2008-17RESOLUTION NO. 2008 - 17
COUNCIL MEMBER SCHEVE INTRODUCED THE FOLLOWING RESOLUTION:
BE IT RESOLVED BY THE MAYOR AND THE CITY COUNCIL OF BLAIR,
NEBRASKA:
1. Adoption of Amendment and Restatement of the City of Blair. Nebraska Civilian
Employees' Pension Plan and Trust Agreement: NOW, BE IT RESOLVED, that
effective January 1, 2008 the City shall amend and it hereby does adopt, an
amendment and restatement of the City of Blair, Nebraska Civilian Employees'
Pension Plan and Trust Agreement (the "Plan ") in the form of the Plan document
attached hereto and by this reference fully incorporated herein. The purpose of said
amendment and restatement is to:
a. comply with all provisions of the Economic Growth and Tax Relief
Reconciliation Act of 2001, the Pension Funding Act of 2004, the American Jobs
Creation Act of 2004, the Gulf Opportunity Zone Act of 2005, certain changes under
the Pension Protection Act of 2006, and all other tax laws enacted since the Plan was
last amended, as such laws apply to government plans;
b. reduce the rate of mandatory contributions of employees who begin
participation in the Plan after June 30, 2008, to 3 percent of compensation;
c. eliminate voluntary after -tax contributions to the Plan after June 30, 2008;
d. adopt a 6 -year graduated vesting schedule for the Plan benefit attributable to
the City's contributions to the Plan benefit attributable to the City's contributions to
the Plan effective for any employee who performs service for the City on or after
July 1, 2008; and
e. make such other changes as determined by the City.
2. Adoption of Section 457(b) Deferred Compensation Plan: NOW, BE IT FURTHER
RESOLVED, that effective July 1, 2008, the City shall adopt, and it hereby does
adopt and establish, the City of Blair, Nebraska Deferred Compensation Plan in the
form of the Plan and Trust document attached hereto and by this reference fully
incorporated herein.
3. Authorizations: NOW, THEREFORE, BE IT FURTHER RESOLVED, that the
Mayor and other appropriate elected officials and officers of the City of Blair shall
be, and they hereby are, authorized to do all things necessary to carry out and
accomplish the foregoing Resolutions, including the execution of any document or
amendment which may be necessary or appropriate to amend and administer the
aforesaid Plans, including such actions as may be necessary or appropriate to
achieve and maintain qualification of the aforesaid Civilian Employees' Pension
Plan under Section 401(a) of the Internal Revenue Code of 1986, as amended, and to
maintain the qualification of the Deferred Compensation Plan as an eligible deferred
COUNCIL MEMBER SCHEVE MOVED THAT THE RESOLUTION BE ADOPTED
AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER BIFFAR.
UPON ROLL CALL, COUNCIL MEMBERS SHEVE, SHOTWELL, FANOELE,
CHRISTIANSEN, ABBOTT, WOLFF AND BIFFAR VOTING "AYE" AND COUNCIL
MEMBERS NONE VOTING "NAY ", THE MAYOR DECLARED THE FOREGOING
RESOLUTION PASSED AND APPROVED THIS 27 DAY OF MAY, 2008.
ATTEST:
BRENDA R. WHEELER, CITY CLERK
(SEAL)
compensation plan under Section 457(b) of the Internal Revenue Code of 1986, as
amended.
STATE OF NEBRASKA )
WASHINGTON COUNTY )
:ss:
CITY OF BLAIR, NEBRASKA
BY _ Z_
JA✓IES REALPH, MAYOR
BRENDA R. WHEELER, hereby certifies that she is the duly appointed, qualified and
acting City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution
was passed and adopted at a regular meeting of the Mayor and City Council of said City, held on
the 27th day of May, 2008.
2
46/14.4t4A41&
BRENDA R. WHEELER, CITY CLERK
CITY OF BLAIR, NEBRASKA
CIVILIAN EMPLOYEES' PENSION PLAN
AND TRUST AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I- DEFINITIONS
1.01 Plan 1
1.02 Employer 1
1.03 Trustee 1
1.04 Plan Administrator 1
1.05 Advisory Committee 1
1.06 Employee 2
1.07 Participant 2
1.08 Beneficiary 2
1.09 Compensation 2
1.10 Account 3
1.11 Accrued Benefit 3
1.12 Nonforfeitable 3
1.13 Plan Year 3
1.14 Effective Date 3
1.15 Plan Entry Date 3
1.16 Accounting Date 3
1.17 Trust 3
1.18 Trust Fund 3
1.19 Nontransferable Annuity 3
1.20 Code 3
1.21 Service 3
1.22 Separation from Service 4
1.23 Hour of Service 4
1.24 Leased Employee 4
1.25 Related Plan 4
1.26 Regulations 4
1.27 Contributions 4
1.28 Participant Required Contributions or Required Contributions 4
1.29 Valuation Date 5
ARTICLE II- EMPLOYEE PARTICIPANTS
2.01 Eligibility 6
2.02 Participation Upon Re- employment 6
2.03 Exclusion From Participation 6
2.04 Break In Service - Participation 7
2.05 Election Not To Participate 7
2.06 Duration of Participation 7
ARTICLE III - EMPLOYER CONTRIBUTIONS AND FORFEITURES
3.01 Contributions 8
3.02 Participant Required Contributions 8
3.03 Employer Contributions 9
TABLE OF CONTENTS
(continued)
PAGE
3.04 Limitations on Allocations to Participants' Accounts 9
3.05 Forfeitures 12
ARTICLE IV— PARTICIPANT CONTRIBUTIONS
4.01 Participant Voluntary Contributions 13
4.02 Participant Rollover Contributions 13
4.03 Participant Contribution – Forfeitability 14
4.04 Participant Contribution – Withdrawal/Distribution 14
ARTICLE V— TERMINATION OF SERVICE AND PARTICIPANT VESTING
5.01 Normal Retirement Age 15
5.02 Participant Disability or Death 15
5.03 Vesting Schedule 15
5.04 Forfeiture Occurs 16
ARTICLE VI —TIME AND METHOD OF PAYMENT OF BENEFITS
6.01 Time and Form of Payment of Accrued Benefit 17
6.02 Minimum Distribution Requirements for Participants 19
6.03 Distributions Under Domestic Relations Orders 23
6.04 Death Benefits 24
6.05 Mandatory Consent to Distributions 24
ARTICLE VII — EMPLOYER ADMINISTRATIVE PROVISIONS
7.01 Information to Committee 25
7.02 No Liability 25
7.03 Indemnity of Certain Fiduciaries 25
7.04 Employer/Participant Direction of Investment 25
ARTICLE VIII — PARTICIPANT ADMINISTRATIVE PROVISIONS
8.01 Beneficiary Designation 26
8.02 No Beneficiary Designation/Death of Beneficiary 26
8.03 Personal Data to Committee 26
8.04 Address for Notification 26
8.05 Assignment or Alienation 27
ARTICLE IX— ADVISORY COMMITTEE - DUTIES AND RESPONSIBILITIES
9.01 Members' Compensation Expenses 28
9.02 Term 28
9.03 Powers 28
9.04 General 28
ii
TABLE OF CONTENTS
(continued)
9.05 Manner of Action 29
9.06 Authorized Representative 29
9.07 Interested Member 29
9.08 Individual Accounts 29
9.09 Value of Participant's Accrued Benefit 30
9.10 Allocation and Distribution of Net Income Gain or Loss 30
9.11 Individual Statement 30
9.12 Account Charged 30
9.13 Correction of Errors and Operational Defects 31
9.14 Telephonic and Electronic Media 31
ARTICLE X- TRUSTEE, POWERS AND DUTIES
10.01 Acceptance 32
10.02 Receipt of Contributions 32
10.03 Plan Investments 32
10.04 Change in Investment Direction 33
10.05 Fund Gains and Expenses 33
10.06 Investment Advisers 33
10.07 Liability of Fiduciary 34
10.08 Regulated Investment Company Mutual Funds 34
10.09 Trustee Powers and Duties 34
10.10 Insurance Contracts 36
10.11 Records and Statements 36
10.12 Fees and Expenses From Fund 36
10.13 Parties to Litigation 36
10.14 Professional Agents 36
10.15 Distribution of Cash or Property 36
10.16 Distribution Directions 37
10.17 Third Party /Multiple Trustees 37
10.18 Resignation 37
10.19 Removal 37
10.20 Interim Duties and Successor Trustee 37
10.21 Valuation of Trust 38
10.22 Limitation on Liability - If Investment Manager, Ancillary Trustee
or Independent Fiduciary Appointed 38
10.23 Investment in Group Trust Fund and Mutual Funds 38
10.24 Appointment of Ancillary Trustee or Independent Fiduciary 39
PAGE
TABLE OF CONTENTS
(continued)
ARTICLE XI— MISCELLANEOUS
11.01 Evidence 40
11.02 No Responsibility For Employer Action 40
11.03 Fiduciaries Not Insurers 40
11.04 Waiver of Notice 40
11.05 Successors 40
11.06 Word Usage 40
11.07 State Law 40
11.08 Employment Not Guaranteed 41
11.09 Qualified Military Service 41
ARTICLE MI— EXCLUSIVE BENEFIT, AMENDMENT, TERMINATION
12.01 Exclusive Benefit 42
12.02 Amendment by Employer 42
12.03 Termination or Discontinuance of Plan 42
12.04 Merger/Direct Transfer 43
iv
PAGE
CITY OF BLAIR, NEBRASKA
CIVILIAN EMPLOYEES' PENSION PLAN
AND TRUST AGREEMENT
This Plan and Trust, known as the City of Blair, Nebraska Civilian Employees' Pension
Plan (the "Plan "), was originally established effective as of April 1, 1996, by the City of Blair,
Nebraska and the Trustee of the Plan. The Plan was amended and restated effective January 1,
1997, and has been subsequently amended.
The Plan is hereby further amended and restated by the City of Blair, Nebraska to adopt
the applicable changes required for the Plan under the Economic Growth and Tax Relief
Reconciliation Act of 2001, the Pension Funding Equity Act of 2004, the American Jobs
Creation Act of 2004, the Gulf Opportunity Zone Act of 2005, certain changes under the Pension
Protection Act of 2006, and all other changes required by applicable laws and as determined to
be necessary and appropriate by the City of Blair, Nebraska. Except as otherwise specifically
provided hereunder, the effective date of this amendment and restatement of the Plan and Trust is
January 1, 2008.
NOW, THEREFORE, pursuant to its power and authority to amend the Plan, the City of
Blair, Nebraska, as the sponsoring employer of the Plan, does hereby amend, restate and continue
the Plan as set forth below:
ARTICLE I
DEFINITIONS
1.01 "Plan" means the retirement plan maintained by the Employer in the form of this Plan
and Trust Agreement, designated as the City of Blair, Nebraska Civilian Employees' Pension
Plan.
1.02 "Employer" means the City of Blair, Nebraska.
1.03 "Trustee" means Delaware Charter Guarantee and Trust Company, or any successor
in such office who in writing accepts the position of Trustee.
1.04 "Plan Administrator" is the City Clerk of the Employer unless the Employer
designates another person to hold the position of Plan Administrator.
1.05 "Advisory Committee" means the Employer's Advisory Committee as from time to
time constituted.
1
1.06 "Employee" means any civilian employee of the Employer who is regularly
scheduled to work 40 or more hours per week for the Employer. In no event shall any person
who is classified by the Employer as a Leased Employee or an independent contractor, or the
employee of such independent contractor, be an Employee and eligible to participate in the Plan
during the period of classification, regardless of the common or tax classification of such person
under the work relationship with the Employer
1.07 "Participant" is an Employee who is eligible to be and becomes a Participant in
accordance with the provisions of Article II.
1.08 "Beneficiary" is a person designated by a Participant pursuant to Article VIII who is
or may become entitled to a benefit under the Plan. A Beneficiary who becomes entitled to a
benefit under the Plan remains a Beneficiary under the Plan until the Trustee has fully distributed
his benefit to him. A Beneficiary's right to (and the Plan Administrator's, the Advisory
Committee's or a Trustee's duty to provide to the Beneficiary) information or data concerning
the Plan does not arise until such Beneficiary first becomes entitled to receive a benefit under the
Plan.
1.09 "Compensation" Any reference in this Plan to Compensation is a reference to the
definition in this Section 1.09, unless the Plan reference specifies a modification to this
definition. The Advisory Committee will take into account only Compensation actually paid for
the relevant period. A Compensation payment includes Compensation paid by the Employer to
an Employee through another person under the common paymaster provisions of Code
§ §3121(5) and 3306(p).
(A) General Definition of Compensation. All wages for federal income tax withholding
purposes, as defined under Code §3401(a) (for purposes of income tax withholding at the
source), plus amounts that would be included in wages but for an election under Code
§§ 125, 132(f)(4), 402(e)(3), 402(h)(1)(B), or 457(b), and disregarding any rules limiting
the remuneration included as wages based on the nature or location of the employment or
the services performed.
(B) Definition of Compensation for Allocation Purposes. To determine a Participant's
contribution allocation under Sections 3.02 and 3.03, Compensation means the general
definition of Compensation described in Section 1.09(A) that is paid to an Employee during
that portion of the Plan Year that he is a Participant, but excluding other expense
allowances, fringe benefits (cash and noncash), moving expenses, deferred compensation
and welfare benefits.
(C) Limitations on Compensation. The Advisory Committee must take into account no
more Compensation than the Compensation Limitation prescribed by Code §401(a)(17)(B).
The Compensation Limitation is $200,000 (as adjusted after December 31, 2001 for
increases in the cost of living in accordance with Code §401(a)(17)). The Compensation
Limitation in effect for any Plan Year (or for any 12 -month Compensation period) is the
Compensation Limitation in effect at the beginning of that Plan Year (or other 12 -month
2
period). For a Plan Year (or other Compensation measuring period) of less than 12 months,
the Compensation Limitation is a prorated dollar amount, determined by multiplying the
Compensation Limitation by a fraction equal to the number of months in the short period
divided by 12.
1.10 "Account" means the separate account(s) which the Advisory Committee or the
Trustee maintains for a Participant under the Plan.
1.11 "Accrued Benefit" means the amount standing in a Participant's Account(s) as of
any date derived from both Employer contributions and Employee contributions, if any.
1.12 "Nonforfeitable" means a Participant's or Beneficiary's unconditional claim, legally
enforceable against the Plan, to the Participant's Accrued Benefit.
1.13 "Plan Year" means the fiscal year of the Plan, a twelve (12) consecutive month
period beginning every January 1 and ending every December 31st.
1.14 "Effective Date" of this amended and restated Plan is, except as otherwise
specifically stated, January 1, 2008.
1.15 "Plan Entry Date" means the date an Employee becomes eligible to participate in the
Plan in accordance with Section 2.01.
1.16 "Accounting Date" is the last day of the Plan Year. Unless otherwise specified in the
Plan, the Advisory Committee will make Plan allocations for all Participants as of the last day of
each calendar quarter.
