stated, by means of an additional
Employer contribu tion, if and when a claim for the forfeited amount is sub se quently made by the
Participant or Beneficiary or if the Employer receives proof of death of such person, satis factory
to the Employer. To the extent not inconsistent with applicable law, any benefits lost by reason of
escheat under ap plicable state law shall be considered forfeited and shall not be reinstated.
16.08 Mergers, Consolidations, and Transfer of Assets. The Plan shall not be merged into or
consolidated with any other plan, nor shall any of its assets or liabilities be transferred into any such
other plan, unless each Par ticipant in the Plan would (if the Plan then terminated) receive a benefit
im mediately after the merger, con soli dation, or transfer that is equal to or greater than the benefit
he/she would have been entitled to receive im mediately before the merger, consolidation, or transfer
(if the Plan had then terminated).
16.09 Employer Records. Records of the Employer as to an Employee’s or Participant’s Period of Service,
termina tion of service and the reason therefor, leaves of absence, reemployment, Earnings, and
Compensation will be conclusive on all persons, un less determined to be incor rect.
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16.10 Gender and Number. The masculine pronoun, whenever used herein, shall include the feminine
pronoun, and the singular shall include the plural, except where the con text requires otherwise.
16.11 Applicable Law. The Plan shall be construed under the laws of the State where the Employer is
located, except to the extent superseded by federal law. The Plan is established with the intent
that it meets the require ments under the Code. The provisions of this Plan shall be interpreted in
conformity with these requirements.
In the event of any conflict between the Plan and a pol icy or contract issued hereunder, the Plan
provi sions shall control; provided, however, no Plan amendment shall supersede an existing policy
or contract unless such amendment is required to maintain qualification under section 401(a) and
414(d) of the Code.
XVII. SPOUSAL BENEFIT REQUIREMENTS
17.01 Application. Effective as of January 1, 2006, where elected by the Employer in the Adoption
Agreement (the “QJSA Election”), the provisions of this Article shall take precedence over any
conflicting provision in this Plan. If elected, the provisions of this Article shall apply to any Par-
ticipant who is credited with any Period of Service with the Employer on or after August 23, 1984,
and such other Participants as provided in Section 17.05.
17.02 Qualified Joint and Survivor Annuity. Unless an optional form of benefit is selected pursuant
to a Qualified Elec tion within the ninety (90) day period ending on the Annuity Starting Date,
a married Participant’s Vested Account Balance will be paid in the form of a Qualified Joint and
Survivor Annuity and an unmarried Participant’s Vested Account Bal ance will be paid in the form of
a Straight Life Annu ity. The Participant may elect to have such annuity distributed upon the attain-
ment of the Earliest Retirement Age under the Plan.
17.03 Qualified Preretirement Survivor Annuity. If a Par ticipant dies before the Annuity Starting Date,
then fifty percent (50%) of the Partici pant’s Vested Ac count Bal ance shall be applied toward the
purchase of an annuity for the life of the Surviving Spouse; the remaining por tion shall be paid to
such Beneficiaries (which may include such Spouse) designated by the Participant. Notwithstanding
the foregoing, the Participant may waive the spousal annuity by designating a different Beneficiary
within the Election Period pursuant to a Qualified Election. To the extent that less than one hundred
percent (100%) of the vested Ac count balance is paid to the Surviving Spouse, the amount of the
Participant’s Account derived from Employee contribu tions will be allocated to the Surviv ing Spouse
in the same proportion as the amount of the Participant’s Ac count derived from Employee contribu-
tions is to the Participant’s total Vested Account Bal ance. The Surviv ing Spouse may elect to have
such annu ity distributed within a reasonable period after the Participant’s death. Further, such
Spouse may elect to receive any death benefit pay able to him/her hereunder in any of the forms avail-
able to the Participant under Section 11.02.
17.04 Notice Requirements.
(a) In the case of a Qualified Joint and Survivor Annu ity as described in Section 17.02, the
Plan Admin istrator shall, no less than thirty (30) days and no more than ninety (90) days
prior to the Annuity Starting Date, provide each Participant a written explana tion of: (i) the
terms and conditions of a Qualified Joint and Survivor Annuity; (ii) the Participant’s right to
make and the effect of an election to waive the Qualified Joint and Survivor Annuity form
of benefit; (iii) the rights of a Participant’s Spouse; and (iv) the right to make, and the effect
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of, a revo cation of a previous elec tion to waive the Quali fied Joint and Survivor An nuity.
