2007-010 Establishing Money Purchase Retirement Plan
RESOLUTION NO. 2007-010
A RESOLUTION OF THE CITY OF OCOEE, FLORIDA
RELATING THE ESTABLISHMENT OF A MONEY
PURCHASE RETIREMENT PLAN; PROVIDING THAT
THE PLAN IS ADMINISTERED BY ICMA-RC PURSUANT
TO THE SPECIFIC PROVISIONS OF THE ADOPTION
AGREEMENT A TT ACHED HERETO; PROVIDING FOR
CONFLICTS; PROVIDING FOR SEVERABILITY;
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the establishment of a money purchase retirement plan benefits
employees by providing funds for retirement and funds for their beneficiaries in the event of
death; and
WHEREAS, the Employer desires that its money purchase retirement plan be
administered by ICMA-RC and that the funds held in such plan be invested in the VantageTrust,
a trust established by public employers for the collective investment of funds held under their
retirement and deferred compensation plans
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION
OF THE CITY OF OCOEE, FLORIDA:
SECTION ONE: hereby establishes a Money Purchase Retirement Plan (the
"Plan") in the form of the ICMA Retirement Corporation Governmental Money Purchase Plan &
Trust, pursuant to the specific provisions of the Adoption Agreement; an executed copy of which
is attached hereto.
The Plan shall be maintained for the exclusive benefit of eligible employees and their
beneficiaries; and
ORLA_ 459091.1
SECTION TWO: The city authorizes the execution of the Declaration of Trust
of Vantage Trust, an executed copy of which is attached hereto as Appendix B and incorporated
herein by reference, intending this execution to be operative with respect to any retirement or
deferred compensation plan subsequently established by the City of Ocoee, if the assets of the
Plan are to be invested in the VantageTrust.
SECTION THREE: The City hereby agrees to serve as trustee under the Plan
and to invest funds held under the Plan in the VantageTrust; and
SECTION FOUR: The City hereby designates the Human Resources Director as
the coordinator for the Plan. The Human Resources Director shall receive reports, notices, etc.,
from the ICMA Retirement Corporation or the VantageTrust; shall cast, on behalf of the City of
Ocoee, any required votes under the Vantage Trust; may delegate any administrative duties
relating to the Plan to appropriate departments. The Human Resources Director shall execute all
necessary agreements with the ICMA Retirement Corporation incidental to the administration of
the Plan.
SECTION FIVE: Conflicts. All resolutions, parts of resolutions or acts of the
City Commission of the City of Ocoee in conflict herewith are hereby repealed and rescinded.
SECTION SIX: Severability. If any section, subsection, sentence, clause,
phrase or portion of this Resolution is for any reason held invalid or unconstitutional by any court
of competent jurisdiction, such portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity of the remaining portion hereof.
SECTION SEVEN: Effective Date. This Resolution shall become effective
immediately upon passage and adoption.
ORLA_ 459091.1
PASSED AND ADOPTED this 18th day of December, 2007
ATTEST:
Bet
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA.
APPROVED AS TO FORM AND
L~GA.LITX THIS ]]. DAY OF
---LlC.{~ tt/- ,2007
::LE~?!;jf;
City Attorney
ORLA_ 459091.1
APPROVED:
CITY OF OCOEE, FLORIDA
--~, c---.--.. / )
:J ~U . -
S. Scott Vandergrift, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION ON THE ABOVE DATE
UNDER AGENDA ITEM NO. , 1..
ICMA RETIREMENT CORPORATION
GOVERNMENTAL MONEY PURCHASE PLAN & TRUST
ADOPTION AGREEMENT
PLAN NUMBER 10-
The Em~yer hereby establishes a Money Purchase Plan and Trust to be known as _G~d () c cee. .
() II JL-__(the "Plan") in the form of the ICMA Retirement Corporation Governmental Money
Purchase Plan and Trust (MPP 01/01/06).
[906]
This Plan is an amendment and restatement of an existing defined contribution money purchase plan.
Yes
_-L No
If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and
restates:
I.
Employer: C i4- tJf
V(!oee
[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: ;:LQ'^ \,\ "'" rj \, '2--~ 01.______ (e.g.,
January 1, 2006 for the MPP 01/01/06 Plan)
III. Plan Year will mean:
) The twelve (12) consecutive month period which coincides with the limitation year. (See Section
5.03 (f) of the Plan.)
(v1 The twelve (12) consecutive month period commencing on -L - I - 0 '7 and each anniversary
thereof.
IV.
Normal Retirement Age shall be age __ (not to exceed age 65).
[288]
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 Employees
Non union Employees
Management Employees
Public Safety Employees
General Employees
L ot-:;;wfy bdow) J -t-t- _ 1=__ O/M~ .'
_ ' ~ 1l:/.-rl N fireR. . Clt'\ a.. CJ-,~~es ~ eel v \ ~
Em fj'l1eR. C() Ni:ti 13"..:t/f1N ~
The group specified must correspond to a group of the same designation tflat is defined in the statutes,
ordinances, rules, regulations, personnel manuals or other material in effect in the state or locality of the
Employer.
MPP Adoption Agreement 1/30/2006
2.
The .~mp~oyer hereby w~ives or .reduces th~ requirement of ~t';tJve (12) month Period of Service for
participatIon. The requIred PerIod of Service shall be _1!!1 _ (write N/A if an Employee
is eligible to participate upon employment).
If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment
Classification.
3. A 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.)
VI. CONTRIBUTION PROVISIONS
1. The Employer shall contribute as follows (choose all that apply):
) Fixed Employer Contributions With Or Without Mandatory Participant Contributions.
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 Plan). Mandatory Participant Contributions
are required
)(_ 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,
(ii) $ , or n '1
(iii) a whole percentage of Earnings between the range of -8t~ t:\V\ J.. :J:o Z (insert range of
percentages between 0% and 20% (e.g., 3%, 6%, or 20 Yo; 5% to 7%)), 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.l
Yes
><
No
[621 ]
) Fixed Employer Match of Voluntary Participant Contributions.
The Employer shall contribute on behalf of each Participant _ % of Earnings for the Plan
Year (subject to the limitations of Article V of the Plan) for each Plan Year that such Participant
has contributed __ % of Earnings or $__. Under this option, there is a single, fixed rate
of Employer contributions, but a Participant may decline to make the required Participant
contributions in any Plan Year, in which case no Employer contribution will be made on the
Participant's behalf in that Plan Year.
MPP Adoption Agreement 1/30/2006
2
( ) Variable Employer Match Of Voluntary Participant Contributions.
The Employer shall contribute on behalf of each Participant an amount determined as follows (subject to
the limitations of Article V of the Plan):
_ % of the Voluntary Participant Contributions made by the Participant for the Plan Year (not
including Participant contributions exceeding ___ % of Earnings or $____);
PLUS ___ % of the contributions made by the Participant for the Plan Year in excess of those included
in the above paragraph (but not including Voluntary Participant Contributions exceeding in the
aggregate __% of Earnings or $___).
Employer Matching Contributions on behalf of a Participant for a Plan Year shall not exceed $_____
or ___% of Earnings, whichever is ___ more or __less.
2. Each Participant may make a voluntary (unmatched), after tax contribution, subject to the limitations of
Section 4.05 and Article V of the Plan.
~_ Yes
No
3. Employer contributions shall be contributed to the Trust in accordance with the following payment schedule:
~(e.
per VV\tJ I'\~
4. Participant contributions shall be contributed to the Trust in accordance with the following payment schedule:
VII. EARNINGS
Earnings, as defined under Section 2.09 of the Plan, shall include:
(a) Overtime
Yes No
(b) Bonuses
Yes No
(c) Other
VIII. The Employer will permit rollover contributions in accordance with Section 4.09 of the Plan.
-"-
Yes
No
3
MPP Adoption Agreement 1/30/2006
IX. LIMITATION ON ALLOCATIONS
If the E~ployer maintains Ot 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 Sections 5.02 of
the Plan).
1. If the Participant is covered under another qualified defined contribution plan maintained by the Employer,
the provisions of Section 5.02 (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:
X. VESTING PROVISIONS
The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements
and (2) the concurrence of the Plan Administrator.
Years of
Service
Completed
Percent
Vested
Zero
One
Two
Three
Four
Five
Six
Seven
Eight
Nine
Ten
LM %
%
%
%
%
%
%
%
%
%
%
XI.
Loans are permitted under the Plan, as provided in Article XIII:
_L
No
Yes
XII. Age 70-1/2 in-service distributions are permitted under the Plan as provided in Section 9.08.
_L Yes
No
XIII.
In-service distributions of the Rollover Account are permitted under the Plan as provided in Section 9.07.
-L Yes
No
[234-239]
[751 ]
[646:8]
[646:7]
MPP Adoption Agteement 1/30/2006
4
XIV. SPOUSAL PROTECTION
The Plan will provide the following level of spousal protection (select one):
A. Beneficiary Spousal Consent Election (Article XII). If selected, participants may elect any of [642:8]
the available distribution options without spousal consent. Upon death, the surviving spouse is the
Beneficiary, unless he/she consented to the Participant's naming of another Beneficiary.
B. Q]SA Election (Article XVII). If selected, the normal form of payment of benefits under the
Plan is a qualified joint and survivor annuity with the spouse (or life annuity, if single). In the
event of the Participant's death prior to commencing payments, the spouse will receive an annuity
for his/her lifetime.
vi
C. Participant Directed Election. If selected, participants may elect any of the available distribution
options without spousal consent. The Participant can name any person(s) as the Beneficiary(ies)
of the Plan, without spousal consent.
xv. The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one
or more units of state or local government.
XVI. The Plan Administrator hereby agrees to inform the Employer of any amendments to the Plan made pursuant
to Section 14.05 of the Plan or of the discontinuance or abandonment of the Plan.
XVII. The Employer hereby appoints the ICMA Retirement Corporation as the Plan Administrator pursuant to the
terms and conditions of the ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY
PURCHASE PLAN & TRUST.
The Employer hereby agrees to the provisions of the Plan and Trust.
XVIII. The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may
result in disqualification of the Plan.