1.17 "Trust" means the separate Trust created under the Plan.
1.18 "Trust Fund" means all property of every kind held or acquired by the Trustee under
the Plan.
1.19 "Nontransferable Annuity" means an annuity which by its terms provides that it
may not be sold, assigned, discounted, pledged as collateral for a loan or security for the
performance of an obligation or for any purpose to any person other than the insurance company.
If the Plan distributes an annuity contract, the contract must be a Nontransferable Annuity.
1.20 "Code" means the Internal Revenue Code of 1986 as amended. Reference to a
section of the Code shall include that section and any comparable section or sections of any
future legislation that amends, supplements, or supersedes said section.
1.21 "Service" means any period of time the Employee is in the employ of the Employer,
including any period the Employee is on an unpaid leave of absence authorized by the Employer
under a uniform, nondiscriminatory policy applicable to all Employees. An absence due to
service in the Armed Forces of the United States during any period of qualified military service
3
as defined in Code § 414(u)(5) shall be considered a leave of absence provided that the Employee
shall have directly entered into such Armed Forces and shall have made application for re-
employment within the applicable time period required under the Uniformed Services
Employment and Re- employment Rights Act of 1994 after discharge or release from qualified
military service.
1.22 "Separation from Service" means the Employee no longer has an employment
relationship with the Employer maintaining this Plan.
1.23 "Hour of Service" means each Hour of Service for which the Employer, either
directly or indirectly, pays an Employee, or for which the Employee is entitled to payment, for
the performance of duties. The Advisory Committee credits Hours of Service under this
paragraph (a) to the Employee for the computation period in which the Employee performs the
duties, irrespective of when paid.
The Employer will credit every Employee with Hours of Service on the basis of the "actual"
method. For purposes of the Plan, "actual" method means the determination of Hours of Service
from records of hours worked and hours for which the Employer makes payment or for which
payment is due from the Employer.
1.24 "Leased Employee ". A Leased Employee is an individual (who otherwise is not an
Employee of the Employer) who, pursuant to a leasing agreement between the Employer and any
other person, has performed services for the Employer (or for the Employer and any persons
related to the Employer determined in accordance with Code § 414(n)(6)) on a substantially full
time basis for at least one year provided such services are performed under the primary direction
or control by the Employer. If a Leased Employee is treated as an Employee by reason of this
Section 1.24, "Compensation" includes Compensation from the leasing organization which is
attributable to services performed for the Employer.
1.25 "Related Plan" means any other defined contribution plan (as defined in Code
§ 415(k)) maintained by the Employer or by any other corporation or entity that is, along with the
Employer, a member of a controlled group of corporations as defined in Code § 414(b), trades or
businesses under common control as defined in Code § 414(c), or a member of an affiliated
service group as defined in Code § 414(m).
1.26 "Regulations" means the Income Tax Regulations as promulgated by the Secretary
of Treasury or a delegate of the Secretary, as amended from time to time.
1.27 "Contributions" means the Participant Required Contributions described in Section
3.02, the Employer Contributions described in Section 3.03, Voluntary Contributions described
in Section 4.01, and Rollover Contributions described in Section 4.02.
1.28 "Participant Required Contributions" or "Required Contributions" means
Contributions made by the Employer for a Participant through a reduction in the Participant's
4
Compensation pursuant to Section 3.02 that are deemed to be "pick -up" contributions under
Code § 414(h).
1.29 "Valuation Date" each Accounting Date and such other interim valuation date as
established by the Advisory Committee pursuant to Section 9.10 or pursuant to Section 10.21.
5
ARTICLE II
EMPLOYEE PARTICIPANTS
2.01 ELIGIBILITY. Each Employee becomes a Participant in the Plan on the first day of
the month (if employed on that date) coincident with or immediately following the later of his
completion of 6- months of continuous employment with the Employer or his attainment of age
21. Unless the Employee elects not to participate pursuant to Section 2.05, the Participant shall
be deemed to have consented to make the Participant Required Contributions to the Trust
described at Section 3.02.
2.02 PARTICIPATION UPON RE- EMPLOYMENT. A former Participant whose
employment with the Employer terminates will re -enter the Plan as a Participant on the first day
of the month following the date of his re- employment as an Employee. Any Employee who
terminates employment prior to satisfying the Plan's eligibility conditions shall, upon
reemployment with the Employer, become a Participant in accordance with the provisions of
Section 2.01 based on the Employee's continuous employment from his reemployment date.
2.03 EXCLUSION FROM PARTICIPATION. An Employee is an Excluded Employee
and not eligible to become a Participant in the Plan if he is a member of a collective bargaining
unit, unless the collective bargaining agreement provides otherwise. An Employee is a member
of a collective bargaining unit, if he is included in a unit of employees covered by a collective
bargaining agreement between employee representatives and the Employer in which retirement
benefits have been the subject of good faith bargaining between such employee representatives
and Employer.
Any person who is classified by the Employer as a Leased Employee or as an independent
contractor (as determined under the Employer's employment tax records), or an employee of an
independent contractor shall be an Excluded Employee during the period of such classification.
Any person who is a police officer of the City of Blair and an active participant of the City
of Blair, Nebraska Police Retirement Plan and Trust shall be an Excluded Employee.
If a Participant has not incurred a Separation from Service but becomes an Excluded
Employee, then during the period such a Participant is an Excluded Employee, the Advisory
Committee will limit that Participant's sharing in the allocation of Employer contributions, if
any, under the Plan by disregarding his Compensation paid by the Employer for services rendered
in his capacity as an Excluded Employee. However, during such period of exclusion, the
Participant, without regard to employment classification, continues to receive credit for vesting
under Article V for each included Year of Service and the Participant's Account continues to
share fully in Trust Fund allocations under Section 9.10.
If an Excluded Employee who is not a Participant becomes eligible to participate in the
Plan by reason of a change in employment classification, he will participate in the Plan
immediately if he has satisfied the eligibility conditions of Section 2.01 and would have been a
Participant had he not been an Excluded Employee during his period of Service.
6
2.04 BREAK IN SERVICE - PARTICIPATION. For purposes of participation in the
Plan by former Participants, the Plan does not apply any break in service rule.
2.05 ELECTION NOT TO PARTICIPATE. A Participant may make one -time
irrevocable election to not participate in the Plan by filing a written election with the Plan
Administrator not later than 30 days after meeting the eligibility requirements of Section 2.01. A
Participant who became a Participant before July 1, 2008, must file a written election with the
Plan Administrator after meeting the eligibility requirements of Section 2.01, to designate the
level of his Participant Required Contributions as described in Section 3.02.
2.06 DURATION OF PARTICIPATION. A Participant shall continue to be such until
the later of (1) the Participant's Separation from Service, or (2) the date all benefits, if any, to
which the Participant is entitled under the Plan have been distributed to the Participant from the
Plan. A Participant whose regularly scheduled work with the Employer falls below 40 hours per
week shall continue to participate in the Plan and shall continue to make Participant Required
Contributions until such time that the Participant incurs a Separation from Service or becomes an
Excluded Employee (as defined in Section 2.03).
7
ARTICLE III
EMPLOYER CONTRIBUTIONS AND FORFEITURES
3.01 CONTRIBUTIONS. All Contributions to the Plan shall be paid to the Trustee for
investment under segregated investment funds as provided in Article X, but otherwise held and
administered as a single Trust Fund. In addition, all funds held under group annuity contracts
which served as the funding medium for the Plan shall be held by the Trustee and made part of
the Trust Fund in accordance with the terms and conditions of such contracts and pursuant to the
Employer's exercise of any transfer options under the contracts. The Trust Fund is established
and shall be administered for the exclusive benefit of the Participants and beneficiaries and no
part thereof shall be diverted to other purposes.
The Trustee shall create and maintain four (4) separate accounts in the name of each
Participant:
(A) Participant's Required Contributions Account which shall relate to such Participant's
participation in such Account and to which all Participant Required Contributions pursuant
to Section 3.02 shall be credited;
(B) Employer Contributions Account which shall relate to such Participant's participation
in such Account and to which such Participant's share of the Employer's Contribution
pursuant to Section 3.03 shall be credited;
(C) Participant's Voluntary Contributions Account which shall relate to such Participant's
participation in such Account and to which all Participant Voluntary Contributions pursuant
to Section 4.01 shall be credited; and
(D) Participant's Rollover Contributions Account which shall relate to such Participant's
participation in such Account and to which all Participant Rollover Contributions pursuant
to Section 4.02 shall be credited.
Each such Account shall be adjusted to reflect investment gains, losses, and appreciation of
the Trust Fund as of the end of each Plan Year and at other Valuation Dates as may be
established by the Advisory Committee. The Trustee shall not be required to maintain separate
investments for any Account. All amounts transferred to the Trustee from any terminated group
annuity contract shall be held in the same Account that such amounts were held or allocated to
under the group annuity contract.
3.02 PARTICIPANT REQUIRED CONTRIBUTIONS. Each Participant shall make
Required Contributions to the Plan by means of payroll deduction maintained by the Employer as
follows:
(A) Participants Before July 1, 2008. Any Employee who became a Participant before
July 1, 2008 shall contribute to the Trust an amount equal to 3 %, 4 %, 5% or 6% of the
Participant's Compensation for the Plan Year as elected at the date of the Employee's
admittance as a Participant.
(B) Participants After June 30, 2008. Any Employee who becomes a Participant after
June 30, 2008, including a former Participant who is reemployed by the Employer after this
8
date, shall contribute to the Trust an amount equal to 3% of the Participant's Compensation
for the Plan Year.
Each Participant must make Required Contributions to the Plan as a condition of
employment and the rate of such Required Contributions shall not be changed or subject to
revocation. No Participant, however, may make Required Contributions subsequent to the date
upon which the Participant incurs a Separation from Service.
The Employer shall, pursuant to Code § 414(h)(2), pick up Required Contributions
deducted from the Compensation of Participants, and the Required Contributions so picked up
shall be treated as Employer Contributions for purposes of the federal income tax under the
Code. In no event shall a Participant have the option to directly receive the amount picked up by
the Employer in lieu of having such pick up contribution being directly paid to the Trustee by the
Employer.
All Required Contributions shall be made by means of payroll deductions. The amounts so
deducted shall be paid monthly to the Trustee by the Employer and shall be credited to the
Participant's Required Contributions Account. In no event shall Required Contributions be paid
to the Trust later than the fifteenth (15th) business day of the month following the month in
which such Required Contributions were withheld by the Employer from the Participant's
Compensation.
3.03 EMPLOYER CONTRIBUTIONS. For each Participant who makes Required
Contributions, the Employer shall make Employer Contributions to the Trustee which shall be
credited to each Participant's Employer Contributions Account. The amount of Employer
Contributions to be made for any particular period and with respect to each Participant shall be
an amount equal to 100 percent of the Participant's Required Contributions for such period. The
Employer may pay its Employer Contribution for each Plan Year in one or more installments,
without interest; provided the Employer Contribution shall be paid to the Trust with the time
prescribed by the Code or applicable Regulations.
A portion of the Plan assets resulting from Employer Contributions (but not more than the
original amount of such Employer Contributions) may be returned to the Employer if the
Employer Contributions are made because of a mistake of fact. The amount involved must be
returned to the Employer within one (1) year after the date the Employer Contributions are made
by mistake of fact. Except as otherwise provided in this Plan, the assets of the Plan shall never
be used for the benefit of the Employer and are held for the exclusive purpose of providing
benefits to Participants and their Beneficiaries and for defraying reasonable expenses of
administering the Plan.
3.04 LIMITATIONS ON ALLOCATIONS TO PARTICIPANT ACCOUNTS.
Notwithstanding any provisions of the Plan to the contrary, the allocation of Annual Additions to
a Participant's Account(s) under the Plan shall not exceed the maximum amount permitted under
Code § 415. For purposes of the preceding sentence; beginning with the Plan Year commencing
on January 1, 2002:
(A) The Annual Addition that may be contributed or allocated with respect to a
Participant for any Plan Year shall not exceed the lesser of:
9
(1) $40,000 (as such limit may be adjusted for increases in cost -of- living in
accordance with Code § Section 415(d)); or
(2) One hundred percent (100 %) of the Compensation (as defined in Section 1.09(A))
paid to the Participant by the Employer for such Plan Year (subject to the
Compensation limitation of Code § 401(a)(17)).
The limit described in subsection (2) above shall not apply to any contribution for medical
benefits after a separation from service (within the meaning of Code §§ 414(h) or
419A(f)(2)), which is otherwise treated as an Annual Addition.
(B) If a Participant is also a participant in one or more other defined contribution plans
maintained by the Employer or any trade or business entity under common control with the
Employer, and if the amount of employer contributions and forfeitures otherwise allocated
to the Participant for a Plan Year must be reduced to comply with the limitations under
Code § 415, such allocations under this Plan and each of such other plans shall be reduced
pro rata in the sequence specified in subsection (C), and pro rata within each category
within that sequence, to the extent necessary to comply with said limitations, except that
reductions to the extent necessary shall be made from allocations under profit sharing plans
before any reductions are made under a money purchase plan.
(C) If for any Plan Year the limitation described in subsection (A) would otherwise be
exceeded by contributions to this Plan with respect to any Participant (after application of
subsection (B)), the Participant's Annual Additions shall be adjusted in the following
sequence, but only to the extent necessary to reduce the Participant's Annual Additions to
the level permitted in subsection (A):
(1) The Participant's Voluntary Contributions (if any), together with any income
allocable to such amounts, shall be reduced to the extent necessary to eliminate the
excess amount, and that amount shall be distributed to the Participant.
(2) If, after the adjustment in (1) above, there is an excess amount with respect to a
Participant for a Plan Year, such excess amount shall be held unallocated in a
suspense account. The suspense account will be applied to reduce future Employer
contributions in the current Plan Year, the next Plan Year, and in each succeeding
Plan Year for the Participant, if necessary. The suspense account shall not participate
in the allocation of the investment gains and losses of the Trust and the value of such
account shall not be considered in valuing other Accounts under the Plan.
(3) If, after the application of (1) and (2) above, an excess amount still exists and the
Plan does not cover the Participant at the end of the Plan Year, such excess amount
shall be held unallocated in a suspense account. The suspense account will be applied
to reduce future Employer contributions for all remaining Participants in the current
Plan Year, the next Plan Year, and in each succeeding Plan Year for the Participant.
The suspense account shall not participate in the allocation of the investment gains
10
and losses of the Trust and the value of such account shall not be considered in
valuing other Accounts under the Plan.
(D) For purposes of this Section 3.04, "Annual Additions" means the sum of the
following amounts allocated to a Participant for a Plan Year under this Plan and all other
defined contribution plans maintained by the Employer, or any trade or business entity
under common control with the Employer, in which he or she participates:
(1) Employer contributions, including Participant Required Contributions.
(2) Forfeitures, if any.
