HomeMy WebLinkAboutCC RES 99-071I RESOLUTION NO. 99-71
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
CALIFORNIA, ADOPTING A DEFERRED COMPENSATION MATCHING
3 PLAN FOR MANAGEMENT EMPLOYEES OF THE CITY
5 WHEREAS, the City Council of the City of Tustin has adopted a Deferred
Compensation Plan which is available to all eligible employees, pursuant to Section 457 of
6 the Internal Revenue Code, as amended; and
7 WHEREAS, the City of Tustin wishes to provide an additional incentive to its
management employees to voluntarily set aside and invest portions of their current
8 income to meet their future financial requirements and supplement their existing
retirement program; and
9
WHEREAS, Nationwide Retirement Solutions, Inc. (NRS) has been selected to
3.0 -administer such a program and has provided the City with a specimen plan document,
attached as Exhibit A, titled "Nationwide Retirement Solutions, Inc. Governmental
3-] Deferred Compensation Matching Plan and Trust";
]2 NOW, THEREFORE, the City Council of the City of Tustin hereby adopts 'the
Nationwide Retirement Solutions, Inc. Governmental Deferred Compensation Matching
13 Plan and Trust and hereby establishes the City of Tustin Deferred Compensation
1~ Matching Plan and Trust to provide additional benefits for all management participants in
the City of Tustin Deferred Compensation Plan and authorizes the City Manager to
15 execute an adoption agreement for said Plan; and
16 IT IS FURTHER RESOLVED that the Trustees for said Plan shall be the City
Manager, the City Treasurer and the City Finance Director; the Plan Administrator shall be
17 the City Finance Director; all management employees of the City covered under the 457
Deferred Comp. ensation Plan shall be covered under this Plan; the Plan shall be effective
~18 as of October 1, 1999; and the employer contribution shall be an amount equal to two
percent of employee compensation plus the employer will match employee contributions
19 to 457 Plan dollar for dollar up to three percent of employee compensation or other such
amount as the employer shall authorize by resolution or memorandum of understanding.
20
APPROVED AND ADOPTED by the City Council of the City of Tustin on
21 September 7, 1999.
22 .
2~ '" ley
")5 ATTEST:
26
27 ~ ~
Pamela Stoker
28 City Clerk
F, XHIBIT A
NATIONWIDE RETIREMENT SOLUTIONS, INC.
GOVERNNIENTAL DEFERRED COMPENSATION
MATCHING PLAN AND TRUST
ADOPTED BY
TH2E CITY OF TUSTIN
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
AR~rICLE II
ADMINISTRATION
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER ......................................................... 4
2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY .............................................................. 4
2.3 ALLOCATION AND DELEGATION OF RESPONSIBILITIES ...................................................... 4
2.4 POWERS AND DUTIES OF THE ADMINISTRATOR ................................................................. 4
2.5 RECORDS AND REPORTS ................................................................................................... 5
2.6 APPOINTMENT OF ADVISORS ............................................................................................. 5
2.7 INFORMATION FROM EMPLOYER ....................................................................................... 5
2.8 PAYMENT OF EXPENSES ..................................................................................................... 5
2.9 MAJORITY ACTIONS .......................................................................................................... 5
2.10CLAIMS PROCEDURES ....................................................................................................... 6
ARTICLE IIl
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY ............................................................................................ 6
3.2 EFFECTIVE DATE OF PARTICIPATION ................................................................................ 6
3.3 DETERMINATION OF ELIGIBILITY .................................................................................... 6
3.4 TERMINATION OF ELIGIBILITY ......................................................................................... 6
3.5 OMISSION OF ELIGIBLE EMPLOYEE ................................................................................... 6
3.6 INCLUSION OF INELIGIBLE EMPLOYEE .............................................................................. 6
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER'S CONTRIBUTION .............................................. 7
4.2 TIME OF PAYMENT OF EMPLOYER'S CONTRIBUTION .......................................................... 7
4.3 ALLOCATION OF CONTRIBUTIONS AND EARNINGS ................................................................. 7
4.4 MAXIMUM ANNUAL ADDITIONS .............................................................................................. 7
4.5 DIRECTED INVESTMENT ACCOUNT ...................................................................................... 1 i
ARTICLE V
VALUATIONS
5.1 VALUATION OF THE TRUST FUND .......................................................................................... i 1
.11
5.2 METHOD OF VALUATION ......................................................................................................
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT ............................................................... 12
6.2 DETERMINATION OF BENEFITS UPON DEATH ......................................................................... 12
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY ........................................................ 12
6.4 DETERMINATION OF BENEFITS UPON TERMINATION .............................................................. 12
..13
6.5 DISTRIBUTION OF BENEFITS ................................................................................................
6.6 DISTRIBUTION OF BENEFITS UPON DEATH .............................................................................. 14
6.7 TIME OF SEGREGATION OR DISTRIBUTION ............................................................................. 15
6.8 DISTRIBUTION FOR MINOR BENEFICIARY ........ ~ .........................................................~ .............15
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN ....................................................... 15
6.10 LIMITATIONS ON BENEFITS AND DISTRIBUTIONS .................................................................... 16
ARTICLE VII.
TRUSTEE
7.1 BASIC RESPONSIBILITIES .OF THE TRUSTEE.; ............................ ~ ..............................................16
7.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE .............................................................. 16
7.3 OTHER POWERS OF THE TRUSTEE ........................................................................................... 17
7.4 DUTIES OF THE TRUSTEE REGARDING PAYMENTS ................................................................... 18
7.5 TRUSTEES COMPENSATION AND EXPENSES AND TAXES ............................................................ 18
.... 18
7.6 ANNUAL REPORT OF THE TRUSTEE ......................................................................................
7.7 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE .......................................................... 19
7.8 TRANSFER OF INTEREST .......................................................................................................... 19
7.9 TRUSTEE INDEMNIFICATION .................................................................................................... 20
ARTICLE VIII
AMENDMENT, TERMINATION AND MERGERS
8.1 AMENDMENT ........................................................................................................................... 20
8.2 TERMINATION ......................................................................................................................... 20
8.3 MERGER OR CONSOLIDATION...' ............................................................................................... 20
ARTICLE IX
MISCELLANEOUS
9.1 EMPLOYER ADOPTIONS .......................................................................................................... 21
9.2 PARTICIPANT'S RIGHTS ........................................................................................................... 21
9.3 ALIENATION ........................................................... . ................................................................21
9.4 CONSTRUCTION OF PLAN ......................................................................................................... 21
9.5 GENDER AND NUMBER ............................................................................................................. 22
9.6 LEGAL ACTION ....................................................................................................................... 21
9.7 PROHIBITION AGAINST DIVERSION OF FUNDS .......................................................................... 22
9.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE ..................................... 2 ...........................22
9.9 RECEIPT AND RELEASE FOR PAYMENTS ................................................................................... 22
9.10 ACTION BY EMPLOYER ........................................................................................................... 22
9.11 .HEADINGS ...............................................................................................................................22
9.12 APPROVAL BY INTERNAL REVENUE SERVICE ........................................................................... 22
9.13 UNIFORMITY...' ........................................................................................................................ 23
9.14 PAYMENT OF BENEFITS ........................................................................................................... 23
ARTICLE X
pARTICIPATING EMPLOYERS
I0.1 ELECTION TO BECOME A PARTICIPATING EMPLOYER .................................................. 23
10.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS ......................................................... 23
10.3 DESIGNATION OF AGENT ..................................................... ~ ..............~ .........................23
10.4 EMPLOYEE TRANSFERS ................................................................................................ 25
10.5 PARTICIPAT! NG EMPLOYER~S CONTRIBUTION AND FORFEITURES ................................. 24
10.6 AMENDMENT ................................................................................................................ 24
10.7 DISCONTINUANCE OF PARTICIPATION .......................................................................... 24
10.8 ADM INISTRATOR'S AUTHORITY .................................................................................... 24
ARTICLE I DEFINITIONS
As used in this Plan, the tollowing words and phrases shall have the meanings set forth herein unless a different
meaning is clearly required by the context:
1.1 "Administrator" means the person(s) or entity designated by the Employer pursuant to Section 2.1 to administer
the Plan on behalf of the Employer.
1.2 "Adoption Agreement" means the separate agreement, which is executed by the Employer and accepted by the
Trustee which sets forth the elective provisions of this Plan and Trust as specified by the Employer.
1.3 "Anniversary Date" means the anniversary date specified in C3 of the Adoption Agreement.
1.4 "Beneficiary" means the person to whom a share of a deceased Participant's interest in the Plan is payable. This
shall be the same person who has been named as the Participant's Beneficiary under the Employer's 457 plan.
1.5 "Code" means the Internal Revenue Code of 1986, as amended from time to time.
1.6 "Eligible Employee" means any Employee specified in D1 of the Adoption Agreement.
1~7 "Employee" means any person who is employed by the Employer, but excludes any person who is employed as an
independent contractor. The term Employee shall als0 include Leased Employees as provided in Section 1.15.
1.8 "Employer" means the entity specified in the Adoption Agreement, any Participating Employer (as defined in
Section I0.1) which shall adopt this Plan, any successor which shall maintain this Plan and any predecessor which has
maintained this Plan.
1.9 "Fiscal Year" means the Employer's accounting year as specified in the Adoption Agreement.
1.10 "Former Participant" means a person who has been a Participant, but who has ceased to be a Participant for any
reason.
1.11 "Highly Compensated Employee" means an individual who has compensation in excess of $80,000 (as indexed)
from the Employer and, if the Employer elects the application of this clause for the preceding year, was in the top paid group
of employees for such preceding year.
1.12 "Hour of Service" means (1) each hour for which an Employee is directly or indirectly compensated or entitled to
compensation by the Employer for the performance of duties during the applicable computation period; (2) each hour for
which an Employee is directly or indirectly compensated or entitled to compensation by the Employer (irrespective of
whether the employment relationship l~as terminated) for reasons other than performance of duties (such as vacation,
holidays,. sickness, jury duty, disability, lay-off, military duty or leave of absence) during the applicable computation period;
or (3) each hour for which back pay is awarded or agreed to by the Empioyer without regard to mitigation of damages. The
same Hours of Service shall not be credited both under (1) or (2), as the case may be, and under (3).
