8017-08ORDINANCE NUMBER 8017-08
AN ORDINANCE OF THE CITY OF CLEARWATER,
FLORIDA, RELATING TO THE CITY OF
CLEARWATER MONEY PURCHASE PENSION PLAN
(THE 'PLAN'); ADOPTING THE SECOND
RESTATEMENT OF THE PLAN; SUBMITTING THE
PLAN DOCUMENT TO THE INTERNAL REVENUE
SERVICES' ("IRS") EMPLOYEE PLANS COMPLIANCE
RESOLUTION PROGRAM; PROVIDING FOR
EFFECTIVE DATES.
WHEREAS, the City has established the City of Clearwater Money
Purchase Pension Plan (the "Plan"), as subsequently amended; and,
WHEREAS, the Plan authorizes the City, as the Employer under the Plan to
amend the Plan in whole or in part; and
WHEREAS, the IRS has required all retirement plans to be updated for
changes in the tax laws; and
WHEREAS, the Plan has been updated to comply with changes in the tax
laws; and,
WHEREAS, the IRS approved these changes and determined that a
restated version of the Plan is in compliance with current tax laws; and
WHEREAS, the IRS approved Plan was not timely executed; and
WHEREAS, the City has determined that the Plan should be updated for
any recent changes in tax law and then submitted to the IRS' Employee Plans
Compliance Resolution Program for approval; and
WHEREAS, the City has determined that it is in the best interest of
participants to adopt the second restatement of the Plan, that includes all current
legislative changes and submit the Plan for IRS approval; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF CLEARWATER, FLORIDA:
Section 1. The Second Restatement of the City of Clearwater Money
Purchase Pension Plan is hereby adopted to read as indicated in the attached
Exhibit A and made a part hereof.
Ordinance No. 8017-08
Section 2. The provisions of this Ordinance shall take effect as provided in
the attached Exhibit A.
Section 3. The City authorizes and directs Gray Robinson, P.A. to submit
the Plan for approval to the IRS' Employee Plans Compliance Resolution Program
and to make such changes in the Plan, as they deem appropriate in order to obtain
approval of the Plan.
Section 4. All Ordinances or parts of Ordinances in conflict herewith be and
the same are hereby repealed.
PASSED ON FIRST READING
PASSED ON SECOND AND
FINAL READING AND ADOPTED
Approved as to form:
111?
Leslie K. Dou
II ides
* S
Assistant City A rney
October 16. 2008
November 6 2008
Signed:
nk Hibbard, Mayor
Attest:
Y T
.(,& k--4-,jL-E Ase::S???
C ania E. Goudeau
Clerk
2
Ordinance No. 8017-08
CITY OF CLEARWATER
MONEY PURCHASE PENSION PLAN
SECOND RESTATEMENT
\388024\2 - # 507616 v4
CITY OF CLEARWATER
MONEY PURCHASE PENSION PLAN
ARTICLE I Definitions ...............................................................................................................2
1.1 "Account" or "Accounts" ..........................................................................................2
1 .2 "Administrator" .......................................................................................................... 2
1 .3 "Anniversary Date" .................................................................................................... 2
1 .4 "Annual Additions" .................................................................................................... 2
1 .5 "Code" ........................................................................................................................ 2
1 .6 "Compensation" ........................................................................................................ 2
1 .7 "Directed Investment Fund" ..................................................................................... 3
1.8 "Effective Date" ......................................................................................................... 3
1.9 "Employee" ................................................................................................................ 3
1.10 "Employer" ................................................................................................................. 3
1.11 "Employer Contribution Account" and "Employee Contribution Account ........... 3
1.12 [This section intentionally left blank.] ...................................................................... 3
1.13 "Limitation Year" ....................................................................................................... 3
1.14 "Normal Retirement Date" .........................................................................................3
1.15 "Participant" ...............................................................................................................3
1.16 "Plan" .........................................................................................................................3
1.17 "Plan Administrator" .................................................................................................4
1.18 "Plan Year" .................................................................................................................4
1.19 "Pooled Investment Fund" ........................................................................................4
1 .20 "Rollover Contribution Account" ........................................................................... 4
1 .21 "Section 415 Compensation" .................................................................................... 4
1 .22 "Segregated Investment Fund" ................................................................................ 4
1 .23 "Trust" ........................................................................................................................ 4
1 .24 "Trust Agreement" ..................................................................................................... 4
\388024\2 - # 507616 v4
1.25 "Trustee" ....................................................................................................................4
1.26 "Trust Fund" ..............................................................................................................4
1.27 "Valuation Date" ........................................................................................................4
1.28 "Valuation Period" .....................................................................................................4
ARTICLE II Establishment and Name of the Plan ...................................................................5
2.1 Name of Plan . ...........................................................................................................5
2.2 Exclusive Benefit . ....................................................................................................5
2.3 Mistake of Fact ...........................................................................................................5
2.4 Participants' Rights . ................................................................................................5
2.5 Qualified Plan . ..........................................................................................................5
ARTICLE III Plan Administrator ................................................................................................6
3.1 Administration of the Plan ........................................................................................6
3.2 Powers and Duties .....................................................................................................6
3.3 Direction of Trustee ...................................................................................................7
3.4 Conflict in Terms .......................................................................................................7
3.5 Final Authority ...........................................................................................................7
3.6 Appointment of Advisors and Delegation of Duties ................................................ 7
ARTICLE IV Eligibility and Participation .................................................................................. 8
4.1 Eligibility and Participation ....................................................................................... 8
4.2 Former Employees .................................................................................................... 8
4.3 Change of Eligibility Status ...................................................................................... 8
4.4 Military Service .......................................................................................................... 8
ARTICLE V Contributions to the Trust .................................................................................... 9
5.1 Employer Contributions ............................................................................................ 9
5.2 Form and Timing of Contributions ........................................................................... 9
5.3 Rollover Contributions .............................................................................................. 9
5.4 No Duty to Inquire ......................................................................................................9
\388024\2 - # 507616 v4
ARTICLE VI Participants' Accounts and Allocation of Contributions .................................10
6.1 Common Fund .........................................................................................................10
6.2 Establishment of Accounts .....................................................................................10
6.3 Interests of Participants ..........................................................................................10
6.4 Adjustments to Accounts .......................................................................................10
6.5 Limitation on Allocation of Contributions ..............................................................11
ARTICLE VII Benefits Under The Plan ...................................................................................13
7.1 Retirement Benefit ...................................................................................................13
7.2 Termination of Employment Benefit .......................................................................13
7.3 Death Benefit ...........................................................................................................13
ARTICLE VIII Form And Payment Of Benefits .......................................................................15
8.1 Timing and Form ......................................................................................................15
8.2 Manner of Payment ..................................................................................................20
8.3 Lump Sum Payment ................................................................................................21
8.4 Periodic Adjustments ..............................................................................................21
8.5 Location of Participant or Beneficiary Unknown ...................................................21
8.6 Transfer to Other Qualified Plans ...........................................................................21
8.7 Direct Rollovers .......................................................................................................22
8.8 Withdrawals from Rollover Contribution Accounts ..............................................23
8.9 Withdrawals from Employer and Employee Mandatory Contribution Accounts.23
ARTICLE IX Trust Fund And Expenses Of Administration ..................................................24
9.1 Name of Trustee ......................................................................................................24
9.2 Expenses of Administration . .................................................................................. 24
ARTICLE X Amendment And Termination .............................................................................25
10.1 Restrictions on Amendment and Termination of Plan ..........................................25
10.2 Amendment of Plan .................................................................................................25
10.3 Termination of Plan .................................................................................................25
\388024\2 - # 507616 v4
10.4 Termination Procedure ...........................................................................................25
ARTICLE XI Participant Direction Of Account Investment ...................................................26
11.1 Participant Directed Investments ...........................................................................26
11.2 Election Procedures ................................................................................................26
11.3 Failure to Designate ................................................................................................26
11.4 Charges and Credits ................................................................................................26
11.5 Procedures ...............................................................................................................27
ARTICLE XII Miscellaneous ....................................................................................................28
12.1 Alienation .................................................................................................................28
12.2 Governing Law .........................................................................................................28
12.3 Gender ......................................................................................................................28
12.4 Forfeiture of Benefits for Specified Offenses ........................................................28
12.5 Claims Procedures ..................................................................................................29
ARTICLE XIII Loans To Participants ......................................................................................31
13.1 Availability of Loans ................................................................................................31
13.2 Time and Manner of Repayment .............................................................................32
13.3 Default ......................................................................................................................33
\388024\2 - # 507616 v4 Iv
CITY OF CLEARWATER
MONEY PURCHASE PENSION PLAN
THE CITY OF CLEARWATER, FLORIDA (the "Employer") hereby restates this
money purchase pension plan, a tax-qualified defined contribution plan this day
of , 2008, to provide supplementary retirement and other benefits for
certain eligible employees.