(3) Voluntary non - deductible contributions, if any.
(4) Amounts described in Code §§ 415(1)(2) and 419A(d)(3).
(5) Allocations under a simplified employee pension.
An Annual Addition with respect to a Participant's Account shall be deemed credited
thereto with respect to a Plan Year if it is allocated to the Participant's Accounts under the
terms of the Plan as of any date within such Plan Year.
(E) For Plan Years beginning after December 31, 2005, payments made by the later of
two and one -half (2 months after a Separation from Service or the end of the Plan Year
that includes the Separation from Service will be Compensation for purposes of this
Section 3.04 if they are payments that, absent a severance from employment, would have
been paid to the Participant while the Participant continued in employment with a the
Employer and are regular compensation for services during the Participant's regular
working hours; compensation for services outside the Participant's regular working hours
(such as overtime); and commissions, bonuses, or other similar compensation; or payments
for unused accrued bona fide sick, vacation, or other leave, but only if the Participant would
have been able to use the leave if employment had continued. Any payments not described
above are not considered Compensation if paid at any time after Separation from Service,
even if paid within 21/2 months or before the end of the Plan Year of such Separation from
Service, except for payments to an individual who does not currently perform services for
the Employer by reason of qualified military service (as defined under Code § 414(u)) to
the extent these payments would have been received if the individual had continued to
perform services for the Employer rather than entering qualified military service.
(F) Notwithstanding anything contained in this Section 3.04 to the contrary, the limitations,
adjustments and other requirements of this Section 3.04 shall at all times comply with the
provisions of Code §415 and the Regulations thereunder, the provisions of which are
incorporated herein by this reference.
11
3.05 FORFEITURES. The portion of any Participant's account balance that is forfeited
pursuant to Section 5.04 shall be applied as a credit for and used to reduce the current or future
Employer Contributions as described in Section 3.04.
12
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
4.01 PARTICIPANT VOLUNTARY CONTRIBUTIONS. The Plan permits but does
not require Participant voluntary contributions to be made to the Plan for periods before July 1,
2008. During this period, a Participant could elect, from time to time, to make Participant
voluntary contributions to the Plan in any amount, subject to the limitations of Section 3.04.
Participant voluntary contributions were made in accordance with a payroll deduction plan the
Employer made available and credited to the Participant's Voluntary Contributions Account.
Effective July 1, 2008, no further Voluntary Contributions can be made to the Plan by any
Participant. Except as provided under Section 4.04, Participant voluntary contributions made to
the Plan before July 1, 2008 shall be part of the Participant's Accrued Benefit and all amounts
credited to the Participant's Voluntary Contributions Account shall be held, administered,
invested, and distributed in the same manner as any other amounts credited to the Participant's
Accounts under this Plan.
4.02 PARTICIPANT ROLLOVER CONTRIBUTIONS. Any Participant, with the
Employer's written consent and after filing with the Trustee the form prescribed by the Advisory
Committee, may contribute cash to the Trust that is a qualifying "rollover contribution" as
defined below. Before accepting a rollover contribution, the Trustee may require an Employee to
furnish satisfactory evidence that the proposed transfer is in fact a qualifying "rollover
contribution" which the Code permits an employee to make to a qualified plan. A rollover
contribution is not an Annual Addition under Article III.
(A) Direct Rollovers - The Plan will accept a direct rollover of an eligible rollover
distribution from:
(1) a qualified plan described in Code § 401(a) or 403(a);
(2) an annuity contract described in Code § 403(b); or
(3) an eligible plan under Code § 457(b) which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state of political
subdivision of a state.
(B) Participant Rollover Contributions from Other Plans — The Plan will accept a
rollover contribution of an eligible rollover distribution from:
(1) a qualified plan described in Code §§ 401(a) or 403(a);
(2) an annuity contract described in Code § 403(b); or
(3) an eligible plan under Code § 457(b) which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or political
subdivision of a state.
13
(C) Participant Rollover Contributions from IRAs - The Plan will accept a rollover
contribution of the portion of a distribution from an individual retirement account or
annuity described in Code §§ 408(a) or 408(b) that is eligible to be rolled over and would
otherwise be includible in gross income.
Cash transferred to this Plan as a rollover contribution shall be separately accounted for as a
separate Rollover Account, but shall otherwise be held and invested as part of the Trust Fund.
The amounts credited to the Rollover Account shall be nonforfeitable at all times. In all other
respects, the rollover contribution and the Rollover Account shall be treated the same as any
other Account, under the Plan.
The Advisory Committee shall establish such conditions and procedures for the making of a
rollover contribution to this Plan as it deems necessary or desirable, and may require from any
Employee proposing to make a rollover contribution hereunder such information and
certifications necessary for determining whether the proposed contribution will meet the
requirements of this Section 4.02 and the requirements of Code § 402 so as to qualify as a tax -
free rollover.
An eligible Employee, prior to satisfying the Plan's eligibility conditions, may make a
rollover contribution to the Trust to the same extent and in the same manner as a Participant. If
an Employee makes a rollover contribution to the Trust prior to satisfying the Plan's eligibility
conditions, the Advisory Committee and Trustee must treat the Employee as a Participant for all
purposes of the Plan except the Employee is not a Participant for purposes of sharing in
Employer contributions or Participant forfeitures under the Plan until he actually becomes a
Participant in the Plan in accordance with Article II. If the Employee has a Separation from
Service prior to becoming a Participant, the Trustee will distribute his Rollover Account to him
as if it were an Employer Contribution Account.
4.03 PARTICIPANT CONTRIBUTION - FORFEITABILITY. All amounts credited
to a Participant's Voluntary Contributions Account and Rollover Account, adjusted by
subsequent income, losses, appreciation and depreciation thereof, shall be 100% Nonforfeitable
at all times.
4.04 PARTICIPANT CONTRIBUTION WITHDRAWAL/DISTRIBUTION. A
Participant, by giving prior written notice to the Trustee, may withdraw all or any part of the
value of his Participant voluntary contributions described in this Article IV that are credited to
the Participant's Voluntary Contributions Account. A Participant may not exercise his right to a
withdrawal from Voluntary Contributions Account more than once during any Plan Year. The
Trustee, in accordance with the direction of the Advisory Committee, will distribute the balance
of a Participant's unwithdrawn Voluntary Contributions Account in accordance with the
provisions of Article VI.
14
ARTICLE V
TERMINATION OF SERVICE AND PARTICIPANT VESTING
5.01 NORMAL RETIREMENT AGE. A Participant's Normal Retirement Age is 65
years of age. A Participant's Employer Contributions Account derived from Employer
Contributions (other than "pick -up" contributions) is 100% Nonforfeitable upon and after his
attaining Normal Retirement Age (if employed by the Employer on or after that date). A
Participant's Required Contributions Account derived from Employer "pick -up" contributions is
always 100% Nonforfeitable.
5.02 PARTICIPANT DISABILITY OR DEATH. If a Participant's employment with
the Employer terminates as a result of death or total disability, the balance of the Participant's
total Accrued Benefit will be 100% Nonforfeitable.
A total disability means the total and permanent inability by reason of the physical or
mental condition of the Participant to engage in any substantial gainful activity. Such disability
must be expected to result in death or to be of long, continued, and indefinite duration, and the
question whether such disability exists or not shall be established by certification of a physician
selected by the Advisory Committee and its determination shall be conclusive in all cases.
5.03 VESTING SCHEDULE.
The crediting of Employer Contributions to the Participant's Employer Contributions
Account shall not give the Participant any vested right to the amounts allocated. Except as
provided in Sections 5.01 and 5.02, the vested right of a Participant to the amounts credited to his
Employer Contributions Account, adjusted by subsequent income, losses, appreciation and
depreciation thereof, shall depend on the number of full years of continuous employment in the
Service of the Employer (hereinafter referred to as "Year of Service "), according to the following
vesting schedule applicable to the Participant:
(A) The vesting schedule for any Participant who has not completed any Service for the
Employer after June 30, 2008, shall be:
Years of Service Percent of Nonforfeitable
With the Employer Employer Contribution
Less than 3 None
3 20%
4 40%
5 60%
6 80%
7 or more 100%
(B) The vesting schedule for any Participant who has performed Service for the Employer
on or after July 1, 2008 shall be:
15
Years of Service Percent of Nonforfeitable
With the Employer Employer Contribution
Less than 2 None
2 20%
3 40%
4 60%
5 80%
6 100%
5.04 FORFEITURE OCCURS. The portion of a Participant's Employer Contribution
Account that is not vested pursuant to the vesting schedule of Section 5.03, shall be forfeited
under the Plan on the earlier of:
(A) The last day of the Plan Year in which the Participant terminates employment with the
Employer; or
(B) The date the Participant receives a distribution of the Nonforfeitable portion of his
Accounts.
16
ARTICLE VI
TIME AND METHOD OF PAYMENT OF BENEFITS
6.01 TIME AND FORM OF PAYMENT OF ACCRUED BENEFIT. The Advisory
Committee will direct the Trustee to commence distribution of a Participant's Nonforfeitable
Accrued Benefit in accordance with this Article VI.
(A) Normal Retirement. Upon the termination of the Participant's employment with the
Employer on or after his attainment of his Normal Retirement Age, or by reason of his
incurring total disability, the Participant shall be entitled to a distribution of his Accrued
Benefit under the Plan. If the Participant continues in the employ of the Employer beyond
his Normal Retirement Age, distribution of his Accrued Benefit shall be deferred until his
actual termination date. Subject to the minimum distribution requirements of Section 6.02,
payment of the Participant's Account(s) at retirement or upon incurring total disability shall
be in a single lump sum, term certain, single life or joint and 50% spousal survivor annuity,
or in a combination of such methods of payment as elected by the Advisory Committee
after consultation with the Participant. Distribution of the Participant's Accrued Benefit
shall be made or commence no later than 60 days after the end of the Plan Year in which
the Participant attains his Normal Retirement Age, or his Separation from Service, if later,
or the termination of employment as a result of total disability.
(B) Termination of Employment Prior to Normal Retirement. Upon the termination of
the Participant's employment with the Employer prior to attaining his Normal Retirement
Age, other than by reason of his death or total disability, the Participant's Nonforfeitable
Accrued Benefit, equal to the vested interest of the Participant's Employer Contribution
Account and his entire interest of his Required Contribution Account and Voluntary
Contribution Account (if any), shall be determined.
The Participant may make a written request to the Advisory Committee for distribution of
an amount equal to all of his Nonforfeitable Accrued Benefit in any method or methods
described in Section 6.01(A). The Advisory Committee shall decide the time and manner
of payment of benefits which shall commence no later than 60 days after the end of the Plan
Year in which the Participant attains age 65.
(C) Direct Rollover of Eligible Rollover Distributions. A Participant or other distributee
may elect, at the time and in the manner prescribed by the Advisory Committee, to have
any portion of his Eligible Rollover Distribution paid directly to an Eligible Retirement
Plan specified by the distributee in a Direct Rollover. For purposes of this Section 6.01(C),
the following definitions apply:
(1) "Eligible Rollover Distribution" means any distribution of all or any portion of the
balance of the Participant's Nonforfeitable Accrued Benefit that is credited to 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 of the distributee or the joint lives 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 Code
§ 401(a)(9); and any hardship distribution (if permitted by the Plan).
17
For purposes of this Section 6.01(C), a portion of a distribution shall not fail to be an
eligible rollover distribution merely because the portion consists of after -tax employee
distributions which are not includible in gross income. However, such portion may
be transferred only to an individual retirement account or annuity described in Code
§ 408(a) or (b), or to a qualified defined contribution plan described in Code
§§ 401(a) or 403(a) that agrees to separately account for amounts so transferred,
including separately accounting for the portion of such distribution which is
includible in gross income and the portion of such distribution which is not so
includible.
(2) "Eligible Retirement Plan" is an individual retirement account described in Code
§ 408(a), an individual retirement annuity described in Code § 408(b), an annuity plan
described in Code § 403(a), an annuity contract described in Code § 403(b), an
eligible plan under Code § 457(b) which is maintained by a state, political subdivision
of a state, or any agency or instrumentality of a state or political subdivision of a state
and which agrees to separately account for amounts transferred into such plan from
this Plan or a qualified plan described in Code § 401(a) that accepts the distributee's
eligible rollover distribution. This definition shall also apply in the case of a
distribution to a surviving spouse of the Participant or to a spouse or former spouse
who is the alternate payee under a Qualified Domestic Relations Order as defined in
Code § 414(p), that accepts the distributee's eligible rollover distribution. For
purposes of a distribution on behalf of a Designated Beneficiary who is not a spouse
or former spouse of the Participant, "Eligible Retirement Plan" shall mean an
individual retirement account described in Code § 408(a) or an individual retirement
annuity described in Code § 408(b) established for the purpose of receiving a
distribution on behalf of the Designated Beneficiary and that that will be treated as an
inherited IRA pursuant to the provisions of Code § 402(c)(11).
(3) "Distributee" includes a Participant or former Participant, and the Participant's
surviving spouse or former spouse who is an alternate payee under a qualified
domestic relations order. Effective January 1, 2007, "Distributee" shall also include a
Participant's designated Beneficiary (as defined in Section 6.02(D)(1) who is not the
Participant's surviving spouse or former spouse.
(4) "Direct Rollover" is a payment by the Plan to the eligible retirement plan specified
by the distributee.
18
6.02 MINIMUM DISTRIBUTION REQUIREMENTS FOR PARTICIPANTS.
Notwithstanding any provision in this Plan to the contrary, the time and method of
distribution of a Participant's Nonforfeitable Accrued Benefit shall be in accordance with the
following required minimum distribution rules. All distributions required under this Section 6.02
shall be determined and made in accordance with the minimum distribution requirements of
Code § 401(a)(9) and the Regulations under Code § 401(a)(9), including the minimum incidental
benefit requirement of Code § 401(a)(9)(G).
(A) Time and Manner of Distribution.
(1) Required Distribution Date. The Participant's entire Nonforfeitable Accrued
Benefit will be distributed, or begin to be distributed, to the Participant no later than
the Participant's Required Distribution Date.
(2) Death of Participant Before Distributions Begin. If the Participant dies before
distributions begin, the Participant's entire Nonforfeitable Accrued Benefit will be
distributed, or begin to be distributed, no later than as follows:
(a) If the Participant's surviving spouse is the Participant's sole Designated
Beneficiary, then distributions to the surviving spouse will begin by December
31 of the calendar year immediately following the calendar year in which the
Participant died, or by December 31 of the calendar year in which the
Participant would have attained age 70 if later.
(b) If the Participant's surviving spouse is not the Participant's sole Designated
Beneficiary, then distributions to the Designated Beneficiary will begin by
December 31 of the calendar year immediately following the calendar year in
which the Participant died.
(c) 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.
(d) If the Participant's surviving spouse is the Participant's sole Designated
Beneficiary and the surviving spouse dies after the Participant but before
distributions to the surviving spouse begin, this subparagraph (A)(2), other
than subparagraph (A)(2)(a) above, will apply as if the surviving spouse were
the Participant.