However, if the Participant, after having received the written explanation, affirmatively elects
a form of distribution and the Spouse consents to that form of distribution (if necessary),
benefit payments may commence less than 30 days after the written explanation was
provided to the Participant, provided that the following requirements are met:
(1) The Plan Administrator provides information to the Participant clearly indicating
that the Participant has a right to at least 30 days to consider whether to waive the
Qualified Joint and Survivor Annuity and consent to a form of distribution other
than a Qualified Joint and Survivor Annuity;
(2) The Participant is permitted to revoke an affirmative distribution election at least
until the Annuity Starting Date, or if later, at any time prior to the expiration of
the 7-day period that begins the day after the explanation of the Qualified Joint and
Survivor Annuity is provided to the Participant;
(3) The Annuity Starting Date is after the date that the explanation of the Qualified
Joint and Survivor Annuity is provided to the Participant; and
(4) Distribution in accordance with the affirmative election does not commence before
the expiration of the 7-day period that begins after the day after the explanation of
the Qualified Joint and Survivor Annuity is provided to the Participant.
(b) In the case of a Qualified Preretirement Survivor Annuity as described in Section 17.03,
the Plan Administrator shall provide each Participant within the applicable period for such
Participant a writ ten explanation of the Qualified Preretirement Survivor Annuity in such
terms and in such manner as would be comparable to the explanation provided for meeting
the require ments of Subsection (a) ap pli cable to a Qualified Joint and Survivor Annuity.
The applicable period for a Participant is which ever of the following periods ends last:
(i) the period beginning with the first day of the Plan Year in which the Participant attains
age thirty-two (32) and ending with the close of the Plan Year preceding the Plan Year in
which the Participant attains age thirty-five (35); (ii) a reasonable period ending after the
individual becomes a Participant; (iii) a reason able period ending after Subsection (c) ceases
to apply to the Par ticipant; (iv) a reasonable period ending after this Article first applies to
the Participant. Notwithstand ing the foregoing, notice must be provided within a reasonable
period ending after separa tion from service in the case of a Participant who separates from
service before at taining age thirty-five (35).
For purposes of applying the preceding paragraph, a reasonable period ending after the
enumerated events described in (ii), (iii) and (iv) is the end of the two (2) year period
beginning one (1) year prior to the date the applicable event occurs, and ending one (1) year
after that date. In the case of a Participant who separates from service before the Plan Year in
which age thirty-five (35) is at tained, notice shall be provided within the two (2) year period
beginning one (1) year prior to separa tion and ending one (1) year after separation. If such
a Participant thereafter returns to employment with the Employer, the ap plicable period for
such Participant shall be redetermined.
(c) Notwithstanding the other requirements of this Sec tion, the respective notices prescribed
by this Section need not be given to a Participant if (1) the Plan “fully subsidizes” the costs
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of a Quali fied Joint and Survivor Annuity or Qualified Preretirement Survivor Annuity, and
(2) the Plan does not allow the Participant to waive the Qualified Joint and Survivor Annuity
or Qualified Preretirement Survivor Annuity and does not allow a married Participant to
designate a non-Spouse Beneficiary. For purposes of this Subsection (c), a plan fully sub-
sidizes the costs of a benefit if no increase in cost or decrease in benefits to the Participant
may result from the Participant’s failure to elect another benefit.
17.05 Definitions. For the purposes of this Section, the fol lowing definitions shall apply:
(a) Annuity Starting Date: The first day of the first period for which an amount is paid as an
annuity or any other form.
(b) Election Period: The period which begins on the first day of the Plan Year in which the
Participant attains age thirty-five (35) and ends on the date of the Partici pant’s death. If
a Participant sepa rates from service prior to the first day of the Plan Year in which age
thirty-five (35) is at tained, with respect to the Ac count balance as of the date of separa tion,
the Election Period shall begin on the date of separa tion.
Pre-age thirty-five (35) waiver: A Participant who will not yet attain age thirty-five (35)
as of the end of any current Plan Year may make a special Qualified Election to waive the
Qualified Preretirement Survivor Annuity for the period beginning on the date of such
election and ending on the first day of the Plan Year in which the Participant will attain
age thirty-five (35). Such election shall not be valid unless the Participant receives a written
explanation of the Qualified Preretirement Survivor Annuity in such terms as are comparable
to the explanation required under Sec tion 17.04(a). Qualified Preretirement Survivor
Annuity coverage will be automatically reinstated as of the first day of the Plan Year in which
the Participant attains age thirty-five (35). Any new waiver on or after such date shall be
subject to the full requirements of this Article.