Notwithstanding the above, (i) no more than 501 Hours of Service are required to be credited to an Employee on
account of any single continuous period during which the Employee performs no duties (whether or not such period occurs
in a single computation period); (ii) an hour for which an Employee is directly or indirectly paid, or entitled'to payment, on
account of a period during which no duties are performed is not required to be credited to the Employee if such payment is
made or due under a plan maintained solely for the purpose of complying with applicable worker's compensation, or
unemployment compensation or disability insurance laws; and (iii) Hours of Service are not required to be credited for a
payment which solely reimburses an Employee for medical or medically related expenses incurred by ihe Employee.
For purposes of this Section, a payment shall be deemed to be made by or due from the Employer regardless of
whether such payment is made by or due from the Employer directly, or indirectly through, among others, a trust fund, or
1
insurer, to which the Employer contributes or pays premiums and regardless of whether contributions made or due to the
trust fund, insurer, or other entity are for the benefit of particular Employees or are on behalf of a group of Employees in the
aggregate.
An Hour of Service must be counted for 'the purpose of determining a Year of Service, a year of participation
for purposes of accrued benefits, a One-Year Break in Service, and employment commencement date (or reemployment
commencement date). There shall be no Hour of Service requirement to receive an Employer contribution.
Hours of Service will be credited for employment for any individual Considered to be a Leased Employee
pursuant to Code Sections 414(n) and the Regulations thereunder.
1.13 "Joint and Survivor Annuity" means an annuity for the life of a Participant with a survivor annuity for the life of
the Participant's spouse which is not less than 1/2, nor greater than the amount of the annuity payable during the joint lives of
the Participant and the Participant's spouse. The Joint and Survivor Annuity will be the amount of benefit which can be
purchased with the Participant's Vested interest in the Plan.
1.14 "Late Retirement Date" means the date of, or the first day of the' month or the Anniversary Date coinciding with or
next following, whichever corresponds to the election made for the Normal Retirement Date, a Participant's actual retirement
after having reached his Normal Retirement Date.
1.15 "Leased Employee" means any person (other than an Employee of the recipient) who pursuant to an agreement
between the recipient and any other person ("leasing organization") has performed services for the recipient (or for the
recipient and related persons determined in accordance with Code Section 414(n)(6)) on a substantially full time basis for a
period of at least one year, and such services are of a type historically performed by employees in the business field of the
recipient employer (or, effective with respect to Plan Years beginning on or after January 1, 1997, are services performed
under primary direction or control by the recipient). Contributions or benefits provided a leased employee by the leasing
organization which are attributable to services performed for the recipient employer shall be treated as provided by the
recipient employer.
A leased employee shall not be considered an Employee of the recipient if: (i) such employee is covered by a
money purchase pension plan providing: (1) a nonintegrated employer contribution rate of at least 10 percent of
compensation, as defined in Code Section 415(c)(3), but including amounts contributed pursuant to a salary reduction
agreement which are excludable from the employee's gross income under Code Sections 125, 402(e)(3), 402(h), 403(b) or
457(b), (2) immediate participation, and (3) full and immediate vesting; and (ii) leased employees do not constitute more
than 20 percent of the recipient's nonhighly compensated workforce.
1.16 "Normal Retirement Date" means the date on which a Participant shall become eligible to have his or her benefits
distributed to him or her.
1.17 "Participant" means any Eligible Employee who participates in the Plan as provided in Section 3.2 and has not for
any reason become ineligible to participate further in the Plan.
1.18 "Participant's Account" means the account established and maintained by the Administrator for each Participant
with respect to his total interest Under the Plan resulting from the Employer's contributions. All Participants shall always be
100% vested in their Participants' Accounts.
1.19 "Plan" means this instrument (hereinafter referred to as Nationwide Retirement Solutions Govemmental Deferred
Compensation Matching Plan and Trust) including all amendments thereto, and the Adoption Agreement as adopted by the
Employer.
1.20 "Plan Year" means the Plan's accounting year as specified in C2 of the Adoption Agreement.
1.23 "Regulation" means the Income Tax Regulations as promulgated by the Secretary of the Treasury or his or her
delegate, and as amended from time to time.
1.24 "Retired Participant" means a person who has been a Participant, but who has become entitled to retirement
benefits under the Plan.
1.25 "Retirement Date" means the date as of which a Participant retires for reasons other than Total and Permanent
Disability, whether such retirement occurs on a Participant's Normal Retirement Date, Early or Late Retirement Date (see
Section 6.1 ).
1.26 !'Short Plan Year" means, if specified in the Adoption Agreement, that the Plan Year shall be less than a 12
month period. If chosen, the following rules shall apply in the administration of this Plan. In determining whether an
Employee has completed a Year of Service for benefit accrual purposes in the Short Plan Year, the number of the Hours of
Service required shall be proportionately reduced based on the number of days in the Short Plan Year. The determination of
whether an Employee has completed a Year of Service for eligibility purposes shall be made in accordance with .Department
of Labor Regulation 2530.203-2(c).
1.27 "Terminated Participant" means a person who has been a Participant, but whose employment has been terminated
other than by death, Total and Permanent Disability or retirement.
1.28 "Total and Permanent Disability" means the inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment that can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months. The disability of a Participant shall be determined by a
licensed physician chosen by the Administrator. However, if the condition constitutes total disability under the federal Social
Security Acts, the Administrator may rely upon such determination that the Participant is Totally and Permanently Disabled
for the purposes of this Plan. The determination shall be applied uniformly to all Participants.
1.29 "Trustee" means the person or entity named in B4 of the Adoption Agreement and any successors.
1.30 "Trust Fund" means the assets of the Plan and Trust as the same shall exist from time to time.
1.31 "Year of Service" means a period of twelve (12) consecutive months during which an Employee has completed
at least 1000 Hours of Service.
The initial computation period shall begin with the date on which the Employee first performs an Hour of
Service (employment commencement date). The computation period beginning after a One-Year Break in Service shall be
measured from the date on which an Employee again performs an Hour of Service. The succeeding computation periods
shall begin with the first anniversary of the Employee's employment commencement date. However, if one (1) Year of
Service or less is required as a condition of eligibility, then after the initial eligibility computation period, the eligibility
computation period shall shift to the current Plan Year which includes the anniversary of the date on which the Employee
first performed an Hour of Service. An Employee who is credited with 1,000 Hours of Service in both the initial eligibility
computation period and the first Plan Year which commences prior to the first anniversary of the Employee's initial
eligibility computation period will be credited with two Years of Service for purposes of eligibility to participate.
Years of Service and breaks in service will be measured on the same computation period.
ARTICLE !1 ADMINISTRATION
2.1 POWERS AND RESPONSIBILITIES OF THE EMPLOYER
(a) The Employer shall be empowered to appoint and remove the Trustee and the Administrator from time to time
as it deems necessary for the .proper administration of the Plan to assure that the Plan is being operated for the exclusive
benefit of the Participants and their Beneficiaries in accordance with the terms of the Plan and the Code.
(b) The Employer shall periodically review the performance of any fiduciary or other person to whom duties have
been delegated or allocated by it under the provisions of this Plan or pursuant to procedures established hereunder.
2.2 DESIGNATION OF ADMINISTRATIVE AUTHORITY
The Employer shall appoint one or more Administrators. Any person, including, but not limited to, the Employees
of the Employer, shall be eligible to serve as an Administrator. Any person so appointed shall signify his or her acceptance
by filing written acceptance with the Employer. An Administrator may resign by delivering his or her written resignation to
the Employer or be removed by the Employer by delivery of written notice of removal, to take effect at a date specified
therein, or upon delivery to the Administrator if no date is specified.
The Employer, upon the resignation or removal of an Administrator, shall promptly designate in writing a successor
to this position. If the Employer does not appoint an Administrator, the Employer will function as the Administrator.
2.3 ALLOCATION AND DELEGATION OF RESPONSIBILITIES
If more than one person is appointed as Administrator, the responsibilities of each Administrator may be specified
by the Employer and accepted in writing by each Administrator. In the event that no ~uch delegation is made by the
Employer, the Administrators may allocate the responsibilities among themselves, in which event the Administrators shall
notify the Employer and the Trustee in writing of such action and specify the responsibilities of each Administrator. The
Trustee thereafter shall accept and rely upon any documents executed by the appropriate Administrator until such time as the
Employer or the Administrators file with the Trustee a written revocation of such designation.
2.4 POWERS AND DUTIES OF THE ADMINISTRATOR
The primary responsibility of the Administrator is to administer the Plan for the exclusive benefit of the Participants
and their Beneficiaries, subject to the Specific terms of the Plan. The Administrator shall administer the Plan in accordance .
with its terms and shall have the power and discretion to construe the termsof the Plan and determine all questions arising in
connection with the administration, interpretation, and application of the Plan. Any such determination by the Administrator
shall be conclusive and binding upon all persons. The Administrator may establish procedures, correct any defect, supply any
information, or reconcile any inconsistency in such manner and to such extent as shall be deemed necessary or advisable to
carry out the purpose of the Plan; provided, however, that any procedure, discretionary act, interpretation or consl~ruction
shall be done in a nondiscriminatory manner based upon uniform principles consistently applied and shall be consistent with
the intent that the Planshall continue to be deemed a qualified plan under the terms of Code Section 40 1 (a), and shall comply
with its terms and all regulations issued pursuant thereto. The Administrator shall have all powers necessary or appropriate to
accomplish his or her duties under this Plan.