WITNESSETH:
WHEREAS, the Employer desires to provide for the retirement of certain
Employees employed by the Employer by establishing a money purchase pension plan
for those Employees who now or may hereafter qualify for participation therein;
WHEREAS, the Employer desires to amend the Plan to comply with legislative
changes; and
WHEREAS, the Plan may be amended by the Employer pursuant to Section 9.02
thereof.
NOW, THEREFORE, in consideration of the premises, it is agreed as follows:
1
\388024\2 - # 507616 v4
ARTICLE I
DEFINITIONS
1.1 "Account" or "Accounts" shall mean a Participant's Employer
Contribution Account, Rollover Account and/or such other accounts as may be
established by the Plan Administrator.
1.2 "Administrator" shall mean the Plan Administrator.
1.3 "Anniversary Date" shall mean December 31 of each Plan Year.
1.4 "Annual Additions" shall mean, for any Limitation Year, the sum of:
(a) the amount of Employer contributions allocated to the Participant
during any Limitation Year under any qualified defined contribution plan
maintained by the Employer;
(b) the amount of the Employee's contributions (other than rollover
contributions, if any) to any qualified defined contribution plan maintained by the
Employer;
(c) any forfeitures allocated to the Participant under any qualified
defined contribution plan maintained by the Employer; or
(d) amounts allocated to an individual medical account, as defined in
Section 415(1)(2) of the Code that is part of a pension or annuity plan maintained
by the Employer, and amounts derived from contributions that are attributable to
medical benefits under a welfare benefit plan (as defined in Section 419(e) of the
Code) maintained by the Employer; provided, however, the percentage limitation
set forth in Section 415(c)(1)(B) of the Code shall not apply to: (A) any
contribution for medical benefits (within the meaning of Section 419A(f)(2) of the
Code) after separation from service which is otherwise treated as an "Annual
Addition," or (2) any amount otherwise treated as an "Annual Addition" under
Section 415(1)(1) of the Code.
1.5 "Code" shall mean the Internal Revenue Code of 1986, as amended, or
any successor statute. Reference to a specific section of the Code shall include a
reference to any successor provision.
1.6 "Compensation"
(a) "Compensation" shall mean the regular salaries and wages,
bonuses, overtime pay, holiday time, accrued vacation, sick pay, and severance
pay paid by the Employer during the Plan Year reportable as W-2 wages for
Federal income tax withholding purposes, Employee contributions designated as
employer contributions under Section 414(h) of the Code, and elective
2
\388024\2 - # 507616 v4
contributions made during the Plan Year on behalf of a Participant to a Plan
described in Section 125 or 457 of the Code, but shall not include any other type
of cash or non-cash remuneration, including, but not limited to disability
payments, amounts paid by the Employer to a Plan described in Section 125,
132(f)(4), 402(e)(3) or 457(b) of the Code, credits or benefits under this Plan, any
amount contributed to any pension, employee welfare, life insurance or health
insurance plan or arrangement, or any other fringe benefits, welfare benefits, or
deferred compensation.
(b) No Compensation in excess of the limit under Section 401(a)(17) of
the Code (adjusted under such regulations as may be issued by the Secretary of
the Treasury) shall be taken into account for any Employee. If a Plan Year
consists of fewer than 12 months, the Compensation limit will be multiplied by a
fraction, the numerator of which is the number of months in the Plan Year, and
the denominator of which is 12.
1.7 "Directed Investment Fund" shall mean an investment fund established
pursuant to Article XI for purposes of investing Participants' Accounts.
1.8 "Effective Date" of this Plan shall mean January 1, 2008, except as may
otherwise be noted herein.
1.9 "Employee" shall mean any person actively employed by the Employer in
the position of City Manager, City Attorney, Assistant City Attorney and all management
contract employees, who are not participants in the City of Clearwater Employees'
Pension Fund, a defined benefit pension plan, excluding temporary employees.
1.10 "Employer" shall mean the City of Clearwater, Florida.
1.11 "Employer Contribution Account" and "Employee Contribution
Account" shall mean an account established pursuant to Section 6.2 with respect to
Employer contributions and Employee contributions made pursuant to Article V.
1.12 [This section intentionally left blank.]
1.13 "Limitation Year" shall mean the Plan Year.
1.14 "Normal Retirement Date" shall mean the date on which a Participant has
reached the age of 55.
1.15 "Participant" shall mean any eligible Employee of the Employer who has
become a Participant under the Plan. Participant shall include any former employee of
the Employer who became a Participant under the Plan and who still has a balance in an
Account under the Plan.
1.16 "Plan" shall mean the City of Clearwater Money Purchase Pension Plan, a
tax-qualified defined contribution plan, as herein set forth, as it may be amended from
time to time.
3
\388024\2 - # 507616 v4
1.17 "Plan Administrator" shall mean the Employer or the person or persons
appointed by the Employer pursuant to Article III hereof.
1.18 "Plan Year" shall mean the period beginning June 23, 1997 and ending
December 31, 1997; thereafter, the 12-month period beginning on January 1 and ending
on the following December 31 of each year.
1.19 "Pooled Investment Fund" shall mean a Directed Investment Fund
established under Article XI, the combined assets of which shall consist of the common
investments of all Participants selecting the Directed Investment Fund.
1.20 "Rollover Contribution Account" shall mean an account established
pursuant to Section 6.2 with respect to rollover contributions made pursuant to Article V.
1.21 "Section 415 Compensation" shall mean all compensation as described in
Section 1.415-2(d)(2) and Section 1.415-2(d)(3) of the Income Tax Regulations.
1.22 "Segregated Investment Fund" shall mean a Directed Investment Fund
established under Article XI, in which the assets of each Participant selecting the Directed
Investment Fund shall be separately invested, and for which the earnings attributable to
such assets shall be separately accounted.
1.23 "Trust" shall mean the trust established by the Trust Agreement.
1.24 "Trust Agreement" shall mean the agreement providing for the Trust Fund,
as it may be amended from time to time.
1.25 "Trustee" shall mean the individual, individuals or corporation designated
as trustee under the Trust Agreement.
1.26 "Trust Fund" shall mean the trust fund established under the Trust
Agreement from which the benefits provided for by the Plan are to be paid or funded.
1.27 "Valuation Date" shall mean December 31 of each year and each day
securities are traded on a national stock exchange, except regularly scheduled holidays
of the Employer or the Trustee, or such other date as may be selected by the Plan
Administrator.
1.28 "Valuation Period" shall mean the period beginning with the first day after
a Valuation Date and ending with the next Valuation Date; provided, however, that the
first Valuation Period shall begin on the Effective Date of the Plan.
4
\388024\2 - # 507616 v4
ARTICLE II
ESTABLISHMENT AND NAME OF THE PLAN
2.1 Name of Plan. A tax-qualified defined contribution plan is hereby
established in accordance with the terms hereof and shall be known as the "CITY OF
CLEARWATER MONEY PURCHASE PENSION PLAN."