19
For purposes of this subparagraph (A)(2) and paragraph (C), unless this
subparagraph (A)(2)(d) applies, distributions are considered to begin on the
Participant's Required Distribution Date. If this subparagraph (A)(2)(d)
applies, distributions are considered to begin on the date distributions are
required to begin to the surviving spouse under subparagraph (A)(2)(a) above.
If distributions under an annuity purchased from an insurance company
irrevocably commence to the Participant before the Participant's Required
Distribution Date (or to the Participant's surviving spouse before the date
distributions are required to begin to the surviving spouse under subparagraph
(A)(2)(a) above), the date distributions are considered to begin is the date
distributions actually commence.
(3) 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 Distribution Date, as of the first Distribution Calendar Year distributions
will be made in accordance with paragraphs (B) and (C) of this Section 6.02. If the
Participant's interest is distributed in the form of an annuity purchased from an
insurance company, distributions thereunder will be made in accordance with the
requirements of Code § 401(a)(9) and the Regulations thereunder.
(B) Required Minimum Distributions During Participant's Lifetime.
(1) 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:
(a) the quotient obtained by dividing the Participant's Accrued Benefit by the
distribution period in the Uniform Lifetime Table set forth in Regulation
§ 1.401(a)(9) -9, using the Participant's age as of the Participant's birthday in
the Distribution Calendar Year; or
(b) 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 Accrued Benefit by the number in the Joint and Last Survivor
Table set forth in Regulation § 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.
(2) Lifetime Required Minimum Distributions Continue Through Year of
Participant's Death. Required minimum distributions will be determined under this
paragraph (B) beginning with the first Distribution Calendar Year and up to and
including the Distribution Calendar Year that includes the Participant's date of death.
(C) Required Minimum Distributions After Participant's Death.
(1) Death On or After Date Distributions Begin.
20
(a) 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 Accrued Benefit by the longer of the remaining life expectancy of
the Participant or the remaining life expectancy of the Participant's Designated
Beneficiary, determined as follows:
(i) The Participant's remaining life expectancy is calculated using the
age of the Participant in the year of death, reduced by one for each
subsequent calendar year.
(ii) If the Participant's surviving spouse is the Participant's sole
Designated Beneficiary, the remaining life expectancy of the surviving
spouse is calculated for each Distribution Calendar Year after the year
of the Participant's death using the surviving spouse's age as of the
spouse's birthday in that year. For Distribution Calendar Years after the
year of the surviving spouse's death, the remaining life expectancy of
the surviving spouse is calculated using the age of the surviving spouse
as of the spouse's birthday in the calendar year of the spouse's death,
reduced by one for each subsequent calendar year.
(iii) If the Participant's surviving spouse is not the Participant's sole
Designated Beneficiary, the Designated Beneficiary's remaining life
expectancy is calculated using the age of the Beneficiary in the year
following the year of the Participant's death, reduced by one for each
subsequent calendar year.
(b) 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
Accrued Benefit 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 calendar year.
(2) Death Before Date Distributions Begin.
(a) Participant Survived by Designated Beneficiary. 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 Accrued Benefit by the remaining life expectancy of the
Participant's Designated Beneficiary, determined as provided in subparagraph
(C)(1).
21
(b) 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.
(c) Death of Surviving Spouse Before Distributions to Surviving Spouse Are
Required to Begin. If the Participant dies before the date distributions begin,
and 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 subparagraph (A)(2)(a), this subparagraph
(C)(2) will apply as if the surviving spouse were the Participant.
(D) Definitions. For purposes of this Section 6.02, the following terms shall have the
following meaning:
(1) Designated Beneficiary. The individual who is designated as the Beneficiary
under Section 1.08 of the Plan and who is also a designated beneficiary under Code
§ 401(a)(9) and Regulation § 1.401(a)(9) -1, Q &A -4.
(2) Distribution Calendar Year. A calendar year for which a minimum distribution is
required for a Participant. For distributions beginning before the Participant's death,
the first Distribution Calendar Year is the Calendar Year immediately preceding the
Participant's Required Distribution 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 6.02(A)(2). The required minimum
distribution for the Participant's first Distribution Calendar Year will be made on or
before the Participant's Required Distribution Date. The required minimum
distribution for other Distribution Calendar Years, including the required minimum
distribution for the Distribution Calendar Year in which the Participant's Required
Distribution Date occurs, will be made on or before December 31 of that Distribution
Calendar Year.
(3) Life Expectancy. Life expectancy as computed by use of the Single Life Table in
Regulation § 1.401(a)(9) -9.
(4) Participant's Accrued Benefit. The Participant's Nonforfeitable Accrued Benefit
as of the last valuation date of the Plan 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 Accrued Benefit 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
Accrued Benefit for the valuation calendar year includes any amounts 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.
(5) Required Distribution Date. The Required Distribution Date is the April 1
following the later of (a) the calendar year in which the Participant attains age 70%2, or
(ii) the calendar year in which the Participant incurs a Separation from Service.
22
6.03 DISTRIBUTIONS UNDER DOMESTIC RELATIONS ORDERS. Nothing
contained in this Plan prevents the Trustee, in accordance with the direction of the Advisory
Committee, from complying with the provisions of a qualified domestic relations order (as
defined in Code §414(p)). This Plan specifically permits distribution to an alternate payee under
a qualified domestic relations order at any time, irrespective of whether the Participant has
attained his earliest retirement age (as defined under Code §414(p) under the Plan). A
distribution to an alternate payee prior to the Participant's attainment of earliest retirement age is
available only if the order specifies distribution at that time or permits an agreement between the
Plan and the alternate payee to authorize an earlier distribution. Nothing in this Section 6.03
gives a Participant a right to receive distribution at a time otherwise not permitted under the Plan
nor does it permit the alternate payee to receive a form of payment not otherwise permitted under
the Plan.
The Advisory Committee must establish reasonable procedures to determine the qualified
status of a domestic relations order. Upon receiving a domestic relations order, the Advisory
Committee promptly will notify the Participant and any alternate payee named in the order, in
writing, of the receipt of the order and the Plan's procedures for determining the qualified status
of the order. Within a reasonable period of time after receiving the domestic relations order, the
Advisory Committee must determine the qualified status of the order and must notify the
Participant and each alternate payee, in writing, of its determination. The Advisory Committee
must provide notice under this paragraph by mailing to the individual's address specified in the
domestic relations order.
If any portion of the Participant's Nonforfeitable Accrued Benefit is payable during the
period the Advisory Committee is making its determination of the qualified status of the
domestic relations order, the Advisory Committee must make a separate accounting of the
amounts payable. If the Advisory Committee determines the order is a qualified domestic
relations order within 18 months of the date amounts first are payable following receipt of the
order, the Advisory Committee will direct the Trustee to distribute the payable amounts in
accordance with the order. If the Advisory Committee does not make its determination of the
qualified status of the order within the 18 month determination period, the Advisory Committee
will direct the Trustee to distribute the payable amounts in the manner the Plan would distribute
if the order did not exist and will apply the order prospectively if the Advisory Committee later
determines the order is a qualified domestic relations order.
To the extent it is not inconsistent with the provisions of the qualified domestic relations
order, the Advisory Committee may direct the Trustee to invest any partitioned amount in a
segregated subaccount or separate account and to invest the account in Federally insured,
interest - bearing savings account(s) or time deposit(s) (or a combination of both), or in other fixed
income investments. A segregated subaccount remains a part of the Trust, but it alone shares in
any income it earns, and it alone bears any expense or loss it incurs. The Trustee will make any
payments or distributions required under this Section 6.03 by separate benefit checks or other
separate distribution to the alternate payee(s).
23
6.04 DEATH BENEFITS
In the event of the death of a Participant prior to his Separation from Service, a distribution
of the deceased Participant's Nonforfeitable Accrued Benefit shall be made to such Participant's
designated Beneficiary. In the event of a Participant's death subsequent to his Separation from
Service, a distribution of the deceased Participant's Nonforfeitable Accrued Benefit shall be made
to such Participant's designated Beneficiary unless the Participant's benefits had commenced in
the form of an annuity pursuant to Section 6.01, in which event any death benefits shall be
provided in accordance with the particular form of annuity which was payable to the Participant,
and the Plan shall have no obligation to pay any death benefit to the Beneficiary.
(A) Payment of any death benefits which become due in accordance with this Section 6.04
shall be in a lump sum, as an immediate annuity purchased from an insurer, or as a
combination of such methods of payment. If distributions had commenced pursuant to
Section 6.01 before the Participant's death, the undistributed portion of his Nonforfeitable
Accounts will be paid to the Beneficiary in accordance with the period selected under
Section 6.01 unless the Beneficiary elects to accelerate the payout period. All death
benefits shall be paid within the period required under Section 6.02. Notwithstanding the
foregoing, if the balance of the deceased Participant's Nonforfeitable Accrued Benefit does
not exceed $5,000, the only form of distribution to a Beneficiary shall be a single lump sum
payment.
(B) The payment of death benefits in accordance with this Section 6.04 shall be made on
the basis of the value of the Participant's Accounts as of the Valuation Date coincident with
or immediately following receipt by the Trustee of proper notification from the Plan
Administrator, or if later, the Valuation Date specified in such written notification, plus any
contributions which have been made to this Plan on behalf of the Participant since such
Valuation Date. The actual payment of death benefits shall be made or shall commence to
be made no later than the 60th day following the close of the Plan Year of the Participant's
death unless the amount of payment cannot be ascertained by such date.
(C) Any annuity benefit hereunder shall be obtained through the purchase of an annuity
contract from an Insurer using the amounts then credited to the Participant's Accounts.
Upon the purchase of an annuity contract and distributions thereof to the Beneficiary, all
obligations of the Plan to pay benefits to the Participant, his spouse, and Beneficiaries shall
terminate, without exception.
6.05 MANDATORY CONSENT TO DISTRIBUTIONS. In no event shall a mandatory
distribution greater than $1,000 be made in accordance with the provisions of the Plan if the
Participant has not elected to have such distribution paid directly to an eligible retirement plan
specified by the Participant in a direct rollover or to receive the distribution directly, unless the
Advisory Committee has directed the Trustee to pay the distribution in the form of a direct
rollover to an individual retirement plan designated by the Advisory Committee.
24
ARTICLE VII
EMPLOYER ADMINISTRATIVE PROVISIONS
7.01 INFORMATION TO COMMITTEE. The Employer must supply current
information to the Advisory Committee as to the name, date of birth, date of employment, annual
compensation, leaves of absence, Years of Service and date of termination of employment of
each Employee who is, or who will be eligible to become, a Participant under the Plan, together
with any other information which the Advisory Committee considers necessary. The Employer's
records as to the current information the Employer furnishes to the Advisory Committee are
conclusive as to all persons.
7.02 NO LIABILITY. The Employer assumes no obligation or responsibility to any of its
Employees, Participants or Beneficiaries for any act of, or failure to act, on the part of its
Advisory Committee (unless the Employer is the Advisory Committee), the Trustee or the Plan
Administrator (unless the Employer is the Plan Administrator).
7.03 INDEMNITY OF CERTAIN FIDUCIARIES. The Employer indemnifies and
saves harmless the Plan Administrator and the members of the Advisory Committee, and each of
them, from and against any and all loss resulting from liability to which the Plan Administrator
and the Advisory Committee, or the members of the Advisory Committee, may be subjected by
reason of any act or conduct (except willful misconduct or gross negligence) in their official
capacities in the administration of this Trust or Plan or both, including all expenses reasonably
incurred in their defense, in case the Employer fails to provide such defense. Furthermore, the
Plan Administrator and the Advisory Committee members and the Employer may execute a letter
agreement further delineating the indemnification agreement of this Section 7.03. The
indemnification provisions of this Section 7.03 extend to the Trustee solely to the extent
provided by a letter agreement executed by the Trustee and the Employer.
7.04 EMPLOYER/PARTICIPANT DIRECTION OF INVESTMENT. The Employer
has the right to direct the Trustee with respect to the investment and re- investment of assets
comprising the Trust Fund only if the Trustee consents in writing to permit such direction. If the
Trustee consents to Employer direction of investment, the Trustee and the Employer must
execute a letter agreement as a part of this Plan containing such conditions, limitations and other
provisions they deem appropriate before the Trustee will follow any Employer direction as
respects the investment or re- investment of any part of the Trust Fund. Effective September 1,
2001, Participants are permitted the right to direct the investment and reinvestment of their
Participant accounts pursuant to the procedures and rules of Section 10.03; provided, however,
the Trustee and the Employer must execute a letter agreement as a part of this Plan containing
such conditions, limitations and other provisions they deem appropriate before the Trustee will
follow any Participant directions as respects the investment or re- investment of any part of the
Trust Fund.
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ARTICLE VIII
PARTICIPANT ADMINISTRATIVE PROVISIONS
8.01 BENEFICIARY DESIGNATION. Any Participant may from time to time designate
in writing, any person or persons, contingently or successively, to whom the Trustee will pay his
Nonforfeitable Accrued Benefit (including any life insurance proceeds payable to the
Participant's Account) in the event of his death and the Participant may designate the form and
method of payment. The Advisory Committee will prescribe the form for the written designation
of Beneficiary and, upon the Participant's filing the form with the Advisory Committee, the form
effectively revokes all designations filed prior to that date by the same Participant.
8.02 NO BENEFICIARY DESIGNATION/DEATH OF BENEFICIARY. If a
Participant fails to name a Beneficiary in accordance with Section 8.01, or if the Beneficiary
named by a Participant predeceases him, then the Trustee will pay the Participant's
Nonforfeitable account balance in accordance with Section 6.02 in the following order of priority
to:
(A) The Participant's surviving spouse;
(B) The Participant's surviving children, including adopted children, in equal shares;
(C) The Participant's surviving parents, in equal shares; or
(D) The Participant's estate.
If the Beneficiary does not predecease the Participant, but dies prior to distribution of the
Participant's entire Nonforfeitable account balance, the Trustee will pay the remaining account
balance to the Beneficiary's estate unless the Participant's Beneficiary designation provides
otherwise. The Advisory Committee will direct the Trustee as to the method and to whom the
Trustee will make payment under this Section 8.02.
8.03 PERSONAL DATA TO COMMITTEE. Each Participant and each Beneficiary of a
deceased Participant must furnish to the Advisory Committee such evidence, data or information
as the Advisory Committee considers necessary or desirable for the purpose of administering the
Plan. The provisions of this Plan are effective for the benefit of each Participant upon the
condition precedent that each Participant will furnish promptly full, true and complete evidence,
data and information when requested by the Advisory Committee, provided the Advisory
Committee advises each Participant of the effect of his failure to comply with its request.