XIX. 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 JL day of
IlJet/-t='~6P, ,2002 .
...
EMPLOYER
ICMA RETIREMENT CORPORATION
777 North Capitol St., NE
Washington, DC 20002-4240
202-962-8096
By:
--Hfl~ ~
_6~d! 7~~
G;c:;~ Ie) ) /j d
~ ~--tYJ1>".
By:
Title:
Title:
Attest:
Attest:
5
MPP Adoption Agreement 1/30/2006
ICMARC
Building Retirement SecU7'ity
GOVERNMENTAL MONEY PURCHASE PLAN & TRUST
I. PURPOSE
The Employer hereby adopts this Plan and Trust to provide funds for its Employees' retirement, and to provide funds
for their Beneficiaries in the event of death. The benefits 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 4.10 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 '~ccount" 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 Code. The Internal Revenue Code of 1986, as amended from time to time.
2.07 Covered Employment Classification. The group or groups of Employees eligible to make and! or have
contributions to this Plan made on their behalf, as specified by the Employer in the Adoption Agreement.
2.08 Disability. A physical or mental impairment which is of such permanence and degree that, as determined by
the Employer, a Participant is unable because of such impairment to perform any substantial gainful activity
for which he/she is suited by virtue of his/her experience, training, or education and that has lasted, or can
be expected to last, for a continuous period of not less than twelve (12) months, or can be expected to result
in death. The permanence and degree of such impairment shall be supported by medical evidence. If the
Employer maintains a long-term disability plan, the definition of Disability shall be the same as the definition
of disability in the long-term disability plan.
2.09 Earnings.
(a) General Rule. Earnings, which form the basis for computing Employer Contributions, are all of each
Participant's W-2 earnings which are actually paid to the Participant during the Plan Year, plus any
contributions made 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) (17)(B) of the Code. Annual Earnings
means Earnings during the Plan Year or such other consecutive 12-month period over which Earnings
is otherwise determined under the Plan (the determination period). The cost-of-living adjustment in
effect for a calendar year applies to annual Earnings for the determination period that begins with or
within such calendar year.
If a determination period consists of fewer than twelve (12) months, the annual Earnings limit is
an amount equal to the otherwise applicable annual Earnings limit multiplied by the fraction, the
numerator of which is the number of months in the short Plan Year and the denominator of which
is twelve (12). If Earnings for any prior determination period are taken into account in determining
a Participant's allocations for the current Plan Year, the Earnings for such prior year are subject to the
applicable annual Earnings limit in effect for that prior year.
(c) Limitations for Governmental Plans. In the case of an eligible participant in a governmental plan
(within the meaning of section 414(d) of the Code), the dollar limitation shall not apply to the extent
the Earnings which are allowed to be taken into account under the Plan would be reduced below the
amount which was allowed to be taken into account under the Plan as in effect on July 1, 1993, as
adjusted for increases in the cost-of-living in accordance with section 401 (a) (17)(B) of the Code. For
purposes of this Section, an eligible participant is an individual who first became a Participant in the
Plan during a Plan Year beginning before the first Plan Year beginning after December 31, 1993.
2.10 Effective Date. The first day of the Plan Year during which the Employer adopts the Plan, unless the Employer
elects in the Adoption Agreement an alternate date as the Effective Date of the Plan.
2.11 Employee. Any individual who has applied for and been hired in an employment position and who is
employed by the Employer as a common law employee; provided, however, that Employee shall not include
any individual who is not so recorded on the payroll records of the Employer, including any such person who is
2
I
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.
2.12 Employer. The unit of state or local government or an agency or instrumentality of one (1) or more states or
local governments that executes the Adoption Agreement.
2.13 Hour of Service. Each hour for which an Employee is paid or entitled to payment for the performance of du-
ties for the Employer.
2.14 Nonforfeitable Interest. The nonforfeitable interest of the Participant or his/her Beneficiary (whichever is
applicable) is that percentage of his/her Employer Contribution Account balance, which has vested pursuant to
Article VII. A Participant shall, at all times, have a one hundred percent (100%) Nonforfeitable Interest in his!
her Participant Contribution, Rollover, and Voluntary Contribution Accounts.
2.15 Normal Retirement Age. The age which the Employer specifies in the Adoption Agreement. If the Employer
enforces a mandatory retirement age, the Normal Retirement Age is the lesser of that mandatory age or the age
specified in the Adoption Agreement.
2.16 Participant. An Employee or former Employee for whom contributions have been made under the Plan
and who has not yet received all of the payments of benefits to which he/she is entitled under the Plan. A
Participant is treated as benefiting under the Plan for any Plan Year during which the participant received or is
deemed to receive an allocation in accordance with Treas. Reg. section 1.41 0(b)-3(a).
2.17 Period of Service. For purposes of determining an Employee's initial or continued eligibility to participate
in the Plan or the Nonforfeitable Interest in the Participant's Account balance derived from Employer
Contributions, an Employee will receive credit for the aggregate of all time period(s) 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 ofless 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).
2.18 Period of Severance. A continuous period of time during which the Employee is not employed by the
Employer. Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the twelve
(12) month anniversary of the date on which the Employee was otherwise first absent from service.
2.19 Plan. This Plan, as established by the Employer, including any elected provisions pursuant to the Adoption
Agreement.
2.20 Plan Administrator. The person(s) or entity named to carry out certain nondiscretionary administrative
functions under the Plan, as hereinafter described, which is the ICMA Retirement Corporation or any successor
Plan Administrator.
2.21 Plan Year. The twelve (12) consecutive month period designated by the Employer in the Adoption Agreement.
2.22 Trust. The Trust created under Article VI of the Plan which shall consist of all of the assets of the Plan derived
from Employer and Participant contributions under the Plan, plus any income and gains thereon, less any
losses, expenses and distributions to Participants and Beneficiaries.
3
III. ELIGIBILllY
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 incuts 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.
IV. CONTRIBUTIONS
4.01 Employer Contributions. For each Plan Year, the Employer will contribute to the Trust an amount as
specified in the Adoption Agreement. The Employer's full contribution for any Plan Year shall be due and paid
not later than thirty (30) working days after the close of the Plan Year. Each Participant will share in Employer
Contributions for the period beginning on the date the Participant commences participation under the Plan
and ending on the date on which such Employee severs employment with the Employer or is no longer a
member of a Covered Employment Classification, and such contributions shall be accounted for separately in
his/her Employer Contribution Account. 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 4.03 or 4.04 in order to be eligible for Employer Contributions to be made on his/her
behalf to the Plan.
4.02 Forfeitures. All amounts forfeited by terminated Participants, pursuant to Section 7.06, shall be allocated
to a suspense account and used to reduce dollar for dollar Employer Contributions otherwise required under
the Plan for the current Plan Year and succeeding Plan Years, if necessary. Forfeitures may first be used to
pay the reasonable administrative expenses of the Plan, with any remainder being applied to reduce Employer
Contributions.
4.03 Mandatory Participant Contributions. If the Employer so elects in the Adoption Agreement, each eligible
Employee shall make contributions at a rate prescribed by the Employer or at any of a range of specified rates,
as set forth by the Employer in the Adoption Agreement, as a requirement for his/her participation in the Plan.
Once an eligible Employee becomes a Participant, 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.
4
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.
4.04 Employer Matching Contributions of Voluntary Participant Contributions. 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 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 are made for that Plan Year. Employer Matching
Contributions shall be accounted for separately in the Employer Contribution Account.
4.05 Voluntary Participant Contributions. If the Employer so elects in the Adoption Agreement, an eligible
Employee may make after-tax voluntary (unmatched) contributions under the Plan for any Plan Year in any
amount up to twenty five percent (25%) of his/her 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.
4.06 Deductible Employee Contributions. The Plan will not accept deductible employee contributions which
are made for a taxable year beginning after December 31, 1986. Contributions made prior to that date will be
maintained in a Deductible Employee Contribution Account. The Account will share in the gains and losses
under the Plan in the same manner as described in Section 6.06 of the Plan. Such Account shall be at all times
nonforfeitable by the Participant.
4.07 Military Service Contributions. Notwithstanding any provision of the Plan to the contrary, effective
December 12, 1994, contributions, benefits and service credit with respect to qualified military service will be
provided in accordance with section 414(u) of the Code.
Effective December 12, 1994, if the Employer has elected in the Adoption Agreement to make loans available
to Participants, loan repayments will be suspended under the Plan as permitted under section 414(u)(4) of the
Code.
4.08 Changes in Participant Election. A Participant may elect to change his/her rate of Voluntary Participant
Contributions at any time or during an election period as designated by the Employer. A Participant may
discontinue such contributions at any time or during an election period as designated by the Employer.
4.09 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) (1 6) 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
5
(4) An individual retirement account or annuity described in Section 408(a) or 408(b) of the
Code (including SEPs, and SIMPLE IRAs after two years of participating in the SIMPLE
IRA).
(b) Notwithstanding the foregoing, the Employer may reject the rollover contribution if it determines,
in its discretion, that the form and nature of the distribution from the other plan does not satisfy the
applicable requirements under the Code to make the transfer or rollover a nontaxable transaction to
the Participant;
(c) For indirect rollover contributions, the amount distributed from such plan must be rolled over to
this Plan no later than the sixtieth (60th) day after the distribution was made from the plan, unless
otherwise waived by the IRS pursuant to Section 402(c)(3) of the Code.
(d) The amount transferred shall be deposited in the Trust and shall be credited to a Rollover
Account. Such Account shall be one hundred percent (100%) vested in the Participant.
(e) The Plan will accept accumulated deductible employee contributions as defined in section
72(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.
4.10 Return of Employer Contributions. Any contribution made by the Employer because of a mistake offact
must be returned to the Employer within one year of the date of contribution.
V. LIMITATION ON ALLOCATIONS
5.01 Participants Only in This Plan.
(a) If the Participant does not participate in, and has never participated in another qualified plan or a
welfare benefit fund, as defined in section 419(e) of the Code, maintained by the Employer, or an
individual medical account, as defined by section 415(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 Limitation 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 Additions
for the Limitation Year to exceed the Maximum Permissible Amount, the amount contributed or al-
located 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.
