Agenda Item 6AAGENDA ITEM # 6A
RESOLUTION N0.13 -07 JUNE 10, 2013
A RESOLUTION OF THE CITY OF ATLANTIC BEACH, FLORIDA,
ADOPTING THE ICMA- RETIREMENT CORPORATION 401
GOVERNMENTAL PROFIT - SHARING PLAN & TRUST
RETIREMENT BASIC DOCUMENT AND TRUST ADOPTION
AGREEMENT AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Atlantic Beach (Employer) has offered participation of all eligible
employees hired on or after September 1, 2008; and
WHEREAS, the employer has established a qualified plan for those employees referenced
above that serves the interest of the Employer by enabling it to provide reasonable retirement
security for these employees, by providing increased flexibility in its personnel management
system, and by assisting in the attraction and retention of future employees; and
WHEREAS, the Employer has determined that the continuance of the qualified retirement
plan will serve these objectives; and
NOW THEREFORE BE IT RESOLVED by the Commission of the City of Atlantic Beach,
Florida:
Section 1. That the Plan is hereby adopted as the qualified retirement plan (the "401 Profit
Sharing Plan") in the form of the ICMA Retirement Corporation Government 401
Governmental Profit Sharing Plan.
Section 2. That the assets of the Plan shall be held in trust, with the Employer serving as
trustee ( "Trustee "), for the exclusive benefit of Plan participants and their beneficiaries, and
the assets shall not be diverted to any other purpose. The Trustee's beneficial ownership of
Plan assets held in Vantage Trust shall be held for the further exclusive benefit of Plan
participants and their beneficiaries.
Section 3. That the Employer hereby agrees to serve as Trustee under the Plan.
Section 4. That this resolution shall be effective upon adoption.
PASSED AND ADOPTED by the City Commission of the City of Atlantic Beach, Florida
on this day of 2013.
Mike Borno
Mayor
Approved as to form and correctness: Attest:
Alan C. Jensen, Esquire
City Attorney
Donna L. Bartle, CMC
City Clerk
ICMA RETIREMENT CORPORATION
GOVERNMENTAL PROFIT-SHARING PLAN & TRUST
BASIC DOCUMENT
Table of Contents
I. PURPOSE ............................................ ..............................1
II. DEFINITIONS ........................................ ..............................1
III. ELIBILITY ............................................ ..............................5
IV. CONTRIBUTIONS ..................................... ..............................5
V. LIMITATION ON ELECTIVE DEFERRALS AND ALLOCATIONS..... ............9
VI. TRUST AND INVESTMENT OF ACCOUNTS .............. .............................14
VII. VESTING ............................................. .............................17
VIII. BENEFITS CLAIM ..................................... .............................18
IX. COMMENCEMENT OF BENEFITS ....................... .............................18
X. DISTRIBUTION REQUIREMENTS ....................... .............................23
XI. MODES OF DISTRIBUTION OF BENEFITS ............... .............................27
XII. SPOUSAL DEATH BENEFIT REQUIREMENTS ............. .............................28
XIII. LOANS TO PARTICIPANTS ............................. .............................29
XIV. PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS .....................32
XV. ADMINISTRATION .................................... .............................34
XVI. MISCELLANEOUS ..................................... .............................36
XVII. SPOUSAL BENEFIT REQUIREMENTS .................... .............................38
XVIII. FINAL PAY CONTRIBUTIONS ........................... .............................41
XIX. ACCRUED LEAVE CONTRIBUTIONS .................... .............................42
DECLARATION OF TRUST ................................... .............................43
ICMA RETIREMENT CORPORATION
GOVERNMENTAL PROFIT-SHARING 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 provided 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 4.13 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 Account 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 hereunder 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.
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 anniversary 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
individual, (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 immediately following such
birth or placement.
2.06 Catch -up Contributions. Elective Deferrals made to the Plan that are in excess of an otherwise
applicable plan limit and that are made by Participants who are age 50 or over by the end of
their taxable years. An otherwise applicable plan limit is a limit in the Plan that applies to
Elective Deferrals without regard to Catch -up Contributions, such as the limits on annual
additions and the dollar limitation on Elective Deferrals under Code section 402(g) (not
counting catch -up Contributions). Catch -up Contributions for a Participant for a taxable year
may not exceed (1) the dollar limit on Catch -up Contributions under Code section 414(v)
(2)(B)(i) for the taxable year or (2) when added to other Elective Deferrals, 75 percent of the
Participant's Earnings for the taxable year. The dollar limit on Catch -up Contributions under
Code section 414(v)(2)(B)(i) is $1,000 for taxable years beginning in 2002, increasing by
$1,000 for each year thereafter up to $5,000 for taxable years beginning in 2006 and later years.
After 2006) the $5,000 limit will be adjusted by the Secretary of the Treasury for cost -of- living
increases under Code section 414(v)(2)(C). Any such adjustments will be in multiples of $500.
Catch -up Contributions are not subject to the limits on annual additions. Provisions in the Plan
relating to Catch -up Contributions apply to Elective Deferrals made after 2001.
2.07 Code. The Internal Revenue Code of 1986, as amended from time to time.
2.08 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.
2.09 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.
2.10 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 pursuant 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) 07) (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 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.
2.11 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.
2.12 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.
2.13 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 Adoption Agreement,
2.14 Hour of Service. Each hour for which an Employee is paid or entitled to payment for the
performance of duties for the Employer.
2.15 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 Elective Deferral, Participant Contribution,
Rollover, and Voluntary Contribution Accounts.
2.16 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.
2.17 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.
2.18 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) 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) consecutive 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).
2.19 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.
2.20 Plan. This Plan as established by the Employer including any elected provisions pursuant to the
Adoption Agreement. If the Employer has elected in the Adoption Agreement to permit Participants
to make Elective Deferrals, this Plan is a profit - sharing plan containing a 401(k) arrangement.
2.21 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 successor Plan Administrator.