(c) Earliest Retirement Age: The earliest date on which, under the Plan, the Participant could
elect to receive retirement bene fits.
(d) Qualified Election: A waiver of a Qualified Joint and Sur vivor Annuity or a Qualified
Preretirement Survivor Annuity. Any waiver of a Qualified Joint and Survivor Annuity or a
Qualified Preretirement Survivor Annuity shall not be effective unless: (a) the Participant’s
Spouse consents in writing to the election; (b) the election designates a specific Beneficiary,
including any class of Beneficiaries or any contingent Beneficiaries, which may not be
changed without spousal consent (or the Spouse expressly permits designations by the
Participant without any further spousal consent); (c) the Spouse’s consent acknowledges the
effect of the election; and (d) the Spouse’s consent is witnessed by a Plan representative or
notary public. Additionally, a Participant’s waiver of the Qualified Joint and Survivor Annu-
ity shall not be effective unless the election designates a form of benefit payment which may
not be changed without spousal consent (or the Spouse expressly permits designa tions by the
Participant without any further Spousal consent). If it is established to the satisfac tion of a
Plan representative that there is no Spouse or that the Spouse cannot be located, a waiver will
be deemed a Qualified Election.
Any consent by a Spouse obtained under this provi sion (or establishment that the consent of
a Spouse may not be obtained) shall be effective only with respect to such Spouse. A consent
that permits designations by the Participant without any require ment of further consent by
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such Spouse must acknowledge that the Spouse has the right to limit consent to a specific
Beneficiary, and a specific form of benefit where applicable, and that the Spouse voluntar ily
elects to relinquish either or both of such rights. A revocation of a prior waiver may be made
by a Participant without the consent of the Spouse at any time before the com mencement
of benefits. The number of revocations shall not be limited. No consent obtained under
this provision shall be valid unless the Participant has received notice as provided in Sec tion
17.04.
(e) Qualified Joint and Survivor Annuity: An im mediate annuity for the life of the Participant
with a survivor annuity for the life of the Spouse which is fifty percent (50%) of the amount
of the annuity which is pay able dur ing the joint lives of the Participant and the Spouse and
which is the amount of benefit which can be purchased with the Participant’s Vested Ac count
Balance.
(f) Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the Participant, provided
that a former Spouse will be treated as the Spouse or Surviving Spouse and a current Spouse
will not be treated as the Spouse or Surviving Spouse to the extent pro vided under a qualified
domestic relations order as described in section 414(p) of the Code.
(g) Straight Life Annuity: An annuity payable in equal installments for the life of the
Participant that terminates upon the Participant’s death.
(h) Vested Account Balance: The aggregate value of the Participant’s vested Account balances
derived from Employer and Employee contributions (including rollovers), whether
vested before or upon death, including the proceeds of insurance contracts, if any, on the
Participant’s life. The provisions of this Article shall apply to a Participant who is vested in
amounts attribut able to Employer Contributions, Employee contributions (or both) at the
time of death or distribution.
17.06 Annuity Contracts. Where benefits are to be paid in the form of a life annuity pursuant to the terms
of this Article, a nontransferable annuity contract shall be purchased from a life insurance company
and distributed to the Participant or Surviving Spouse, as applicable. The terms of any annuity
contract purchased and distributed by the Plan shall comply with the requirements of this Plan and
section 417 of the Code.
XVIII. FINAL PAY CONTRIBUTIONS
18.01 Eligibility. Effective as of January 1, 2006, if elected by the Employer in the Adoption Agreement,
Final Pay Contributions on behalf of each Participant equal to the equivalent of the accrued unpaid
final pay, as defined in the Adoption Agreement (“Final Pay”), shall be contributed to the Plan.
18.02 Contribution Amount. At the election of the Employer in the Adoption Agreement, the Final
Pay Contributions may be made as either (a) Employer Final Pay Contributions, or (b) Employee
Designated Final Pay Contributions, as described below.
(a) Employer Final Pay Contributions. The Employer shall contribute to the Plan for each
Participant the equivalent of a designated amount of accrued unpaid final pay upon
termination of employment of the Participant, as the Employer so elects in the Adoption
Agreement. The Employer’s contribution for any Plan Year shall be due and paid not later
than the time prescribed by applicable law.