2.2 Exclusive Benefit. This Plan is created for the sole purpose of providing
benefits to the Participants. Except as otherwise permitted by law, in no event shall any
part of the principal or income of the Trust be paid to or reinvested in the Employer or be
used for or diverted to any purpose whatsoever other than for the exclusive benefit of the
Participants and their beneficiaries.
2.3 Mistake of Fact. Notwithstanding the foregoing provisions of Section 2.2,
any contribution made by the Employer to this Plan by a mistake of fact may be returned
to the Employer within one year after the payment of the contribution.
2.4 Participants' Rights. The establishment of this Plan shall not be
considered as giving any Employee, or any other person, any legal or equitable right
against the Employer, the Trustee or the principal or the income of the Trust, except to
the extent otherwise provided by law. The establishment of this Plan shall not be
considered as giving any Employee, or any other person, the right to be retained in the
employ of the Employer.
2.5 Qualified Plan. This Plan and the Trust are intended to qualify under the
Code as a tax-qualified employees' plan and trust, and the provisions of this Plan and the
Trust are to be interpreted accordingly.
5
\388024\2 - # 507616 v4
ARTICLE III
PLAN ADMINISTRATOR
3.1 Administration of the Plan.
(a) The Plan Administrator shall control and manage the operation and
administration of the Plan, except with respect to investments. The Plan
Administrator shall have no duty with respect to the investments to be made of
the funds in the Trust except as may be expressly assigned to it by the terms of
the Trust Agreement and except to the extent that the Plan Administrator
determines the investment funds which will be made available under the Plan in
accordance with Article XI hereof.
(b) (1) The Employer may appoint a committee to assist in the
administration of the Plan, which shall serve at the pleasure of the Employer. All
usual and reasonable expenses of the committee may be paid in whole or part by
the Employer, and any expenses not paid by the Employer shall be paid from the
Trust Fund. Any members of the committee who are employees of the City shall
not receive compensation with respect to their services for the committee.
(2) The committee must act at a publicly noticed meeting. The
committee may elect one of its members as chairman,
appoint a secretary, who may or may not be a committee
member, and advise the Trustee of its actions in writing. The
secretary shall keep a record of all meetings and forward
necessary communications to the Employer or the Trustee.
The committee may adopt such by-laws and regulations as it
deems desirable for the conduct of its affairs. All decisions of
the committee shall be made by a vote of the majority,
including actions taken in writing without a meeting.
(3) The committee and the individual members thereof shall be
indemnified by the Employer (and not from the Trust Fund)
against any and all liabilities arising by reason of any act or
failure to act made in good faith pursuant to the provisions of
the Plan, including expenses reasonably incurred in the
defense of any claim relating thereto.
3.2 Powers and Duties.
(a) The Plan Administrator shall have complete control over the
administration of the Plan herein embodied, with all powers necessary to enable
it to carry out its duties in that respect. Not in limitation, but in amplification of the
foregoing, the Plan Administrator shall have the power and discretion to interpret
or construe this Plan and to determine all questions that may arise as to the
status and rights of the Participants and others hereunder.
6
\388024\2 - # 507616 v4
(b) The Plan Administrator may promulgate such policies and make
such rules and regulations for the proper administration of the Plan as it deems
necessary.
3.3 Direction of Trustee. It shall be the duty of the Plan Administrator to direct
the Trustee with regard to the distribution of benefits to the Participants and others
hereunder.
3.4 Conflict in Terms. The Plan Administrator shall notify each Employee, in
writing, as to the existence of the Plan and Trust and the basic provisions thereof. In the
event of any conflict between the terms of this Plan and the Trust Agreement and as set
forth in any explanatory booklet, this Plan and the Trust Agreement shall control.
3.5 Final Authority. Except to the extent otherwise required by law, the
decision of the Plan Administrator in matters within its jurisdiction shall be final, binding
and conclusive upon each Employee and beneficiary and every other interested or
concerned person or party.
3.6 Appointment of Advisors and Delegation of Duties.
(a) The Plan Administrator may appoint such accountants, counsel,
specialists and other persons that it deems necessary and desirable in
connection with the administration of this Plan.
(b) The Plan Administrator may designate one or more of its
employees to perform the duties required of the Plan Administrator hereunder.
7
\388024\2 - # 507616 v4
ARTICLE IV
ELIGIBILITY AND PARTICIPATION
4.1 Eligibility and Participation. Any Employee employed by the Employer in
the position of City Manager or City Attorney shall become a Participant in the Plan on the
Effective Date. Each other eligible Employee shall enter the Plan as a Participant on his
date of employment.
4.2 Former Employees. An Employee who ceases to be a Participant,
terminates employment and is reemployed by the Employer shall be eligible again to
become a Participant on the date of his reemployment.
4.3 Change of Eligibility Status. In the event a change of job classification
results in a Participant no longer qualifying as an eligible Employee, such Employee shall
cease to be an active Participant as of the effective date of such change of job
classification but the Employee shall not be deemed to have terminated employment with
the Employer for purposes of this Plan.
4.4 Military Service. Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified military service will be
provided in accordance with Section 414(u) of the Code.
8
\388024\2 - # 507616 v4
ARTICLE V
CONTRIBUTIONS TO THE TRUST
5.1 Employer Contributions.
(a) Employer Contributions. For each Plan Year, the Employer shall
contribute to the Trust on behalf of each Participant employed by the Employer
an amount equal to: 15% of Compensation on behalf of the City Manager and the
City Attorney; 14% of Compensation on behalf of the Chief of Police; and 8% of
Compensation on behalf of management contract employees (excluding the
Chief of Police) and Assistant City Attorneys. The Employer will make bi-weekly
contributions to the Trust throughout the Plan Year to meet its funding obligations
under the Plan.
(b) Employee Mandatory Contributions. For each Plan Year, the City
Manager and the City Attorney shall contribute an amount equal to 2% of
Compensation and the Chief of Police shall contribute an amount equal to 6% of
Compensation bi-weekly to the Trust. The mandatory contributions made by
employees under the Plan shall be designated as employer contributions
pursuant to Section 414(h) of the Code. Such designation is contingent upon the
contributions being excluded from the Employees' gross income for federal
income tax purposes. For all other purposes of the Plan, such contributions shall
be considered employee contributions.
(c) Vesting. All Participants shall be immediately 100% vested in all
contributions made pursuant to this Section.
5.2 Form and Timing of Contributions. Payments on account of the
contributions due from the Employer for any Plan Year shall be made in cash. Such
payments may be made by the Employer at any time.
5.3 Rollover Contributions. With the consent of the Plan Administrator and in
such manner as prescribed by the Plan Administrator, the Trustee may accept a rollover
contribution (as defined in the applicable sections of the Code, except that for this
purpose "rollover contribution" shall be deemed to include both a direct payment from an
Employee and a direct transfer from a trustee of another qualified plan in which an
Employee is or was a participant). Rollover amounts shall be allocated to the Employee's
Rollover Contribution Account and invested in accordance with the provisions of Article
XI. The Trustee shall not accept a rollover contribution that is subject to the requirements
of Sections 401(a)(11) and 417 of the Code.
5.4 No Duty to Inquire. The Trustee shall have no right or duty to inquire into
the amount of any contribution made by the Employer or the method used in determining
the amount of any such contribution, or to collect the same, but the Trustee shall be
accountable only for funds actually received by it.
9
\388024\2 - # 507616 v4
ARTICLE VI
PARTICIPANTS' ACCOUNTS AND ALLOCATION OF CONTRIBUTIONS
6.1 Common Fund. The assets of the Trust shall constitute a common fund in
which each Participant shall have an undivided interest.
6.2 Establishment of Accounts. The Plan Administrator shall establish and
maintain with respect to each Participant such accounts as necessary to reflect the
Participant's interest in the Trust Fund with respect to contributions made by the
Employer, the Employee and a Rollover Contribution Account to reflect the Participant's
interest in the Trust Fund with respect to employer, employee and rollover contributions.
The Plan Administrator may establish such additional accounts as are necessary to
reflect a Participant's interest in the Trust Fund.