The Administrator shall be charged with the duties of the general administration of the Plan, including, but not
limited to, the following:
(a) the discretion to determine all questions relating to the eligibility of Employees to p.articipate or remain
Participants hereunder and to receive benefits under the Plan;
(b) to compute, certify, and direct the Trustee with respect to the amount and the kind of benefits to which. any
Participant shall be entitled hereunder;
4
(c) to authorize and direct the Trustee with respect to all nondiscretionary or otherwise directed disbursements from
the, Trust Fund;
(d) to maintain all necessary records for the administration of the Plan;
(e) to interpret the provisions of the Plan and to make and publish such rules or regulations of the Plan as are
consistent with the terms hereof;
(f) to compute and certify to the Employer and to the Trustee from time to time the sums of money necessary or
desirable to be contributed to the Trust Fund;
(g) to consult with the Employer and the Trustee regarding the short and long-term liq. uidity needs of the Plan in
order that the Trustee can exercise any investment discretion in a manner designed to accomplish specific objectives; and
(h) to assist any Participant regarding his or her rights, benefits, or elections available under the
Plan.
2.5 RECORDS AND REPORTS
The Administrator shall keep a record of all actions taken and shall keep all other books of account, records, and
other data that may be necessary for proper administration of the Plan and shall be responsible for supplying all information
and reports to the Internal Revenue Service, Department of Labor, Participants, Beneficiaries and others as required by law.
2.6 APPOINTMENT OF ADVISERS
The Administrator, or the Trustee with the consent of the Administrator, may appoint counsel, specialists, advisers,
and other persons as the Administrator or the Trustee deems necessary or desirable in connection with the administration of
this Plan.
2.7 INFORMATION FROM EMPLOYER
To enable the Administrator to perform his functions, the Employer shall supply full and timely information to the
Administrator on all matters relating to the Compensation of all Participants, their Hours of Service, their Years of Service,
their retirement, death, disability, or termination of employment, and such other pertinent facts as the Administrator may
require; and the Administrator shall advise the Trustee of such of the foregoing facts as may be pertinent to the Trustee's
duties under the Plan. The Administrator may rely upon such information as is supplied by the Employer and shall have no
duty or responsibility to verify such information.
2.8 PAYMENT OF EXPENSES
All expenses of administration may be paid out of the Trust Fund cn] ess paid by the Employer. Such expenses shall
include any expenses incident to the functioning of the Administrator, including, but not limited to, fees of accountants,
counsel, and other specialists and their agents, and other costs of administering the Plan. Until paid, the expenses shall
constitute a liability of the Trust Fund. However, the Employer may reimburse the Trust Fund for any administration expense
incurred. Any administration expense paid to the Trust Fund as a reimbursement shall not be considered an Employer
c6ntribution.
2.9 MAJORITY ACTIONS
Except where there has been an allocation and delegation of administrative authority pursuant to Section 2.3, if
there shall be more than one Administrator, they shall act by a majority of their number, but may authorize one or more of
them to sign all papers on their behalf.
2.10 CLAIMS PROCEDURE
Any person who believes that he is entitled to a benefit under the Plan shall have the right to file with the Plan
Administrator a written notice &claim for such benefit. Within 120 days after its receipt of such written notice of claim, the
Plan Administrator shall either grant or deny such claim provided, however, any delay on the part of the Plan Administrator
in arriving at a decision shall not adversely affect benefits payable under a granted claim.
ARTICLE I11 ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY
Any Eligible Employee shall be eligible to participate hereunder on the date he or she has satisfied the requirements
specified in the Adoption Agreement.
3.2 EFFECTIVE DATE OF PARTICIPATION
In the event an Employee who has satisfied the Plan's eligibility requirements and would otherwise have become a
Participant shall go from a classification of a noneligible Employee to an Eligible Employee, such Employee shall become a
Participant as of the date he becomes an Eligible Employee.
In the event an Employee who has satisfied the Plan's eligibility requirements and would otherwise become a
Participant shall go from a classification of an Eligible Employee to a noneligible Employee and becomes ineligible to
participate and has not incurred a l-Year Break in Service, such Employee shall participate in the Plan as of the date he or
she returns to an eligible class of Employees. If such Employee does incur a One Year Break in Service, eligibility will be
determined under the break in service rules of the Plan.
3.3 DETERMINATION OF ELIGIBILITY
The Administrator shall determine the eligibility of each Employee for participation in the Plan based upon
information furnished by the Employer. Such determination shall be conclusive and binding upon all persons, as long as the
same is made pursuant to the Plan. Such determination shall be subject to review per Section 2.10.
3.4 TERMINATION OF ELIGIBILITY
In the event a Participant shall go from a classification of an Eligible Employee to an ineligible Employee, such
Former Participant shall continue to share in the earnings of the Trust Fund.
3.5 OMISSION OF ELIGIBLE EMPLOYEE
If, in any Plan Year, any Employee who should be included as a Participant in the Plan is erroneously omitted and
discovery of such omission is not made until after a contribution by his or her Employer for the year has been made, the
Employer shall make a subsequent contribution, if necessary after the application of Section 4.3(b), so that the omitted
Employee receives a total amount which the said Employee would have received had he or she not been Omitted.
3.6 INCLUSION OF INELIGIBLE EMPLOYEE
If, in any Plan Year, any person who should not have been included as a Participant in the Plan is erroneously
included and discovery of such incorrect inclusion is not made until after a contribution for the year has been made, the
Employer shall not be entitled to recover the contribution made with respect to the ineligible person. In such event, the
amount contributed with respect to the ineligible person shall constitute a Forfeiture for the Plan Year in which the discovery
is made. Such forfeiture shall be used to reduce contributions otherwise due from the Employer.
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER'S CONTRIBUTION
For each Plan Year, the Employer shall contribute to the Plan such amount as specified by the Employer in the
Adoption Agreement. All contributions by the Employer shall be made in cash or in such property as is acceptable to the
Trustee.
4.2 TIME OF PAYMENT OF EMPLOYER'S CONTRIBUTION
The Employer shall generally pay to the Trustee its contribution to the Plan for each Plan Year within the time
prescribed by law.
4.3 ALLOCATION OF CONTRIBUTION AND EARNINGS
(a) The Administrator shall establish and maintain an account in the name of each Participant to which the
Administrator shall credit as of each Anniversary Date, or other valuation date, all amounts allocated to each such Participant
as set forth herein.
(b) The Employershall provide the Administrator with all information required by the Administrator to make a
proper allocation of the Employer's. contributions for each Plan Year. Within a reasonable period of time after the date of
receipt by the Administrator of such information, the Administrator shall allocate such contribution to each Participant's
Account according to the method specified in Section E of the Adoption Agreement.
4.4 MAXIMUM ANNUAL ADDITIONS
(a)(1) If the Participant does not participate in, and has never participated in another qualified plan maintained by
the Employer, or a welfare benefit fund (as defined in Code Section 419(e)), maintained by the Employer, or an individual
medical account (as defined in Code Section 415( 1 )(2)) maintained by the Employer, which provides Annual Additions, the
amount of Annual Additions which may be credited to the Participant's accounts for any Limitation Year shall 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 allocated will be reduced so that the Annual
Additions for the Limitation Year will equal the Maximum Permissible Amount.
(2) 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.
(3) As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for such
Limitation Year shall be determined on the basis of the Participant's actual compensation for such Limitation Year.
(4) If there is an excess amount pursuant to Section 4.4(a)(2), the excess will be disposed of in one of the following manners,
as uniformly determined by the Plan Administrator for all Participants similarly situated:
If the Participant is covered by the Plan at the end of the Limitation Year, the Excess Amount in the Participant's account will
be used to reduce Employer contributions for such Participant in the next Limitation Year, and each succeeding Limitation
Year if necessary;
If the Participant is not covered by the Plan at the end of a Limitation Year, the Excess Amount will be held unallocated in a
suspense account. The suspense account will be applied to reduce future Employer contributions for all remaining
Participants in the next Limitation Year, and each succeeding Limitation Year if necessary;
Ira suspense account is in existence at any time during a Limitation Year pursuant to this Section, it will not participate in
the allocation of investment gains and losses. Ira 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
contributions or any employee contributions may be made to the plan for that limitation year. Excess amounts in the
suspense'account may not be distributed to participants or former participants.
(b)(I) This subsection 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 Code Section 419(e)) maintained by
the Employer, or an individual medical account (as defined in Code Section 415(1)(2)) maintained by the Employer, which
provides Annual Additions, during any Limitation Year. The Annual Additions which may be credited to a Participant's
accounts under this Plan for such Limitation Year shall not exceed the Maximum Permissible Amount reduced by the Annual
Additions credited to a Participant's accounts 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 accounts 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 welfare benefit funds for the Limitation Year will equal the Maximum Permissible Amount. If the
Annual Additions with respect to the Participant under such other defined contribution plans and welfare benefit funds in the
aggregate are equal~ to or greater than the Maximum Permissible Amount, no amount will be contributed or allocated to the
Participant's account under this Plan for the Limitation Year.
(2) 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 4.4(a)(2).
(3) As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for the
Limitation Year will be determined on the basis of the Participant's actual Compensation for the Limitation Year~
(4) If, pursuant to Section 4.4(b)(2), a Participant's Annual Additions under this Plan and such other plans would result in an
Excess Amount foi- 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.
(5) 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:
(i) the total Excess Amount allocated as of such date, times
(ii) the ratio of (I) the Annual Additions allocated to the Participant for the Limitation Year as of such date under this Plan to
(2) the total Annual Additions allocated to the Participant for the Limitation Year as of' such date under this and all the other
qualified defined contribution plans.
(6)' Any ExceSs Amount attributed to this Plan will be disposed in the manner described in Section 4.4(a)(4).
(c) If the Participant is covered under another qualified defined contribution plan maintained by the Employer,
Annual Additions which may be credited to 'the Participant's account under this Plan for any Limitation Year will be limited
in accordance with Section 4.4(b)
(d) If the Employer maintains, or at any time maintained, a qualified defined benefit plan covering any Participant
in this Plan the sum of the Participant's Defined Benefit Plan Fraction and Defined Contribution Plan Fraction will not
exceed 1.0 in any Limitation Year.