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The Employer Final Pay Contributions shall be accounted for in the Employer Contribution
Account.
(b) Employee Designated Final Pay Contributions. The Employer shall contribute to the
Plan for each Participant all or any portion of a Participant’s Final Pay, as elected by the
Participant. The Employer may limit the amount of Final Pay to be elected to be contributed
to the Plan. Once elected, an Emplyee’s election shall remain in force and may not be revised
or revoked.
The Employee Designated Final Pay Contributions shall be accounted for in the Participant
Contribution Account, and are nonforfeitable by the Participant at all times.
The Employee Designated Final Pay Contributions shall be “picked up” by the Employer in
accordance with Code section 414(h)(2). The contributions shall be treated as an employer
contribution in determining the tax treatment under the Code, and shall not be included as
gross income of the Participant until it is distributed.
A Participant cannot elect to receive cash in lieu of any Final Pay Contribution.
18.03 Equivalencies. The Final Pay Contribution shall be determined by multiplying the Participant’s
current daily rate of pay from the Employer times the amount of accrued unpaid leave being
converted.
18.04 Excess Contributions. Final Pay Contributions are limited to the extent of applicable law and any
Code limitation. No Final Pay Contribution shall be made to the extent that it would exceed the
applicable Code section 415 limitation, as set forth in Article V. Any excess contributions as a result
of the Code section 415 limitation shall remain in the Participant’s leave bank.
XIX. ACCRUED LEAVE CONTRIBUTIONS
19.01 Eligibility. Effective as of January 1, 2006, if elected by the Employer in the Adoption Agreement,
Accrued Leave Contributions on behalf of each eligible Participant equal to the equivalent of the
accrued unpaid leave, as defined in the Adoption Agreement (“Accrued Leave”), shall be contributed
to the Plan. Eligibility for Accrued Leave Contributions is limited to only those Participants or class
of Participants that the Employer elects in the Adoption Agreement.
19.02 Contribution Amount. At the election of the Employer in the Adoption Agreement, the Accrued
Leave Contributions may be made as either (a) Employer Accrued Leave Contributions, or (b)
Employee Designated Accrued Leave Contributions, as described below.
(a) Employer Accrued Leave Contributions. The Employer shall contribute to the Plan for each
eligible Participant the equivalent of a designated amount of accrued unpaid leave each year,
as the Employer so elects in the Adoption Agreement. The Employer’s contribution for any
Plan Year shall be due and paid not later than the time prescribed by applicable law.
The Employer Accrued Leave Contributions shall be accounted for in the Employer
Contribution Account.
(b) Employee Designated Accrued Leave Contributions. The Employer shall contribute to
the Plan for each eligible Participant all or any portion of a Participant’s Accrued Leave,
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as elected by the Participant. The Employer may limit the amount of Accrued Leave to be
elected to be contributed to the Plan. Once elected, an Employee’s election shall remain in
force and may not be revised or revoked.
The Employee Designated Accrued Leave Contributions shall be accounted for in the
Participant Contribution Account, and are nonforfeitable by the Participant at all times.
The Employee Designated Accrued Leave Contributions shall be “picked up” by the
Employer in accordance with Code section 414(h)(2). The contributions shall be treated as
an employer contribution in determining the tax treatment under the Code, and shall not be
included as gross income of the Participant until it is distributed.
A Participant cannot elect to receive cash in lieu of any Accrued Leave Contribution.
19.03 Equivalencies. The Accrued Leave Contribution shall be determined by multiplying the
Participant’s current daily rate of pay from the Employer times the amount of accrued unpaid leave
being converted.
19.04 Excess Contributions. Accrued Leave Contributions are limited to the extent of applicable law
and any Code limitation. No Accrued Leave Contribution shall be made to the extent that it would
exceed the applicable Code section 415 limitation, as set forth in Article V. Any excess contributions
as a result of the Code section 415 limitation shall remain in the Participant’s leave bank.
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DECLARATION OF TRUST
This Declaration of Trust (the “Group Trust Agreement”) is made as of the 19th day of May, 2001, by VantageTrust
Company, which declares itself to be the sole Trustee of the trust hereby created.