8.04 ADDRESS FOR NOTIFICATION. Each Participant and each Beneficiary of a
deceased Participant must file with the Advisory Committee from time to time, in writing, his
post office address and any change of post office address. Any communication, statement or
notice addressed to a Participant, or Beneficiary, at his last post office address filed with the
26
Advisory Committee, or as shown on the records of the Employer binds the Participant, or
Beneficiary, for all purposes of this Plan.
8.05 ASSIGNMENT OR ALIENATION. Subject to Code §414(p) relating to qualified
domestic relations orders and to Code § 6331 relating to tax levies, neither a Participant nor a
Beneficiary may anticipate, assign or alienate (either at law or in equity) any benefit provided
under the Plan, and the Trustee will not recognize any such anticipation, assignment or
alienation. Furthermore, a benefit under the Plan is not subject to attachment, garnishment, levy,
execution or other legal or equitable process.
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ARTICLE IX
ADVISORY COMMITTEE - DUTIES AND RESPONSIBILITIES
9.01 MEMBERS' COMPENSATION EXPENSES. The Employer may appoint an
Advisory Committee to administer the Plan, the members of which may or may not be
Participants in the Plan, or which may be the Plan Administrator acting alone. In the absence of
an Advisory Committee appointment, the Plan Administrator assumes the powers, duties and
responsibilities of the Advisory Committee. The members of the Advisory Committee will serve
without compensation for services as such, but the Employer will pay all expenses of the
Advisory Committee, except to the extent the Trust properly pays for such expenses, pursuant to
Article X.
9.02 TERM. Each member of the Advisory Committee serves until the appointment of his
successor.
9.03 POWERS. In case of a vacancy in the membership of the Advisory Committee, the
remaining members of the Advisory Committee may exercise any and all of the powers,
authority, duties and discretion conferred upon the Advisory Committee pending the filling of the
vacancy.
9.04 GENERAL. The Advisory Committee has the following discretionary powers and
duties:
(A) To select a Secretary, who need not be a member of the Advisory Committee;
(B) To determine the rights of eligibility of an Employee to participate in the Plan, and the
value of a Participant's Accrued Benefit;
(C) To determine all questions of fact as to age, Years of Service, Compensation,
termination of employment, Normal Retirement Dates, and similar items based upon
records made available by the Employer; to certify such facts to the Trustee; and to
determine any other facts which may be necessary for the Trustee properly to carry
out the terms of the Plan and Trust;
(D) To adopt rules of procedure and regulations necessary for the proper and efficient
administration of the Plan provided the rules are not inconsistent with the terms of
this Plan and Trust;
(E) To interpret and construe, in its discretionary authority, and to enforce the terms of the
Plan and the rules and regulations it adopts, and determine all questions arising in the
interpretation and application of the Plan, and all such determinations shall be
conclusive and binding on all persons, subject, however, to the provisions of the
Code;
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(F) To direct the Trustee as respects the crediting and distribution of the Trust;
(G) To review and render decisions respecting a claim for (or denial of a claim for) a
benefit under the Plan;
(H) To furnish the Employer with information which the Employer may require for tax or
other purposes;
(I) To engage the service of agents whom it may deem advisable to assist it with the
performance of its duties;
(J)
To engage the services of an Investment Manager or Managers, each of whom will
have full power and authority to manage, acquire or dispose (or direct the Trustee
with respect to acquisition or disposition) of any Plan asset under its control;
(K) To establish, in its sole discretion, a nondiscriminatory policy which the Trustee must
observe in making loans, if any, to Participants and Beneficiaries; and
(L) To establish and maintain a funding standard account and to make credits and charges
to the account to the extent required by and in accordance with the provisions of the
Code
The Committee is authorized to employ investment counsel, attorneys, accountants, and
such other persons as it shall deem necessary or desirable to fulfill its responsibilities hereunder.
9.05 MANNER OF ACTION. The decision of a majority of the members of the Advisory
Committee appointed and qualified controls.
9.06 AUTHORIZED REPRESENTATIVE. The Advisory Committee may authorize
any one of its members, or its Secretary, to sign on its behalf any notices, directions, applications,
certificates, consents, approvals, waivers, letters or other documents. The Advisory Committee
must evidence this authority by an instrument signed by all members and filed with the Trustee.
9.07 INTERESTED MEMBER. No member of the Advisory Committee may decide or
determine any matter concerning the distribution, nature or method of settlement of his own
benefits under the Plan, except in exercising an election available to that member in his capacity
as a Participant, unless the Plan Administrator is acting alone in the capacity of the Advisory
Committee.
9.08 INDIVIDUAL ACCOUNTS. The Advisory Committee will maintain, or direct the
Trustee to maintain, a separate Account, or multiple Accounts, in the name of each Participant to
reflect the Participant's Accrued Benefit under the Plan. The Advisory Committee will make its
allocations, or request the Trustee to make its allocations, to the Accounts of the Participants in
accordance with the provisions of Section 9.10. The Advisory Committee may direct the Trustee
29
to maintain a temporary segregated investment Account in the name of a Participant to prevent a
distortion of income, gain or loss allocations under Section 9.10. The Advisory Committee must
maintain records of its activities.
9.09 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. The value of each
Participant's Accrued Benefit consists of that proportion of the net worth (at fair market value) of
the Employer's Trust Fund which the net credit balance in his Account (exclusive of the cash
value of incidental benefit insurance contracts) bears to the total net credit balance in the
Accounts (exclusive of the cash value of the incidental benefit insurance contracts) of all
Participants plus the cash surrender value of any incidental benefit insurance contracts, if any,
held by the Trustee on the Participant's life.
9.10 ALLOCATION AND DISTRIBUTION OF NET INCOME GAIN OR LOSS. A
"Valuation Date" under this Plan is each Accounting Date and each interim valuation date
determined under Section 10.21. As of each Valuation Date, the Advisory Committee must
adjust Accounts to reflect net income, gain or loss since the last valuation date. The valuation
period is the period beginning the day after the last valuation date and ending on the current
valuation date.
The Advisory Committee first will adjust the Participant Accounts, as those Accounts stood
at the beginning of the current valuation period, by reducing the Accounts for any amounts
charged during the valuation period to the Accounts in accordance with Section 9.12 (relating to
distributions and expenses charged from the Accounts) and for the cash value of incidental
benefit insurance contracts, if applicable. The Advisory Committee then will allocate the net
income, gain or loss pro rata to the adjusted Participant Accounts. The allocable net income, gain
or loss is the net income (or net loss), including the increase or decrease in the fair market value
of assets, since the last valuation date.
An excess allocation or suspense account described in Section 3.04 does not share in the
allocation of net income, gain or loss described in this Section 9.10. This Section 9.10 applies
solely to the allocation of net income, gain or loss of the Trust. The Advisory Committee will
allocate the Employer contributions and Participant forfeitures, if any, in accordance with Article
III.
9.11 INDIVIDUAL STATEMENT. As soon as practicable after the Accounting Date (or
at such other times as determined by the Advisory Committee) of each Plan Year, the Advisory
Committee will deliver to each Participant (and to each Beneficiary) a statement reflecting the
condition of his account balances in the Trust as of that date. No Participant, except a member of
the Advisory Committee, has the right to inspect the records reflecting the Account of any other
Participant.
9.12 ACCOUNT CHARGED. The Advisory Committee may charge a Participant's
Account for all distributions made from that Account to the Participant, to his Beneficiary or to
an alternate payee. The Advisory Committee also will charge a Participant's Account for any
30
administrative, investment, brokerage, record keeping, or any other expenses incurred by the Plan
directly related to that Account.
9.13 CORRECTION OF ERRORS AND OPERATIONAL DEFECTS. The Advisory
Committee shall have the power and authority to make such equitable adjustments to the
Account of any Participant to correct any mathematical or accounting errors or any mistakes that
may arise by reason of factual errors in information supplied to the Employer, Plan Administrator
or Trustee. The Advisory Committee, Plan Administrator and the Employer may also take
appropriate action to correct errors in the administration or operation of the Plan as the Plan
Administrator deems necessary or appropriate to preserve the tax qualification of the Plan under
Code § 401(a), including the power and authority to correct operational errors and defects
pursuant to any correction action as may be authorized under the Internal Revenue Service
Employee Plans Compliance Resolution System ( "EPCRS "), or any successor program to
EPCRS. Such corrective actions may include causing appropriate distributions to be made to a
Participant from the Plan, to the extent such distribution is made to correct a qualification defect
or as may otherwise be required or authorized under the EPCRS.
9.14 TELEPHONIC AND ELECTRONIC MEDIA. The Advisory Committee and Plan
Administrator may use telephone or electronic media to satisfy any administrative duty or notice
requirements required by this Plan, to the extent permissible under the Code or Regulations (or
other generally applicable guidance). The Advisory Committee and Plan Administrator may also
use telephonic or electronic media to conduct Plan transactions, such as enrolling Participants,
electing and changing investment allocations, and other Plan transactions to the extent
permissible under the Code or Regulations.
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ARTICLE X
TRUSTEE, POWERS AND DUTIES
10.01 ACCEPTANCE. The Trustee accepts the Trust created under the Plan and agrees
to perform the obligations imposed. Except as otherwise provided in this Plan, all contributions
paid to the Trustee, including all income or other property derived therefrom, shall be held and
administered by the Trustee as a single trust fund designated as the Trust Fund.
10.02 RECEIPT OF CONTRIBUTIONS. The Trustee is accountable to the Employer
for the funds contributed to it by the Employer, but does not have any duty to see that the
contributions received comply with the provisions of the Plan. The Trustee is not obliged to
collect any contributions from the Employer, nor is obliged to see that funds deposited with it are
deposited according to the provisions of the Plan.
10.03 PLAN INVESTMENTS. Effective September 1, 2001, the Trustee, as directed by the
Advisory Committee, shall cause to be established and maintain at least five (5) funds for the
investment of all Trust funds as follows:
(A) an Equity Fund, in which sums received for investment in such fund shall be
invested in a diversified portfolio or portfolios of common stocks, or securities convertible
into common stocks, with a view to both income and opportunity of growth in principal
value;
(B) a Bond Fund, in which sums received for investment in such fund shall be invested
in a diversified portfolio or portfolios of interest - bearing bonds, commercial paper, bankers'
acceptances, or debt securities;
(C) a Short-Term Interest Fund in which sums received for investment in such fund
shall be invested in a diversified portfolio or portfolios of short-term interest bearing notes,
commercial paper or deposits, including certificates of deposit, bankers' acceptances,
repurchase agreements, and other similar interest- bearing or fixed - income investments;
(D) a Diversified Fund in which sums received for investment in such fund shall be
invested in a diversified portfolio or portfolios of both equity and interest - bearing securities,
including stocks, bonds, mortgages, money market funds, fixed - income securities, and any
other investment medium as the Trustee may deem advisable from time to time; and
(E) an International Fund in which sums received for investment in such fund shall be
invested in a diversified portfolio or portfolios of both equity and interest - bearing securities,
including stocks and bonds and money market instruments, on a global basis, with an
objective of long -term capital growth and current income.
The foregoing Funds shall be maintained and administered solely by the Trustee, and
investments or reinvestments of each Fund shall be made by the Trustee without distinction
between principal and income. The Trustee shall invest and administer such Funds in accordance
with the investment guidelines for each Fund, but shall otherwise be authorized to invest in such
particular investments, within the United States, as the Trustee may deem advisable, provided such
32
investments are authorized for trustees under the laws of the State of Nebraska. The Funds may be
invested wholly or partly through (i) the purchase of shares in a mutual fund or funds; (ii) the
medium of any common, collective, or commingled trust fund maintained by a bank or other
financial institution (including the Trustee) and which is qualified under Code § §401(a) and 501(a),
to constitute a part of this Plan and Trust; or (iii) the purchase of a group annuity contract or
contracts issued by one or more life insurance companies for the investment of the Trust Fund.
The Trustee may, in its discretion, hold in cash such portion of any Fund as shall be
reasonable under the circumstances, pending investment or payment of expenses or distribution of
benefits, without liability for interest; or, in the alternative, all of such temporary cash positions may
be held in interest - bearing deposits of any bank or financial institution (to include the Trustee).
10.04 CHANGE IN INVESTMENT DIRECTION. Subject to such reasonable and non-
discriminatory rules, limits, and procedures as the Employer may establish, each Participant shall
determine the manner in which contributions allocated to his Plan accounts, including all earnings
and gains thereon, are to be invested and reinvested among the Funds established in Section 10.03,
by providing specific written directions to the Advisory Committee and Trustee in the manner
required by the Advisory Committee.
Such investment direction shall specify the percentage (in multiples of 5 percent) of all
contributions which are made on the Participant's behalf under the Plan that shall be invested in the
Funds, or any single Fund. Unless an effective investment is made by the Participant, all Plan
accounts for such Participant shall be invested in the Short-Term Interest Fund.
Any investment direction given by a Participant shall be deemed a continuing direction until
changed. A Participant may change an investment direction as to future contributions, as of July 1,
October 1, January 1 or April 1 (the "Change Date ") of any Plan Year, by filing a written notice of
such change in investment direction with the Advisory Committee at least thirty (30) days prior to
the Change Date.
A Participant may also direct as of such Change Date that all, or any multiple of 5 percent, of
his interest in one or more of the Funds be liquidated and the proceeds thereof transferred to another
Fund or Funds, in one lump sum, as of any Change Date, provided such direction is given in writing
to the Advisory Committee at least thirty (30) days prior to the Change Date. All Fund liquidations
shall be based upon the Fund valuations as of the valuation date immediately preceding the Change
Date.
10.05 FUND GAINS AND EXPENSES. All dividends, gains, income, interest, and
distributions of every nature received in respect of the assets held by a particular Fund shall be
credited solely to such Fund and shall be reinvested in the investment assets of the Fund from
which the earnings were derived. All losses attributable to a Fund shall be debited to such Fund
alone, and shall accordingly be borne by and payable proportionately from those Participant
accounts which are invested in such Fund. Unless paid by the Employer, the expenses of a
particular Fund, such as commissions, transfer taxes, management fees, and other related
investment expenses, shall be charged and debited to such Fund.
10.06 INVESTMENT ADVISERS. The Employer shall have the power to appoint or
remove one or more investment advisers and to delegate to such adviser authority and discretion to
manage the assets of the Trust Fund or of any Fund established pursuant to Section 10.03; provided
33
that (i) such adviser is either a bank, an insurance company, or a registered investment adviser
under the Investment Advisers Act of 1940 and shall acknowledge in writing that it is a fiduciary to
the Plan; and (ii) the Employer shall periodically review the investment performance and methods
of each such adviser.
10.07 LIABILITY OF FIDUCIARY. No person who is a fiduciary to this Plan, including
the Trustee, shall be liable hereunder for any loss, or by reason of any breach, which results from a
Participant's direction that his Plan accounts be invested in the Funds established hereunder.