(e) For purposes of applying the tim itations of Code Section 415, the transfer of funds from one qualified plan to
8
another is not an "annual addition." In addition, the following are not Employee contributions for the purposes of Section
4.4(f)(1)(2): (I) rollover contributions (as defined in Code Sections 402(c)(4), 403(a)(4), 403(b)(8) and 408(d)(3)); (2)
repayments of loans made to a Participant from the Plan; (3) repayments of distributions received by an Employee pursuant
to Code Section 411 (a)(7)(B) (cash-outs); (4) repayments of distributions received by an Employee pursuant to Code Section
41 1(a)(3)(D) (mandatory contributions); and (5)Employee contributions to a simplified employee pension excludable from
gross income under Code Section 408(k)(6).
(f) For purposes of this Section, the following terms shall be defined as follows:
(1) Annual Additions means the sum credited to a Participant's accounts for any Limitation Year of (I) Employer
contributions, (2) effective with respect to "limitation years" beginning after December 31, 1986, Employee contributions,
(3) forfeitures and (4) amounts allocated, after March 3 I, 1984, to an individual medical account, as defined in Code Section
415( 1 )(2), which is part of a pension or annuity plan maintained by the Employer. Except, however, the "415 Compensation"
percentage limitation referred to in paragraph (a)(2) above shall not apply to: (1) any contribution for medical benefits
(within the meaning of Code Section 41 9A(f)(2)) after separation from service which is otherwise treated as an "annual
addition," or (2) any amount otherwise treated as an "annual addition" under Code Section 415(1 )( 1 ). Notwithstanding the
foregoing, for "limitation years" beginning prior to January 1, 1987, only that portion of Employee contributions equal to the
lesser of Employee contributions in excess of six percent (6%) of "415 Compensation" or one-half of Employee
contributions shall be considered an "annual addition."
For this purpose, any Excess Amount applied under Sections 4.4(a)(4) and 4.4(b)(6) in the Limitation Year to reduce
Employer contributions shall be considered Annual Addition s for such Limitation Year.
For limitation years beginning after December 31, 199 I, for purposes of applying the limitations of this article, compensation
for a limitation year is the compensation actually paid or made available during such limitation year.
Notwithstanding the preceding sentence, compensation for a participant in a defined contribution plan who is permanently
and totally disabled (as defined in section 22(e)(3) of the Internal Revenue Code) is the compensation-s-uc~p_articipant would
have received for the limitation year if the participant had been paid at the rate of compensation paid imme~'~tely before
becoming permanently and totally disabled; such imputed compensation for the disabled participant may be taken into
account only if the participant is not a Highly Compensated Employee and contributions made on behalf of such participant
are nonforfeitable when made.
(3) Defined Benefit Fraction means a fraction, the numerator of which is the sum of the Participant's Projected Annual
Benefits under all the defined benefit plans (whether or not terminated) maintained by the Employer, and the denominator of
which is the lesser of 125 percent of the dollar limitation determined for the Limitation Year under Code Sections 415(b) and
(d) or 140 percent of his Highest Average Compensation including any adjustments under Code Section 415(b).
Notwithstanding the above, if the Participant was a Participant as of the first day of the first Limitation Year beginning after
December 31, 1986, in one or more defined benefit plans maintained by the Employer which were in existence on May 6,
1986, the denominator of this fraction will not be less than 125 percent of the sum of the annual benefits under such plans
which the Participant had accrued as of the end of the close of the last Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of'the plan after May 5, 1986. The preceding sentence applies only if
the defined benefit plans individual ly and in the aggregate satisfied the requirements of Code Section 415 for all Limitation
Years beginning before January 1, 1987.
(4) Defined Contribution Dollar Limitation means $30,000, as adjusted under Code Section 415(d).
(5) Defined Contribution Fraction means a fraction, the numerator of which is the sum of the Annual Additions to the
Participant's account under all the defined contribution plans (whether or not terminated) maintained by the Employer for the
current and all prior Limitation Years, (including the Annual Additions attributable to the Participant's nondeductible
voluntary employee contributions to any defined benefit plans, whether or not terminated, maintained by the Employer and
the annual additions attributable to all welfare benefit funds, as defined in Code Section 419(e), and individual medical
accounts, as defined in Code Section 415(1)(2), maintained by the Employer), and the denominator of which is the sum of the
9
maximum aggregate amounts for the current and all prior Limitation Years of Service with the Employer (regardless of
whether a defined contribution plan was maintained by the Employer). The maximum aggregate amount in any Limitation
Year is the lesser of 125 percent of the Defined Contribution Dollar Limitation or 35 percent of the Participant's
Compensation for such year. For Limitation Years beginning prior to January 1, 1987, the "annual addition" shall not be
recomputed to treat all Employee contributions as an Annual Addition.
If the Employee was a Participant as of the end of the first day of the first Limitation Year beginning after December 31,
1986, in one or more defined contribution plans maintained by the Employer which were in existence on May 5, 1986, the
numerator of this fraction will be adjusted if the sum of this fraction and the Defined Benefit Fraction would otherwise
exceed 1.0 under the terms of this Plan. Under the adjustment, an amount equal to the product of(l) the excess of the sum of
the fractions over 1.0 times (2) the denominator of this fraction, will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as they would be computed as of the end of the last Limitation Year
beginning before January 1, 1987, and disregarding any changes in the terms and conditions of the plan made after May 5,
1986, but using the Code Section 415 limitation applicable to the first Limitation Year beginning on or after January I, 1987.
(6) Employer means the Employer that adopts this Plan and all Affiliated Employers; except that for purposes of this Section,
Affiliated Employers shall be determined pursuant to the modification made by Code Section 415(h).
(7) Excess Amount means the excess of the Participant's Annual Additions for the Limitation Year over the Maximum '
Permissible Amount.
(8) Highest Average Compensation means the average Compensation for the three consecutive Years of Service with the
Employer that produces the highest average. A Year of Service with the Employer is the 12.consecutive month period
defined in Section C2 of the Adoption Agreement.
(9) LimitationYear means the Calendar Year. All qualified plans maintained by the Employer must use the same Limitation
Year. If the Limitati6n Year is amended to a different 12 consecutive month period, the new Limitation Year must begin on a
date within the Limitation Year in which the amendment is made.
(10) Maximum Permissible Amount means the maximum Annual Addition that may be contributed or allocated to a
Participant's account under the plan for any Limitation Year, which shall not exceed the lesser of:
(i) the Defined Contribution Dollar Limitation, or
(ii) 25 percent of the Participant's Compensation for the Limitation Year.
The Compensation Limitation referred to in (ii) shall not apply to any contribution for medical benefits (within the meaning
of Code Sections 401 (h) or 419A(f)(2)) which is otherwise treated as an annual addition under Code Sections 415( 1 )( 1 ) or
419A(d)(2):
If a short Limitation Year is created because of an amendment changing the Limitation Year to a different 12 consecutive
month period, the Maximum Permissible Amount will not exceed the Defined Contribution Dollar Contribution multiplied
by the following fraction:
number of months in the short Limitation Year
12
(11) Projected Annual Benefit means the annual retirement benefit (adjusted to an actuarially equivalent straight life annuity
if such benefit is expressed in a form other than a straight life annuity or qualified Joint and Survivor Annuity) to which the
Participant would be entitled under the terms of the plan assuming:
(i) the Participant will continue employment until Normal Retirement Age (or current
age, if later), and
10
(ii) the Participant's Compensation for the current Limitation Year and all other relevant factors used to determine benefits
under the Plan will remain constant for all future Limitation Years.
(g) Notwithstanding anything contained in this Section to the contrary, the limitations, adjustments and other
requirements prescribed in this Section shall at all times comply with the provisions of Code Section 415 and the Regulations
thereunder, the terms &which are specifically incorporated herein by reference.
4.5 DIRECTED INVESTMENT ACCOUNT
(a) All Participants may direct the Trustee as to the investment of all of their individual account balances.
Participants may direct the Trustee in writing to invest their account in specific assets as permitted by the Administrator
provided such investments are permitted by the Plan. The account of any Participant so directing will thereupon be
considered a Directed Investment Account.
(b) A separate Directed Investment Account shall be established for each Participant who has directed an investment
The Directed Investment Account shall not share in Trust Fund Earnings, but it shall be charged or credited as appropriate
with the net earnings, gains, losses and expenses as well as any appreciation or depreciation in market value during each Plan
Year attributable to such account.
(c) The Administrator shall establish a procedure, to be applied in a uniform and nondiscriminatory manner, setting
forth the permissible investment options under this Section, how often changes between investments may be made, and any
other limitations that the Administrator shall impose on a Participant's right to direct investments.
ARTICLE V VALUATIONS
5.1 VALUATION OF THE TRUST FUND
The Administrator shall direct the Trustee, as of the last day of each calendar quarter, herein called "valuation date,"
to determine the net worth of the assets comprising the Trust Fund as it exists on the "valuation date." In determining such
net worth, the Trustee shall value the assets comprising the Trust Fund at their fair market value as of the "valuation date"
and shall deduct all expenses for which the Trustee has not yet obtained reimbursement from the Employer or the Trust
Fund.
5.2 METHOD OF VALUATION
In determining the fair market value of securities held in the Trust Fund which are listed on a registered stock
exchange, the Administrator shall direct the Trustee to value the same at the prices they were last traded on such exchange
preceding the close of business on the "valuation date." If such securities were not traded on the "valuation date," or if the
exchange on which they are traded was not open for business on the "valuation date," then the securities shall be valued at
the prices at which they were last traded prior to the "valuation date." Any unlisted security held in the Trust Fund shall be
valued at its bid price next preceding the close of business on the "valuation date," which bid price shall be obtained from a
registered broker or an investment banker. In determining the fair market value of assets other than securities for which
trading or bid prices can be obtained, the Trustee may appraise such assets itself, or in its discretion, employ one or more
appraisers for that purpose and rely on the values established by such appraiser or appraisers. Where the Trust Fund asset
consists of an annuity contract, it should be valued at the annuity contract value.