6.3 Interests of Participants. The interest of a Participant in the Trust Fund
shall be the balance remaining from time to time in his Account after making the
adjustments required in Section 6.4.
6.4 Adjustments to Accounts. Subject to the provisions of Section 6.5, a
Participant's Account shall be adjusted from time to time as follows:
(a) As of each Valuation Date, each of a Participant's Accounts shall
be credited or charged, as the case may be, with a share of the earnings of the
Trust Fund for the Valuation Period ending with such current Valuation Date as
follows:
(1) As of each Valuation Date, any portion of the Participant's
Accounts that is invested in a Pooled Investment Fund
established under Article XI shall be credited or charged, as
the case may be, with a share of the earnings of such
Pooled Investment Fund for the Valuation Period ending with
such current Valuation Date. Each Participant's share of the
earnings of a Pooled Investment Fund for any Valuation
Period shall be determined by the Plan Administrator on a
weighted average basis, so that each Participant with a
balance in such Pooled Investment Fund shall receive a pro-
rata share of the earnings of such Pooled Investment Fund,
taking into account the period of time that each dollar
invested in such Pooled Investment Fund has been so
invested.
(2) As of each Valuation Date, the portion of the Participant's
Accounts that is invested in each Segregated Investment
Fund established under Article XI shall be credited or
charged, as the case may be, with the earnings attributable
to the Participant's investment in such Segregated
10
\388024\2 - # 507616 v4
Investment Fund for the Valuation Period ending with such
current Valuation Date.
(b) Each Participant's Accounts shall be credited with contributions
made during the Plan Year, as follows:
(1) As of each Valuation Date that is the last day of the Plan
Year, or at such other times as determined by the Employer,
the Employer Contribution Account of a Participant shall be
credited with his share of the contribution made by the
Employer with respect to the Plan Year ending with such
Valuation Date. A Participant's share of the amount of the
contribution for the Plan Year shall be determined pursuant
to the provisions of Article V.
(2) As of each Valuation Date, the Rollover Contribution
Account of a Participant shall be credited with the Rollover
Contributions, if any, made by the Participant pursuant to
Article V.
(c) As of each Valuation Date, each Account of a Participant shall be
charged with the amount of any distribution made to the Participant or his
beneficiary from such Account during the Valuation Period ending with such
Valuation Date.
(d) For purposes of all computations required by this Article VI, the
cash method of accounting shall be used, and the Trust Fund and the assets
thereof shall be valued at their fair market value as of each Valuation Date.
The Plan Administrator may adopt such additional accounting procedures as are
necessary to accurately reflect each Participant's interest in the Trust Fund, which
procedures shall be effective upon approval by the Employer. All such procedures shall
be applied in a consistent, nondiscriminatory manner.
6.5 Limitation on Allocation of Contributions.
(a) Notwithstanding anything contained in this Plan to the contrary, the
aggregate Annual Additions to a Participant's Accounts under this Plan and
under any other defined contribution plans maintained by the Employer for any
Limitation Year shall not exceed the lesser of the limitation under Code Section
415(c), $40,000, as adjusted for increases in the cost-of-living under Code
Section 415(d) of the Code, or 100% of the Participant's Code Section 415(c)(3)
compensation for such Limitation Year.
(b) In the event that the Annual Additions, under the normal
administration of the Plan, would otherwise exceed the limits set forth above for
any Participant, or in the event that any Participant participates in both a defined
benefit plan and a defined contribution plan maintained by the Employer and the
aggregate annual additions to and projected benefits under all of such plans,
11
\388024\2 - # 507616 v4
under the normal administration of such plans, would otherwise exceed the limits
provided by law, then the Plan Administrator shall take such actions, applied in a
uniform and nondiscriminatory manner, as will keep the annual additions and
projected benefits for such Participant from exceeding the applicable limits
provided by law. Excess Annual Additions shall be disposed of as provided in
Section 6.5(c). Adjustments shall be made to other plans, if necessary to comply
with such limits, before any adjustments may be made to this Plan.
(c) If as a result of a reasonable error in estimating a Participant's
Section 415 Compensation or other circumstances permitted under Section 415
of the Code, the Annual Additions attributable to Employer contributions for a
particular Participant would cause the limitations set forth in this subsection (c) to
be exceeded, the excess shall be allocated and reallocated to other Participants
in the Plan. However, if the allocation or reallocation of the excess amounts
causes the limitations of this subsection (c) to be exceeded with respect to each
Participant for the Limitation Year, then these amounts must be held unallocated
in a suspense account. If a suspense account is in existence at any time during
a particular Limitation Year, other than the Limitation Year described in the
preceding sentence, all amounts must be allocated and reallocated to the
Participants (subject to the limitations of this subsection (c)) before any
contributions that constitute Annual Additions may be made to the Plan for that
Limitation Year. The suspense account shall be credited or charged, as the case
may be, with a share of the income, losses, appreciation and depreciation
attributable thereto as if it were an Account of a Participant.
12
\388024\2 - # 507616 v4
ARTICLE VII
BENEFITS UNDER THE PLAN
7.1 Retirement Benefit.
(a) A Participant shall be entitled to a normal retirement benefit upon
such Participant's Normal Retirement Date.
(b) Except as provided in Sections 8.8 and 8.9 of this Plan, until a
Participant actually terminates from the employ of the Employer, he shall not
receive a distribution and he shall continue to be treated in all respects as a
Participant.
(c) Upon the retirement of a Participant as provided in 7.1(a) and
subject to adjustment as provided in Section 8.4, such Participant shall be
entitled to receive, at the time and in the manner described in Article VIII, a
retirement benefit in an amount equal to 100% of the balance in his Accounts as
of the Valuation Date concurring with or preceding the date of his retirement, plus
the amount of any contributions allocated subsequent to such Valuation Date.
7.2 Termination of Employment Benefit. In the event a Participant's
employment with his Employer is terminated for reasons other than retirement, and
subject to adjustment as provided in Section 8.4, such Participant shall be entitled to
receive, at the time and in the manner described in Article VIII, a termination of
employment benefit in an amount equal to the balance in his Account as of the Valuation
Date concurring with or preceding the date of the distribution, plus the amount of any
contributions allocated subsequent to such Valuation Date.
7.3 Death Benefit
(a) In the event of the death of a Participant and subject to adjustment
as provided in Section 8.4, his beneficiary shall be entitled to receive, at the time
and in the manner described in Article VIII, a death Benefit in an amount equal to
100% of the balance in his Account as of the Valuation Date concurring with or
preceding the date of his death, plus the amount of any contributions allocated
subsequent to such Valuation Date.
(b) At any time and from time to time, each Participant shall have the
unrestricted right to designate a beneficiary to receive his death benefit and to
revoke any such designation. Each designation or revocation shall be evidenced
by written instrument filed with the Plan Administrator, signed by the Participant
and bearing the signature of a witness to his signature. In the event that a
Participant has not designated a beneficiary or beneficiaries, or if for any reason
such designation shall be legally ineffective, or if such beneficiary or beneficiaries
shall predecease the Participant, then the personal representative of the estate
of such Participant shall be deemed to be the beneficiary designated to receive
such death benefit, or if no personal representative is appointed for the estate of
13
\388024\2 - # 507616 v4
such Participant, then his next of kin under the statute of descent and distribution
of the state in which such Participant's domicile at the date of his death shall be
deemed to be the beneficiary or beneficiaries to receive such death benefit.
14
\388024\2 - # 507616 v4
ARTICLE VIII
FORM AND PAYMENT OF BENEFITS
8.1 Timing and Form.
(a) (1) Except as otherwise provided in this Article VIII, the amount
of the retirement or death benefit to which a Participant is entitled under Sections
7.1 and 7.3 shall be paid to him or, in the case of a death benefit, shall be paid to
said Participant's beneficiary or beneficiaries as soon as practicable following the
Participant's actual retirement following his Normal Retirement Date or death, as
the case may be.
(2) The amount of the termination of employment benefit to
which a Participant is entitled under Section 7.2 shall be paid
to him as soon as practicable following his termination of
employment.