2.22 Plan Year. The twelve (12) consecutive month period designated by the Employer in the
Adoption Agreement.
2.23 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.
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.
N 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 Employer Contribution Account. Notwithstanding 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 4.04 or 4.05 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.
If no Employer Contributions are required under the Plan, forfeitures will be allocated in the
ratio that the Earnings of each Participant bears to that of all Participants.
4.03 Elective Deferrals and Catch -up Contributions. If the Employer so elects in the Adoption
Agreement, and subject to the limitations provided in Article V, a Participant may elect after
he /she meets the eligibility requirements provided in Article III to have the Employer make
payments either (1) as Elective Deferrals on his /her behalf, pursuant to a properly executed
salary reduction agreement, whereby the Employee agrees to reduce his /her future Earnings by a
specific amount, and the Employer to contribute such Elective Deferrals to the Trust on behalf
of the Employee or (2) to the Employee directly in cash. Such a Participant, if age 50 or over by
the end of his or her taxable year, is also permitted to make Catch -up Contributions. Elective
Deferrals (and Catch -up Contributions) shall be made by payroll reduction, and shall be ac-
counted for separately in the Participant's Elective Deferral Account. Such Account shall be at
all times nonforfeitable by the Participant.
The Employer must provide a_period(s), as elected in the Adoption Agreement, of not less
than thirty (30) days at least once each calendar year during which a Participant may elect to
commence Elective Deferrals and Catch -up Contributions. Such election may not be made
retroactively. A Participant's election to commence Elective Deferrals must remain in effect until
modified or terminated.
Notwithstanding anything to the contrary elsewhere contained in this Plan, Elective Deferrals
and Catch -up Contributions are intended to be employer contributions within the meaning
of the Code and regulations, not employee contributions, and relevant provisions shall be
construed accordingly.
4.04 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.
4.05 Employer Matching Contributions of Voluntary Participant Contributions or Elective
Deferrals. If the Employer so elects in the Adoption 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 or Elective Deferrals for that
Plan Year. The rate of Employer Contributions shall, to the extent specified in the Adoption
Agreement, be based upon the rate at which Voluntary Participant Contributions or Elective
Deferrals are made for that Plan Year. Employer Matching Contributions shall be accounted for
separately in the Employer Contribution Account.
4.06 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 Earnings 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.
4.07 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.
4.08 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, or Section 4.04 that are picked -up by the
Employer. In addition, discretionary contributions are (i) for the exclusive benefit of Employees
or their beneficiaries and (ii) substantial and recurring in accordance with Treasury Regulations
sections 1.401- 1(a)(3) and 1.401- 1(b)(2).
4.09 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, or Section 4.04 that are
picked -up by the Employer. In addition, discretionary contributions are (i) for the exclusive
benefit of Employees or their beneficiaries and (ii) substantial and recurring in accordance with
Treasury Regulations sections 1.401- 1(a)(3) and 1.401- 1(b)(2).
4.10 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 shall 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 shall be suspended under the Plan as permitted
under section 414(u)(4) of the Code.
4.11 Changes in Participant Election. A Participant may elect to change his /her rate of Elective
Deferrals, Catch -up Contributions, or 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.
The Employer must provide a period of not less than thirty (30) days at least once each calendar
year during which a Participant may elect to terminate an election or to modify the amount or
frequency of his /her Elective Deferrals.
4.12 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;
(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 (601 ") 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(0)(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.
4.13 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 ELECTIVE DEFERRALS AND ALLOCATIONS
5.01 Maximum Elective Deferrals. Notwithstanding anything to the contrary herein, no Participant
shall be permitted to have Elective Deferrals made under this Plan, or Elective Deferrals under
any other plan, contract or arrangement maintained by the Employer, during any calendar
year, in excess of the dollar limitation contained in section 402(8) of the Code in effect for the
Participant's taxable year beginning in such calendar year. In the case of a Participant age 50 or
over by the end of the taxable year, the dollar limitation described in the preceding sentence
includes the amount of Elective Deferrals that can be Catch -up Contributions. The dollar
limitation contained in Code section 402(8) is $10,500 for taxable years beginning in 2000
and 2001 increasing to $11,000 for taxable years beginning in 2002 and increasing by $1,000
for each year thereafter up to $15,000 for taxable years beginning in 2006 and later years. After
2006, the $15,000 limit will be adjusted by the Secretary of the Treasury for cost -of- living
increases under section 402(8)(4). Any such adjustments will be in multiples of $500.
5.02 Distribution of Excess Elective Deferrals.
(a) A Participant may assign to this Plan any Excess Elective Deferrals made during a
preceding taxable year of the Participant by providing the Plan Administrator with
written notice on or before March 1 of the amount of Excess Elective Deferrals to be
assigned to the Plan. A Participant is deemed to notify the Plan Administrator of any
Excess Elective Deferrals that arise by taking into account only those Elective Deferrals
made to this Plan and any other plan, contract or arrangement of this Employer.
Notwithstanding any other provisions of the Plan, Excess Elective Deferrals, plus any
income and minus any loss allocable thereto, shall be distributed no later than April 15
to any Participant whose Excess Elective Deferrals were assigned for the preceding year
and who claims Excess Elective Deferrals for such taxable year or calendar year.
Participants who claim Excess Elective Deferrals for the preceding taxable year must
submit their claims in writing to the Plan Administrator on or before March 1.
(b) Excess Elective Deferrals shall be adjusted for any income or loss up to the date of
the distribution. The income or loss allocable to Excess Elective Deferrals is the sum
of. (1) income or loss allocable to the Participant's Elective Deferral Account for the
Taxable year multiplied by a fraction, the numerator of which is such Participant's
Account balance attributable to Elective Deferrals without regard to any income or
loss occurring during such taxable year, and (2) ten percent (10 %) of the amount
determined under (1) multiplied by the number of whole calendar months between the
end of the Participant's taxable year and the date of distribution, counting the month of
distribution if distribution occurs after the fifteenth (15th) of such month.