6
(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 Compensa-
tion for the Limitation Year.
(d) If, as a result of an inadvertent reasonable error in estimating the Maximum Permissible Amount for
a Participant in accordance with Subsection (b) or pursuant to Subsection (c) or as a result of the
allocation of forfeitures, there is an Excess Amount, the excess will be 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) If after the application of paragraph (1) an Excess Amount still exists, and the Participant
is covered by the Plan at the end of the Limitation Year, the Excess Amount in the Partici-
pant's Account will be used to reduce Employer Contributions (including any allocation of
forfeitures) for such Participant in the next Limitation Year, and each succeeding Limitation
Year if necessary;
(3) If after the application of paragraph (1) an Excess Amount still exists, and the Participant is
not covered by the Plan at the end of the Limitation Year, the Excess Amount will be held
unallocated in a suspense account. The suspense account will be applied to reduce future
Employer Contributions (including allocation of any forfeitures) for all remaining Participants
in the next Limitation Year, and each succeeding Limitation Year if necessary;
(4) If a suspense account is in existence at any time during a particular Limitation Year, all
amounts in the suspense account must be allocated and reallocated to Participants' accounts
before any Employer or any Employee contributions may be made to the Plan for that Limita-
tion Year. Excess Amounts in a suspense account may not be distributed to Participants or
former Participants.
5.02 Participants in Another Defined Contribution Plan.
(a) Unless the Employer provides other limitations in the Adoption Agreement, this Section applies if,
in addition to this Plan, the Participant is covered under another qualified defined 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 contribu-
tion plans and welfare benefit funds in the aggregate are equal to or greater than the Maximum Per-
missible Amount, no amount will be contributed or allocated to the Participant's Account 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
5.01(b).
7
(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 Compensa-
tion 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.
(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 the ratio of:
(i) the Annual Additions allocated to the Participant for the Limitation Year as of such date
under this Plan to
(ii) the total Annual Additions allocated to the Participant for the Limitation Year as of such
date under this and all the other prototype qualified defined contribution plans.
(f) Any Excess Amount attributed to this Plan will be disposed in the manner described in Section
5.01 (d).
5.03 Definitions. For the purposes of this Article, the following definitions shall apply:
(a) Annual Additions: The sum of the following amounts credited to a Participant's account for the Limita-
tion 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 5.01 (d) or 5.02(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 coutse 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 contributed, or Employer Contributions
8
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 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:
(i) any elective deferrals (as defined in section 402(g)(3) of the Code), and
(ii) 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) Employer: The Employer that adopts this Plan.
(e) 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.
(f) 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 amend-
ment is made.
(g) Maximum Permissible Amount: The maximum Annual Addition that may be contributed or allocated
to a Participant's Account under the Plan for any Limitation Year shall not exceed the lesser of:
(1) The Defined Contribution Dollar Limitation, or
(2) One hundred percent (100%) (25% for Limitation Years before January 1, 2002) of the
Participant's Compensation for the 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.
9
If a short Limitation Year is created because of an amendment changing the Limitation Year to a differ-
ent twelve (12) consecutive month period, the Maximum Permissible Amount will not exceed the
Defined Contribution Dollar Limitation multiplied by the following 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 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 com-
mingled trust fund that is maintained by a bank or other institution and that is available to Employee
plans qualified under section 401 of the Code, or any successor provisions thereto, and during the
period of time that an investment through any such medium shall exist, to the extent of participation
of the Plan, the declaration of trust of such 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 othetwise 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.
10
(f) Upon such terms as may be deemed advisable by the Employer or the Plan Administrator, as the case
may be, for the protection of the interests of the Plan or for the preservation of the value of an invest-
ment, to exercise and enforce by suit for legal or equitable remedies or by other action, or to waive
any right or claim on behalf of the Plan or any default in any obligation owing to the Plan, to renew,
extend the time for payment of, agree to a reduction in the rate of interest on, or agree to any other
modification or change in the terms of any obligation owing to the Plan, to settle, 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.
(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.
11
VII. VESTING
7.01 Vesting Schedule. The portion of a Participant's Account attributable to Mandatory Participant Contribu-
tions and Voluntary Participant Contributions, and the earnings thereon, shall be at all times nonforfeitable
by the Participant. A Participant shall have a Nonforfeitable Interest in the percentage of his/her Employer
Contribution Account established under Section 4.01 and 4.04 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.
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
12
the provisions of Section 9.04 to have received, distribution of the entire Nonforfeitable Interest in his/her
Employer Contribution Account.
No forfeiture will occut 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 Participanr 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.
The failure of a Participant to consent to a distribution while a benefit is immediately distributable, within the
meaning of section 9.02 of the Plan, shall be deemed to be an election to defer commencement of payment of
any benefit.
9.02 Restrictions on Immediate Distributions. Notwithstanding anything to the contrary in Section 9.01 of
the Plan, if the value of a Participant's vested Account balance is at least $1,000, and the 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 (i) the distribution is one to which sections 401 (a)(11) and 417 of the Code do not
apply or, if the QJSA Election is made by the Employer in the Adoption Agreement, the waiver requirements
of Section 17.04(a) are met; (ii) the Plan Administrator clearly informs the Participant that the Participant
13
has a right to a period of at least thirty (30) days after receiving the notice to consider the decision of whether
or not to elect a distribution (and, if applicable, a particular distribution option); and (iii) the Participant, after
receiving the notice, affirmatively elects a distribution.
In addition, upon termination of this Plan if the Plan does not offer an annuity option (purchased from a
commercial provider) and if the Employer does not maintain another 401 (a) defined contribution plan, the
Participant's Account balance will, without the Participant's consent, be distributed to the Participant in a lump
sum. However, if the Employer maintains another 401 (a) defined contribution plan, the Participant's Account
balance will be transferred, without the Participant's consent, to the other plan if the Participant does not
consent to an immediate distribution.
An Account balance is immediately distributable if any part of the Account balance could be distributed to the
Participant (or surviving spouse) before the Participant 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 n(0)(5)(B) of the Code.
9.03 Transfer to Another Plan.
(a) If a Participant becomes eligible to participate in another plan maintained by the Employer that is
qualified under section 401 (a) of the Code, the Plan Administrator shall, at the written election of
such Participant, transfer all or part of such Participant's Account to such plan, provided the plan
administrator for such plan certifies to the Plan Administrator that its plan provides for the acceptance
of such a transfer. Such transfers shall include those transfers of the nonforfeitable interest of a
Participant's Account made for the purchase of service credit in defined benefit plans maintained by
the Employer. For purposes of this Plan, any such transfer shall not be considered a distribution to the
Participant subject to spousal consent as described in Section 9.10.
(b) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's
election under this Section, a Distributee may elect, at the time and in the manner prescribed by the
Plan Administrator, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible
Retirement Plan specified by the Distributee in a Direct Rollover.
(c) Definitions. For the purposes of Subsection (b), the following definitions shall apply:
(1) Eligible Rollover Distribution. Any distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover Distribution does not include:
(i) any distribution that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life expectancy) of the Distributee
or the joint lives (or joint life expectancies) of the Distributee and the Distributee's
designated beneficiary, or for a specified period of ten years or more;
(ii) any distribution to the extent such distribution is required under section 401 (a) (9)
of the Code; and
(iii) the portion of any other distribution(s) that is not includible in gross income.
A portion of a distribution shall not fail to be an eligible rollover distribution merely
because the portion consists of after-tax employee contributions which are not includible
in gross income. However, such portion may be transferred only to an individual
retirement account or annuity described in section 408(a) or (b) of the Code, or to a
14
qualified defined contribution plan described in section 401(a) or 403(a) of the Code that
agrees to separately account for amounts so transferred, including separately accounting
for the portion of such distribution which is includible in gross income and the portion of
such distribution which is not so includible.
(2) Eligible Retirement Plan.
(i) an individual retirement account described in section 408(a) of the Code or an
individual retirement annuity described in section 408(b) of the Code (collectively,
an "IRA");
(ii) an annuity plan described in section 403(a) of the Code;
(iii) an annuity contract described in section 403(b) of the Code,
(iv) an eligible plan under section 457(b) of the Code which is maintained by a state,
political subdivision of a state, or any agency or instrumentality of a state or political
subdivision of a state and which agrees to separately account for amounts transferred
into such plan from this Plan; or
(v) a qualified plan described in section 401 (a) of the Code, that accepts the
Distributee's Eligible Rollover Distribution. The definition of Eligible Retirement
Plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse
or former spouse who is the alternate payee, under a qualified domestic relations
order, as defined in section 414(p) of the Code.
(3) Distributee. Participant; in addition, the Participant's surviving spouse and the
spouse or former spouse who is the alternate payee under a qualified domestic relations
order, as defined in section 414(p) of the Code, are Distributees with regard to the interest
of the spouse or former spouse.
(4) Direct Rollover. A payment by the Plan to the Eligible Retirement Plan specified by the
Distributee.
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)(1l)(A) of the Code, the Participant may elect to receive his/her
Nonforfeitable Interest in his/her Account. 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.
15
9.06 Withdrawal of Deductible Employee Contributions. A Participant may upon written request withdraw a
part of or the full amount ofhislher Deductible Employee Contribution Account. Such withdrawals may be
made at any time, provided that no more than two (2) such withdrawals may be made during any calendar year.
No forfeiture will occur solely as the result of any such withdrawal.
9.07 In-Service Distribution from Rollover Account. Where elected by the Employer in the Adoption Agreement,
a Participant that has a separate account attributable to rollover contributions to the Plan, may at any time elect
to receive a distribution of all or any portion of the amount held in the Rollover Account.
9.08 In-Service Distributions. Unless otherwise elected by the Employer in the Adoption Agreement, a Participant
who has reached age 70-112 regardless of his Nonforfeitable Interest in hislher entire Employer Contribution
Account, shall, upon written request, receive a distribution of a part of or the full amount of the balance in any
or all of his vested Accounts. Such distributions may be requested at any time, provided that no more than two
(2) such distributions may be made during any calendar year.