(3) Notwithstanding paragraphs (a)(1) and (a)(2), above, a
Participant may elect to defer the distribution of his benefit
until any subsequent date elected by the Participant in
writing pursuant to such procedures as the Plan
Administrator may adopt, but in no event later than the date
described in 8.1(b).
(b) (1) Effective January 1, 2003, all distributions from the Plan will
be determined and made in accordance with the Treasury Regulations under
Section 401(a)(9) of the Code and shall take precedence over any inconsistent
provisions of the Plan. Any distribution paid to a Participant (or, in the case of a
death benefit, to his beneficiary or beneficiaries) shall commence not later than:
(i) April 1 of the year following the calendar year
in which the Participant retires on or after his Normal
Retirement Date; or
(ii) April 1 of the year immediately following the
calendar year in which the Participant reaches age 70'/.
(2) Time and Manner of Distribution.
(A) Death of Participant Before Distributions Begin. If the
Participant dies before distributions begin, the Participant's entire
interest will be distributed, or begin to be distributed, no later than
as follows:
(i) If the Participant's surviving spouse is the
Participant's sole designated Beneficiary, then, except as
provided in Section 8.1(b)(2)(A)(v), distributions to the
surviving spouse will begin by December 31 of the calendar
15
\388024\2 - # 507616 v4
year immediately following the calendar year in which the
Participant died, or by December 31 of the calendar year in
which the Participant would have attained age 70'/, if later.
(ii) If the Participant's surviving spouse is not the
Participant's sole designated Beneficiary, then, except as
provided in Section 8.1(b)(2)(A)(v), distributions to the
designated Beneficiary will begin by December 31 of the
calendar year immediately following the calendar year in
which the Participant died.
(iii) If there is no designated Beneficiary as of
September 30 of the year following the year of the
Participant's death, the Participant's entire interest will be
distributed by December 31 of the calendar year containing
the fifth anniversary of the Participant's death.
(iv) If the Participant's surviving spouse is the
Participant's sole designated Beneficiary and the surviving
spouse dies after the Participant but before distributions to
the surviving spouse begin, Section 8.1(b)(2)(A), other than
Section 8.1(b)(2)(A)(i), will apply as if the surviving spouse
were the Participant.
(v) Participants or Beneficiaries may elect on an
individual basis whether the 5-year rule or the life
expectancy rule in this Section 8.1(b)(2)(A) and Section
8.1(b)(4) applies to distributions after the death of a
Participant who has a designated Beneficiary. The election
must be made no later than the earlier of September 30 of
the calendar year in which distribution would be required to
begin under this Section 8.1(b)(2)(A), or by September 30 of
the calendar year which contains the fifth anniversary of the
Participant's (or, if applicable, surviving spouse's) death. If
neither the Participant nor Beneficiary makes an election
under this paragraph, distributions will be made in
accordance with this Section 8.1(b)(2)(A) and Section 8.1(b)
(4) below.
For purposes of this Section 8.1(b)(2)(A) and Section 8.1(b)(4), unless
8.1(b)(2)(A)(iv) applies, distributions are considered to begin on the
Participant's required beginning date. If Section 8.1(b)(2)(A)(iv) above
applies, distributions are considered to begin on the date distributions are
required to begin to the surviving spouse under Section 8.1(b)(2)(A)(i)
above. If distributions under an annuity purchased from an insurance
company irrevocably commence to the Participant before the Participant's
required beginning date (or to the Participant's surviving spouse before the
date distributions are required to begin to the surviving spouse under
16
\388024\2 - # 507616 v4
Section 8.1(b)(2)(A)(i), the date distributions are considered to begin is the
date distributions actually commence.
(B) Forms of Distribution. Unless the Participant's interest
is distributed in the form of an annuity purchased from an insurance
company or in a single sum on or before the required beginning
date, as of the first distribution calendar year distributions will be
made in accordance with Sections 8.1(b)(3) and 8.1(b)(4). If the
Participant's interest is distributed in the form of an annuity
purchased from an insurance company, distributions thereunder will
be made in accordance with the requirements of Section 401(a)(9)
of the Code and the Treasury Regulations thereunder.
(3) Required Minimum Distributions During Participant's
Lifetime.
(A) Amount of Required Minimum Distribution For Each
Distribution Calendar Year. During the Participant's lifetime, the
minimum amount that will be distributed for each distribution
calendar year is the lesser of:
(i) the quotient obtained by dividing the
Participant's account balance by the distribution period in the
Uniform Lifetime Table set forth in Treasury Regulations
Section 1.401(a)(9)-9, using the Participant's age as of the
Participant's birthday in the distribution calendar year; or
(ii) if the Participant's sole designated Beneficiary
for the distribution calendar year is the Participant's spouse,
the quotient obtained by dividing the Participant's account
balance by the number in the Joint and Last Survivor Table
set forth in Treasury Regulations Section 1.401(a)(9)-9,
using the Participant's and spouse's attained ages as of the
Participant's and spouse's birthdays in the distribution
calendar year.
(B) Lifetime Required Minimum Distributions Continue
Through Year of Participant's Death. Required minimum
distributions will be determined under this Section 8.1(b)(3)
beginning with the first distribution calendar year and up to and
including the distribution calendar year that includes the
Participant's date of death.
(4) Required Minimum Distributions After Participant's Death.
(A) Death On or After Date Distributions Begin.
17
\388024\2 - # 507616 v4
(i) Participant Survived by Designated
Beneficiary. If the Participant dies on or after the date
distributions begin and there is a designated Beneficiary, the
minimum amount that will be distributed for each distribution
calendar year after the year of the Participant's death is the
quotient obtained by dividing the Participant's account
balance by the longer of the remaining life expectancy of the
Participant or the remaining life expectancy of the
Participant's designated Beneficiary, determined as follows:
(1) The Participant's remaining life
expectancy is calculated using the age of the
Participant in the year of death, reduced by one for
each subsequent year.
(2) If the Participant's surviving spouse is
the Participant's sole designated Beneficiary, the
remaining life expectancy of the surviving spouse is
calculated for each distribution calendar year after the
year of the Participant's death using the surviving
spouse's age as of the spouse's birthday in that year.
For distribution calendar years after the year of the
surviving spouse's death, the remaining life
expectancy of the surviving spouse is calculated
using the age of the surviving spouse as of the
spouse's birthday in the calendar year of the spouse's
death, reduced by one for each subsequent calendar
year.
(3) If the Participant's surviving spouse is
not the Participant's sole designated Beneficiary, the
designated Beneficiary's remaining life expectancy is
calculated using the age of the Beneficiary in the year
following the year of the Participant's death, reduced
by one for each subsequent year.
(ii) No Designated Beneficiary. If the Participant
dies on or after the date distributions begin and there is no
designated Beneficiary as of September 30 of the year after
the year of the Participant's death, the minimum amount that
will be distributed for each distribution calendar year after the
year of the Participant's death is the quotient obtained by
dividing the Participant's account balance by the
Participant's remaining life expectancy calculated using the
age of the Participant in the year of death, reduced by one
for each subsequent year.
(B) Death Before Date Distributions Begin.
18
\388024\2 - # 507616 v4
(i) Participant Survived by Designated
Beneficiary. Except as provided in Section 8.1(b)(2)(A)(v)
above, if the Participant dies before the date distributions
begin and there is a designated Beneficiary, the minimum
amount that will be distributed for each distribution calendar
year after the year of the Participant's death is the quotient
obtained by dividing the Participant's account balance by the
remaining life expectancy of the Participant's designated
Beneficiary, determined as provided in Section 8.1(b)(4)(A)
above.
(ii) No Designated Beneficiary. If the Participant
dies before the date distributions begin and there is no
designated Beneficiary as of September 30 of the year
following the year of the Participant's death, distribution of
the Participant's entire interest will be completed by
December 31 of the calendar year containing the fifth
anniversary of the Participant's death.