10.08 REGULATED INVESTMENT COMPANY MUTUAL FUNDS. Notwithstanding
the provisions of Section 10.03 above, the Employer may direct that any or all of the Funds
established under Section 10.03 consist of one or more mutual funds sponsored by a regulated
investment company selected by the Employer, or one or more group annuity contracts sponsored
by a life insurance company selected by the Employer. In the event any mutual fund or group
annuity contract is selected by the Employer, the Trustee and Advisory Committee shall not be
liable for any loss, or by reason of any breach, associated or in any way connected with the selection
and retention of any mutual fund or a group annuity contract as an investment medium for the Plan.
10.09 TRUSTEE POWERS AND DUTIES. The Trustee shall act as official custodian of
the cash, securities, and other assets of the Trust Fund not in the custody of the financial institution
under contract to invest the Trust Fund or under agreement to safekeep Plan assets, including any
investment funds established pursuant to Section 10.03, and shall provide or make arrangements for
adequate safe deposit facilities for the preservation of such assets subject to the direction of the
Advisory Committee, and shall receive all contributions made to the Plan and provide for all
transfers of cash and money necessary for investment of the Trust Fund; provided, however, the
payment of any money to Participants, beneficiaries, or for the expenses of the Plan shall be payable
only upon the direction of the Trustee and all deposit and withdrawal agreements with outside
financial institutions handling Plan assets shall require that Plan assets and moneys may be
withdrawn only upon the direction of the Trustee. The Trustee shall keep and maintain adequate
records of the investments of the Trust Fund and shall be responsible for maintaining the
Participant Accounts. The Trustee shall, to the extent required by the Employer or Advisory
Committee, furnish a surety bond payable to the Plan and/or Employer in such amount as may be
acceptable to the Employer insuring his/her duties and responsibilities hereunder. The cost of any
such bond shall be paid by the Employer. In addition to the preceding provisions of this Section
10.09, the Trustee shall have the following powers, rights, and duties:
(A) To purchase or subscribe for any securities or other property and to retain the
same in trust.
(B) To sell, exchange, convey, transfer 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.
(C) To vote 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
34
(D) To cause any securities or other property held as part of the Trust Fund, to be
registered in the name of the Trustee or in the name of the Trustee's nominee.
(E) To borrow or raise money for the purpose of the Trust in such amount, and
upon such terms and conditions as the Trustee shall deem advisable; for any
sums so borrowed, to issue its promissory note as Trustee; 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 loaned or to inquire into the validity, expediency or propriety of
any such borrowing.
(F) To make, execute, acknowledge and deliver any and all deeds, assignments,
conveyances, and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted.
(G)
(J)
make any payments incidental thereto; to oppose or to consent to, or otherwise
participate in, corporate reorganizations or other changes affecting corporate
securities; 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 held as part of the Trust Fund.
To settle, compromise, abandon, or submit to arbitration, any claims, debts, or
damages due or owing to, or from, the Trust Fund; to commence or defend
suits or legal or administrative proceedings; and to represent the Trust Fund in
all suits, legal and administrative proceedings.
(H) To employ suitable agents and counsel (who may be counsel to the
Employer), and pay their reasonable expenses and compensation.
(I) To make, or cause to be made, proper application for any Insurance Contracts
to be purchased as herein provided, to purchase such Contracts, to hold all
such Contracts in trust pursuant to the terms of this Trust.
With respect to the Contracts held for the benefit of Participants hereunder, to
sell or assign such Contracts, to receive all dividends thereon, to surrender
such Contracts for cash, to change and successively change the Beneficiary or
Beneficiaries named in such Contracts, to designate methods of payment and
distribution or settlement of the proceeds and values thereof, to convert
Contracts from one form to another, and otherwise to exercise all the rights
and privileges of ownership of such Contracts.
(K) In the event the assets of the Trust Fund shall be insufficient to pay the
premiums due, to borrow proportionately against the loan values of Contracts
held for the benefit of Participants hereunder in order to pay such premiums
35
(L) To do all such acts, take all such proceedings, and exercise all such rights and
privileges, although not specifically mentioned herein, as the Trustee may
deem necessary to administer the Trust Fund and to carry out the purposes of
this Trust.
10.10 INSURANCE CONTRACTS. In no event shall the Employer, the Advisory
Committee, the Plan, the Trustee, or the City Council, and their respective members, officers and
employees, or any other person, be responsible for the validity of any insurance or annuity contract
which may be held as part of the Pension Fund or which is purchased by the Plan and distributed to
a Participant as beneficiary to provide benefits hereunder, or for the failure on the part of any
insurer to make payments or provide benefits under any such contract, or for any inability to
perform or for any delay in performing, any act occasioned by any restriction or provision of any
insurance or annuity contract or by the insurer or any other person or entity.
10.11 RECORDS AND STATEMENTS. The records of the Trustee pertaining to the Plan
must be open to the inspection of the Plan Administrator, Advisory Committee and the Employer
at all reasonable times and may be audited from time to time by any person or persons as the
Employer, Plan Administrator or Advisory Committee may specify in writing. The Trustee must
furnish the Plan Administrator or Advisory Committee with whatever information relating to the
Trust Fund the Plan Administrator or Advisory Committee considers necessary.
10.12 FEES AND EXPENSES FROM FUND. The Trustee will receive reasonable
annual compensation as may be agreed upon from time to time between the Employer and the
Trustee. No person who is receiving full pay from the Employer may receive compensation for
services as Trustee. The Trustee may pay from the Trust Fund all fees and expenses reasonably
incurred by the Plan, to the extent such fees and expenses are for the ordinary and necessary
administration and operation of the Plan, unless the Employer pays the fees and expenses. Any
fee or expense paid, directly or indirectly, by the Employer is not an Employer contribution to the
Plan, provided the fee or expense relates to the ordinary and necessary administration of the
Fund.
ARTICLE XI
MISCELLANEOUS
11.01 EVIDENCE. Anyone required to give evidence under the terms of the Plan may do
so by certificate, affidavit, document or other information which the person to act in reliance may
consider pertinent, reliable and genuine, and to have been signed, made or presented by the
proper party or parties. Both the Advisory Committee and the Trustee are fully protected in
acting and relying upon any evidence described under the immediately preceding sentence.
11.02 NO RESPONSIBILITY FOR EMPLOYER ACTION. Neither the Trustee nor
the Advisory Committee has any obligation or responsibility with respect to any action required
by the Plan to be taken by the Employer, any Participant or eligible Employee, or for the failure
of any of the above persons to act or make any payment or contribution, or to otherwise provide
any benefit contemplated under this Plan. Furthermore, the Plan does not require the Trustee or
36
the Advisory Committee to collect any contribution required under the Plan, or to determine the
correctness of the amount of any Employer contribution. Neither the Trustee nor the Advisory
Committee need inquire into or be responsible for any action or failure to act on the part of the
others, or on the part of any other person who has any responsibility regarding the management,
administration or operation of the Plan, whether by the express terms of the Plan or by a separate
agreement authorized by the Plan.
11.03 FIDUCIARIES NOT INSURERS. The Trustee, the Advisory Committee, the Plan
Administrator and the Employer in no way guarantee the Trust Fund from loss or depreciation.
The Employer does not guarantee the payment of any money which may be or becomes due to
any person from the Trust Fund. The liability of the Advisory Committee and the Trustee to
make any payment from the Trust Fund at any time and all times is limited to the then available
assets of the Trust.
11.04 WAIVER OF NOTICE. Any person entitled to notice under the Plan may waive the
notice, unless the Code or Treasury regulations specifically or impliedly prohibits such a waiver.
11.05 SUCCESSORS. The Plan is binding upon all persons entitled to benefits under the
Plan, their respective heirs and legal representatives, upon the Employer, its successors and
assigns, and upon the Trustee, the Advisory Committee, the Plan Administrator and their
successors.
11.06 WORD USAGE. Words used in the masculine also apply to the feminine where
applicable, and wherever the context of the Plan dictates, the plural includes the singular and the
singular includes the plural.
11.07 STATE LAW. Nebraska law will determine all questions arising with respect to the
provisions of this Agreement.
11.08 EMPLOYMENT NOT GUARANTEED. Nothing contained in this Plan, or with
respect to the establishment of the Trust, or any modification or amendment to the Plan or Trust,
or in the creation of any Account, or the payment of any benefit, gives any Employee, Employee -
Participant or any Beneficiary any right to continue employment, any legal or equitable right
against the Employer, or Employee of the Employer, or against the Trustee, or its agents or
employees, or against the Plan Administrator, except as expressly provided by the Plan, the Trust
or by a separate agreement.
11.09 OUALIFIED 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 Code § 414(u).
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ARTICLE XII
EXCLUSIVE BENEFIT, AMENDMENT, TERMINATION
12.01 EXCLUSIVE BENEFIT. Except as provided under Article III, the Employer has no
beneficial interest in any asset of the Trust and no part of any asset in the Trust may ever revert to
or be repaid to an Employer, either directly or indirectly; nor, prior to the satisfaction of all
liabilities with respect to the Participants and their Beneficiaries under the Plan, may any part of
the corpus or income of the Trust Fund, or any asset of the Trust, be (at any time) used for, or
diverted to, purposes other than the exclusive benefit of the Participants or their Beneficiaries.
12.02 AMENDMENT BY EMPLOYER. The Employer has the right at any time and
from time to time:
(a) To amend this Agreement in any manner it deems necessary or advisable in order to
qualify (or maintain qualification of) this Plan and the Trust created under it under the
appropriate provisions of Code §401(a); and
(b) To amend this Agreement in any other manner.
No amendment may authorize or permit any of the Trust Fund (other than the part which is
required to pay taxes and administration expenses) to be used for or diverted to purposes other
than for the exclusive benefit of the Participants or their Beneficiaries or estates. No amendment
may cause or permit any portion of the Trust Fund to revert to or become a property of the
Employer. The Employer also may not make any amendment which affects the rights, duties or
responsibilities of the Trustee, the Plan Administrator or the Advisory Committee without the
written consent of the affected Trustee, the Plan Administrator or the affected member of the
Advisory Committee. The Employer must make all amendments in writing. Each amendment
must state the date to which it is either retroactively or prospectively effective.
12.03 TERMINATION OR DISCONTINUANCE OF PLAN. The Employer has the
right, at any time, to suspend or discontinue its contributions under the Plan, and to terminate, at
any time, this Plan and the Trust created under this Agreement. The Plan will terminate upon the
first to occur of the following:
(a) The date terminated by action of the Employer;
(b) The dissolution or merger of the Employer, unless the successor makes provision to
continue the Plan, in which event the successor must substitute itself as the Employer under
this Plan
Upon termination of the Plan, all Participant account balances shall be 100%
Nonforfeitable. Upon termination of the Plan, the distribution provisions of Article VI remain
operative.
38
12.04 MERGER/DIRECT TRANSFER. The Trustee may not consent to, or be a party to,
any merger or consolidation with another plan, or to a transfer of assets or liabilities to another
plan, unless immediately after the merger, consolidation or transfer, the surviving Plan provides
each Participant a benefit equal to or greater than the benefit each Participant would have received
had the Plan terminated immediately before the merger or consolidation or transfer. The Trustee
possesses the specific authority to enter into merger agreements or direct transfer of assets
agreements with the trustees of other retirement plans described in Code §401(a), including an
elective transfer, and to accept the direct transfer of plan assets, or to transfer plan assets, as a party
to any such agreement.
The Trustee may accept a direct transfer of plan assets on behalf of an Employee prior to
the date the Employee satisfies the Plan's eligibility conditions. If the Trustee accepts a direct
transfer of plan assets, the Advisory Committee and Trustee must treat the Employee as a
Participant for all purposes of the Plan except the Employee is not a Participant for purposes of
sharing in Employer contributions or Participant forfeitures under the Plan until he actually
becomes a Participant in the Plan.
On each Valuation Date, the Advisory Committee will credit any part of a Participant's
Accrued Benefit retained in the Trust with its proportionate share of the Trust's income,
expenses, gains and losses, both realized and unrealized. Upon termination of the Plan, the
amount, if any, in a suspense account under Article Ill will revert to the Employer, subject to the
conditions of the Treasury regulations permitting such a reversion. A resolution or amendment to
freeze all future benefit accrual but otherwise to continue maintenance of this Plan, is not a
termination for purposes of Section 12.03.
IN WITNESS WHEREOF, the City of Blair, Nebraska has caused this amended Plan and
Trust to be executed, in duplicate, by its duly authorized city official this day of
, 20 , effective as of January 1, 2008, and the Trustee, acting through its duly
authorized officers, has executed this amended and restated Plan and Trust.