11
ARTICLE VI
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT
Every Participant may terminate his employment with the Employer and retire for the purposes hereof on or after
his Normal Retirement Date or Early Retirement Date. However, aParticipant may postpone the termination of his
employment with the Employer to a later date, in which event the participation of such Participant in the Plan, including the
right to receive allocations pursuant to Section 4.3, shall continue until his Late Retirement Date. Upon a Participant's
Retirement Date, or attainment of his Normal Retirement Date without termination of employment with the Employer, or as
soon thereafter as is practicable, the Administrator shall direct, at the election of the Participant, the distribution of all
amounts credited to such Participant's Account in accordance with Section 6.5.
6.2 DETERMINATION OF BENEFITS UPON DEATH
(a) Upon the death of a Participant before his Retirement Date or other termination of his employment, the
Administrator shall direct, in accordance with the provisions of Sections 6.6 and 6.7, the distribution of the deceased
Participant's accounts to the Participant's Beneficiary-
(b) Upon the death of a Former Participant, the Administrator shall direct, in accordance with the provisions of
'Sections 6.6 and 6.7, the distribution of any remaining amounts credited to the account of such deceased Former Participant
to such Former Participant's Beneficiary-
(c) The Administrator may require such proper proof of death and ~uch evidence of the right of any person to
receive payment Of the value of the account of a deceased Participant or Former Participant as the Administrator may deem
desirable. The Administrator's determination of death and of the right of any person to receive payment shall be conclusive.
(d) The designation of a Beneficiary shall be made on a form satisfactory to the Administrator. A Participant may at
any time revoke his designation of a Beneficiary or change his Beneficiary by filing written notice of such revocation or
change 'with the Administrator. In the event no valid designation of Beneficiary exists at the time of the Participant's death,
the death benefit shall be payable to his estate.
(e) If the Plan provides an insured death benefit and a Participant dies before any insurance coverage to which he is
entitled under the Plan is in effect, his death benefit from such insurance coverage shall be limited to the standard rated
premium which was or should have been used for such purpose.
(f) In the event of any conflict between the terms of this Plan and the terms of any Contract issued hereunder, the
Plan provisions shall control.
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY
:
In the event of a Participanfs Total and Permanent Disability, the Administrator, in accordance with the provisions
of Sections 6.5 and 6.7, shall direct the distribution to such Participant of all amounts credited to such Participant's Account
as though he or she had retired.
6.4 DETERMINATION OF BENEFITS UPON TERMINATION '
(a) On or before the Anniversary Date, or other valuation date, coinciding with or subsequent to the termination of a
Participant's employment for any reason other than retirement, death, or Total and Permanent Disability, the Administrator
may direct that the amount of such Terminated Participant's Account be segregated and invested separately. In the event the
Participant's Account is not segregated, the amount shall remain in a separate account for the Terminated Participant and
share in allocations pursuant to Section 4.3 until such time as a distribution is made to the Terminated Participant
12
Distribution of the funds due to a Terminated Participant shall be made on the occurrence of an event which
would result in the distribution had the Terminated Participant remained in the employ of the Employer (upon the
Participant's death, Total and Permanent Disability or Normal Retirement). However, at the election of the Participant, the
Administrator shall direct that the Terminated Participant's Account be payable to such Terminated Participant provided the
conditions, if any, set forth in the Adoption Agreement have been satisfied. Any distribution under this paragraph shall be
made in a manner which is consistent with and satisfies the provisions of Section 6.5.
Notwithstanding the above, if the value of a Terminated Participant's benefit does not exceed, and at the time of any
prior distribution, has never exceeded $5,000, the Administrator shall direct that the entire benefit be paid to such Participant
in a single lump-sum without regard to the consent of the Participant.
(b) If any Former Participant shall be reemployed by the Employer before a One-Year Break in Service occurs, he
or she shall continue to participate in the Plan in the same manner as if such termination had not occurred.
6.5 DISTRIBUTION OF BENEFITS
(a) The Administrator, pursuant to the election of the Participant, shall direct the distribution to a Participant or Beneficiary
any mount to which he is entitled under the Plan in one or more of the following methods:
(1) One lump-sum payment in cash;
(2) Payments over a period certain in monthly, quarterly, semiannual, or annual cash installments. In order to provide such
installment payments, the Administrator may direct that the Participant's interest in the Plan be segregated and invested
separately, and that the funds in the segregated account be used for the payment of the installments. The period over which
such payment is to be made shall not extend beyond the Participant's life expectancy (or the life expectancy of the Participant
and his designated Beneficiary);
(3) Purchase of or providing an annuity. However, such annuity may not be in any form that will provide for payments over
a period extending beyond either the life of the Participant (or the lives of the Participant and his designated Beneficiary) or
the life expectancy of the Participant (or the life expectancy of the Participant and his designated Beneficiary).
(b) The present value of a Participant's Annuity derived from Employi~r and Employee contributions may not be paid
without his written consent if the value exceeds, or has ever exceeded at the time of any prior distribution $5,000. If the value
of the Participant's benefit derived from Employer and Employee contributions does not exceed $5,000 and has never
exceeded $5,000 at the time of any prior distribution, the Administrator may immediately distribute such benefit without
such Participant's consent
(1) No consent shall be valid unless the Participant has received a general description of the material features and an
explanation of the relative values of the optional forms of benefit available under the Plan that would satisfy the notice
requirements of Code Section 417.
(2) The Participant must be informed of his right to defer receipt of the distribution. If a Participant fails to consent to an
immediate distribution, it shall be deemed an election to defer the commencement of payment of any benefit.
(3) Notice' of the rights specified under this paragraph shall be provided no less than 30 days and no more than 90 days
before the "annuity starting date."
(4) Written consent of the Participant to the distribution must not be made before the Participant receives the notice and must
not be made more than 90 days before the "annuity starting date."
(5) No consent shall be valid if a significant detriment is imposed under the Plan on any Participant who does not consent to
the distribution.
13
(c) Notwithstanding any provision in the Plan to the contrary, the distribution of a Participant's benefits, made on or
after January 1, 1985, whether under the Plan or through the purchase of an annuity Contract, shall be made in accordance
with the following requirements and shall otherwise comply with Code Section 401(a)(9) and the Regulations thereunder
(inclUding Regulation Section 1.401 (a)(9)-2), the provisions of which are incorporated herein by reference:
(!) A Participant's benefits shall be distributed to him not later than April I st of the calendar year following the later of (i)
the calendar year in which the Participant attains age 70 I/2 or (ii) the calendar year in which the Participant retires.
Alternatively, distributions to a Participant must begin no later than the applicable April 1st as deterrnined under the
preceding sentence and must be made over the life of the Participant (or the lives of the Participant and the Participant's
designated Beneficiary) or, if benefits are paid in the form of a Joint and Survivor Annuity, the life expectancy of the
Participant (or the life expectancies of the Participant and his designated Beneficiary) in accordance with Regulations.
(2) Distributions to a Participant and his Beneficiaries shall only be made in accordance with the incidental death benefit
requirements of Code Section 40 1 (a)(9)(G) and the Regulations thereunder.
6.6 DISTRIBUTION OF BENEFITS UPON DEATH
(a) Death benefits shall be paid to the Participant's Beneficiary by either of the following methods. as elected by the Participant
(or if no election has been made prior te the Participant's death, by his Beneficiary) subject to the rules specified in Section 6.6(b) and the
selections made in the Adoption Agreement:
(i) One lump-sum payment in cash;
(ii) Paymenl in monthly, quarterly, semi-annual, or annual cash installments over a period to be determined.by the
Participant or his Beneficiary. After periodic installments commence, the Beneficiary shall have the right to reduce the
period over which such periodic installments shall be made, and the cash amount of such periodic installments shall be
adjusted accordingly.
In the event the death benefit payable pursuant to Section 6.2 is payable in installments, then, upon thc death of the
Participant, the Administrator may direct that the death benefit be segregated and invested separately, and that the funds
accumulated in the segregated account be used for.the payment of the installments.
(b) Notwithstanding any provision in the Plan to the c. ontrary, distributions upon the death of a Participant made on
or after January 1, 1985, shall be made in accordance with the following requirements and shall otherwise comply with Code
Section 401 (a)(9) and the Regulations thereunder.
(1) If it is determined, pursuant to Regulations, that the distribution of a Participant's interest has begun and the Participant
dies before his entire interest has been distributed to him, the remaining portion of such interest shall be distributed at least as
rapidly as under the method of distribution selected pursuant to Section 6.5 as of his date of death.
(2) If a Participant dies before he has begun to receive any distributions of his interest in the Plan or before distributions are
deemed to have begun pursuant to Regulations, then his death benefit shall be distributed to his Beneficiaries in accordance
with the following rules subject to the selections made in the Adoption Agreement.
(i) The entire death benefit shall be distributed to the Participant's Beneficiaries by December 31st of the
calendar year in which the fifth anniversary of the Participant's death occurs;
(ii) The 5-year distribution requirement of (D above shall not apply to any portion of the deceased Participant's
interest which is payable to or. for the benefit of a designated Beneficiary. In such event, such portion shall be
distributed over the life of such designated Beneficiary (or over a period not extending beyond the life
expectancy of such designated Beneficiary) provided such distribution begins not later than December 31 st of
the calendar year immediately following the calendar year in which the Participant died;
(iii) However, in the event the Participant's spouse (determined as of the date of the Participant's death) is his
· designated Beneficiary, the provisions of(ii) above shall apply except that the requirement that distributions
14
commence within one year of the Participant's death shall not apply. In lieu thereof, distributions must
commence on or before the later of: ( 1 ) December 31 st of the calendar year immediately following the calendar
year in which the Participant died; or (2) December 31st of the calendar year in which the Participant would
have attained age 70 I/2. If the surviving spouse dies before distributions to such spouse begin, then the 5-year
distribution requirement of this Section shall apply as if the spouse was the Participant.
(c) For purposes of Section 6.6(b)(2), the election by a designated Beneficiary to be excepted from the 5-year
distribution requirement must be made no later than December 31 st of the calendar year following the calendar year of the
Participant's death.