9.09 Latest Commencement of Benefits. Notwithstanding 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.
9.10 Spousal Consent. Notwithstanding the foregoing, if the Employer elected the Q]SA 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 40 1 (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 following periods:
(1) The life of the Participant; or
(2) The joint lives of the Participant and a designated Beneficiary; or
(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.
16
(d) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this Article XVII,
distributions may be made under a designation made before January 1, 1984, in accordance with
Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the
Plan that relate to Section 242(b)(2) ofTEFRA.
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 70 1/2, 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.
(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 ftom 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 rear. 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
17
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) Lifttime Required Minimum Distributions Continue Through :Year of Participants
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:
(i) 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.
(ii) If the Participant's surviving spouse is the Participant's sole designated Beneficiary,
the remaining life expectancy of the surviving spouse is calculated for each
distribution calendar year after the year of the Participant's death using the surviving
spouse's age as of the spouse's birthday in that year. For distribution calendar years
after the year of the surviving spouse's death, the remaining life expectancy of
the surviving spouse is calculated using the age of the surviving spouse as of the
spouse's birthday in the calendar year of the spouse's death, reduced by one for each
subsequent calendar year.
(iii) 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 Beneficiary. If the Participant dies before the date required
distributions begin and there is a designated Beneficiary, the minimum amount that will
be distributed for each distribution calendar year after the year of the Participant's death is
18
the quotient obtained by dividing the Participant's Account Balance by the remaining life
expectancy of the Participant's designated Beneficiary, determined as provided in Section
10.04(a).
(2) No Designated Beneficiary. If the Participant dies before the date distributions begin and
there is no designated Beneficiary as of September 30 of the year following the year of the
Participant's death, distribution of the Participant's entire interest will be completed by
December 31 of the calendar year containing the fifth anniversary of the Participant's death.
(3) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the
Participant dies before the date distributions begin, the Participant's surviving spouse is the
Participant's sole designated Beneficiary, and the surviving spouse dies before distributions are
required to begin to the surviving spouse under Section 10.02(b)(1), this Section 10.04(b)
will apply as if the surviving spouse were the Participant.
10.05 Definitions
(a) Designated Beneficiary. The individual who is designated by the Participant (or the Participant's
surviving spouse) as the Beneficiary of the Participant's interest under the Plan and who is the
designated Beneficiary under Code Section 401 (a)(9) and Section 1.401 (a) (9)-4 of the regulations.
(b) Distribution Calendar lear. 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) Lift Expectancy. Life expectancy as computed by use of the Single Life Table in Section 1.401 (a) (9)-
9, Q&A-l, of the regulations.
(d) Participants 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
(70-1/2), 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.
19
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 anyone (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.
(d) Lump Sum. Where the Employer did make the Q]SA Election in the Adoption Agreement, a
Participant may also elect a lump sum payment.
11.03 Election of Mode. A Participant's election of a payment option must be made in writing between thirty (30)
and ninety (90) days before the payment of benefits is to commence.
11.04 Death Benefits. Subject to Article X (and Article XII or XVII if so elected by the Employer in the
Adoption Agreement),
(a) In the case of a Participant who dies before he/she has begun receiving benefit payments, the
Participant's entire Nonforfeitable Interest shall then be payable to his/her Beneficiary within ninety
(90) days of the Participant's death. A Beneficiary who is entided to receive benefits under this Sec-
tion 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 Beneficiary may elect to accelerate payments of the
remaining balances, including but not limited to, a lump sum distribution.
XII. SPOUSAL DEATH BENEFIT REQUIREMENTS
12.01 Application. Unless otherwise elected by the Employer in the Adoption Agreement, on or after January 1,
2006, the provisions of this Article shall take precedence over any conflicting provision in this Plan. The
provisions of this Article, known as the "Beneficiary Spousal Consent Election," shall apply to any 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.
20
12.03 Waiver of Spousal Death Benefit.
The Participant may waive the spousal death benefit described in Section 12.02 at any time; provided that no
such waiver shall be effective unless:
(a) the Participant's Spouse consents in writing to the election;
(b) the election designates a specific Beneficiary, including any class of Beneficiaries or any contingent
Beneficiaries, which may not be changed without spousal consent (or the Spouse expressly permits
designations by the Participant without any further spousal consent);
(c) the Spouse's consent acknowledges the effect of the election; and
(d) the Spouse's consent is witnessed by a Plan representative or notary public. If it is established to the
satisfaction of a Plan representative that there is no Spouse or that the Spouse cannot be located, a
waiver will be deemed to meet the requirements of this Section.
Any consent by a Spouse obtained under this 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; and
(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. WANS 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 govetning 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.
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.
21
(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 bal-
ance 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) of the Code shall not exceed the lesser of:
(1) $50,000, reduced by the excess (if any) of
(i) The highest outstanding balance ofloans from the Plan during the one (1) year
period ending on the day before the date on which the loan is made, over
(ii) The outstanding balance of loans from the Plan on the date on which such loan is
made; or
(2) One-half (1/2) 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) of the Code are aggregated.
(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 l.72(p)-l, 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 princi-
pal residence of the Participant, the five (5) year limit shall not apply. In this event, the period of
repayment shall not exceed a reasonable period determined by the Employer. Principal installments
22
and interest payments otherwise due may be suspended 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 payment 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)-I, 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, tide
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 Q]SA Election in the Adoption Agreement, the
Participant must first obtain his or her spouse's notarized consent to the loan.
(0) 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 repay-
ment cannot be made by payroll deduction, by check, and shall be invested in one (1) or more other
23
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 inconsistent with the
provisions of the Plan, governing the establishment and maintenance of Participant Loan Accounts.
xrv. 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
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.
24
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 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;
25
...v
resignation or removal of the Plan Administrator, the Employer may appoint a successor Plan Administrator;
failing such appointment, the Employer shall assume the powers and duties of Plan Administrator. Upon the
resignation or removal of the Plan Administrator, any Trust assets invested by or held in the name of the Plan
Administrator shall be transferred to the trustee in cash or property, at fair market value, except that the return
of Trust assets invested in a contract issued by an insurance company shall be 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 Nonguarantee of Employment. Nothing contained in this Plan shall be construed as a contract of
employment between the Employer and any Employee, or as a right of an Employee to be continued in the
employment of the Employer, as a limitation of the right of the Employer to discharge any of its Employees,
with or without cause.
16.02 Rights to Trust Assets. No Employee or Beneficiary shall have any right to, or interest in, any assets of the
Trust upon termination of his/her employment or 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 Section 16.04 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 section 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 accord-
ance 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 of such benefit directly to the care, comfort, maintenance, sup-
port, education, or use of such person or payor distribute the whole or any part of such benefit to:
(a) The parent of such person;
27
(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 and complete dis-
charge therefor.
16.07 Inability to Locate Payee. Anything to the contrary herein notwithstanding, if the Employer is unable,
after reasonable effort, to locate any Participant or 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 subsequently 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 Par-
ticipant in the Plan would (if the Plan then terminated) receive a benefit immediately after the merger, con-
solidation, 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, termina-
tion 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 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 ofJanuary 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 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
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
28
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 portion 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 Admin-
istrator shall, no less than thirty (30) days and no more than ninety (90) days prior to the Annuity
Starting Date, provide each Participant a written explanation 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 Qualified 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 to waive the Qualified Joint
and Survivor Annuity and consent to a form of distribution other than a Qualified Joint and
Survivor Annuity;
(2) The Participant is permitted to revoke an affirmative distribution election at least until the
Annuity Starting Date, or if later, at any time prior to the expiration of the 7 -day period that
begins the day after the explanation of the Qualified Joint and Survivor Annuity is provided
to the Participant;
(3) The Annuity Starting Date is after the date that the explanation of the Qualified Joint and
Survivor Annuity is provided to the Participant; and
(4) Distribution in accordance with the affirmative election does not commence before the
expiration of the 7 -day period that begins after the day after the explanation of the Qualified
Joint and Survivor Annuity is provided to the Participant.
(b) In the case of a Qualified Preretirement Survivor Annuity as described in Section 17.03, the Plan
Administrator shall provide each Participant within the applicable period for such Participant a writ-
ten explanation of the Qualified Preretirement Survivor Annuity in such terms and in such manner
as would be comparable to the explanation provided for meeting the 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)
29
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.
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 separation, the Election Period shall begin on the date
of separation.
Pre-age thirty-jive (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 RetirementAge: 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
30
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 Panicipant'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 Panicipant without any funher 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 funher 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. No consent obtained under this provision shall be valid unless the Panicipant 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 Panicipant'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 Lift Annuity: An annuity payable in equal installments for the life of the Participant that
terminates upon the Participant's death.
(h) Vested Account Balance: The aggregate value of the Participant's vested Account balances derived from
Employer and Employee contributions (including rollovers), whether vested before or upon death,
including the proceeds of insurance contracts, if any, on the Participant's life. The provisions of this
Anicle 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.
31
~
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 lCMA 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-
1 00, 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 leMA 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
I CMA Retirement Trust, by the Trustees thereof, in accord with the following provisions:
1. Incorporation of ICMA Declaration by Reference; ICMA By-Laws. Except as otherwise provided in this Group
Trust Agreement, and to the extent not inconsistent herewith, all provisions of the lCMA 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 lCMA Declaration
have the meanings assigned to them in the lCMA Declaration. In addition, the By-Laws of the lCMA
Retirement Trust, as the same may be amended from time-to-time, are adopted as the By-Laws of the Group
Trust to the extent not inconsistent with the terms of this Group Trust Agreement.
Notwithstanding the foregoing, the terms of the lCMA 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 lCMA Retirement
Trust (in which case the obligation of the Group Trust shall run to the lCMA 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
lCMA 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 lCMA 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
B)C t.,l1.i4
Name: Paul F. Gallagher
Title: Secretary
2
SECTION TWO: The city authorizes the execution of the Declaration of Trust
of Vantage Trust, an executed copy of which is attached hereto as Appendix B and incorporated
herein by reference, intending this execution to be operative with respect to any retirement or
deferred compensation plan subsequently established by the City of Ocoee, if the assets of the
Plan are to be invested in the Vantage Trust.