5.03 Limitation on Annual Additions - 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(1)(2) of the
Code, maintained by the Employer, which provides an Annual Addition, the amount of
Annual Additions which may be credited to the Participant's Account for any Limita-
tion Year will not exceed the lesser of the Maximum Permissible Amount or any other
limitation contained in this Plan. If the Employer Contribution that would otherwise
be contributed or allocated 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 allocated will be reduced so that the Annual Additions for the Limitation
Year will equal the Maximum Permissible Amount.
(b) Prior to determining the Participant's actual Compensation for the Limitation Year, the
Employer may determine the Maximum Permissible Amount for a Participant on the
basis of a reasonable estimation of the Participant's Compensation for the Limitation
Year, uniformly determined for all Participants similarly 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
Participant's actual Compensation 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 disposed of as follows:
(1) Any Mandatory Participant Contributions that are not "picked up" by the
Employer or Voluntary Participant Contributions, to the extent they would
reduce the Excess Amount, will be returned to the Participant;
(2) Any Elective Deferrals, to the extent they would reduce the Excess Amount, will
be returned to the Participant;
(3) If after the application of paragraphs (1) or (2) 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 Participant's Account will be used to reduce Employer
Contributions (including any allocation of forfeitures) for such Participant in
the next Limitation Year, and each succeeding Limitation Year if necessary;
(4) If after the application of paragraphs (1) or (2) 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 account. The suspense
10
account will be applied to reduce future Employer Contributions (including al-
location of any forfeitures) for all remaining Participants in the next Limitation
Year, and each succeeding Limitation Year if necessary;
(5) If a suspense account is in existence at any time during a particular Limitation
Year, all amounts in the suspense account must be allocated and reallocated to
Participants' accounts before any Employer or any Employee contributions may
be made to the Plan for that Limitation Year. Excess Amounts in a suspense
account may not be distributed to Participants or former Participants.
5.04 Limitation on Annual Additions - 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 contribution 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, as defined by section 415(1)(2) of the Code, maintained by the Employer,
which provides an Annual Addition, during any Limitation Year. The Annual Additions
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 Account under- the other plans and welfare benefit funds for the
same Limitation Year. If the Annual Additions with respect to the Participant under other
defined contribution plans and welfare benefit funds maintained by the Employer are
less than the Maximum Permissible Amount and the Employer contribution that would
otherwise be contributed or allocated to the Participant's Account under this Plan would
cause the Annual Additions for the Limitation 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 Maximum Permissible Amount. If the
Annual Additions with respect to the Participant under such other defined contribution
plans and welfare benefit funds in the aggregate are equal to or greater than the Maximum
Permissible 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 Compensation for the Limitation Year, the
Employer may determine the Maximum Permissible Amount for a Participant in the
manner described in Section 5.03(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
Participant's actual Compensation for the Limitation Year.
(d) If, pursuant to Subsection (c) or as a result of the allocation of forfeitures, a Participant's
Annual Additions under this Plan and such other plans would result in an Excess
Amount for a Limitation Year, the Excess Amount will be deemed to consist of the
Annual Additions last allocated, except that Annual Additions attributable to a welfare
benefit fund or individual medical account will be deemed to have been allocated first
regardless of the actual allocation date.
11
(e) If an Excess Amount was allocated to a Participant on an allocation date of this Plan
which coincides with an allocation 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 allocated to the Participant for the Limita-
tion Year as of such date under this Plan to (ii) the total Annual Additions al-
located to the Participant for the Limitation Year as of such date under this and
all the other qualified prototype defined contribution plans.
(f) Any Excess Amount attributed to this Plan will be disposed in the manner described in
Section 5.03(d).
5.05 Definitions. For the purposes of this Article, the following definitions shall apply:
(a) Annual Additions: The sum of the following amounts credited to a Participant's account
for the Limitation Year:
(1) Employer Contributions;
(2) Forfeitures;
(3) Employee contributions; and
(4) Allocations under a simplified employee pension.
Amounts allocated, after March 31, 1984, to an individual medical account, as defined
in section 415(1)(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 contribution plan.
For this purpose, any Excess Amount applied under Sections 5.03(d) or 5.04(f) in the
Limitation Year to reduce Employer Contributions will be considered Annual Additions
for such Limitation 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 employment with the Employer
maintaining the Plan to the extent that the amounts are includible in gross income
(including, 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 excluding the following:
(1) Employer Contributions to a plan of deferred compensation which are not
includible in the Employee's gross income for the taxable year in which contrib-
uted, or Employer Contributions under a simplified employee pension plan
to the extent such contributions are deductible 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
12
the Employer (whether or not under a salary reduction 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, Compensation 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) Elective Deferrals: Any Employer Contributions made to the Plan at the election
of the Participant, in lieu of cash compensation. With respect to any taxable year, a
Participant's Elective Deferrals is the sum of all Employer Contributions made on
behalf of such Participant pursuant to an election to defer under any qualified CODA
described in section 401(k) of the Code, any salary reduction simplified employee
pension described in section 408(k)(6) of the Code, any SIMPLE IRA described in
section 408(p), and any plan described under section 501(c)(18) of the Code, and any
Employer Contributions made on the behalf of the Participant for the purchase of
an annuity contract under section 403(b) of the Code pursuant to a salary reduction
agreement. Elective Deferrals shall not include any deferrals properly distributed as
excess Annual Additions.
(e) Employer: The Employer that adopts this Plan.
(f) Excess Amount: The excess of the Participant's Annual Additions for the Limitation Year
over the Maximum Permissible 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.