Except, however, with respect to a designated Beneficiary who is the Participant's surviving spouse, the election must be
made by ~he earlier of: (i) December 31st of the calendar year immediately following the calendar year in which the
Participant died or, if later, the calendar year in which the Participant would have attained age 70 1/2; or (2) December 31st
of the calendar year which contains the fifth anniversary of the date of the Participant's death. An election by a designated
Beneficiary must be in writing and shall be irrevocable as of the last day of the election period stated herein. In the absence
of an election by the Participant or a designated Beneficiary, the 5-year distribution requirement shall apply.
(d) For purposes of this Section, the life expectancy of a Participant and a Participant's spouse (other than in the case
of a life annuity) shall or shall not be redetermined annually as elected by the Participant and the Participant's spouse and in
accordance with Regulations. If the Participant or the Participant's spouse elect to have life expectuncles recalculated, then
the election, once made shall be irrevocable. If no election is made by the time distributions must commence, then the life
expectancy of the Participant and the Participant's spouse shall not be subject to recalculation. Life expectancy and joint and
last survivor expectancy shall be computed using the return multiples in Tables V and VI of Regulation Section 1.72-9.
(e) In the event that less than 100% of a Participant's interest in the Plan is distributed to such Participant's spouse,
the portion of the distribution attributable to the Participant's Voluntary Contribution Account shall be in the same proportion
that the Participant's Voluntary Contribution Account bears to the Participant's total interest in the Plan.
6.7 TIME OF SEGREGATION OR DISTRIBUTION
Except as limited by Sections 6.5 and 6.6, whenever a distribution is to be made, or a series of payments are to
commence, on or as of an Anniversary Date, the distribution or series of payments may be made or begun on such date or as
soon thereafter as is practicable, but in no event later than 180 days after the Anniversary Date. However, unless a Former
Participant elects in writing to defer the receipt of benefits (such election may not result in a death benefit that is more th~in
incidental), the payment of benefits shall begin not later than the 60th day alter the close of the Plan Year i'n which the latest
of the following events occurs: (a) the date on which the Participant attains the earlier of age 65 or the Normal Retirement
Age specified herein; (b) the 10th anniversary of the year in which the Participant commenced participation in the Plan; or
(c) the date the Participant terminates his service with the Employer.
6.8 DISTRIBUTION FOR MINOR BENEFICIARY
In the event a distribution is to be made to a minor, then the Administrator may direct that such distribution be paid
to the legal guardian,' or if none, to a parent of such Beneficiary or a responsible adult with whom the Beneficiary maintains
his residence, or to the custodian for such Beneficiary under the Uniform Gift to Minors Act or Gift to Minors Act, if such is
permitted by the laws of the state in which said Beneficiary resides. Such a payment to the legal guardian, custodian or
parent of a minor Beneficiary shall fully discharge the Trustee, Employer, and Plan from further liability on account thereof.
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the distribution payable to a Participant or his Beneficiary hereunder shall, at
the later of the Participant's attainment of age 62 or his Normal Retirement Age, remain unpaid solely by reason of the
inability of the Administrator, after sending a registered letter, return receipt requested, to the last known address, and after
15
further diligent effort, to ascertain the whereabouts of such Participant or his Beneficiary, the amount so distributable shall b.e
treated as a Forfeiture pursuant to the Plan. In th~ event a Participant or Beneficiary is located subsequent to the benefit being
reallocated, such benefit shall be restored, first from Forfeitures, if any, and then from an additional Employer contribution if
necessary.
6.10 LIMITATIONS ON BENEFITS AND DISTRIBUTIONS
All rights and benefits, including elections, provided to a Participant in this Plan shall be subject to the rights
afforded to any "alternate payee" under a "qualified domestic relations order." Furthermore, a distribution to an "alternate
payee" shall be permitted if such distribution is authorized by a "qualified domestic relations order," even if the affected
Participant has not reached the "earliest retirement age" under the Plan. For the purposes of this Section, "altemate payee,"
"qualified domestic relations order" and "earliest retirement age" shall have the meaning set forth under Code Section 414(p).
ARTICLE VII
TRUSTEE
7.1 BASIC RESPONSIBILITIES OF THE TRUSTEE
The Trustee shall have the following categories of responsibilities:
(a) Consistent with the "funding policy and method" determined by the Employer to invest, manage, and control
the Plan assets subject, however, to the direction of an Investment Manager if the Employer should appoint such manager as
to all or a portion of the assets of the Plan;
(b) At the direction of the Administrator, to pay benefits required under the Plan to be paid t0 Participants, or, in the
event of their death, to their Beneficiaries;
(c) To maintain records of receipts and disbursements and furnish to the Employer and/or Administrator for each
Plan Year a written annual report per Section 7.6; and
(d) If there shall be more than one Trustee; they shall act by a majority of their number, but may authorize one or
more of them to sign papers on their behalf.
7.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE
(a) The Trustee shall invest and reinvest the Trust Fund to keep the Trust Fund invested without distinction between
principal and income and in such securities or property, real or personal, wherever situated, as the Trustee shall deem
advisable, including, but not limited to, stocks, common or preferred, bonds and other evidences of indebtedness or
ownership, and real estate or any interest therein. The Trustee shall at all times in making investments of the Trust Fund
consider, among other factors, the short and long-term financial needs of the Plan on the basis of information furnished by
the Employer. In making such investments, the Trustee shall not be restricted to securities or other property of the character
expressly authorized by the applicable law for trust investments; however, the Trustee shall give due regard to any
limitations imposed by the Code so that at all times this Plan may qualify as a qualified Plan and Trust.
(b) The Trustee may employ a bank or trust company pursuant to the terms of its usual and customary bank agency
agreement, under which the duties of such bank or trust company shall be of a custodial, clerical and record-keeping nature.
(c) The Trustee may from time to time transfer to a common, collective, or pooled trust fund maintained by any
corporate Trustee hereunder pursuant to Revenue Ruling 81-100, all or such part of the Trust Fund as the Trustee may deem
advisable, and such part or all of the Trust Fund so transferred shall be subject to all the terms and provisions of the common,
collective, or pooled trust fund which contemplate the commingling for investment purposes of such trust assets with trust
assets of other trusts. The Trustee may withdraw from such common, collective, or pooled trust fund all or such part of the
Trust Fund as the Trustee may deem advisable.
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7.3 OTHER POWERS OF THE TRUSTEE
The Trustee, in addition to all powers and authorities under common law, statutory authority, and other provisions
of this Plan, shall have the following powers and authorities to be exercised in the Trustee's sole discretion:
(a) To purchase, or subscribe for, any securities or other property and to retain the same. In conjunction with the
purchase of securities, margin accounts may be opened and maintained;
(b) To sell, exchange, convey, transfer, grant options to purchase, or otherwise dispose of any securities or other
property held by the Trustee, by private contract or at public auction. No person dealing with The Trustee shall be bound to
see to the application of the purchase money or to inquire into the validity., expediency, or propriety of any such sale or other
disposition, with or without advertisement;
(c) To vote upon any stocks, bonds, or other securities; to give general or special proxies or powers of attorney with
or without power of substitution; to exercise any conversion privileges, subscription rights or other options, and to make any
payments incidental thereto; to oppose, or to consent to, or otherwise participate in, corporate reorganizations or other
changes affecting corporate securities, and to delegate discretionary powers, anti to pay any assessments or charges in
connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities, or
other property;
(d) To cause any securities or other property to be registered in the Trustee's own name or in the name of one or
more of the Trusteeg nominees, and to hold any investments in bearer form, but the books and records of the Trustee shall at
all times show that all such investments are part of the Trust Fund;
(e) To borrow or raise money for the purposes of the Plan in such amount, and upon such terms and conditions, as
the Trustee shall deem advisable; and for any sum so borrowed, to issue a promissory note as Trustee, and to secure the
repayment thereof by pledging all, or any part, of the Trust Fund; and no person lending money to the Trustee shall be bound
to see to the application of the money lent or to inquire into the validity, expediency, or propriety of any borrowing;
(f) To keep such portion of the Trust Fund in cash or cash balances as the Trustee may, from time to time, deem to
be in the best interests of the Plan, without liability for interest thereon;
(g) To accept and retain for such time as it may deem advisable any securities or other property received or acquired
by it as Trustee hereunder, whether or not such securities or Other property would .normally be purchased as investments
hereunder;
(h) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all
other instruments that may be necessary or appropriate to carry out the powers here in granted;
(i) To settle, compromise, or submit to arbitration any claims, debts, or damages due or owing to or from the Plan,
to commence or defend suits or legal or administrative proceedings, and to represent the Plan in all suits and legal and
administrative proceedings;
(j) To employ suitable agents and counsel and to pay their reasonable expenses and compensation, and such agent or
counsel may or may not be agent or counsel for the Employer;
(k) To apply for and procure from the insurer as an investment of the Trust Fun cl such annuity, or other Contracts
(on the life of any Participant) as the Administrator shall deem proper; to exercise, at any time or from time to time, whatever
rights and privileges may be granted under such annuity, or other Contracts; to collect, receive, and settle for the proceeds of
all such annuity, or other Contracts as and When entitled to do so under the provisions thereof;
(1) To invest funds of the Trust in time deposits or savings accounts bearing a reasonable rate of interest in the
Trustee's bank;
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(m) To invest in Treasury Bills and other forms of United States government obligations;
(n) To sell, purchase and acquire put or call options if the options are traded on'and purchased through a national
securities exchange registered under the Securities Exchange Act of 1934, as amended, or, if the options are not traded on a
national securities exchange, are guaranteed by a member firm of the New York Stock Exchange;
(o) To deposit monies in federally insured savings accounts or certificates of deposit in banks or savings and loan
associations;
(p) To pool all or any of the Trust Fund, from time to time, with assets belonging to any other qualified employee
pension benefit trust created by the Employer or any Affiliated Employer, and to commingle such assets and make joint or
common investments and carry joint accounts on behalf of this Plan and such other trust or trusts, allocating undivided shares
or interests in such investments or accounts or any pooled assets of the two or more trusts in accordance with their respective
interests;
(q) To do all such acts and exercise all such rights and privileges, although not specifically mentioned herein, as the
Trustee may deem necessary to carry out the purposes of the Plan.