SECTION THREE: The City hereby agrees to serve as trustee under the Plan
and to invest funds held under the Plan in the VantageTrust; and
SECTION FOUR: The City hereby designates the Human Resources Director as
the coordinator for the Plan. The Human Resources Director shall receive reports, notices, etc.,
from the ICMA Retirement Corporation or the VantageTrust; shall cast, on behalf of the City of
Ocoee, any required votes under the VantageTrust; may delegate any administrative duties
relating to the Plan to appropriate departments. The Human Resources Director shall execute all
necessary agreements with the ICMA Retirement Corporation incidental to the administration of
the Plan.
SECTION FIVE: Conflicts. All resolutions, parts of resolutions or acts of the
City Commission of the City of Ocoee in conflict herewith are hereby repealed and rescinded.
SECTION SIX: Severability. If any section, subsection, sentence, clause,
phrase or portion of this Resolution is for any reason held invalid or unconstitutional by any court
of competent jurisdiction, such portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity of the remaining portion hereof.
SECTION SEVEN: Effective Date. This Resolution shall become effective
immediately upon passage and adoption.
ORLA_ 459091.1
PASSED AND ADOPTED this 18th day of December, 2007
APPROVED:
ATTEST:
CITY OF OCOEE, FLORIDA
::5~'~.U-
S. Scott Vandergrift, Mayor
(SEAL)
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA.
APPROVED AS TO FORM AND
LJ;\GALITI,' THIS J! DAY OF
--.1X tt4'n b(r- , 2007
::LEp;fifl:Jl
City Attorney
APPROVED BY THE OCOEE CITY
COMMISSION ON THE ABOVE DATE
UNDER AGENDA ITEM NO. ,1..
ORLA_ 459091.1
ICMA RETIREMENT CORPORATION
GOVERNMENTAL MONEY PURCHASE PLAN & TRUST
ADOPTION AGREEMENT
PLAN NUMBER 10-
The Em~yer hereby establishes a Money Purchase Plan and Trust to be known as ~eF- .!ls; cee.-+.___
o I(d-A (the "Plan") in the form of the ICMA Retirement Corporation Governmental Money
Purchase Plan and Trust (MPP 01/01/06).
[906]
This Plan is an amendment and restatement of an existing defined contribution money purchase plan.
Yes
_-L No
If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and
restates:
I.
Employer: C ; 4-pLf/(!Oee
[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: .:!"lfr\ 14. 4 fj \ J z.~ 0.1--___ (e.g.,
January 1, 2006 for the MPP 01/01/06 Plan)
III. Plan Year will mean:
) The twelve (12) consecutive month period which coincides with the limitation year. (See Section
5.03(f) of the Plan.)
( ~ The twelve (12) consecutive month period commencing on -L::.~Q '7 and each anniversary
thereof.
IV.
Normal Retirement Age shall be age __ (not to exceed age 65).
[288]
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 Employees
Non union Employees
Management Employees
Public Safety Employees
General Employees
=L Other(specify below) J t=d ofwtaJ} .
_ c ,'(tJ~ NtJ-JeR.. Clr\ e{ o:thu.~es ~ c e', v \ ~
f.mfj,,,,ef( C() Ni:f.; 13,,\:1'/~/V ~
The group specified must correspond to a group of the same designation tfIat is defined in the statutes,
ordinances, rules, regulations, personnel manuals or other material in effect in the state or locality of the
Employer.
MPP Adoption Agreement 1/30/2006
2.
The Employer hereby waives or reduces the requirement of ~t>;8ve (12) month Period of Service for
participation. The required Period of Service shall be _L!!J:. _ (write N/A if an Employee
is eligible ro participare upon employment).
If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment
Classification.
3. A minimum age requirement is hereby specified for eligibility to participate. The minimum age
requirement is 'P11- (not ro exceed age 21. Write N/A if no minimum age is declared.)
VI. CONTRIBUTION PROVISIONS
1. The Employer shall contribute as follows (choose all that apply):
) Fixed Employer Contributions With Or Without Mandatory Participant Contributions.
A. Fixed Employer Contributions. The Employer shall contribute on behalf of each Participant
__% of Earnings or $___ for the Plan Year (subject ro the limitations of Article V
of the Plan). Mandatory Participant Contributions
are required
){_ are not required
to be eligible for this Employer Contribution.
B. Mandarory Participant Contributions for Plan Participation. A Participant is required to
contribute (subject ro the limitations of Article V of the Plan)
(i) % of Earnings,
(ii) $---, or n'l
(iii) a whole percentage of Earnings between the range of -Et~ ~~ d. ;)..lJ r, (insert range of
percentages between 0% and 20% (e.g., 3%, 6%, or 20 Yo; 5% to 7%)), 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 ro "pick up" the Mandatory Participant Contributions.l
Yes
><
No
[621 ]
) Fixed Employer Match of Voluntary Participant Contributions.
The Employer shall contribute on behalf of each Participant _ % of Earnings for the Plan
Year (subject ro the limitations of Article V of the Plan) for each Plan Year that such Participant
has contributed __ % of Earnings or $__. Under this option, there is a single, fixed rate
of Employer contributions, but a Participant may decline to make the required Participant
contributions in any Plan Year, in which case no Employer contribution will be made on the
Participant's behalf in that Plan Year.
MPP Adoption Agreement 1/30/2006
2
( ) Variable Employer Match Of Voluntary Participant Contributions.
The Employer shall contribute on behalf of each Participant an amount determined as follows (subject to
the limitations of Article V of the Plan):
_ % of the Voluntary Participant Contributions made by the Participant for the Plan Year (not
including Participant contributions exceeding__% of Earnings or $____);
PLUS ___ % of the contributions made by the Participant for the Plan Year in excess of those included
in the above paragraph (but not including Voluntary Participant Contributions exceeding in the
aggregate __% of Earnings or $___).
Employer Matching Contributions on behalf of a Participant for a Plan Year shall not exceed $
or ___ % of Earnings, whichever is ___ more or __less.
2. Each Participant may make a voluntary (unmatched), after tax contribution, subject to the limitations of
Section 4.05 and Article V of the Plan.
1_ Yes
No
3. Employer contributions shall be contributed to the Trust in accordance with the following payment schedule:
~(e.
per V'n IJ (\~
4. Participant contributions shall be contributed to the Trust in accordance with the following payment schedule:
VII. EARNINGS
Earnings, as defined under Section 2.09 of the Plan, shall include:
(a) Overtime
Yes
No
(b) Bonuses
Yes
No
(c) Other
VIII. The Employer will permit rollover contributions in accordance with Section 4.09 of the Plan.
---L
Yes
No
3
MPP Adoption Agreement 1/30/2006
IX. LIMITATION ON ALLOCATIONS
If the E~ployer 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 Sections 5.02 of
the Plan).
1. If the Participant is covered under another qualified defined contribution plan maintained by the Employer,
the provisions of Section 5.02(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:
X. VESTING PROVISIONS
The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements
and (2) the concurrence of the Plan Administrator.
Years of
Service
Completed
Percent
Vested
Zero
One
Two
Three
Four
Five
Six
Seven
Eight
Nine
Ten
LtJ~ %
%
%
%
%
%
%
%
%
%
%
XI.
Loans are permitted under the Plan, as provided in Article XIII:
_L
No
Yes
XII. Age 70-1/2 in-service distributions are permitted under the Plan as provided in Section 9.08.
_L Yes
No
XIII.
In-service distributions of the Rollover Account are permitted under the Plan as provided in Section 9.07.
-L Yes
No
[234-239]
[751]
[646:8]
[646:7]
MPP Adoption Agreement 1/30/2006
4
XlV. SPOUSAL PROTECTION
The Plan will provide the following level of spousal protection (select one):
A. Beneficiary Spousal Consent Election (Article XII). If selected, participants may elect any of [642:8]
the available distribution options without spousal consent. Upon death, the surviving spouse is the
Beneficiary, unless he/she consented to the Participant's naming of another Beneficiary.
B. Q]SA Election (Article XVII). If selected, the normal form of payment of benefits under the
Plan is a qualified joint and survivor annuity with the spouse (or life annuity, if single). In the
event of the Participant's death prior to commencing payments, the spouse will receive an annuity
for his/her lifetime.
v
C. Participant Directed Election. If selected, participants may elect any of the available distribution
options without spousal consent. The Participant can name any person(s) as the Beneficiary(ies)
of the Plan, without spousal consent.
xv. The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one
or more units of state or local government.
XVI. The Plan Administrator hereby agrees to inform the Employer of any amendments to the Plan made pursuant
to Section 14.05 of the Plan or of the discontinuance or abandonment of the Plan.
XVII. The Employer hereby appoints the ICMA Retirement Corporation as the Plan Administrator pursuant to the
terms and conditions of the ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY
PURCHASE PLAN & TRUST.
The Employer hereby agrees to the provisions of the Plan and Trust.
XVIII. The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may
result in disqualification of the Plan.
XIX. 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 /11- day of
II/el/-PVV\6P, ,2007 .
...
EMPLOYER
ICMA RETIREMENT CORPORATION
777 North Capitol St., NE
Washington, DC 20002-4240
202-962-8096
By:
--Pfl~ -
-Ci~tf7~~
~Y;JA
By:
Title:
Title:
Attest:
Attest:
5
MPP Adoption Agreement 1/30/2006
ICMARC
Building Retirement Security
GOVERNMENTAL MONEY PURCHASE PLAN & TRUST
I. PURPOSE
The Employer hereby adopts this Plan and Trust to provide funds for its Employees' retirement, and to provide funds
for their Beneficiaries in the event of death. The benefits 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 4.10 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 Code. The Internal Revenue Code of 1986, as amended from time to time.
2.07 Covered Employment Classification. The group or groups of Employees eligible to make and! or have
contributions to this Plan made on their behalf, as specified by the Employer in the Adoption Agreement.
2.08 Disability. A physical or mental impairment which is of such permanence and degree that, as determined by
the Employer, a Participant is unable because of such impairment to perform any substantial gainful activity
for which he/she is suited by virtue of his/her experience, training, or education and that has lasted, or can
be expected to last, for a continuous period of not less than twelve (12) months, or can be expected to result
in death. The permanence and degree of such impairment shall be supported by medical evidence. If the
Employer maintains a long-term disability plan, the definition of Disability shall be the same as the definition
of disability in the long-term disability plan.