(g) Excess Elective Deferrals: Those Elective Deferrals of a Participant that either (1) are
made during the Participant's taxable year and exceed the dollar limitation under Code
section 402(8) (including, if applicable, the dollar limitation on Catch -up Contributions
defined in section 414(v) for such year); or (2) are made during a calendar year and
exceed the dollar limitation under Code section 402(g) (including, if applicable,
the dollar limitation on Catch -up Contributions defined in section 414(v)) for the
13
Participant's taxable year beginning in such calendar year, counting only Elective
Deferrals made under this Plan and any other plan, contract or arrangement maintained
by the Employer. Excess Elective Deferrals shall be treated as Annual Additions, as
defined under Section 5.05, unless such amounts are distributed no later than the first
April 15 following the close of the Participant's taxable year.
(h) Limitation Year: A calendar year, or the twelve (12) consecutive month period elected
by the Employer in the Adoption Agreement. All qualified 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 amendment is made.
(i) Maximum Permissible Amount: Except for Catch -up Contributions described in Code
section 414(v), 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 Limitation 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 different twelve (12) consecutive month period, the Maximum Permissible
Amount will not exceed the Defined Contribution Dollar Limitation multiplied by the
following fraction:
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
Participants 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 capacity hereunder.
6.02 Investment Powers. The trustee or the Plan Administrator, 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 investment of Trust assets is controlled by Participants, pursuant to Section 13.03.
(a) To invest and reinvest the Trust without distinction between principal and income
in common or preferred stocks, shares of regulated investment companies and other
mutual funds, bonds, notes, debentures, mortgages, certificates of deposit, contracts
with insurance companies including but not limited to insurance, individual or group
annuity, deposit administration, guaranteed interest contracts, and deposits at reasonable
rates of interest at banking institutions including but not limited to savings accounts
14
and certificates of deposit. Assets 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 assets of the Trust in any common, collective
or commingled 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 common, collective, or commingled trust fund shall constitute a part of this Plan.
(c) To invest and reinvest all or any part of the assets of the Trust in any group annuity,
deposit administration or guaranteed interest contract issued by an insurance company
or other financial institution on a commingled or collective 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 custodian as the Plan Administrator may
appoint, as agent and nominee for the Employer. During the period that an investment
through any such contract shall exist, 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
balances, 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 register 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 acquiring 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 fiduciary 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 investment, 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,
compromise, adjust, or submit to arbitration any claim or right in favor of or against
the Plan, to exercise and enforce any and all rights of foreclosure, bid for property in
foreclosure, and take a deed in lieu of foreclosure with or without paying consideration
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.
15
(g) To employ suitable consultants, depositories, agents, and legal counsel on behalf of the Plan.
(h) To open and maintain any bank account or accounts 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 reimbursement for reasonable expenses incurred by the Plan Administrator
in performance of its duties hereunder (including but not limited to fees for legal, accounting,
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 Participant 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 investment directions shall not violate any investment restrictions 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 offered 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 allocated
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 immediately preceding Accounting Date
bears to the total of all such Account balances, as of that Accounting Date. For purposes of this
Article, all Account balances include the Account balances of all Participants and Beneficiaries.
6.07 Participant Loan Accounts. Participant Loan Accounts shall be invested in accordance with
Section 13.03 of the Plan. Such Accounts shall not share in any investment income and gains or
losses of the investment funds described in Section 6.05.
16
VII. VESTING
7.01 Vesting Schedule. The portion of a Participant's Account attributable to Elective Deferrals,
Catch -up Contributions, Mandatory Participant Contributions, and Voluntary Participant
Contributions, and the earnings thereon, shall be at all times nonforfeitable by the Participant.
A Participant shall have a Nonforfeitable Interest in the percentage of his /her Employer
Contribution Account established under Section 4.01, 4.05, 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 Account balance 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 Participant 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 determining 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 vesting the Employer - derived Account balance that accrues after such Break. Both
Accounts will share in the earnings 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 Nonforfeitable Interest in his /her entire Employer Contribution Account, to the
extent that the balance of such Account has not previously been forfeited pursuant to Section
7.06 of the Plan, if he /she is employed on or after his /her Normal Retirement Age.
17
7.05 Vesting Upon Death or Disability. Notwithstanding Section 7.01 of the Plan, in the event of
Disability or death, a Participant or his /her Beneficiary shall have a Nonforfeitable Interest in
his /her entire Employer Contribution Account, to the extent that the balance of such Account
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 service prior to obtaining full vesting shall
forfeit that percentage of his /her Employer Contribution Account balance which has not vested as
of the date such Participant 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,
distribution 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 incurring 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 Contribution Account on the
date of repayment 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 distribution, 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
subsequently reemployed by the Employer, or the date the Participant incurs a Break in Service
of five (5) consecutive years.
VIII. BENEFITS CLAIM
8.01 Claim of Benefits. A Participant or Beneficiary shall notify the Plan Administrator in writing
of a claim of benefits under the Plan. The Plan Administrator shall take such steps as may be
necessary to facilitate the payment of such benefits to the Participant 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 payments are to commence. A Participant's election
shall be revocable and may be amended by the Participant.
Except as otherwise provided under the Plan, a Participant's Elective Deferrals and income allocable
thereto are not distributable to a Participant or his /her Beneficiary(ies), in accordance with
18
such Participant's or Beneficiary(ies) election, earlier than upon the Participant's severance from
employment (separation from service for Plan Years beginning before 2002), death, or Disability.
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 sufficient to satisfy this section.
9.02 Restrictions on Immediate Distributions. Notwithstanding anything to the contrary
contained in Section 9.01 of the Plan, if the value of a Participant's vested Account balance is
at least $1,000, and the Account balance is immediately distributable, the Participant must
consent to any distribution 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 payments
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 balance is no longer immediately distributable. Such notification shall
include a general description 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 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, 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 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 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 attains 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
19
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 9.11.
(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; (iii) any
hardship distribution; and (iv) 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. (1) 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
20
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.
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 Interest 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 Participant may upon written request withdraw
a part of or the full amount of his /her Voluntary 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.
9.06 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 Hardship Withdrawals.