(iii) Death of Surviving Spouse Before Distributions
to Surviving Spouse Are Required to Begin. If the Participant
dies before the date distributions begin, the Participant's
surviving spouse is the Participant's sole designated
Beneficiary, and the surviving spouse dies before
distributions are required to begin to the surviving spouse
under Section 8.1(b)(2)(A)(i) above, this Section 4 will apply
as if the surviving spouse were the Participant.
(5) Definitions.
(A) Designated Beneficiary. The individual who is
designated as the Beneficiary under the Plan and is the designated
Beneficiary under Code Section 401(a)(9) and Treasury
Regulations Section 1.401(a)(9)-1, Q&A-4 of the Code.
(B) Distribution calendar year. A calendar year for which
a minimum distribution is required. For distributions beginning
before the Participant's death, the first distribution calendar year is
the calendar year immediately proceeding the calendar year which
contains the Participant's required beginning date. For distributions
beginning after the Participant's death, the first distribution calendar
year is the calendar year in which distributions are required to begin
under Section 8.1(b) 2 above. The required minimum distribution
for the Participant's first distribution calendar year will be made on
or before the Participant's required beginning date. The required
minimum distribution for other distribution calendar years, including
the required minimum distribution for the distribution calendar year
19
\388024\2 - # 507616 v4
in which the Participant's required beginning date occurs, will be
made on or before December 31 of that distribution calendar year.
(C) Life expectancy. Life expectancy as computed by use
of the Single Life Table in Treasury Regulations Section
1.401(a)(9)-9 of the Code.
(D) Participant's Account balance. The Account balance
as of the last valuation date in the calendar year immediately
preceding the distribution calendar year (valuation calendar year)
increased by the amount of any contributions made and allocated
or forfeitures allocated to the account balance as of dates in the
valuation calendar year after the valuation date and decreased by
distributions made in the valuation calendar year after the valuation
date. The account balance for the valuation calendar year includes
any amounts rolled over or transferred to the Plan either in the
valuation calendar year or in the distribution calendar year if
distributed or transferred in the valuation calendar year.
(c) With respect to distributions under the Plan made for the 2002
calendar year, the Plan will apply the minimum distribution requirements of
Section 401(a)(9) of the Code in accordance with the regulations under Section
401(a)(9) that were proposed on January 17, 2001, notwithstanding any
provision of the Plan to the contrary.
8.2 Manner of Payment.
(a) A Participant's retirement, death or termination of employment
benefit may be paid in one of the following optional forms as elected by the
Participant, or in the case of a death benefit, by the Participant's beneficiary or
beneficiaries. The optional forms are as follows:
(1) A lump sum payment.
(2) Monthly, quarterly or annual installments over a fixed period
of time, not exceeding the life of the Participant or the joint
life and last survivor expectancy of the Participant and his
designated beneficiary.
(b) A Participant or his beneficiary may elect to receive the payment of
any part or all of the unpaid installments under paragraph 8.2(a)(2) above in a
lump sum, in accordance with rules and regulations promulgated by the Plan
Administrator (and in accordance with the Code).
(c) Each Participant shall have the right to designate a beneficiary for
purposes of the optional form of benefit payment described in paragraph
8.2(a)(2) above and to revoke any such designation. Each designation or
revocation shall be evidenced by written instrument filed with the Employer and
shall be effective upon filing with the Employer.
20
\388024\2 - # 507616 v4
(d) In the case of a retirement or termination of employment benefit, in
no event shall payment extend beyond the life or life expectancy of the
Participant or the joint lives or life expectancies of the Participant and his
designated beneficiary. If the Participant dies before receiving the entire amount
payable to him, the balance shall be distributed to his designated beneficiary at
least as rapidly as under the method being used prior to the Participant's death.
(e) In the case of a death benefit, payment
(1) to the designated beneficiary shall begin within one year
following the Participant's death (unless the designated
beneficiary is the Participant's spouse, in which case such
benefit shall begin no later than the date the Participant
would have reached 70'/) and shall not, in any event, extend
beyond the life or life expectancy of the designated
beneficiary; or
(2) to any other beneficiary shall be totally distributed within five
years from the date of the Participant's death.
8.3 Lump Sum Payment. Notwithstanding anything contained in this Plan to
the contrary, any benefit payable under the Plan, which is not more than $1,000, including
such Participant's Rollover Contributions Account, shall be paid in a lump sum as soon as
practicable following the Participant's termination of employment.
8.4 Periodic Adjustments. To the extent the balance of a Participant's
Accounts has not been distributed and remains in the Plan, and notwithstanding anything
contained in the Plan to the contrary, the value of such remaining balance shall share in
allocations of the income (or loss) of the Trust Fund pursuant to the provisions of Article
VI.
8.5 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
remain unpaid after five (5) Plan Years solely by reason of the inability of the Plan
Administrator, after sending a registered letter, return receipt requested, to the last known
address, and after further diligent effort, to ascertain the whereabouts of such Participant
or his beneficiary, the amount so distributable shall be treated as a forfeiture. In the event
a Participant or beneficiary of such Participant is located subsequent to his benefit being
reallocated, such benefit shall be restored by an additional contribution by the Employer.
8.6 Transfer to Other Qualified Plans. The Trustee, upon written direction by
the Plan Administrator, shall transfer some or all of the assets held under the Trust to
another plan or trust meeting the requirements of the Code relating to qualified plans and
trust, whether such transfer is made pursuant to a merger or consolidation of this Plan
with such other plan or trust or for any other allowable purpose.
21
\388024\2 - # 507616 v4
8.7 Direct Rollovers.
(a) Notwithstanding any provisions of the Plan to the contrary that
would otherwise limit a distributee's (as defined below) election under this
paragraph, a distributee may elect, at the time and in the manner prescribed by
the Plan Administrator, to have any portion of an eligible rollover distribution (as
defined below) paid directly to an eligible retirement plan (as defined below)
specified by the distributee in a direct rollover (as defined below).
(b) For purposes of this paragraph, the following terms shall have the
following meanings:
(1) An "eligible rollover distribution" is any distribution of all or
any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include:
any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made
for the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code,
and the portion of any distribution that is not included in
gross income (determined without regard to the exclusion for
net unrealized appreciation with respect to employer
securities).
(2) An "eligible retirement plan" is an individual retirement
account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of
the Code, an annuity plan described in Section 403(a) or
403(b) of the Code, a deferred compensation plan under
Section 457 (b) of the Code or a qualified trust described in
Section 401(a) of the Code, that accepts the distributee's
eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
(3) A "distributee" includes an Employee or former Employee.
In addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse,
as defined in Section 414(p) of the Code, are distributees
with regard to the interest of the spouse or former spouse.
(4) A "direct rollover" is a payment by the Plan to the eligible
retirement plan specified by the distributee.
22
\388024\2 - # 507616 v4
8.8 Withdrawals from Rollover Contribution Accounts. A Participant, while
still employed, may request a withdrawal of all or a portion of his Rollover Contributions
Account at any time.
8.9 Withdrawals from Employer and Employee Mandatory Contribution
Accounts. A Participant who has reached age 59'/ may request a withdrawal of all or a
portion of his Employer Contributions Account and/or his Employee Mandatory
Contributions Accounts at any time.
23
\388024\2 - # 507616 v4
ARTICLE IX
TRUST FUND AND EXPENSES OF ADMINISTRATION
9.1 Name of Trustee. The Trust Fund shall be held by the Trustee, or by a
successor trustee or trustees, for use in accordance with the Plan under the Trust
Agreement. The Trust Agreement may from time to time be amended in the manner
therein provided. Similarly, the Trustee may be changed from time to time in the manner
provided in the Trust Agreement.
9.2 Expenses of Administration.
(a) (1) The assets of the Trust Fund may be used to pay all
expenses of the administration of the Plan and the Trust Fund, including the
Trustee's compensation, the compensation of any investment manager, the
expense incurred by the Plan Administrator in discharging its duties, all income
or other taxes of any kind whatsoever that may be levied or assessed under
existing or future laws upon or in respect of the Trust Fund, and any interest that
may be payable on money borrowed by the Trustee for the purpose of the Trust.