DOCS/453996.3
CITY OF BLAIR, NEBRASKA
By:
Its:
DELAWARE CHARTER GUARANTEE AND
TRUST COMPANY, Trustee
By:
Its:
39
CITY OF BLAIR, NEBRASKA,
DEFERRED COMPENSATION PLAN
(Effective July 1, 2008)
TABLE OF CONTENTS
ARTICLE 1 APPLICABLE DATES 1
1.01 EFFECTIVE DATE 1
1.02 PLAN YEAR 1
ARTICLE 2 DEFINITIONS 1
2.01 ACCOUNT 1
2.02 BENEFICIARY 1
2.03 CODE 1
2.04 COMMITTEE 1
2.05 COMPENSATION 1
2.06 CONTRACT 2
2.07 DEFERRED COMPENSATION CONTRIBUTIONS 2
2.08 ELIGIBLE PARTICIPANT 2
2.09 EMPLOYEE 2
2.10 INCLUDIBLE COMPENSATION 2
2.11 JOINDER AGREEMENT 2
2.12 NORMAL RETIREMENT AGE 2
2.13 PARTICIPANT 3
2.14 RETIREMENT 3
2.15 SEVERANCE FROM EMPLOYMENT 3
2.16 TRUST 3
2.17 TRUSTEE 3
2.18 VENDOR 3
ARTICLE 3 PARTICIPATION IN THE PLAN 3
3.01 INITIAL PARTICIPATION 3
3.02 DATE OF PARTICIPATION 3
3.03 AMENDMENT /REVOCATION OF JOINDER AGREEMENT 3
3.04 CHANGE OF BENEFICIARY 4
3.05 INFORMATION PROVIDED BY THE PARTICIPANT 4
ARTICLE 4 DEFERRED COMPENSATION CONTRIBUTIONS 4
4.01 ELECTIVE CONTRIBUTIONS 4
4.02 MATCHING CONTRIBUTIONS 5
4.03 ELECTIVE CONTRIBUTIONS OF SICK, VACATION AND BACK PAY 5
4.04 TRANSFERS FROM OTHER PLANS 5
4.05 ROLLOVER CONTRIBUTIONS 5
ARTICLE 5 LIMITATIONS ON DEFERRALS 6
i
PAGE
5.01 NORMAL LIMITATION 6
5.02 AGE 50 CATCH -UP LIMITATION 6
5.03 SPECIAL CATCH -UP LIMITATION 7
5.04 COORDINATION OF AGE 50 CATCH -UP AND SPECIAL CATCH -UP
LIMITATIONS 7
5.05 INDIVIDUAL LIMITATION FOR COMBINED CONTRIBUTIONS UNDER
MULTIPLE ELIGIBLE PLANS 8
5.06 EXCESS DEFERRALS 8
5.07 ADDITIONAL ELECTIVE CONTRIBUTIONS FOR UNIFORMED SERVICE 8
ARTICLE 6 INVESTMENT OF DEFERRED COMPENSATION CONTRIBUTIONS 9
6.01 CONTRIBUTIONS TO TRUST 9
6.02 PARTICIPANT ACCOUNTS 9
6.03 PLAN INVESTMENTS 9
6.04 PARTICIPANT DIRECTED INVESTMENTS 9
6.05 LIMITED LIABILITY OF EMPLOYER, TRUSTEE AND VENDORS 11
ARTICLE 7 PAYMENT OF BENEFITS 11
7.01 AMOUNT OF BENEFIT 11
7.02 BENEFIT PAYMENTS 11
7.03 POSTPONED RETIREMENT 11
7.04 WHEN DISTRIBUTION PAYABLE 11
7.05 UNFORESEEABLE EMERGENCY 12
7.06 PAYMENT OPTIONS 13
7.07 COMPLIANCE WITH DISTRIBUTION REQUIREMENTS OF THE CODE 13
7.08 DISTRIBUTION OF SMALL ACCOUNT 16
7.09 WITHHOLDING AND FACILITY OF PAYMENT 17
7.10 TRANSFER OF ACCOUNT TO GOVERNMENTAL 457(b) PLAN 17
7.11 PERMISSIVE SERVICE CREDIT TRANSFERS 18
7.12 ROLLOVER DISTRIBUTION 18
7.13 BENEFICIARY DESIGNATION 19
ARTICLE 8 ADMINISTRATION 19
8.01 ADVISORY COMMITTEE 19
8.02 ACCOUNTS 20
8.03 AMENDMENT OF PLAN 20
8.04 TERMINATION OF PLAN 20
8.05 ASSIGNMENT OF BENEFITS 20
8.06 DOMESTIC RELATIONS ORDER 21
8.07 RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT 21
8.08 APPLICABLE LAW 21
ii
8.09 GENDER AND NUMBER 21
8.10 CLAIMS PROCEDURE 21
8.11 MISTAKEN CONTRIBUTIONS 22
8.12 PAYMENTS TO MINORS AND INCOMPETENTS 22
8.13 REPRESENTATIONS 22
8.14 TELEPHONIC AND ELECTRONIC MEDIA 22
ARTICLE 9 TRUST AND TRUSTEE POWERS AND DUTIES 22
9.01 TRUST FUND 22
9.02 TRUSTEE POWERS AND DUTIES 22
9.03 TRUSTEE FEES AND EXPENSES TO BE PAID FROM TRUST FUND 24
9.03 TAXES AND EXPENSES 24
9.04 PAYMENT OF BENEFITS 24
9.05 RECORDS AND STATEMENTS 24
9.07 PARTIES TO LITIGATION 24
9.08 PROFESSIONAL AGENTS 24
9.09 THIRD PARTY /MULTIPLE TRUSTEES 24
9.10 RESIGNATION /REMOVAL OF TRUSTEE. 25
9.11 INTERIM DUTIES AND SUCCESSOR TRUSTEE 25
iii
The City of Blair, Nebraska, hereinafter called "the Employer," hereby adopts this Plan and Trust,
to be known as the City of Blair, Nebraska Deferred Compensation Plan, hereinafter called the Plan."
The Plan is intended to satisfy the requirements of Section 457(b) of the Internal Revenue Code of 1986,
as amended, and the regulations and guidance issued thereunder.
CITY OF BLAIR, NEBRASKA
DEFERRED COMPENSATION PLAN
This Plan and Trust are established and shall be maintained for the sole and exclusive benefit of
those participating Employees of the Employer and their Beneficiaries. Except as allowed by law, no part
of the Trust established hereunder can revert to the Employer or be used or diverted to purposes other
than for the exclusive benefit of the participating Employees and their Beneficiaries.
ARTICLE 1 APPLICABLE DATES
1.01 EFFECTIVE DATE: The effective date of the Plan and Trust is July 1, 2008.
1.02 PLAN YEAR: The Plan Year shall be the calendar year; provided, the period beginning July 1,
2008, and ending December 31, 2008, shall be a short Plan Year.
ARTICLE 2 DEFINITIONS
2.01 ACCOUNT. "Account" means the Account established for such Participant pursuant to Section
6.02 which represents the Participants share of the Trust fund as adjusted, from time to time, to
reflect the Deferred Compensation Contributions made to the Plan on behalf of the Participant as
adjusted with respect to the income realized thereon, the expenses charged against the Account,
and any appreciation or depreciation of the Account's share of the Trust fund. The Account also
includes any rollover contributions and plan -to -plan transfers made for a Participant under Article
4. The Account shall include the separate subaccount established for each Beneficiary after the
death of a Participant and any Account established for an alternate payee pursuant to a qualified
domestic relations order as described in Section 8.06.
2.02 BENEFICIARY. "Beneficiary" means the person or persons designated by the Participant in his
or her Joinder Agreement or as otherwise determined under Section 7.13 to receive the benefits
payable under this Plan in the event of the Participant's death.
2.03 CODE. "Code" means the Internal Revenue Code of 1986, as amended, and includes the
Income Tax Regulations thereunder. All citations to the Code are to such sections as they may,
from time to time, be amended or renumbered.
2.04 COMMITTEE. "Committee" means the Plan's Advisory Committee as from time to time
constituted under Section 8.01 to be responsible for administration of the Plan.
2.05 COMPENSATION. "Compensation" means all compensation within the meaning of Code section
415(c)(3), for services performed by the Participant for the Employer for a taxable year as if no
Joinder Agreement were in effect to defer compensation under the Plan, plus amounts that would
be cash compensation for services to the Employer and includible in the Employee's gross
income for the taxable year but for a compensation reduction election under Code sections 125,
132(f), 401(k), 403(b) or 457(b), but subject to a maximum of $200,000 (or such amount as may
apply under Code section 401(a)(17).
2.06 CONTRACT. "Contract" means an annuity contract or contracts or life insurance policies that the
Trustee purchases from a Vendor for the investment of the Trust and for the payment of benefits
under this Plan. The term Contract as it is used in this Plan shall include the plural unless the
context otherwise indicates the singular is intended.
2.07 DEFERRED COMPENSATION CONTRIBUTIONS. "Deferred Compensation Contributions"
mean Elective Contributions made to the Plan pursuant to Sections 4.01 and 4.03, and the
Employer's Matching Contributions on behalf of Eligible Participants pursuant to Section 4.02.
2.08 ELIGIBLE PARTICIPANT. "Eligible Participant" means any Participant of the Plan who is a
civilian employee of the Employer and who is regularly scheduled to work 40 or more hours per
week for the Employer. In no event shall any person who is classified by the Employer as a
Police Officer, a non - civilian employee, or a Leased Employee be an Eligible Participant for
purposes of the Employer's Matching Contributions pursuant to Section 4.02.
2.09 EMPLOYEE. "Employee" means all regular employees of the Employer to whom Compensation
is paid, including Leased Employees as defined under Code section 414(n)(2) and Code section
414(o)(2), but excluding any independent contractor.
2.10 INCLUDIBLE COMPENSATION. "Includible Compensation" means an Employee's actual wages
in box 1 of Form W -2 for a year for services to the Employer, but subject to a maximum of
$200,000 (or such higher maximum as may apply under Code section 401(a)(17)) and increased
(up to the dollar maximum) by any compensation reduction election under Code sections 125,
132(f), 401(k), 403(b), or 457(b) (including an election to defer Compensation under Section
4.01).
2.11 JOINDER AGREEMENT. "Joinder Agreement" means an agreement entered into between an
Employee and the Employer, including any amendments or modifications thereof, to document
the Employee's participation in the Plan. Such agreement shall fix the amount of the Participant's
Elective Contribution, specify the investment alternatives which are available under the Plan,
designate the Employee's Beneficiary(ies), and incorporate the terms and provisions of the Plan
by reference. A Participant may amend his or her Joinder Agreement to change the amount of
Elective Contributions or to revoke an election regarding Elective Contributions. Except for
changes to the designation of the Employee's Beneficiary(ies), an amended Joinder Agreement
that changes the amount of the Participants Elective Contributions shall be effective as of the first
day of the payroll period of the Employer that ends on or immediately after the January 1 or July 1
which coincides with or next follows the filing of the amended Joinder Agreement with the
Committee.
2.12 NORMAL RETIREMENT AGE. "Normal Retirement Age" shall be age sixty -five (65), unless the
Participant has elected a Late Retirement Age by written instrument delivered to the Committee
prior to distributions commencing under the Plan. An election of a Late Retirement Age becomes
effective on the first calendar day of the first month after the Participant files such election with
the Committee. A Late Retirement Age election may not set a retirement date later than the date
the Participant attains age 70 -1/2, and such Late Retirement Age may only be made once after
the Participant experiences his or her first permissible distribution date under the Plan and must
comply with the requirements of Code section 401(a)(9) and Code section 451(d)(2). Once a
Participant has, to any extent, utilized the special catch -up limitation of Code section 5.03, his or
her Normal Retirement Age may not be changed.
Notwithstanding the foregoing, any Participant who is a Police Officer of the Employer may elect
a Normal Retirement Age that is not earlier than the date the Participant attains age 40 or later
than the Participants attainment of age 70 -1/2.
A Participant's Normal Retirement Age determines (a) the latest time when benefits may
commence under this Plan (unless the Participant continues employment after Normal
2
Retirement Age), and (b) the period during which a Participant may utilize the special catch -up
limitation of Section 5.03.
2.13 PARTICIPANT. "Participant" means any Employee who has joined the Plan pursuant to the
requirements of Article 3, and who has not received a distribution of his or her entire benefit under
the Plan.
2.14 RETIREMENT. "Retirement" means the first day of the calendar month subsequent to the date
upon which both of the following shall have occurred with respect to a Participant: Severance
from Employment and attainment of age 65.
2.15 SEVERANCE FROM EMPLOYMENT. "Severance from Employment" means severance of the
Participant's employment with the Employer which constitutes a "Severance from Employment"
(within the meaning of Code section 457(d)(1)(A)(ii)), as determined by the Committee. In
general, a Participant shall be deemed to have severed his or her employment with the Employer
for purposes of this Plan when, in accordance with the established practices of the Employer, the
employment relationship is considered to have actually terminated or when the Participant dies.
2.16 TRUST. "Trust" means the Trust created under Article 9 pursuant to which all Deferred
Compensation Contributions and any income and gains thereon, less any losses, expenses and
distributions thereof, shall be held, administered and invested and reinvested.
2.17 TRUSTEE. "Trustee" means the bank or other qualified person or entity appointed by the
Employer to serve as the Trustee of the Plan. The initial Trustee of the Plan on the effective date
is Delaware Charter Guarantee and Trust Company.
2.18 VENDOR. "Vendor" means a bank, trust company or firm, or an insurance company having
investment or insurance products or services that are available for purchase or investment by the
Trustee for the investment of the Participant's Accounts under the Plan.
ARTICLE 3 PARTICIPATION IN THE PLAN
3.01 INITIAL PARTICIPATION. An Employee is eligible to make an election to defer his or her
Compensation as an Elective Contribution under the Plan on his or her first day of employment
with the Employer and shall become a Participant in the Plan by signing a Joinder Agreement
agreeing to defer Compensation and filing the Joinder Agreement with the Committee. To be
eligible to receive Matching Contributions under the Plan, an Employee must be an Eligible
Participant on the date of the Matching Contribution by the Employer.
3.02 DATE OF PARTICIPATION. An Employee will become a Participant for purposes of Elective
Contributions at the beginning of the payroll period coinciding with or immediately following the
date the Joinder Agreement is signed and filed with the Committee. The Joinder Agreement and
the Participant's election to make Elective Contributions to the Plan shall remain in effect until the
Joinder Agreement is revoked or amended in accordance with the Plan.
Subject to the provisions of Section 4.02, an Eligible Participant will begin to participate in the
Employer's Matching Contributions on the date on which the Eligible Participant meets the
eligibility requirements for receiving such Matching Contributions as provided under Section 4.02.
3.03 AMENDMENT /REVOCATION OF JOINDER AGREEMENT. A Participant may amend an
executed Joinder Agreement to change the amount of his or her Elective Contributions with
respect to Compensation not yet paid or made available or to change his or her investment
options (subject to such restrictions as may result from the nature or terms of any investment or
as may otherwise be established by the Committee). Such amended Joinder Agreement will
3
become effective, with respect to any change in the amount of Elective Contributions, as of the
first payroll period of the Employer that ends on or immediately after the January 1 or July 1
which coincides with or next follows the filing of such amended Joinder Agreement with the
Committee. A Participant may revoke a Compensation deferral election under the Joinder
Agreement upon written notice to the Employer with respect to compensation not yet paid or
made available; such revocation will be effective no later than the first payroll period of the
Employer which begins after the Committee's receipt of such revocation. A Participant who has
revoked a Compensation deferral election may recommence making Elective Contributions as of
any subsequent January 1 or July 1 by filing an amended Joinder Agreement with the Employer.
3.04 CHANGE OF BENEFICIARY. A Participant may at any time amend his or her Joinder
Agreement to change the designated Beneficiary, and such amendment shall become effective
immediately upon filing with the Committee.
3.05 INFORMATION PROVIDED BY THE PARTICIPANT. Each Employee enrolling in the Plan
should provide to the Committee at the time of initial enrollment, and later if there are any
changes, any information necessary or advisable for the Committee to administer the Plan,
including, without limitation, whether the Employee is a participant in any other eligible plan under
Code section 457(b).
ARTICLE 4 DEFERRED COMPENSATION CONTRIBUTIONS
4.01 ELECTIVE CONTRIBUTIONS. An Employee may make Elective Contributions by filing an
executed Joinder Agreement with the Employer which includes his or her agreement to defer
Compensation as an Elective Contribution to the Plan. All Compensation reduction elections in
the Joinder Agreement shall be subject to, and deemed to incorporate, the following
requirements:
(a) The Compensation reduction election shall apply only to Compensation paid or made
available after the date of the written election and before the election is terminated or
amended.
(b) The Compensation reduction election first filed after the Employee becomes eligible to
make Elective Contributions shall be effective with the first payroll period of the Employer
that ends on or immediately following the date the Joinder Agreement is filed with the
Committee. A subsequent Compensation reduction election or amendment to an existing
election filed with the Committee shall take effect as of the first payroll period of the
Employer that ends on or immediately after the January 1 or July 1 which coincides with
or next follows the date the election is filed with the Committee.
(c) A Compensation reduction election shall remain in effect until it is terminated or a
subsequent election becomes effective. An election to terminate a Compensation
reduction agreement shall be effective no later than the first payroll period of the
Employer that begins after the date the termination election is filed with the Committee.