(a) Where elected by the Employer in the Adoption Agreement for a profit - sharing plan
containing a 401(k) arrangement, distribution of nonforfeitable amounts attributable to
Employer Contributions and /or Elective Deferrals (including Catch -up Contributions
but not including earnings attributable to Elective Deferrals accrued after December 31,
1988) may be made to a Participant in the event of hardship. A hardship distribution
may only be made on account of an immediate and heavy financial need of the Employee
and where the distribution is necessary to satisfy the immediate and heavy financial need.
21
(b) Special Rules:
(1) The following are the only financial needs considered immediate and heavy (or
as otherwise provided for under Treasury Regulation section 1.401(k) -1(d) (3)
(iii)(B) or any subsequence guidance thereto):
(a) Expenses for medical care (within the meaning of section 213(d) of the
Code) previously incurred or necessary to obtain medical care for the
Employee, the Employee's spouse or dependents;
(b) Costs directly related to the purchase (excluding mortgage payments) of
a principal residence for the Employee;
(c) Payment of tuition and related educational fees for the next twelve (12)
months of post- secondary education for the Employee, the Employee's
(d) Payments necessary to prevent the eviction of the Employee from, or a
foreclosure on the mortgage of, the Employee's principal residence; or
(e) Payments for funeral or burial expenses for the Employee's deceased
parent, spouse, child or dependent and expenses to repair damage to
the Employee's principal residence that would qualify for a casualty
loss deduction under Code section 165 (determined without regard to
whether the loss exceeds 10 percent of adjusted gross income). The last
two needs (funeral expenses and home repair) only apply to Plan Years
beginning after 2005.
(2) A distribution will be considered as necessary to satisfy an immediate and heavy
financial need of the employee only if:
(a) The distribution is not in excess of the amount of an immediate and
heavy financial need, including amounts necessary to pay any federal,
state, or local income taxes or penalties reasonably anticipated to result
from the distribution;
(b) The Employee has obtained all distributions, other than hardship
distributions, and all nontaxable loans under all plans maintained by the
Employer; and
(c) All plans maintained by the Employer provide that the Employee's
Elective Deferrals (and Employee contributions) will be suspended for
six (6) months (12 months, for hardship distributions before 2002) after
the receipt of the hardship distribution;
9.08 In- Service Distributions.
If elected by the Employer in the Adoption Agreement, a Participant who has attained age 59th
and has a 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
22
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.
Unless otherwise elected by the Employer in the Adoption Agreement, a Participant who has
reached age 701/2 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 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.
9.10 Latest Commencement of Benefits. Notwithstanding anything 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.
9.11 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.
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 designated Beneficiary,
23
(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 Participant and a designated Beneficiary.
(d) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this
Article X, 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
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 701/2, 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.
24
(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
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
25
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.
(b) Death Before Date Required Distributions Begin.
(1) Participant Survived by Designated Beneficiarv. 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 Beneficiarv. 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 Beneficiarv. 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.
26
(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. 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 (70' /z), 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 requirements 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, quarterly, semi - annual, or annual
payments, calculated to continue for a period certain chosen by the Participant.
(c) Other. Any other sequence of payments requested by the Participant.
WA
(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 X1I 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 payable to his/
her Beneficiary within ninety (90) days of the Participant's death. A Beneficiary who is
entitled to receive benefits under this Section may elect to have benefits commence 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 payment commences, 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 schedule elected by the Participant. Notwithstanding the foregoing, the Benefi-
ciary may elect to accelerate payments of the remaining balances, including but not
limited to, a lump sum distribution.
X1I. 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 Participant 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 Balance 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 Section 12.03, such Vested Account
Balance will be paid to the Participant's designated Beneficiary.
(b) The Surviving Spouse may elect to have distribution 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 balance shall be
adjusted for gains or losses occurring after the Participant's death in accordance with the
provisions of the Plan governing the adjustment of Account balances for other types of
distributions.
28
12.03 Waiver of Spousal Death Benefit.
(a) 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 provision (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 requirement
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 voluntarily 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 commencement of benefits. The number of revocations
shall not be limited.
12.04 Definitions. For the purposes of this Section, the following definitions shall apply:
(a) 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 provided
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 attributable 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 Agreement to make loans available to
Participants, a Participant may apply for a loan from the Plan subject 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 available to all
Participants on a reasonably equivalent basis.
29
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 reasonable 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 balance by the amount of the security used as repayment of the loan, and then
determining the benefit payable to the surviving spouse.
(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) 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 (1 /z) of the value of the Participant'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) are aggregated.
30
(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 installments
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 reasonable time after the loan is made as the
principal residence of the Participant, the five (5) year limit shall not apply. In this
event, the period of repayment shall not exceed a reasonable 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 permitted 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 permitted 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 promissory note executed by the Participant and
delivered to the Employer, and shall bear interest at a reasonable rate determined by the
Employer.
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.
(1) Security. The loan shall be secured by an assignment of that portion the Participant's
right, title and interest in and to his /her Employer Contribution Account (to the extent
vested), Participant Contribution Account, 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), assignment or pledge
of any portion of the Participant's interest in the Plan and a loan, pledge, or assignment
with respect to any insurance contract purchased under the Plan, will be treated as a
loan.
(n) Spousal Consent. If the Employer elected the QiSA Election in the Adoption Agreement,
the Participant must first obtain his or her spouse's notarized consent to the loan.
31
(o) Other Terms and Conditions. The Employer shall fix such other terms and conditions
of the loan as it deems necessary to comply with legal requirements, to maintain the
qualification of the Plan and Trust under section 401(a) of the Code, or to prevent the
treatment of the loan for tax purposes as a distribution to the Participant. The Employer,
in its discretion for any reason, may fix other terms and conditions 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 investment fund(s), described
in Section 6.05 of the Plan, to the Participant's Loan Account 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 consideration 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 exercise of such control.