(2) The Employer may pay the expenses of the Plan and the
Trust Fund. Any such payment by the Employer shall not be
deemed a contribution to this Plan.
(b) Notwithstanding anything contained herein to the contrary, no
excise tax or other liability imposed upon the Trustee, the Plan Administrator or
any other person for failure to comply with the provisions of any federal law shall
be subject to payment or reimbursement from the assets of the Trust.
(c) For its services, any corporate Trustee shall be entitled to receive
reasonable compensation in accordance with its rate schedule in effect from time
to time for the handling of a Trust. Any individual Trustee shall be entitled to
such compensation as shall be arranged between the Employer and the Trustee
by separate instrument; provided, however, that no person who is already
receiving full-time pay from the Employer shall receive compensation from the
Trust Fund (except for the reimbursement of expenses properly and actually
incurred).
24
\388024\2 - # 507616 v4
ARTICLE X
AMENDMENT AND TERMINATION
10.1 Restrictions on Amendment and Termination of Plan. It is the present
intention of the Employer to maintain the Plan set forth herein indefinitely. Nevertheless,
the Employer specifically reserves to itself the right at any time, and from time to time, to
amend or terminate this Plan in whole or in part; provided, however, that no such
amendment:
(a) shall have the effect of vesting in the Employer, directly or
indirectly, any interest, ownership or control in any of the present or subsequent
funds held subject to the terms of the Trust Agreement;
(b) shall cause or permit any property held subject to the terms of the
Trust Agreement to be diverted to purposes other than the exclusive benefit of
the Participants and their beneficiaries or for the administrative expenses of the
Plan Administrator and the Trust;
(c) shall reduce the then vested interest of a Participant;
(d) shall reduce the Account of any Participant; or
(e) shall increase the duties or liabilities of the Trustee without its
written consent.
10.2 Amendment of Plan. Subject to the limitations stated in Section 10.1, the
Employer shall have the power to amend this Plan in any manner that it deems desirable,
and, not in limitation but in amplification of the foregoing, it shall have the right to change
or modify the method of allocation of contributions hereunder, to change any provision
relating to the administration of this Plan and to change any provision relating to the
distribution or payment, or both, of any of the assets of the Trust.
10.3 Termination of Plan. The Employer, in its sole and absolute discretion,
may terminate this Plan and the Trust, completely or partially, at any time without any
liability whatsoever for such complete or partial termination. In any of such events, the
affected Participants, notwithstanding any other provisions of this Plan, shall have fully
vested interests in the amounts credited to their respective Accounts at the time of such
complete or partial termination of this Plan and the Trust. All such vested interests shall
be nonforfeitable.
10.4 Termination Procedure. In the event the Employer decides to terminate
this Plan and the Trust, after payment of all expenses and proportional adjustments of
individual Accounts to reflect such expenses and other changes in the value of the Trust
Fund as of the date of termination, each affected Participant (or the beneficiary of any
such Participant) shall then be entitled to receive any amount then credited to his Account
in accordance with the form of payment prescribed by Article VIII.
25
\388024\2 - # 507616 v4
ARTICLE XI
PARTICIPANT DIRECTION OF ACCOUNT INVESTMENT
11.1 Participant Directed Investments. On the commencement of his
participation in the Plan, each Participant shall direct the Trustee to invest his Accounts in
one or more Directed Investment Funds made available by the Plan Administrator from
time to time. The Plan Administrator may provide each of the Directed Investment Funds
made available to Participants through shares of one or more investment companies or
mutual funds, segregated accounts invested in one or more of savings or notice accounts,
deposits in or certificates issued by a bank, insurance, annuity or other investment
contracts, or other appropriate investment vehicles.
11.2 Election Procedures. Except as may be otherwise provided by the Trust
Agreement or by any contract entered into by the Trustee or the Plan Administrator with
an investment manager appointed to manage all or any portion of the assets of the Plan,
each Participant's directed investment elections shall be made in writing upon his
commencement of participation in the Plan.
(a) A Participant shall designate the percentage of the balances of his
Accounts and future contributions to his Accounts to be allocated to any Directed
Investment Fund.
(b) Subject to Section 11.2(c), a Participant may revise his election
effective as of the first day of each Valuation Period. The Participant's revised
election shall be effective for contributions made to the Plan after the effective
date of such revision, and may be effective for the investment of balances
previously allocated and remaining credited to a Participant's Accounts. Any
revised election with respect to future contributions shall be subject to the
percentage limitations established by the Plan Administrator pursuant to Section
11.2(a). If required by the Plan Administrator, any revised election with respect
to existing Account balances shall specify the specific percentage, or dollar
amount, of each Account to be transferred between Directed Investment Funds.
(c) The Trustee shall make requested investments on behalf of each
Participant within a reasonable period after the receipt of directions from the Plan
Administrator or the Participant.
11.3 Failure to Designate. If a Participant does not specifically designate the
initial investments for all of his Accounts at the time he becomes a Participant in the Plan,
his Accounts shall be invested in a stable value fund offered as one of the Directed
Investment Funds available to Participants until such time as he makes his initial
designation regarding his investments.
11.4 Charges and Credits. A Participant's Accounts shall be divided into
sub-accounts to properly account for the Directed Investment Funds in which such
Accounts are invested. Each sub-account shall be adjusted as of each Valuation Date in
26
\388024\2 - # 507616 v4
accordance with Article VI for purposes of (a) crediting dividends, interest, and other
income on the investments in a particular Directed Investment Fund, as well as all
realized and unrealized gains credited to that fund, and (b) charging individually allocable
expenses in connection with the investments in a particular Directed Investment Fund, as
well as all realized and unrealized losses charged to that fund. Other charges or fees
separately incurred and not charged to a Directed Investment Fund, and incurred as a
result of an election made by a Participant associated with the investment of his
Accounts, shall be charged against his Accounts in accordance with Article VI.
11.5 Procedures. The Plan Administrator shall establish procedures regarding
Participant investment direction as are necessary, which procedures shall be
communicated to all Participants and applied in a uniform, nondiscriminatory manner.
27
\388024\2 - # 507616 v4
ARTICLE XII
MISCELLANEOUS
12.1 Alienation. No Participant or beneficiary of a Participant shall have any
right to assign, transfer, appropriate, encumber, commute, anticipate or otherwise
alienate his interest in this Plan or the Trust or any payments to be made thereunder; no
benefits, payments, rights or interests of a Participant or beneficiary of a Participant of
any kind or nature shall be in any way subject to legal process to levy upon, garnish or
attach the same for payment of any claim against the Participant or beneficiary of a
Participant; and no Participant or beneficiary of a Participant shall have any right of any
kind whatsoever with respect to the Trust, or any estate or interest therein, or with respect
to any other property or right, other than the right to receive such distributions as are
lawfully made out of the Trust, as and when the same respectively are due and payable
under the terms of this Plan and the Trust.
12.2 Governing Law. This Plan shall be administered, construed and enforced
according to the laws of the State of Florida, except to the extent such laws have been
expressly preempted by federal law.
12.3 Gender. Throughout this Plan, and whenever appropriate, the masculine
gender shall be deemed to include the feminine and neuter; the singular, the plural; and
vice versa.
12.4 Forfeiture of Benefits for Specified Offenses.
(a) Notwithstanding anything to the contrary, any Participant who is
convicted of the following offenses committed prior to retirement, or whose
employment is terminated by reason of his admitted commission, aid or abetment
of the following specified offenses, shall forfeit all rights and benefits under this
Plan, except for the return of his Rollover Contribution Account as of the date of
termination. Specified offenses are as follows:
(1) The committing, aiding or abetting of an embezzlement of public
funds;
(2) The committing, aiding or abetting of any theft from the Employer;
(3) Bribery in connection with the employment of a public officer or
employee;
(4) Any felony specified in Chapter 838, Florida Statutes (except
§838.15 and §838.16);
(5) The committing of an impeachable offense;
(6) The committing of any felony by a public officer or employee who
willfully and with intent to defraud the public or the public agency,
for which he acts or in which he is employed, of the right to receive
28
\388024\2 - # 507616 v4
the faithful performance of his duty as a public officer or employee,
realizes or obtains or attempts to obtain a profit, gain, or advantage
for himself or for some other person through the use or attempted
use of the power, rights, privileges, duties or position of his public
office or employment position.