7.4 DUTIES OF THE TRUSTEE REGARDING PAYMENTS
At the direction of the Administrator, the Trustee shall, from time to time, in accordance with the terms of the Plan,
make payments out of the Trust Fund. The Trustee shall not be responsible in any way for the application of such payments.
7.5 TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES
The Trustee shall be paid such reasonable compensation as set forth in the Trustee's fee schedule (if the Trustee has
such a schedule) or as agreed upon in writing by the Employer and the Trustee. An individual serving as Trustee who already
receives full-time pay from the Employer shall not receive compensation from this Plan. In addition, the Trustee shall be
reimbursed for any reasonable expenses, including reasonable counsel fees incurred by it as Trustee. Such compensation and
expenses shall be paid from the Trust Fund unless paid or advanced by the Employer. All taxes of any kind and all kinds
whatsoever that may be levied or assessed under existing or future laws upon, or in respect of, the Trust Fund or the income
thereof, shall be paid from the Trust Fund.
7.6 ANNUAL REPORT OF THE TRUSTEE
Within a reasonable period of time after the later of the Anniversary Date or receipt of the Employer's contribution
for each Plan Year, the Trustee, or its agent, shall furnish to the Employer and Administrator a written statement of account
with respect to the Plan Year for which such contribution was made setting forth:
(a) the net income, or loss, of the Trust Fund;
(b) the gains, or losses, realized by the Trust Fund upon sales or other disposition of the
assets;
(c) the increase, or decrease, in the value of the Trust Fund;
(d) all payments and distributions made from the Trust Fund; and
(e) such further information as the Trustee and/or Administrator deems appropriate. The Employer, forthwith upon
its receipt of each such statement of account, shall acknowledge receipt thereof in writing and advise the Trustee and/or
Administrator of its approval or disapproval thereof. Failure by the Employer to disapprove any such statement of account
within thirty (30) days after its receipt thereof shall be deemed an approval thereof. The approval by the Employer of any
statement of account shall be binding as to all matters embraced therein as between the Employer and the Trustee to the same
extent as if the account of the Trustee had been settled by judgment or decree in an action for a judicial settlement of its
account in a court of competentjurisdiction in which the Trustee, the Employer and all persons having or claiming an interest
18
in the Plan were parties; provided, however, that nothing herein contained shall deprive the Trustee of its right to have its
accounts judicially settled if the Trustee so desires.
7.7 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE
(a) The Trustee may resign at any time by delivering to the Employer, at least thirty (30) days before its effective
date, a latter of resignation.
(b) The Employer may remove the Trustee by mailing by registered or certified mail, addressed to such Trustee at
his last known address, at least thirty (30) days before its effective date, a written notice of his removal.
(c) Upon the death, resignation, incapacity, or removal of any Trustee, a successor may be appointed by the
Employer; and such successor, upon accepting such appointment in writing and delivering same to the Employer, shall,
without further act, become vested with all the estate, rights, powers, discretion's, and duties of his predecessor with like
respect as if he were originally named as a Trustee herein. Until such a successor is appointed, the remaining Trustee or
Trustees shall have full authority to act under the terms of the Plan.
(d) The Employer may designate one or more successors prior to the death, resignation, incapacity, or removal of a
Trustee. In the event a successor is so designated by the'Employer and accepts such designation, the successor shall, without
further act, become vested with all the estate, rights, powers, discretion's, and duties of his predecessor with the like effect as
if he were originally named as Trustee herein immediately upon the death, resignation, incapacity, or removal of his
predecessor.
(e) Whenever any Trustee hereunder ceases to serve as such, he shall furnish to the Employer and Administrator a
written statement of account with respect to the portion of the Plan Year during which he served as Trustee. This statement
shall be either (i) included as part of the annual statement of account for the Plan Year required under Section 7.7 or (ii) set
forth in a special statement. Any such special statement of account should be rendered to the Employer no later than the due
date of the annual statement of account for the Plan Year. The procedures set forth in Section 7.7 for the approval by the
Employer of annual statements of account shall apply to any special statement of account rendered hereunder and approval
by the Employer of any such special statement in the manner provided in Section 7.7 shall have the same effect upon the
statement as the Employer's approval of an annual statement of account. No successor to the Trustee shall have any duty or
responsibility to investigate the acts or transactions of any predecessor who has rendered all statements of account required
by Section 7.7 and this subparagraph.
7.8 TRANSFER OF INTEREST
Notwithstanding any other provision contained in this Plan, the Trustee, at the direction of the Administrator shall transfer
the Vested interest, if any, of a Participant in his account to another trust forming part of a pension, profit sharing, or stock
bonus plan maintained by such Participant's new employer and represented by said employer in writing as meeting the
requirements of Code Section 401 (a), provided that the trust to which such transfers are made permits the transfer to be made.
(a) Notwithstanding any provision of the plan to the contrary, with respect to distributions made after December 3 I, 1992,
a Participant shall be permitted to elect to have any "eligible rollover distribution" transferred directly to an "eligible retirement
plan" specified by the Participant. The Plan provisions otherwise applicable to distributions continue to apply to the direct
transfer option. The Participant shall, in the time and manner prescribed by the Administrator, specify the amount to be directly
transferred and the "eligible retirement plan" to receive the transfer. Any portion of a distribution which is not transferred shall
be distributed to the Participant.
(b) For purposes of this Section, the term "eligible rollover distribution" means any distribution other than a distribution
of substantially equal periodic payments over the life or life expectancy of the Participant (or joint life expectancies of the
Participant and the designated beneficiary) or a distribution over .a period certain often years or more. Amounts required to be
distributed under Code Section 401 (a)(9) are not el igible rollover distributions. The direct transfer option described in
subsection (a) applies only to eligible rollover distributions which would Otherwise be includible in gross income if not
transferred.
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(c) For purposes of this Section, the term "eligible retirement plan" means an individual retirement account as described
in Code Section 408(a), an individual retirement annuity as described' in Code Section 408(b), an annuity plan as described in
Code Section 403(a), or a deftnell contribution plan as described in Code Section 40 1 (a) which is exempt from tax under Code
Section 501 (a) and which accepts rollover distributions.
(d) The election described in subsection (a) also applies to the surviving spouse after the Participant's death; however,
distributions to the surviving spouse may only be transferred .to an individual retirement account or individual retirement
annuity. For purposes ofsubsection (a), a spouse or former spouse who is the alternate payee under a qualified domestic
relations order as defined in Code Section 414(p) will be treated as the Participant.
7.9 TRUSTEE INDEMNIFICATION
The Employer agrees to indemnify and save harmless the Trustee against any and all claims, losses, damages, expenses
and liabilities the Trustee may incur in the exercise and performance of the Trustee's powers and duties hereunder, unless the
same are determined to be due to gross negligence or willful misconduct.
ARTICLE VIII
AMENDMENT, TERMINATION, AND MERGERS
8.1 AMENDMENT
(a) The Employer shall have the right at any time to amend this Plan subject to the limitations of this Section. However, any
amendment which affects the rights, duties or responsibilities of the Trustee and Administrator may only be made with the
Trustee's and Administrator's written consent. Any such amendment shall become effective as provided therein upon its
execution. The Trustee shall not be required to execute any such amendment unless the amendment affects the duties of the
Trustee hereunder.
(b) No amendment to the Plan shall be effective if it huthorizes or permits any part of the Trust Fund (other than such part as is
required to pay taxes and administration expenses) to be used for or diverted to any purpose other than for the exclusive benefit
of the Participants or their Beneficiaries or estates; or causes any reduction in the amount credited to the account &any
Participant; or causes or permits any portion of the Trust Fund to revert to or become proper~y of the Employer.
8.2 TERMINATION
(a) The Employer shall have the right at any time to terminate the Plan by delivering to the Trustee andAdministrator written notice
of such termination. Upon any full or partial termination all amounts credited to the affected Participants' Accounts shall
become 100% Vested and shall not thereafter be subject to forfeiture, and all unallocated amounts shall be allocated to the
accounts of all Participants in accordance with the provisions hereof.
(b) Upon the full termination of the Plan, the Employer shall direct the distribution of the assets to Participants in a manner which is
consistent with and satisfies the provisions of Section 6.5. Distributions to a Participant shall be made in cash or through the
purchase of irrevocable nontransferable deferred commitments from the Insurer. Except as permitted by Regulations, the
termination of the Plan shall not result in the reduction of "Section 411 (d)(6) protected benefits" as described in Section 8:1.
8.:3 MERGER OR CONSOLIDATION
This Plan may be merged or consolidated with, or its assets and/or liabilities may be transferred to any other plan only if the benefits
which would be received by a Participant of this Plan, in the event of a termination of the plan immediately after such transfer,
merger or consolidation, are at least equal to the benefits the Participant would have received if the Plan had terminated
immediately before the transfer, merger or consol idation.
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ARTICLE IX MISCELLANEOUS
9.1 EMPLOYER ADOPTIONS
(a) Any organization may become the Employer hereunder by executing the Adoption Agreement in form satisfactory to the Trustee,
and it shall provide such additional information as the Trustee may require. The consent of the Trustee to act as such shall be
signified by its execution of the Adoption Agreement.
(b) Except as otherwise provided in this Plan, the affiliation of the Employer and the participation of its Participants shall be separate
and apart from that of any other employer and its participants hereun der.
9.2 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute a contract between the Employer and any Participant or to be a consideration or an
inducement for the employment of any Participant or Employee. Nothing contained in this Plan shall be deemed to give any
Participant or Employee the right to be retained in the service of the Employer or to interfere with the right of the Employer to
discharge any Participant or Employee at any time regardless of the effect which such discharge shall have upon him as a
Participant of this Plan.
9.3 ALIENATION
(a) Subject to the exceptions provided below, no benefit which shall be payable to any person (including a Participant or his
Beneficiary) shall be subject in any manner to anticipation, alienation, sale, transfer, assignment,-pledge, encumbrance, or
charge, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be void; and no
such benefit shall in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements, or torts of any such
person, nor shall it be subject to attachment or legal process for or against such person, and the same shall not be recognized
except to such extent as may be required by law.