(c) Repayment of principal and payment of interest shall be made by payroll deduction or,
where repayment cannot be made by payroll deduction, by check, and shall be invested
in one (1) or more other investment funds, in accordance with Section 6.05 of the
Plan, as of the next Accounting 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.
XIU 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 accrued benefit. Notwithstanding the preceding sentence, a Participant's Account
balance 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
Account balance or eliminating an optional form of benefit, with respect to benefits attributable
to service before the amendment shall be treated as reducing an accrued 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
32
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 vesting 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 amendment or change, to have the nonforfeitable percentage computed under
the Plan without regard to such amendment 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 effective; or
(c) Sixty (60) days after the Participant is issued written 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
33
hundred percent (100 %) vested and nonforfeitable. Such amount and any other amounts held
in the Participant's other Accounts shall be maintained for the Participant 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_ discontinuance 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 written 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.
XV. ADMINISTRATION
15.01 Powers of the Employer. The Employer shall have the following 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 provisions of Article XIV;
(c) To appoint a committee to facilitate administration of the Plan and communications to
Participants;
(d) To decide all questions of eligibility (1) for Plan participation, and (2) upon appeal by
any Participant, Employee or Beneficiary, for the payment of benefits;
(e) To engage an independent qualified public accountant, when required to do so by law,
to prepare annually the audited financial statements of the Plan's operation;
(f) To take all actions and to communicate to the Plan Administrator in writing all
34
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, descriptions, and statements as are required
by law available for examination by Participants and such of their Beneficiaries who
are or may be entitled to benefits under the Plan in such places and in such manner as
(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 payment of benefits hereunder;
(e) To appoint and retain such agents, counsel, and accountants for the purpose of properly
administering the Plan;
(f) To distribute assets of the Trust to each Participant and Beneficiary in accordance with
Article X of the Plan;
(g) To pay expenses from the Trust pursuant to Section 6.03 of the Plan; and
(h) To do such other acts reasonably required to administer the Plan in accordance with its
provisions or as may be provided for or required by law.
15.03 Protection of the Employer. The Employer shall not be liable for the acts or omissions of the
Plan Administrator, but only to the extent that such acts or omissions do not result from the
Employer's failure to provide accurate or timely information as required or necessary for proper
administration of the Plan.
15.04 Protection of the Plan Administrator. The Plan Administrator 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 PIan 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 transferred to the trustee in cash or property, at fair market value, except
W
that the return of Trust assets invested in a contract issued by an insurance company shall be
governed 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 Nong-uarantee 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 otherwise, 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 provided 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, assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any
kind, either voluntary 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, alienate, sell, transfer,
assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable hereunder,
shall be void. The Trust shall not in any manner be liable for, or subject to, the debts, contracts,
liabilities, engagements or torts of any person entitled to benefits hereunder.
16.04 Qualified Domestic Relations Order. Notwithstanding Section 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 qualified 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 specific provisions of this Plan, nothing shall
be deemed to deprive a Participant of his /her right to the Nonforfeitable Interest to which he/
she becomes entitled in accordance with the provisions of the Plan.
16.06 Incompetency of Payee. In the event any benefit is payable 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
36
of such benefit directly to the care, comfort, maintenance, support, education, 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 representative, wherever appointed, of such
person;
(c) The person with whom such person resides;
(d) Any person having the care and control of such person; or
(e) Such person personally.
The receipt of the person to whom any such payment or distribution is so made shall be full
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 Beneficiary to whom an amount
is payable hereunder, such amount shall be forfeited and held in the Trust for application
against the next succeeding Employer Contribution or contributions required to be made
hereunder. Notwithstanding the foregoing, however, such amount shall be reinstated, by means
of an additional Employer contribution, if and when a claim for the forfeited amount is sub-
sequently made by the Participant or Beneficiary or if the Employer receives proof of death of
such person, satisfactory to the Employer. To the extent not inconsistent with applicable law,
any benefits lost by reason of escheat under applicable 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 Participant in the Plan would (if the Plan then terminated) receive
a benefit immediately after the merger, consolidation, or transfer that is equal to or greater
than the benefit he /she would have been entitled to receive immediately 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, termination of service and the reason therefor, leaves of absence, reemployment,
Earnings, and Compensation will be conclusive on all persons, unless determined to be incorrect.
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 context 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 requirements 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 policy or contract issued hereunder, the Plan
provisions shall control; provided, however, no Plan amendment shall supersede an existing
37
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 Election 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 Balance will be paid in
-
the form - of a_Straight Life Annuity. The Participant may elect to have such annuity distributed
upon the attainment of the Earliest Retirement Age under the Plan.
17.03 Qualified Preretirement Survivor Annuity. If a Participant dies before the Annuity Starting
Date, then fifty percent (50 %) of the Participant's Vested Account Balance 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 Account balance is
paid to the Surviving Spouse, the amount of the Participant's Account derived from Employee
contributions will be allocated to the Surviving Spouse in the same proportion as the amount
of the Participant's Account derived from Employee contributions is to the Participant's total
Vested Account Balance. The Surviving Spouse may elect to have such annuity distributed
within a reasonable period after the Participant's death. Further, such Spouse may elect to
receive any death benefit payable to him /her hereunder in any of the forms available to the
Participant under Section 11.02.
17.04 Notice Requirements.
(a) In the case of a Qualified Joint and Survivor Annuity as described in Section 17.02, the
Plan Administrator 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 of, a revocation of a previous election to waive the Quali-
fied Joint and Survivor Annuity. 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
38
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 written 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 requirements of Subsection (a) applicable to a Qualified Joint and
Survivor Annuity.
The applicable period for a Participant is whichever 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 reasonable period ending after
Subsection (c) ceases to apply to the Participant; (iv) a reasonable period ending after
this Article first applies to the Participant. Notwithstanding the foregoing, notice must
be provided within a reasonable period ending after separation from service in the case
of a Participant who separates from service before attaining 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 attained, notice shall be provided within
the two (2) year period beginning one (1) year prior to separation and ending one (1)
year after separation. If such a Participant thereafter returns to employment with the
Employer, the applicable period for such Participant shall be redetermined.