(7) Conviction shall be defined as an adjudication of guilt by a court of
competent jurisdiction; a plea of guilty or a nolo contendere; a jury
verdict of guilty when adjudication of guilt is withheld and the
accused is placed on probation; or a conviction by the Senate of an
impeachable offense. Court shall be defined as any state or federal
court of competent jurisdiction which is exercising its jurisdiction to
consider a proceeding involving the alleged commission of a
specified offense.
(b) Prior to forfeiture, the Plan Administrator shall hold a hearing on
which notice shall be given to the Participant whose benefits are being
considered for forfeiture. Said Participant shall be afforded the right to have an
attorney present. No formal rules of evidence shall apply, but the Participant
shall be afforded a full opportunity to present his case against forfeiture.
(c) Amounts forfeited from a Participant's Account under this Section
12.4 shall be used to reduce future Employer contributions.
12.5 Claims Procedures.
(a) Claims for benefits under the Plan may be made by a Participant or
a beneficiary of a Participant on forms supplied by the Plan Administrator.
Written notice of the disposition of a claim shall be furnished to the claimant by
the Plan Administrator within ninety (90) days after the application is filed with the
Plan Administrator, unless special circumstances require an extension of time for
processing, in which event action shall be taken as soon as possible, but not
later than one hundred eighty (180) days after the application is filed with the
Plan Administrator; and, in the event that no action has been taken within such
ninety (90) or one hundred eighty (180) day period, the claim shall be deemed to
be denied for the purposes of Section 12.5(b). In the event that the claim is
denied, the denial shall be written in a manner calculated to be understood by the
claimant and shall include the specific reasons for the denial, specific references
to pertinent Plan provisions on which the denial is based, a description of the
material information, if any, necessary for the claimant to perfect the claim, an
explanation of why such material information is necessary and an explanation of
the claim review procedure.
(b) If a claim is denied (either in the form of a written denial or by the
failure of the Plan Administrator, within the required time period, to notify the
claimant of the action taken), a claimant or his duly authorized representative
shall have sixty (60) days after the receipt of such denial to petition the Plan
Administrator in writing for a full and fair review of the denial, during which time
29
\388024\2 - # 507616 v4
the claimant or his duly authorized representative shall have the right to review
pertinent documents and to submit issues and comments in writing. The Plan
Administrator shall promptly review the claim and shall make a decision not later
than sixty (60) days after receipt of the request for review, unless special
circumstances require an extension of time for processing, in which event a
decision shall be rendered as soon as possible, but not later than one hundred
twenty (120) days after the receipt of the request for review. If such an extension
is required because of special circumstances, written notice of the extension
shall be furnished to the claimant prior to the commencement of the extension.
The decision of the review shall be in writing and shall include specific reasons
for the decision, written in a manner calculated to be understood by the claimant,
with specific references to the Plan provisions on which the decision is based.
30
\388024\2 - # 507616 v4
ARTICLE XIII
LOANS TO PARTICIPANTS
13.1 Availability of Loans.
(a) The Plan Administrator, in accordance with its uniform
nondiscriminatory policy, may direct the Trustee, upon application of a Participant
who is actively employed by the Employer, to make a loan to such Participant out
of his vested Accounts upon application of the Participant based upon the
Participant's immediate and heavy financial need (which shall be limited to the
criteria set forth in paragraph (e) below). Any such loan to a Participant shall be
considered a Participant directed investment under Article XI and without
limitation shall be subject to the provisions of Article XI.
(b) All loans must be requested in writing on an application approved
by the Plan Administrator and signed by the Participant. The Employer must
review and approve the application.
(c) The amount advanced, when added to the outstanding balance of
all other loans to the Participant from this Plan or any other qualified retirement
plan adopted by the Employer, may not exceed the lesser of:
(1) $50,000, reduced by the excess, if any, of:
(A) the highest outstanding balance of all loans made
from the Plan to that applicant during the one year period ending on
the day before the date on which the loan is made, reduced by
(B) the outstanding balance of all loans from the Plan to
that applicant on the date on which the loan is made, or
(2) 50% of the vested balance of the Participant's Accounts.
(d) The minimum amount that may be borrowed by the Participant shall
be $1,000.00.
(e) A loan will be authorized only in the event of an immediate and
heavy financial need. An immediate and heavy financial need shall be deemed to
include:
(1) expenses of medical care (as defined in Section 213(d) of
the Code) incurred by the Participant or his spouse or other
dependents (as defined in Section 152 of the Code) or
necessary for such persons to obtain such medical care,
31
\388024\2 - # 507616 v4
(2) payments (other than mortgage payments) directly related to
the purchase of the Participant's principal residence,
(3) payment of tuition and related educational fees for the next
12 months of post-secondary education for the Participant or
his spouse, children or other dependents,
(4) payments necessary to prevent the eviction of the
Participant from his principal residence or the foreclosure on
the mortgage of such residence, or
(5) such other events as may be prescribed by the
Commissioner of the Internal Revenue Service in revenue
rulings, notices and other documents of general applicability.
(f) Only one loan may be outstanding at any time. After a loan has
been fully repaid, a new loan may not be made to the borrower for at least 30
days after the final payment has been made with respect to the prior loan.
(g) Notwithstanding the foregoing, no Participant shall be entitled to
borrow an amount that the Plan Administrator determines could not be
adequately secured by the portion of such Participant's Accounts that is
permitted to be held as security pursuant to applicable Department of Labor
Regulations.
(h) Any out-of-pocket legal and administrative costs incurred by the
Trustee as a result of a loan, or application for a loan, shall be paid by the
Participant who received or applied for such loan.
13.2 Time and Manner of Repayment. Any loan made under this Article XIII
shall be repayable to the Trust at such times and in such manner as may be provided by
the Plan Administrator, subject to the following limitations:
(a) Each loan shall be secured by 50% of the vested balance of the
Participant in his Accounts. The Plan Administrator shall not accept any other
form of security. Each Participant shall agree to have each required loan
payment deducted from his pay and remitted to the Trustee.
(b) Each loan shall bear interest at a reasonable rate and shall provide
for substantially level amortization of principal and interest no less frequently than
quarterly. The interest rate charged shall be comparable to the rate charged by
commercial lending institutions in the region in which the Employer is located for
comparable loans as determined by the Plan Administrator at the time the loan is
approved.
(c) Each loan shall be repaid within a specified period of time. Such
period shall not be less than twelve (12) months, nor shall such period exceed
five (5) years, unless the loan is used to acquire the principal residence of the
Participant.
32
\388024\2 - # 507616 v4
13.3 Default. In the event of default, the Trustee, at the direction of the Plan
Administrator, may proceed to collect said loan with any legal remedy available, including
reducing the amount of any distribution permitted under Article VIII by the amount of any
such loan that may be due and owing as of the date of distribution or any other action that
may be permitted by law. "Events of Default" shall include any failure to make a payment
of principal or interest attributable to the loan when due; failure to perform or to comply
with any obligations imposed by any agreement executed by the Borrower securing his
loan obligation; and any other conditions or requirements set forth within a promissory
note or security agreement that may be required in order to ensure that the terms of the
loan are consistent with Commercially reasonable practices.
IN WITNESS WHEREOF, this Plan has been executed this day of
, 2008.
CITY OF CLEARWATER
Frank V. Hibbard, Mayor
Approved as to form:
ATTEST:
Leslie K. Dougall-Sides Cynthia E. Goudeau
Assistant City Attorney City Clerk
33
\388024\2 - # 507616 v4