2.09 Earnings.
(a) General Rule. Earnings, which form the basis for computing Employer Contributions, are all of each
Participant's W-2 earnings which are actually paid to the Participant during the Plan Year, plus any
contributions made 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) (17) (B) of the Code. Annual Earnings
means Earnings during the Plan Year or such other consecutive 12-month period over which Earnings
is otherwise determined under the Plan (the determination period). The cost-of-living adjustment in
effect for a calendar year applies to annual Earnings for the determination period that begins with or
within such calendar year.
If a determination period consists of fewer than twelve (12) months, the annual Earnings limit is
an amount equal to the otherwise applicable annual Earnings limit multiplied by the fraction, the
numerator of which is the number of months in the short Plan Year and the denominator of which
is twelve (12). If Earnings for any prior determination period are taken 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 I, 1993, as
adjusted for increases in the cost-of-living in accordance with section 401(a)(17)(B) of the Code. For
purposes of this Section, an eligible participant is an individual who first became a Participant in the
Plan during a Plan Year beginning before the first Plan Year beginning after December 31, 1993.
2.10 Effective Date. The first day of the Plan Year during which the Employer adopts the Plan, unless the Employer
elects in the Adoption Agreement an alternate date as the Effective Date of the Plan.
2.11 Employee. Any individual who has applied for and been hired in an employment position and who is
employed by the Employer as a common law employee; provided, however, that Employee shall not include
any individual who is not so recorded on the payroll records of the Employer, including any such person who is
2
J
subsequently reclassified by a court oflaw 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.
2.12 Employer. The unit of state or local government or an agency or instrumentality of one (1) or more states or
local governments that executes the Adoption Agreement.
2.13 Hour of Service. Each hour for which an Employee is paid or entitled to payment for the performance of du-
ties for the Employer.
2.14 Nonforfeitable Interest. The nonforfeitable interest of the Participant or his/her Beneficiary (whichever is
applicable) is that percentage of his/her Employer Contribution Account balance, which has vested pursuant to
Article VII. A Participant shall, at all times, have a one hundred percent (100%) Nonforfeitable Interest in his/
her Participant Contribution, Rollover, and Voluntary Contribution Accounts.
2.15 Normal Retirement Age. The age which the Employer specifies in the Adoption Agreement. If the Employer
enforces a mandatory retirement age, the Normal Retirement Age is the lesser of that mandatory age or the age
specified in the Adoption Agreement.
2.16 Participant. An Employee or former Employee for whom contributions have been made under the Plan
and who has not yet received all of the payments of benefits to which he/she is entitled under the Plan. A
Participant is treated as benefiting under the Plan for any Plan Year during which the participant received or is
deemed to receive an allocation in accordance with Treas. Reg. section 1.410(b)-3(a).
2.17 Period of Service. For purposes of determining an Employee's initial or continued eligibility to participate
in the Plan or the Nonforfeitable Interest in the Participant's Account balance derived from Employer
Contributions, an Employee will receive credit for the aggregate of all time period(s) 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).
2.18 Period of Severance. A continuous period of time during which the Employee is not employed by the
Employer. Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the twelve
(12) month anniversary of the date on which the Employee was otherwise first absent from service.
2.19 Plan. This Plan, as established by the Employer, including any elected provisions pursuant to the Adoption
Agreement.
2.20 Plan Administrator. The person(s) or entity named to carry out certain nondiscretionary administrative
functions under the Plan, as hereinafter described, which is the ICMA Retirement Corporation or any successor
Plan Administrator.
2.21 Plan Year. The twelve (12) consecutive month period designated by the Employer in the Adoption Agreement.
2.22 Trust. The Trust created under Article VI of the Plan which shall consist of all of the assets of the Plan derived
from Employer and Participant contributions under the Plan, plus any income and gains thereon, less any
losses, expenses and distributions to Participants and Beneficiaries.
3
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.
Iv. CONTRIBUTIONS
4.01 Employer Contributions. For each Plan Year, the Employer will contribute to the Trust an amount as
specified in the Adoption Agreement. The Employer's full contribution for any Plan Year shall be due and paid
not later than thirty (30) working days after the close of the Plan Year. Each Participant will share in Employer
Contributions for the period beginning on the date the Participant commences participation under the Plan
and ending on the date on which such Employee severs employment with the Employer or is no longer a
member of a Covered Employment Classification, and such contributions shall be accounted for separately in
his/her Employer Contribution Account. 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 4.03 or 4.04 in order to be eligible for Employer Contributions to be made on his/her
behalf to the Plan.
4.02 Forfeitures. All amounts forfeited by terminated Participants, pursuant to Section 7.06, shall be allocated
to a suspense account and used to reduce dollar for dollar Employer Contributions otherwise required under
the Plan for the current Plan Year and succeeding Plan Years, if necessary. Forfeitures may first be used to
pay the reasonable administrative expenses of the Plan, with any remainder being applied to reduce Employer
Contributions.
4.03 Mandatory Participant Contributions. If the Employer so elects in the Adoption Agreement, each eligible
Employee shall make contributions at a rate prescribed by the Employer or at any of a range of specified rates,
as set forth by the Employer in the Adoption Agreement, as a requirement for his/her participation in the Plan.
Once an eligible Employee becomes a Participant, 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.
4
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.
4.04 Employer Matching Contributions of Voluntary Participant Contributions. 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 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 are made for that Plan Year. Employer Matching
Contributions shall be accounted for separately in the Employer Contribution Account.
4.05 Voluntary Participant Contributions. If the Employer so elects in the Adoption Agreement, an eligible
Employee may make after-tax voluntary (unmatched) contributions under the Plan for any Plan Year in any
amount up to twenty five percent (25%) of his/her 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.
4.06 Deductible Employee Contributions. The Plan will not accept deductible employee contributions which
are made for a taxable year beginning after December 31, 1986. Contributions made prior to that date will be
maintained in a Deductible Employee Contribution Account. The Account will share in the gains and losses
under the Plan in the same manner as described in Section 6.06 of the Plan. Such Account shall be at all times
nonforfeitable by the Participant.
4.07 Military Service Contributions. Notwithstanding any provision of the Plan to the contrary, effective
December 12, 1994, contributions, benefits and service credit with respect to qualified military service will be
provided in accordance with section 414( u) of the Code.
Effective December 12, 1994, if the Employer has elected in the Adoption Agreement to make loans available
to Participants, loan repayments will be suspended under the Plan as permitted under section 414(u)(4) of the
Code.
4.08 Changes in Participant Election. A Participant may elect to change his/her rate of Voluntary Participant
Contributions at any time or during an election period as designated by the Employer. A Participant may
discontinue such contributions at any time or during an election period as designated by the Employer.
4.09 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
5
(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 (60d>) 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 Panicipant for purposes of vesting
or eligibility for any Plan benefits or fearures.
4.10 Return of Employer Contributions. Any contribution made by the Employer because of a mistake of fact
must be returned to the Employer within one year of the date of contribution.
V. LIMITATION ON ALLOCATIONS
5.01 Participants Only in This Plan.
(a) If the Participant does not participate in, and has never participated in another qualified plan or a
welfare benefit fund, as defined in section 419(e) of the Code, maintained by the Employer, or an
individual medical account, as defined by section 415(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 Limitation 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 Additions
for the Limitation Year to exceed the Maximum Permissible Amount, the amount contributed or al-
located 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.
6
(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 Compensa-
tion for the Limitation Year.
(d) If, as a result of an inadvertent reasonable error in estimating the Maximum Permissible Amount for
a Participant in accordance with Subsection (b) or pursuant to Subsection (c) or as a result of the
allocation of forfeitures, there is an Excess Amount, the excess will be 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) If after the application of paragraph (1) an Excess Amount still exists, and the Participant
is covered by the Plan at the end of the Limitation Year, the Excess Amount in the Partici-
pant's Account will be used to reduce Employer Contributions (including any allocation of
forfeitures) for such Participant in the next Limitation Year, and each succeeding Limitation
Year if necessary;
(3) If after the application of paragraph (1) an Excess Amount still exists, and the Participant is
not covered by the Plan at the end of the Limitation Year, the Excess Amount will be held
unallocated in a suspense account. The suspense account will be applied to reduce future
Employer Contributions (including allocation of any forfeitures) for all remaining Participants
in the next Limitation Year, and each succeeding Limitation Year if necessary;
(4) If a suspense account is in existence at any time during a particular Limitation Year, all
amounts in the suspense account must be allocated and reallocated to Participants' accounts
before any Employer or any Employee contributions may be made to the Plan for that Limita-
tion Year. Excess Amounts in a suspense account may not be distributed to Participants or
former Participants.
5.02 Participants in Another Defined Contribution Plan.
(a) Unless the Employer provides other limitations in the Adoption Agreement, this Section applies if,
in addition to this Plan, the Participant is covered under another qualified defined 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 contribu-
tion plans and welfare benefit funds in the aggregate are equal to or greater than the Maximum Per-
missible Amount, no amount will be contributed or allocated to the Participant's Account 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
5.01(b).
7
m_~
(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 Compensa-
tion 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.
(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 the ratio of:
(i) the Annual Additions allocated to the Participant for the Limitation Year as of such date
under this Plan to
(ii) the total Annual Additions allocated to the Participant for the Limitation Year as of such
date under this and all the other prototype qualified defined contribution plans.
(f) Any Excess Amount attributed to this Plan will be disposed in the manner described in Section
5.01(d).
5.03 Definitions. For the purposes of this Article, the following definitions shall apply:
(a) Annual Additions: The sum of the following amounts credited to a Participant's account for the Limita-
tion 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 5.01(d) or 5.02(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 contributed, or Employer Contributions
8
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 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:
(i) any elective deferrals (as defined in section 402(g) (3) of the Code), and
(ii) 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) Employer: The Employer that adopts this Plan.
(e) 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.
(f) 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 amend-
ment is made.