(c) Notwithstanding the other requirements of this Section, the respective notices prescribed
by this Section need not be given to a Participant if (1) the Plan "fully subsidizes" the
costs of a Qualified 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 subsidizes 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.
39
17.05 Definitions. For the purposes of this Section, the following 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 Participant's death. If
a Participant separates from service prior to the first day of the Plan Year in which age
thirty-five (35) is attained, with respect to the Account balance as of the date of separa-
tion, the Election Period shall begin on the date of separation.
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 Section 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 benefits.
(d) Qualified Election: A waiver of a Qualified Joint and Survivor 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 Annuity 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 designations by the Participant without any
further Spousal consent). 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 a
Qualified Election.
Any consent by a Spouse obtained under this provision (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 requirement
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 voluntarily 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 commencement of benefits. The number of revocations
M
shall not be limited. No consent obtained under this provision shall be valid unless the
Participant has received notice as provided in Section 17.04.
(e) Qualified Joint and Survivor Annuity: An immediate 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 payable during 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 Account 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 provided
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 upon _the- -Participants 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 attributable 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.
The Employer Final Pay Contributions shall be accounted for in the Employer
Contribution Account.
M
(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 Employee's election shall remain in force and
may not be revised or revolted.
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,
42
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 revolted.
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
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.
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:
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.
43
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 -a -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.
(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
C- In
Angela C. Monte
Assistant Corporate Secretary
44
-RC
.....ICM
Building Retirement Security
ICMA RETIREMENT CORPORATION
GOVERNMENTAL PROFIT - SHARING PLAN & TRUST
ADOPTION AGREEMENT
PLAN NUMBER 10
The Emplo er hereby establishes a Profit Sharing Plan and Trust to be known as
G _Q A LGtn`� — �t'C1( y__ l -; -Lo �vj, —___ (the "Plan ") in the form of the ICMA Retirement
Corporation Governmental Profit Sharing Plan and Trust (PSP 01 /01/06). [906]
This Plan is an amendment and restatement of an existing defined contribution profit sharing plan.
0 Yes 19 No
If yes, please specify the name of the defined contribution profit sharing plan which this Plan hereby amends and
restates:
1. Employer: C.1 Csf {AAA, berv_�_— [902]
II. The Effective Date of the Plan shall be the first day of the Plan Year during which the Employer adopts the
Plan, unless an alternate Effective Date is hereby specified: t __I L �1arj2 (e.g., January 1, 2006
for the PSP 01/01/06 Plan)
III. Plan Year will mean:
The twelve (12) consecutive month period which coincides with the limitation year, (See Section 5,05(h)
of the Plan.)
19 The twelve (12) consecutive month period commencing on 10 -- and each anniversary thereof.
IV. Normal Retirement Age shall be age LD_ (not to exceed age 65).
V. ELIGIBILITY REQUIREMENTS:
1. The following group or groups of Employees are eligible to participate in the Plan:
----- All Employees
----- All Full Time Employees
___ Salaried Salaried Employees
_____ , Non union Employees
----- Management Employees .
__ Public Safety Employees
General Employees Pbe (Ae C /teat„ or. P�4C1LkMe,4_ A
Other Employees (specify describe the group(s) of eligible employees below)
The group specified must correspond to a group of the same designation that is defined In the statutes,
ordinances, rules, regulations, personnel manuals or other material in effect in the state or locality of the
Employer. Also, the eligibility requirements for participation in the Plan cannot be such that Employees
become Participants only in the Plan Year in which the Employees terminate employment (i.e., stand -alone
final pay plans).
2. The Employer hereby waives or reduces the requirement of a twelve (12) month Period of Service for
participation. The required. Period of Service shall be (write N/A if an Employee is eligible to participate
upon employment) - -_I�
If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment
Classification.
[288)
Profit Sharing Plan Adoption Agreement
3, n Minimum age requirement is hereby specified for eligibility to participate, The minimum age requirement is
(not to exceed age 21. Write N/A if no minimum age is declared.)
VT. CONTRIBUTION PROVISIONS
1. The Employer shall contribute as follows (choose all that apply):
Fixed Employer Contributions With or Without Mandatory Participant Contributions. (If section B or
C is chosen, please complete section D.
A. Fixed Employer Contributions, The Employer shall contribute on behalf of each Participant
% of Earnings or $ for the Plan Year (subject to the limitations of Article V of the n�
Plan). �n `k'r )d Lyar:5 O-f-_ 6 -erV i ?
Mandatory Participant Contributions
are required 151 are not required
to be eligible for this Employer Contribution.
B. Mandatory Participant Contributions for Plan Participation. A Participant is required to contribute
(subject to the limitations of Article V of the Plan)
(i) % of Earnings,
(tt) $-- - ----' or
(iii) a whole percentage of Earnings between the range of -- - - - -_- __(insert range of
percentages between 0% and 20% (e.g., 3 916, 6 916, or 20 %; 5% to 7441)), as designated by the
Employee in accordance with guidelines and procedures established by the Employer
for the Plan Year as a condition of participation in the Plan, A Participant shall not have the right to
discontinue or vary the rate of such contributions after becoming a Plan Participant.
The Employer hereby elects to "pick up' the Mandatory Participant Contributions,'
0 Yes 0 No
C. Mandatory Participant Contributions for this Portion of the Plan. Each Employee eligible
to participate in the Plan shall be given the opportunity to irrevocably elect to participate
in the Mandatory Participant Contribution portion of the Plan by electing to contribute
------- — ----- — --- A --- (insert range of percentages between 0% and 20% (e.g., 3 %, 6 %,
or 20%; 5% to 7%)) of the Employee's Earnings to the Plan for each Plan Year (subject to the
limitations of Article V of the Plan).