WHEREAS, the ICMA Retirement Trust was created as a vehicle for the commingling of the assets of governmental
plans and governmental units described in Section 818(a)(6) of the Internal Revenue Code of 1986, as amended,
pursuant to a Declaration of Trust dated October 4, 1982, as subsequently amended, a copy of which is attached
hereto and incorporated by reference as set out below (the “ICMA Declaration”); and
WHEREAS, the trust created hereunder (the “Group Trust”) is intended to meet the requirements of Revenue
Ruling 81-100, 1981-1 C.B. 326, and is established as a common trust fund within the meaning of Section 391:1 of
Title 35 of the New Hampshire Revised Statutes Annotated, to accept and hold for investment purposes the assets of
the Deferred Compensation and Qualified Plans held by and through the ICMA Retirement Trust.
NOW, THEREFORE, the Group Trust is created by the execution of this Declaration of Trust by the Trustee and
is established with respect to each Deferred Compensation and Qualified Plan by the transfer to the Trustee of such
Plan’s assets in the ICMA Retirement Trust, by the Trustees thereof, in accord with the following provisions:
1. Incorporation of ICMA Declaration by Reference; ICMA By-Laws. Except as otherwise provided in this
Group Trust Agreement, and to the extent not inconsistent herewith, all provisions of the ICMA Declaration
are incorporated herein by reference and made a part hereof, to be read by substituting the Group Trust for
the Retirement Trust and the Trustee for the Board of Trustees referenced therein. In this respect, unless the
context clearly indicates otherwise, all capitalized terms used herein and defined in the ICMA Declaration
have the meanings assigned to them in the ICMA Declaration. In addition, the By-Laws of the ICMA
Retirement Trust, as the same may be amended from time-to-time, are adopted as the By-Laws of the Group
Trust to the extent not inconsistent with the terms of this Group Trust Agreement.
Notwithstanding the foregoing, the terms of the ICMA Declaration and By-Laws are further modified with
respect to the Group Trust created hereunder, as follows:
(a) any reporting, distribution, or other obligation of the Group Trust vis-à-vis any Deferred
Compensation Plan, Qualified Plan, Public Employer, Public Employer Trustee, or Employer Trust
shall be deemed satisfied to the extent that such obligation is undertaken by the ICMA Retirement
Trust (in which case the obligation of the Group Trust shall run to the ICMA Retirement Trust); and
(b) all provisions dealing with the number, qualification, election, term and nomination of Trustees shall
not apply, and all other provisions relating to trustees (including, but not limited to, resignation and
removal) shall be interpreted in a manner consistent with the appointment of a single corporate trustee.
2. Compliance with Revenue Procedure 81-100. The requirements of Revenue Procedure 81-100 are applicable
to the Group Trust as follows:
(a) Pursuant to the terms of this Group Trust Agreement and Article X of the By-Laws, investment
in the Group Trust is limited to assets of Deferred Compensation and Qualified Plans, investing
through the ICMA Retirement Trust.
(b) Pursuant to the By-Laws, the Group Trust is adopted as a part of each Qualified Plan that invests
herein through the ICMA Retirement Trust.
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(c) In accord with the By-Laws, that part of the Group Trust’s corpus or income which equitably belongs
to any Deferred Compensation and Qualified Plan may not be used for or diverted to any purposes
other than for the exclusive benefit of the Plan’s employees or their beneficiaries who are entitled to
benefits under such Plan.
(d) In accord with the By-Laws, no Deferred Compensation Plan or Qualified Plan may assign any or
part of its equity or interest in the Group Trust, and any purported assignment of such equity or
interest shall be void.
3. Governing Law. Except as otherwise required by federal, state or local law, this Declaration of Trust
(including the ICMA Declaration to the extent incorporated herein) and the Group Trust created hereunder
shall be construed and determined in accordance with applicable laws of the State of New Hampshire.
4. Judicial Proceedings. The Trustee may at any time initiate an action or proceeding in the appropriate state
or federal courts within or outside the state of New Hampshire for the settlement of its accounts or for the
determination of any question of construction which may arise or for instructions.
IN WITNESS WHEREOF, the Trustee has executed this Declaration of Trust as of the day and year first above
written.
VANTAGETRUST COMPANY
By _____________________________
Angela C. Montez
Assistant Corporate Secretary
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ATTn.: new Business uniT
P.O. BOx 96220
wAshinGTOn, DC 20090-6220
1-800-669-7400
www.iCMArC.OrG
en esPAñOl llAMe Al 1-800-669-8216
BKT000-015-200904-452
iCMA-rC services llC, a wholly owned broker-dealer subsidiary of iCMA-rC, member FinrA/siPC.
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