(g) Maximum Permissible Amount: The maximum Annual Addition that may be contributed or allocated
to a Participant's Account under the Plan for any Limitation Year shall not exceed the lesser of:
(1) The Defined Contribution Dollar Limitation, or
(2) One hundred percent (100%) (25% for Limitation Years before January 1, 2002) of the
Participant's Compensation for the 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.
9
If a short Limitation Year is created because of an amendment changing the Limitation Year to a differ-
ent twelve (12) consecutive month period, the Maximum Permissible Amount will not exceed the
Defined Contribution Dollar Limitation multiplied by the following 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 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 com-
mingled trust fund that is maintained by a bank or other institution and that is available to Employee
plans qualified under section 401 of the Code, or any successor provisions thereto, and during the
period of time that an investment through any such medium shall exist, to the extent of participation
of the Plan, the declaration of trust of such 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.
10
(f) Upon such terms as may be deemed advisable by the Employer or the Plan Administrator, as the case
may be, for the protection of the interests of the Plan or for the preservation of the value of an invest-
ment, to exercise and enforce by suit for legal or equitable remedies or by other action, or to waive
any right or claim on behalf of the Plan or any default in any obligation owing to the Plan, to renew,
extend the time for payment of, agree to a reduction in the rate of interest on, or agree to any other
modification or change in the terms of any obligation owing to the Plan, to settle, 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.
(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.
11
VII. VESTING
7.01 Vesting Schedule. The portion of a Participant's Account attributable to Mandatory Participant Contribu-
tions and Voluntary Participant Contributions, and the earnings thereon, shall be at all times nonforfeitable
by the Participant. A Participant shall have a Nonforfeitable Interest in the percentage of his/her Employer
Contribution Account established under Section 4.01 and 4.04 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.
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
12
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.
The failure of a Participant to consent to a distribution while a benefit is immediately distributable, within the
meaning of section 9.02 of the Plan, shall be deemed to be an election to defer commencement of payment of
any benefit.
9.02 Restrictions on Immediate Distributions. Notwithstanding anything to the contrary in Section 9.01 of
the Plan, if the value of a Participant's vested Account balance is at least $1,000, and the 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
underthe Plan in a manner that would satisfy section 417(a)(3) of the Code, and shall be provided no less than
thirty (30) and no more than ninety (90) days before the date as of which benefit payments are to commence.
However, distribution may commence less than thirty (30) days after the notice described in the preceding
sentence is given, provided (i) the distribution is one to which sections 401 (a) (11) and 417 of the Code do not
apply or, if the Q]SA Election is made by the Employer in the Adoption Agreement, the waiver requirements
of Section 17.04(a) are met; (ii) the Plan Administrator clearly informs the Participant that the Participant
13
has a right to a period of at least thirty (30) days after receiving the notice to consider the decision of whether
or not to elect a distribution (and, if applicable, a particular distribution option); and (iii) the Participant, after
receiving the notice, affirmatively elects a distribution.
In addition, upon termination of this Plan if the Plan does not offer an annuity option (purchased from a
commercial provider) and if the Employer does not maintain another 401 (a) defined contribution plan, the
Participant's Account balance will, without the Participant's consent, be distributed to the Participant in a lump
sum. However, if the Employer maintains another 401 (a) defined contribution plan, the Participant's Account
balance will be transferred, without the Participant's consent, to the other plan if the Participant does not
consent to an immediate distribution.
An Account balance is immediately distributable if any part of the Account balance could be distributed to the
Participant (or surviving spouse) before the Participant 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(0)(5)(B) of the Code.
9.03 Transfer to Another Plan.
(a) If a Participant becomes eligible to participate in another plan maintained by the Employer that is
qualified under section 401 (a) of the Code, the Plan Administrator shall, at the written election of
such Participant, transfer all or part of such Participant's Account to such plan, provided the plan
administrator for such plan certifies to the Plan Administrator that its plan provides for the acceptance
of such a transfer. Such transfers shall include those transfers of the nonforfeitable interest of a
Participant's Account made for the purchase of service credit in defined benefit plans maintained by
the Employer. For purposes of this Plan, any such transfer shall not be considered a distribution to the
Participant subject to spousal consent as described in Section 9.10.
(b) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's
election under this Section, a Distributee may elect, at the time and in the manner prescribed by the
Plan Administrator, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible
Retirement Plan specified by the Distributee in a Direct Rollover.
(c) Definitions. For the purposes of Subsection (b), the following definitions shall apply:
(1) Eligible Rollover Distribution. Any distribution of all or any portion of the balance to the
credit of the Distributee, except that an Eligible Rollover Distribution does not include:
(i) any distribution that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life expectancy) of the Distributee
or the joint lives (or joint life expectancies) of the Distributee and the Distributee's
designated beneficiary, or for a specified period of ten years or more;
(ii) any distribution to the extent such distribution is required under section 401(a)(9)
of the Code; and
(iii) the portion of any other distribution(s) that is not includible in gross income.
A portion of a distribution shall not fail to be an eligible rollover distribution merely
because the portion consists of after-tax employee contributions which are not includible
in gross income. However, such portion may be transferred only to an individual
retirement account or annuity described in section 408(a) or (b) of the Code, or to a
14
qualified defined contribution plan described in section 401 (a) or 403(a) of the Code that
agrees to separately account for amounts so transferred, including separately accounting
for the portion of such distribution which is includible in gross income and the portion of
such distribution which is not so includible.
(2) Eligible Retirement Plan.
(i) an individual retirement account described in section 408(a) of the Code or an
individual retirement annuity described in section 408(b) of the Code (collectively,
an "IRA");
(ii) an annuity plan described in section 403(a) of the Code;
(iii) an annuity contract described in section 403(b) of the Code,
(iv) an eligible plan under section 457(b) of the Code which is maintained by a state,
political subdivision of a state, or any agency or instrumentality of a state or political
subdivision of a state and which agrees to separately account for amounts transferred
into such plan from this Plan; or
(v) a qualified plan described in section 401 (a) of the Code, that accepts the
Distributee's Eligible Rollover Distribution. The definition of Eligible Retirement
Plan shall also apply in the case of a distribution to a surviving spouse, or to a spouse
or former spouse who is the alternate payee, under a qualified domestic relations
order, as defined in section 414(p) of the Code.
(3) Distributee. Participant; in addition, the Participant's surviving spouse and the
spouse or former spouse who is the alternate payee under a qualified domestic relations
order, as defined in section 414(p) of the Code, are Distributees with regard to the interest
of the spouse or former spouse.
(4) Direct Rollover. A payment by the Plan to the Eligible Retirement Plan specified by the
Distributee.
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)(ll)(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) (1 1) (A) of the Code, the Participant may elect to receive his/her
Nonforfeitable Interest in his/her Account. 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.
15
9.06 Withdrawal of Deductible Employee Contributions. A Participant may upon written request withdraw a
part of or the full amount ofhislher Deductible Employee Contribution Account. Such withdrawals may be
made at any time, provided that no more than two (2) such withdrawals may be made during any calendar year.
No forfeiture will occur solely as the result of any such withdrawal.
9.07 In-Service Distribution from Rollover Account. Where elected by the Employer in the Adoption Agreement,
a Participant that has a separate account attributable to rollover contributions to the Plan, may at any time elect
to receive a distriburion of all or any portion of the amount held in the Rollover Account.
9.08 In-Service Distributions. Unless otherwise elected by the Employer in the Adoption Agreement, a Participant
who has reached age 70-1/2 regardless of his Nonforfeitable Interest in hislher entire Employer Contribution
Account, shall, upon written request, receive a distribution of a part of or the full amount of the balance in any
or all of his vested Accounts. Such distributions may be requested at any time, provided that no more than two
(2) such distributions may be made during any calendar year.
9.09 Latest Commencement of Benefits. Notwithstanding 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.
9.10 Spousal Consent. Notwithstanding the foregoing, if the Employer elected the Q]SA 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 XlI 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 40 l(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 following periods:
(1) The life of the Participant; or
(2) The joint lives of the Participant and a designated Beneficiary; or
(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.
16
(d) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this Article XVII,
distributions may be made under a designation made before January 1, 1984, in accordance with
Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the
Plan that relate to Section 242(b)(2) ofTEFRA.
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 70 1/2, 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.
(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 rear. 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
17
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) Lifttime Required Minimum Distributions Continue Through Year of Participants
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:
(i) 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.
(ii) If the Participant's surviving spouse is the Participant's sole designated Beneficiary,
the remaining life expectancy of the surviving spouse is calculated for each
distribution calendar year after the year of the Participant's death using the surviving
spouse's age as of the spouse's birthday in that year. For distribution calendar years
after the year of the surviving spouse's death, the remaining life expectancy of
the surviving spouse is calculated using the age of the surviving spouse as of the
spouse's birthday in the calendar year of the spouse's death, reduced by one for each
subsequent calendar year.
(iii) 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 Beneficiary. If the Participant dies before the date required
distributions begin and there is a designated Beneficiary, the minimum amount that will
be distributed for each distribution calendar year after the year of the Participant's death is
18
the quotient obtained by dividing the Participant's Account Balance by the remaining life
expectancy of the Participant's designated Beneficiary, determined as provided in Section
10.04(a).
(2) No Designated Beneficiary. If the Participant dies before the date distributions begin and
there is no designated Beneficiary as of September 30 of the year following the year of the
Participant's death, distribution of the Participant's entire interest will be completed by
December 31 of the calendar year containing the fifth anniversary of the Participant's death.
(3) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the
Participant dies before the date distributions begin, the Participant's surviving spouse is the
Participant's sole designated Beneficiary, and the surviving spouse dies before distributions are
required to begin to the surviving spouse under Section 10.02(b)(1), this Section 10.04(b)
will apply as if the surviving spouse were the Participant.
10.05 Definitions
(a) Designated Beneficiary. The individual who is designated by the Participant (or the Participant's
surviving spouse) as the Beneficiary of the Participant's interest under the Plan and who is the
designated Beneficiary under Code Section 401 (a) (9) and Section 1.401 (a) (9)-4 of the regulations.