A Participant shall not have the right to discontinue or vary the rate of such contributions after
becoming a Participant in this portion of the Plan.
The Employer hereby elects to "pick up" the Mandatory Participant Contributions,'
0 Yes 0 No
[621
[6211
1 Neither an IRS advisory letter nor a determination letter issued to an adopting Employer is a ruling by the Internal Revenue Service that
Participant contributions that are picked up by the Employer are not includable in the Participants gross income for federal income tax purposes.
Pick -up contributions are not mandated to receive private letter rulings, however, if an adopting employer wishes to receive a ruling on pick -up
contributions they may request one in accordance with Revenue Procedure 2007 -4 (or subsequen t guidance).
' See footnote I above.
Profit Sharing Plan Adoption Agreement
ATTACEMENT B
All member contributions will be deposited to their 457 Plan account. All employer matching and /or non
matching contributions will be deposited to the member's 401 Profit Sharing Plan account.
(a.) The city will match contributions made by individual employee up to six (6) percent of their
compensation during the first ten (10) years of service. This match provided by the city will
be made to the member's 401 Profit Sharing Plan.
(b.) After ten (10) years of service, the City will contribute an additional four (4) percent of the
employee's compensation to the member's 401 Profit Sharing Plan. Matching is not required
3. the Employer will permit Elective Deferrals and Catch -up Contributions elections to be made during the annual
election window of ---- ,_--- days (at least 30 calendar days), The election window will run from -- -----
to ________ (insert annual time frame for the election window or multiple time periods) and will not apply
retroactively.
VIII. EARNINGS
Earnings, as defined under Section 2.10 of the Plan, shall include:
(a) Overtime
Yes 0 No
(b) Bonuses
(c) Other Pay (specifically describe any other types of pay to be included below)
IX. 1-he Employer will permit rollover contributions in accordance with Section 4.11 of the Plan.
0 Yes IM No
X. LIMITATION ON ALLOCATIONS
If the Employer maintains or ever maintained another qualified plan in which any Participant in this Plan is (or was) a
participant or could possibly become a participant, the Employer hereby agrees to limit contributions to all such plans
as provided herein, if necessary in order to avoid excess contributions (as described in Section 5.04 of the Plan),
I, If the Participant is covered under another qualified defined contribution plan maintained by the Employer, the
provisions of Section 5,04(a) through (f) of the Plan will apply, unless another method has been indicated below,
Other Method. (Provide the method under which the plans will limit total Annual Additions to the
Maximum Permissible Amount, and will properly reduce any excess amounts, in a manner that precludes
Employer discretion.)
2. 'The limitation year is the following 12 consecutive month period:
5 Profit Sharing Plan Adoption Agreement
6. Loans are permitted under the Plan, as provided in Article XIII of the Plan:
0 Yes [751 No [7511
XIII, SPOUSAL PROTECTION
The Plan will provide the following level of spousal protection (select one):
A. 0 Participant Directed Election. The normal form of payment of benefits under the Plan is a lump sum. The
Participant can name any person(s) as the Beneficiary of the Plan, with no spousal consent required. [646 :61
B. 0 Beneficiary Spousal Consent Election (Article XII), The normal form of payment of benefits tinder the Plan
is a lump sum. Upon death, the surviving spouse is the Beneficiary, unless he or she consents to the
Participants naming another Beneficiary. ( "this is the default provision under the Plan if no selection is [646':61
made.)
C. 0 QJSA Election (Article XVII). The normal form of payment of benefits under the Plan is a 50% qualified
joint and survivor annuity with the spouse (or life annuity, if single). In the event of the Participant's death [642:81
prior to commencing payments, the spouse will receive an annuity for his or her lifetime, [646:61
XIV. FINAL PAY CONTRIBUTIONS
The Plan will provide for Final Pay Contributions if either I or 2 below is selected,
Final Pay shall be defined as (select one);
A. 0 Accrued unpaid vacation
B. [7) Accrued unpaid sick leave
C. ❑ Accrued unpaid vacation and sick leave
D. 0 Other (insert definition of final pay):
that would otherwise be payable to the Employee in cash upon termination,
1. Employer Final Pay Contribution. The Employer shall contribute on behalf of each Participant
_N______% of Final Pay to the Plan (subject to the limitations of Article V of the Plan).
2. Employee Designated Final Pay Contribution. Each Employee eligible to participate in the Plan shall be
given the opportunity at enrollment to irrevocably elect to contribute ---- _ o (insert fixed percentage of final pay
to be contributed) or up to ______% (insert maximum percentage of final pay to be contributed) of Final Pay to
the Plan (subject to the limitations of Article V of the Plan).
Once elected, an Employee's election shall remain in force and may not be revised or revolted. If the employer
elects to "pick up" these amounts, in no event does the Employee have the option of receiving the pick -up
contribution amount directly.
The Employer hereby elects to "pick tip" the Employee Designated Final Pay Contribution thereby treating such
contributions as Employer -made contributions for federal income tax purposes,
Yes [7) No
[6211
7 Profit Sharing Plan Adoption Agreement
The Employer hereby agrees to the provisions of the Plan and Trust.
XIX. The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may result in
disqualification of the Plan,
VC, An adopting Employer may rely on an advisory letter issued by the Internal Revenue Service as evidence that the Plan is
qualified under section 401 of the Internal Revenue Code to the extent provided in applicable IRS revenue procedures
and other official guidance.
In Witness Whereof, the Employer hereby causes this Agreement to be executed on this - -0 —day of
20 -13 - -.
EMPLOYER
Print Name:
Title:
V f�
Attest: C�/�''— �h-+' GG [ ✓fir'
ICMA RETIREMENT CORPORATION
Washington, DC 20002 -4290
202 -96 096 r
Y L2jt �
11
-
Print Name: A,
Title:
Attest:
Profit Sharing Plan Adoption Agreement