(b) This provision shall not apply to the extent a Participant or Beneficiary is indebted to the Plan, for any reason, under any
provision of this Plan. At the time a distribution is to be made to or for a Participant's or Beneficiary's benefit, such proportion
of the amount to be distributed equal to such indebtedness shall be paid to the Plan, to apply against or discharge such
indebtedness. Prior to making a payment, however, the Participant or Beneficiary must be given written notice by the
Administrator that such indebtedness is to be so paid in whole or part from his Participant's Account. If the Participant or
Beneficiary does not agree that the indebtedness is a valid claim against his Vested Participant's Account, he shall be entitled to
a review of the validity of the claim in accordance with procedures provided in Section 2.10.
(c) This provision shall not apply to a "qualified domestic relations order" defined in Code Section 414(p), and those other domestic
relations orders permitted to be so treated by the Administrator under the provisions of the Retirement Equity. Act of 1984. The
Administrator shall establish a written procedure to determine the qualified status of domestic relations orders and to administer
distributions under such qualified orders. Further, to the extent provided under a "qualified domestic relations order," a former
spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan.
(d) Notwithstanding any provision of this Section to the contrary, an offset to a Participant's accrued benefit against an amount that
the Participant is ordered or required to pay the Plan with respect to a judgement, order, or decree issued, or a settlement
entered into, on or after August 5, 1997, shall be permitted in accordance with Code section 401 (a)(13)(C).
9.4 CONSTRUCTION OF PLAN
This Plan and Trust shall be construed and enforced according to the Act and the laws of the State or Commonwealth in which the
Employer's principal office is located, other than its laws respecting choice of law.
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9.5 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or neuter gender, they shall be construed as though they were also
used in all of the other genders in all cases where they would so apply, and whenever any words are used herein in the singular
or plural form, they shall be construed as though they were also used in the other form in all cases where they would so apply.
9.6 LEGAL ACTION
In the' event any claim, suit, or proceeding is brought regarding the Trust and/or Plan established hereunder to which the Trustee or
the Administrator may be a party, and such claim, suit, or proceeding is resolved in favor of the Trustee or Administrator, they
shall be entitled to be reimbursed from the Trust Fund for any and all costs, attorney's fees, and other expenses pertaining
thereto incurred by them for which they shall have become liable.
9.7 PROHIBITION AGAINST DIVERSION OF FUNDS
(a) Except as provided below and otherwise specifically permitted by law, it shall be impossible by operation of the Plan or of the
Trust, by termination of either, by power of revocation or amendment, by the happening of any contingency, by collarera.1
arrangement or by any other means, for any part of the corpus or income of any Trust Fund maintained pursuant to the Plan or
any funds contributed thereto to be used for, 'or diverted to, purposes other than the exclusive benefit of Participants, Retired
Participants, or their Beneficiaries.
(b) In the event the Employer shall make a contribution under a mistake of fact, the Employer may demand repayment of such
contribution at any time within one (1) year following the time of payment and the Trustees shall return such amount to the
Employer with in the one (1) year period. Earnings of the Plan attributable to the contributions may not be returned to the
Employer but any losses attributable thereto must reduce the amount so returned.
9.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE
Neither the Employer nor the Trustee, nor their successors, shall be responsible for the validity of any Contract issued hereunder or for
the failure on the part of the Insurer to make payments provided by any such Contract, or for the action of any person which
may delay payment or render a Contract null and void or unenforceable in whole or in part.
9.9 RECEIPT AND RELEASE FOR PAYMENTS
Any payment to any Participant, his legal representative, Beneficiary, or to any guardian or committee appointed for such Participant
or Beneficiary in accordance with the provisions of this Plan, shall, to the extent thereof, be in full satisfaction of all claims
hereunder against the Trustee and the Employer.
9.10 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted or required to do or perform any act or matter or thing, it shall be
done and performed by a person duly authorized by its legally constituted authority.
9.11 HEADINGS
The headings and subheadings of this Plan have been inserted for convenience of reference and are to be ignored in any construction of
the provisions hereof.
9.12 APPROVAL BY INTERNAL REVENUE SERVICE
Notwithstanding anything herein to the contrary, if, pursuant to a timely application' filed by or in behalf of the Plan, the Commissioner
oflnternal Revenue Service or his delegate should determine that the Plan does not initially qualify as a taX-exempt plan under
Code Sections 401 and 501, and such determination is not contested, or if contested, is finally upheld, then if the Plan is a new
plan, it shall be void from its establishment and all amounts contributed to the Plan, by the Employer, less expenses paid, shall
22
be returned within one year and the Plan shal I terminate, and the Trustee shall be discharged from all further obligations.
If the 6isqualification relates to an amended plan, then the Plan shall operate as if it had not been amended and restated.
9.13 UNIFORMITY
All provisions of this Plan shall be interpreted and applied in a uniform~ nondiscriminatory manner.
9.14 PAYMENT OF BENEFITS
Benefits under this Plan shall be paid, subject to Section 6.10 and Section 6.1 I only upon death, Total and Permanent Disability,
normal or early retirement, termination of employment, or upon Plan Termination.
ARTICLE X
PARTICIPATING EMPLOYERS
10.1 ELECTION TO BECOME A PARTICIPATING. EMPLOYER
Nom'ithstanding anything herein to the contrary, with the consent of the Employer and Trustee, any affiliated governmental employer
may adopt this Plan and all of the provisions hereof, and participate herein and be known as a Participating Employer, by a
properly executed document evidencing said intent and will of such Participating Employer.
10.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS
(a) Each Participating Employer shall be required to select the same Adoption Agreement provisions as those selected by the Employer
other than the Plan Year, the Fiscal Year, and such other items that must, by necessity, vary among employers.
(b) Each such Participating Employer shall be required to use the same Trustee as provided in this Plan.
(c) The Trustee may, but shall not be required to, commingle, hold and invest as one Trust Fund all contributions made by Participating
Employers, as well as all increments thereof.
(d) The transfer of any Participant from or to an Employer participating in this Plan, whether he be an Employee of the Employer or a
Participating Employer, shall not affect such Participant's rights under the Plan, and all amounts credited to such Participant's
Account as well as his accumulated service time with the transferor or predecessor, and his length of participation in the Plan,
shall continue to his credit.
(e) Any expenses of the Plan which are to be paid by the Employer or borne by the Trust Fund shall be paid by each Participating
Employer in the same proportion that the total amount standing to the credit of all Participants employed by such Employer
bears to the total standing to the credit of all Participants.
103 DESIGNATION OF AGENT
Each Participating Employer shall be deemed to be a part of this Plan; provided, however, that with respect to all of its relations with
the Trustee and Administrator for the purpose of this Plan, each Participating Employer shall be deemed to have designated
irrevocably the Employer as its agent. Unless the context of the Plan clearly indicates the contrary, the word "Employer" shall
be deemed to include each Pa~icipating Employer ~ related to its adoption of the Plan.
10.4 EMPLOYEE TRANSFERS
It is anticipated that an Employee may be transferred between Participating Employers, and in the event of any such transfer, the
Employee involved shall carry with him his accumulated service and eligibility. No such transfer shall effect a termination of
employment hereun der, and the Participating Employer to which the Employee is transferred shall thereupon become obligated
hereunder with respect to such Employee in the same manner as was the Participating Employer from whom the Employee was
transferred.
23
10.5 PARTICIPATING EMPLOYER'S CONTRIBUTION AND FORFEITURES
Any contribution or Forfeiture subject to allocation during each Plan Year shall be allocated among all Participants of all Participating
Employers in accordance with the provisions of this Plan. On the basis of the information furnished by the Administrator, the
Trustee shall keep separate books and records concerning the affairs of each Participating Employer hereunder and as to the
accounts and credits of the Employees of each Participating Employer. The Trustee may, but need not, register Contracts so as
to evidence that a particular Participating Employer is the interested Employer hereunder, but in the event of an Employee
transfer from one Participating Employer to another, the employing Employer shall immediately notify the Trustee thereof.
10.6 AMENDMENT
Amendment of this Plan by the Employer at'any time when there shall be a Participating Employer hereunder shall only be by the
written action of each and every Participating Employer and with the consent of the Trustee where such. consent is necessary
in accordance with the terms of this Plan.
10.7 DISCONTINUANCE OF PARTICIPATION
Any Participating Employer shall be permitted to discontinue or revoke its participation in the Plan at any time. At the time of any
such discontinuance or revocation, satisfactory evidence thereof and of any applicable conditions imposed shall be delivered
to the Trustee. The Trustee shall thereafter transfer, deliver and assign Contracts and other Trust Fund assets allotable to the ·
Participants of sucti Participating Employer to such new Trustee as shall have been designated by such Participating
Employer, in the event that it has established a separate pension plan [or its Employees. If no successor is designated, the
Trustee shall retain such assets for the Employees of said Participating Employer pursuant to the provisions of Article VII
hereof. In no such event shall any part of the corpus or income of the Trust Fund as it relates to such Participating Employer
be used for or diverted for purposes other than for the exclusive benefit of the Employees of such Participating Employer.
10.8 ADMINISTRATOR'S AUTHORITY
The Administrator shall have authority to make any and all necessary rules or regulations, binding upon all Participating Employers
and all Participants, to effectuate the purpose of this Article.
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RESOLUTION CERTIFICATION
STATE OF CALIFORN A )
COUNTY OF ORANGE ) ss
CITY OF TUSTIN )
RESOLUTION NO. 99-71'
Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council is
five; that the above and foregoing resolution was passed and adopted at a regular meeting of
the City Counci' held on the 7th day of September, 1999, by the following vote:
COUNCILMEMBER AYES: Worley, Thomas, Doyle, Potts, Saltarelli
COUNCILMEMBER NOES: None
COUNCILMEMBER ABSTAINED None
COUNCILMEMBER ABSENT: None
Pamela Stoker, City Clerk