(b) Distribution Calendar Year. A calendar year for which a minimum distribution is required. For
distributions beginning before the Participant's death, the first distribution calendar year is the
calendar year immediately preceding the calendar year which contains the Participant's required
beginning date. For distributions beginning after the Participant's death, the first distribution
calendar year is the calendar year in which distributions are required to begin under Section 10.02(b).
The required minimum distribution for the Participant's first distribution calendar year will be made
on or before the Participant's required beginning date. The required minimum distribution for other
distribution calendar years, including the required minimum distribution for the distribution calendar
year in which the Participant's required beginning date occurs, will be made on or before December
31 of that distribution calendar year.
(c) Lift 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) Participants 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
(70-1/2), or the calendar year in which the Participant retires.
XI. MODES OF DISTRIBUTION OF BENEFITS
11.01 Normal Mode of Distrihution. 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.
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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 anyone (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.
(d) Lump Sum. Where the Employer did make the Q]SA Election in the Adoption Agreement, a
Participant may also elect a lump sum payment.
11.03 Election of Mode. A Participant's election of a payment option must be made in writing between thirty (30)
and ninety (90) days before the payment of benefits is to commence.
11.04 Death Benefits. Subject to Article X (and Article XII or XVII if so elected by the Employer in the
Adoption Agreement),
(a) In the case of a Participant who dies before he/she has begun receiving benefit payments, the
Participant's entire Nonforfeitable Interest shall then be payable to his/her Beneficiary within ninety
(90) days of the Participant's death. A Beneficiary who is entitled to receive benefits under this Sec-
tion may elect to have benefits 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 Beneficiary may elect to accelerate payments of the
remaining balances, including but not limited to, a lump sum distribution.
XII. SPOUSAL DEATH BENEFIT REQUIREMENTS
12.01 Application. Unless otherwise elected by the Employer in the Adoption Agreement, on or after January 1,
2006, the provisions of this Article shall take precedence over any conflicting provision in this Plan. The
provisions of this Article, known as the "Beneficiary Spousal Consent Election," shall apply to any 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.
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12.03 Waiver of Spousal Death Benefit.
The Participant may waive the spousal death benefit described in Section 12.02 at any time; provided that no
such waiver shall be effective unless:
(a) the Participant's Spouse consents in writing to the election;
(b) the election designates a specific Beneficiary, including any class of Beneficiaries or any contingent
Beneficiaries, which may not be changed without spousal consent (or the Spouse expressly permits
designations by the Participant without any further spousal consent);
(c) the Spouse's consent acknowledges the effect of the election; and
(d) the Spouse's consent is witnessed by a Plan representative or notary public. If it is established to the
satisfaction of a Plan representative that there is no Spouse or that the Spouse cannot be located, a
waiver will be deemed to meet the requirements of this Section.
Any consent by a Spouse obtained under this 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; and
(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 ofloans, 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.
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.
21
(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 hislher Account.
(e) Foreclosure. In the event of default, foreclosure on the note and attachment of security will not occur
until a distributable event occurs in the Plan.
(f) Reduction of Account. Notwithstanding any other provision of this Plan, the portion of the
Participant's vested Account balance used as a security interest held by the Plan by reason of a loan
outstanding to the Participant shall be taken into account for purposes of determining the amount of
the Account balance payable at the time of death or distribution, but only if the reduction is used as
repayment of the loan. If less than one hundred percent (100%) of the Participant's nonforfeitable
Account balance (determined without regard to the preceding sentence) is payable to the surviving
spouse, then the Account balance shall be adjusted by first reducing the nonforfeitable Account bal-
ance by the amount of the security used as 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 n(p)(4) of the Code shall not exceed the lesser of:
(1) $50,000, reduced by the excess (if any) of
(i) 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
(ii) The outstanding balance of loans from the Plan on the date on which such loan is
made; or
(2) One-half (1/2) of the value of the Participant's Nonforfeitable Interest in all ofhislher
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 n(p) (4) of the Code are aggregated.
(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)-I, 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 princi-
pal residence of the Participant, the five (5) year limit shall not apply. In this event, the period of
repayment shall not exceed a reasonable period determined by the Employer. Principal installments
22
and interest payments otherwise due may be suspended 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 payment 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)-I, 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, tide
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 QJSA Election in the Adoption Agreement, the
Participant must first obtain his or her spouse's notarized consent to the loan.
(0) Other Terms and Conditiom. 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 repay-
ment cannot be made by payroll deduction, by check, and shall be invested in one (1) or more other
23
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 inconsistent with the
provisions of the Plan, governing the establishment and maintenance of Participant Loan Accounts.
XIV. PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS
14.01 Amendment by Employer. The Employer reserves the right, subject to Section 14.02 of the Plan, to amend
the Plan from time to time by either:
(a) Filing an amended Adoption Agreement to change, delete, or add any optional provision; or
(b) Continuing the Plan in the form of an amended and restated Plan and Trust.
No amendment to the Plan shall be effective to the extent that it has the effect of decreasing a Participant's
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
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.
24
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 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 oflnternal 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 putsuant to the provisions of Article XIV;
(c) To appoint a committee to facilitate administration of the Plan and communications to Participants;
25
(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 an-
nually the audited financial statements of the Plan's operation;
(f) To take all actions and to communicate to the Plan Administrator in writing all necessary information
to carry out the terms of the Plan and Trust; and
(g) To notify the Plan Administrator in writing of the termination of the Plan.
15.02 Duties of the Plan Administrator. The Plan Administrator shall have the following powers and duties:
(a) To construe and interpret the provisions of the Plan;
(b) To maintain and provide such returns, reports, schedules, descriptions, and individual Account
statements, as are required by law within the times prescribed by law; and to furnish to the Employer,
upon request, copies of any or all such materials, and further, to make copies of such instruments,
reports, 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 required by law;
(c) To obtain from the Employer such information as shall be necessary for the proper administration of
the Plan;
(d) To determine the amount, manner, and time of payment of benefits hereunder;
(e) To appoint and retain such agents, counsel, and accountants for the purpose of properly administer-
ing the Plan;
(f) To distribute assets of the Trust to each 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, bur 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
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resignation or removal of the Plan Administrator, the Employer may appoint a successor Plan Administrator;
failing such appointment, the Employer shall assume the powers and duties of Plan Administrator. Upon the
resignation or removal of the Plan Administrator, any Trust assets invested by or held in the name of the Plan
Administrator shall be transferred to the trustee in cash or property, at fair market value, except that the return
of Trust assets invested in a contract issued by an insurance company shall be 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 IS.02(a) or (d) or by the Employer pursuant to Section 15.01 (d) shall
be final and binding on all persons participating in the Plan, given deference in all courts of law to the greatest
extent allowed by applicable law, and shall not be overturned or set aside by any court of law unless found to
be arbitrary or capricious, or made in bad faith.
XVI. MISCELLANEOUS
16.01 Nonguarantee of Employment. Nothing contained in this Plan shall be construed as a contract of
employment between the Employer and any Employee, or as a right of an Employee to be continued in the
employment of the Employer, as a limitation of the right of the Employer to discharge any of its Employees,
with or without cause.
16.02 Rights to Trust Assets. No Employee or Beneficiary shall have any right to, or interest in, any assets of the
Trust upon termination of his/her employment or 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 Section 16.04 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 section 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 accord-
ance 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 of such benefit directly to the care, comfort, maintenance, sup-
port, education, or use of such person or payor distribute the whole or any part of such benefit to:
(a) The parent of such person;
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(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 and complete dis-
charge therefor.
16.07 Inability to Locate Payee. Anything to the contrary herein notwithstanding, if the Employer is unable,
after reasonable effort, to locate any Participant or 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 subsequently 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 Par-
ticipant in the Plan would (if the Plan then terminated) receive a benefit immediately after the merger, con-
solidation, 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, termina-
tion 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 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 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
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
28
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 portion 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 Admin-
istrator shall, no less than thirty (30) days and no more than ninety (90) days prior to the Annuity
Starting Date, provide each Participant a written explanation 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 Qualified 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 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 iflater, at any time prior to the expiration of the 7-day period that
begins the day after the explanation of the Qualified Joint and Survivor Annuity is provided
to the Participant;
(3) The Annuity Starting Date is after the date that the explanation of the Qualified Joint and
Survivor Annuity is provided to the Participant; and
(4) Distribution in accordance with the affirmative election does not commence before the
expiration of the 7 -day period that begins after the day after the explanation of the Qualified
Joint and Survivor Annuity is provided to the Participant.
(b) In the case of a Qualified Preretirement Survivor Annuity as described in Section 17.03, the Plan
Administrator shall provide each Participant within the applicable period for such Participant a writ-
ten explanation of the Qualified Preretirement Survivor Annuity in such terms and in such manner
as would be comparable to the explanation provided for meeting the 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)
29
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.
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 separation, 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
30
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 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
terminates upon the Participant's death.
(h) Vested Account Balance: The aggregate value of the Participant's vested Account balances derived from
Employer and Employee contributions (including rollovers), whether vested before or upon death,
including the proceeds of insurance contracts, if any, on the Participant's life. The provisions of this
Article shall apply to a Participant who is vested in amounts 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 distribured
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.
31
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.
W'HEREAS, the lCMA 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 anached hereto and incorporated by
reference as set out below (the "ICMA Declaration"); and
W'HEREAS, 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 lCMA 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
lCMA Retirement Trust, by the Trustees thereof, in accord with the following provisions:
1. Incorporation of ICMA Declaration by Reference; leMA By-Laws. Except as otherwise provided in this Group
Trust Agreement, and to the extent not inconsistent herewith, all provisions of the lCMA 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 lCMA Declaration
have the meanings assigned to them in the lCMA Declaration. In addition, the By-Laws of the lCMA
Retirement Trust, as the same may be amended from time-to-time, are adopted as the By-Laws of the Group
Trust to the extent not inconsistent with the terms of this Group Trust Agreement.
Notwithstanding the foregoing, the terms of the lCMA 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 lCMA Retirement
Trust (in which case the obligation of the Group Trust shall run to the I CMA 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
I CMA 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 lCMA 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 I CMA 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
B}' et1,t#
Name: Paul F. Gallagher
Title: Secretary
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