(d) A Compensation reduction election shall be irrevocable with respect to Compensation
paid or made available prior to its termination.
(e) Elective Contributions pursuant to a Compensation reduction election for any Plan Year
shall cease when the applicable limit on Elective Contributions described in Article 5 is
reached. The Participant's Compensation reduction election shall automatically be
reactivated as of the first day of the following Plan Year.
4
(f)
(g)
Unless the Compensation reduction election is amended, if a Participant is absent from
active employment due to an approved leave of absence or disability but has not had a
Severance from Employment, Elective Contributions under the Plan shall continue to the
extent that Compensation to the Participant continues. For this purpose, imputed
compensation and disability income benefits shall not be considered as Compensation.
The Committee may establish uniform rules and regulations for the making of
Compensation reduction elections and amendments to existing Compensation reduction
elections through telephonic, electronic or other paperless systems, which elections shall
be deemed to be filed with the Committee within an administratively practicable time of
the transmission and confirmation of such election or amendment. The Committee may
establish a minimum or maximum Elective Contribution amount for the Plan or for any
individual Participant, and may change such minimum or maximum amount from time to
time.
Elective Contributions by each Participant shall be paid to the Trust by the Employer and credited
to the Participant's Account within the period required under Section 6.01. In no event shall the
Elective Contributions be paid to the Trust later than the fifteenth (15 business day of the month
following the month in which such Elective Contributions were withheld by the Employer from the
Participant's Compensation.
4.02 MATCHING CONTRIBUTIONS. The Employer shall make the following Matching Contributions
to the Plan on behalf of Eligible Participants in lieu of an increase in Compensation. For each
payroll period of the Employer, the Employer will make a Matching Contribution on behalf of each
Eligible Participant who (a) has made an Elective Contribution during such payroll period and
(b) is an Eligible Participant as of the last day of such payroll period. The amount of the Matching
Contribution for an Eligible Participant shall be as follows:
(a) For an Eligible Participant who was first employed by the Employer on or after January 1,
2008, the Matching Contribution shall be equal to 100% of the Elective Contributions
made by the Eligible Employee for such payroll period that do not exceed three percent
(3 %) of the Eligible Participant's Compensation for the payroll period.
(b) For an Eligible Participant who was employed by the Employer before January 1, 2008,
the Matching Contribution shall be equal to 100% of the Elective Contributions made by
the Eligible Participant for such payroll period that do not exceed a specified percentage
of the Eligible Participant's Compensation for the payroll period, with such percentage
being equal to (i) six percent (6 %), minus (ii) the amount, expressed as a percentage of
Compensation, of the Employer Contribution, if any, made (or to be made) on behalf of
such Eligible Participant for that payroll period under the City of Blair, Nebraska Civilian
Employees' Pension Plan and Trust.
The Employer may pay its Matching Contribution to the Trust in one or more installments, without
interest, provided such Matching Contribution is paid to the Trust within the time prescribed by the
Code.
4.03 ELECTIVE CONTRIBUTIONS OF SICK, VACATION AND BACK PAY. An Employee may
make Elective Contributions with respect to accumulated sick pay, accumulated vacation pay,
and back pay if a separate Compensation reduction election for such amounts is made by the
Employee and filed with the Committee before the first day of the month in which the
accumulated sick pay, accumulated vacation pay, or back pay would otherwise be paid or made
available to the Employee and provided such Employee is employed by the Employer in the
month such accumulated sick pay, accumulated vacation pay, or back pay would otherwise be
paid or made available to the Employee.
5
4.04 TRANSFERS FROM OTHER PLANS. In accordance with the requirements of Code section
457(b) and the Income Tax Regulations thereunder, and pursuant to such rules and regulations
as may be promulgated by the Committee, a cash transfer may be accepted from an eligible
deferred compensation plan (within the meaning of Code section 457(b)) maintained by another
governmental employer and credited to a Participant's Account under the Plan if (i) the Participant
has had a Severance from Employment with that employer and become an Employee of the
Employer; and (ii) the other employer's plan provides that such transfer may be made. The
Committee may require in its sole discretion that the transfer be in cash or other property
acceptable to the Committee. The Committee may further require such documentation from the
other employer's plan as it deems necessary to confirm that such plan is an eligible deferred
compensation plan within the meaning of Code section 457 and Income Tax Regulation section
1.457- 10(b), and to confirm that the other plan is an eligible governmental plan as defined in
Income Tax Regulation section 1.457 -2(f). Any such transferred amount shall be treated as a
Deferred Compensation Contribution under the Plan, except that the transferred amount shall not
be considered a Deferred Compensation Contribution under the Plan in determining the
maximum deferral under Article 5.
4.05 ROLLOVER CONTRIBUTIONS. The Plan shall not accept eligible rollover contributions in the
form of cash from any Participant unless the Committee approves such contributions for the Plan
and communicates such approval to all Participants.
The Committee shall establish such conditions and procedures for the making of a rollover
contribution to this Plan as it deems necessary or desirable, and may require from any Participant
proposing to make a rollover contribution hereunder such information, documentation and
certifications necessary for effectuating such rollover and to determine whether the proposed
contribution will meet the requirements of this Article and the requirements of Code section 402
so as to qualify as a tax -free rollover.
If such contributions are allowed, the Plan shall establish and maintain for the Participant a
separate account for any eligible rollover distribution paid to the Plan as a rollover contribution
under this Code section 4.05 from any eligible retirement plan that is not an eligible governmental
plan under Code section 457(b). In addition, the Plan shall establish and maintain for the
Participant a separate account for any eligible rollover distribution paid to the Plan from any
eligible retirement plan that is an eligible governmental plan under Code section 457(b).
ARTICLE 5 LIMITATIONS ON DEFERRALS
5.01 NORMAL LIMITATION. Except as provided in Section 5.02, the maximum amount of Deferred
Compensation Contributions for any Participant for any calendar year shall not exceed the lesser
of the applicable dollar amount determined pursuant to Code section 457(e)(15), as adjusted after
December 31, 2006 to take into account increases in the cost -of- living as provided under Code
section 457(e)(15)(B), or 100 percent of the Participant's Includible Compensation for the
calendar year. All plans within the meaning of Code section 457(b) that are sponsored by the
Employer shall be treated as a single plan under Code section 457(b) for purposes of the Normal
Limitation of this Section 5.01. The Committee shall also take into account for this purpose any
other plan under Code section 457(b) for which the Committee receives from the Participant
sufficient information concerning his or her participation in such other plan.
5.02 AGE 50 CATCH -UP LIMITATION. Subject to Section 5.04, any Participant who has attained (or
will attain) age fifty (50) before the close of a calendar year may make, in accordance with and
subject to the limitations of Code section 414(v), an additional Elective Contribution that is not
subject to the Normal Limitation of Section 5.01, up to the maximum catch -up dollar amount
established under Code section 414(v) for the year of the catch -up Elective Contribution ("Catch -
Up Contribution ").
6
5.03 SPECIAL CATCH -UP LIMITATION. For each of the Participant's last three (3) taxable years
ending before the calendar year in which the Participant attains his or her Normal Retirement
Age, the maximum amount of Deferred Compensation Contributions shall be the lesser of:
(a) An amount equal to two (2) times the applicable dollar amount in effect for the year of the
contributions as determined pursuant to Code section 457(e)(15); or
(b) The sum of:
(1) An amount equal to (i) the aggregate Normal Limitation of Section 5.01 for the
current year plus each prior calendar year beginning after December 31, 2001
during which the Participant was an Employee under the Plan, minus (ii) the
aggregate amount of Elective Contributions made by the Participant during such
years, plus
(2) An amount equal to (i) the aggregate limit referred to in Code section 457(b)(2)
for each prior calendar year beginning after December 31, 1978, and before
January 1, 2002, during which the Participant was an Employee (determined
without regard to this Section 5.03), minus (ii) the aggregate contributions to Pre -
2002 Coordination Plans for such years.
Notwithstanding the foregoing, in no event shall the maximum Elective Contribution by a
Participant in any calendar year pursuant to the special catch -up limitation of this Section 5.03 be
more than the Participant's Compensation for such year.
For purposes of this Section 5.03, the aggregate contributions to Pre -2002 Coordination Plans
means any employer contributions, salary reduction or elective contribution under any Code
section 457(b) plan, or a salary reduction or elective contribution under any Code section 401(k)
qualified cash or deferred arrangement, Code section 402(h)(1)(B) simplified employee pension,
Code section 408(p) simple retirement account, or under any plan for which a deduction is
allowed because of a contribution to an organization described in Code section 501(c)(18),
including plans, arrangements or accounts maintained by the Employer or any employer for
whom the Participant performed services. However, the contributions for any calendar year are
only taken into account for purposes of a contribution to Pre -2002 Coordination Plans to the
extent that the total of such contributions do not exceed the aggregate limit referred to in Code
section 457(b)(2) for that year. In applying this Section 5.03, a year shall be taken into account
only if (i) the Participant was eligible to participate in the Plan during all or a portion of the year
and (ii) the Elective Contributions made by such Participant during the year, if any, were subject
to the Normal Limitation described in Section 5.01 or any other ceiling on Elective Contributions
required by Code section 457(b).
All plans within the meaning of Code section 457(b) that are sponsored by the Employer shall be
treated as a single plan under Code section 457(b) for purposes of the Special Catch -Up
Limitation of this Section 5.03, together with any other eligible plan for which the Committee
receives from the Participant sufficient information concerning his or her participation is such
other plan.
The Special Catch -Up Limitation is available to a Participant during only one (1) three (3) year
period. If the Participant uses the Special Catch -Up Limitation, then postpones retirement or
returns to work, the Special Catch -Up Limitation shall not be available again.
5.04 COORDINATION OF CATCH -UP CONTRIBUTIONS AND SPECIAL CATCH -UP LIMITATIONS.
The maximum amount of Deferred Compensation Contributions for any calendar year for any
Participant who is eligible to make both a Catch -Up Contribution described in Section 5.02 and a
Special Catch -Up Limitation described in Section 5.03 shall not exceed the greater of: (1) the
7
sum of the maximum amount of Deferred Compensation Contributions that can be made for such
calendar year under Section 5.01 plus the maximum amount of Catch -Up Contributions that can
be made for such calendar year under Section 5.02; or (2) the sum of the maximum amount of
Deferred Compensation Contributions that can be made for such calendar year under
Section 5.01 plus the maximum amount of Special Catch -Up Contributions that can be made for
such calendar year under Section 5.03.
5.05 INDIVIDUAL LIMITATION FOR COMBINED CONTRIBUTIONS UNDER MULTIPLE ELIGIBLE
PLANS. To the extent a Participant participates in more than one eligible deferred compensation
plan (as defined in Code section 457(b)), the maximum amount of contributions that may be
made by the Participant, or on behalf of such Participant, to all such plans in any plan year, shall
not exceed the Participant's "individual limit" for such year. For purposes of this Section 5.05, a
Participant's individual limit for any year shall be equal to the sum of (i) the maximum amount
provided under the Normal Limitation of Code section 457(b)(2) for such year; (ii) the maximum
amount provided under the Special Catch -Up Limitation of Code section 457(b)(3) for such year
(but only if such eligible deferred compensation plan permits contributions under Code section
457(b)(3)); and (iii) the maximum amount permitted under the Catch -Up Contribution limitation of
Code section 414(v) (as such section applies to eligible deferred compensation plans) for such
year. To the extent a Participant's individual limitation is exceeded in any year, the Plan will treat
such excess contributions as excess deferrals under Section 5.07. In determining whether a
Participant has exceeded his individual limit for any year, the Participant's contributions to this
Plan, and the Participant's contributions (or contributions made on behalf of such Participant) to
any other eligible deferred compensation plan for such year, must be determined on an
aggregate basis.
If a Participant is participating in more than one eligible deferred compensation plan in any year,
and the applicable amounts under Code sections 457(b)(3) or 414(v) are not the same for each
such eligible deferred compensation plan for such year, then this Section 5.05 shall be applied
using the amount under whichever plan has the largest amount applicable to the Participant.
5.06 EXCESS DEFERRALS. If the maximum amount of Deferred Compensation Contributions for a
Participant in any calendar year exceeds the limitations of Section 5.01, 5.02, or 5.03, or to the
extent a Participant participates in more than one eligible deferred compensation plan (as defined
in Code section 457(b)) and such Participant has notified the Committee that he has exceeded
his individual limitation (as described in Section 5.05), such excess amount shall be treated as an
excess deferral. An excess deferral attributable to the limitations of Section 5.01, 5.02, or 5.03,
together with any income (or loss) allocable to such excess deferral, shall be distributed to such
Participant not later than April 15 following the calendar year following the close of the taxable
year of the excess deferral. An excess deferral that is distributable to the Participant shall be
taken first from the Participant's Elective Contributions for the applicable taxable year.
If the excess deferral is attributable to the individual limitation of Section 5.05, such excess
deferral, together with any income allocable to such excess deferral, may be distributed the
Participant as soon as administratively practicable after the Plan determines that the amount is an
excess deferral; provided, however, if the Plan does not distribute such excess deferral to the
Participant, then the Participant must include the excess deferral in his gross income in the
taxable year or, if later, the first taxable year in which there is no substantial risk of forfeiture of
such excess deferrals.
5.07 ADDITIONAL ELECTIVE CONTRIBUTIONS FOR UNIFORMED SERVICE. A Participant whose
employment is interrupted by qualified military service under Code section 414(u), or who is on a
leave of absence for qualified military service under Code section 414(u), may elect to make
additional Elective Contributions upon resumption of employment with the Employer equal to the
maximum Elective Contributions that the Employee could have elected during that period if the
Employee's employment with the Employer had continued (at the same level of Compensation)
without the interruption or leave, reduced by the Elective Contributions, if any, actually made for
8
the Employee during the period of the interruption or leave. This right applies for five years
following the resumption of employment with the Employer (or, if sooner, for a period equal to
three times the period of the interruption or leave).
ARTICLE 6 INVESTMENT OF DEFERRED COMPENSATION CONTRIBUTIONS
6.01 CONTRIBUTIONS TO TRUST. All Deferred Compensation Contributions shall be delivered by
the Employer to the Trustee. The Participants' Elective Contributions shall be delivered to the
Trustee within a period that is not longer than is reasonable for the proper administration of the
Participant's Account. For this purpose, Elective Contributions shall be treated as contributed
within a period that is not longer than is reasonable for the proper administration if the Elective
Contribution is made to the Trust Fund within fifteen (15) business days following the end of the
month in which the amount would otherwise have been paid to the Participant. The Employer's
Matching Contributions shall be delivered to the Trustee within an administratively reasonable
time that such Matching Contributions are declared or credited to the Participants Account by the
Employer. All such Deferred Compensation Contributions on behalf of each Participant, including
all income or other property derived therefrom, shall be held, managed, administered, invested
and reinvested by the Trustee in accordance with the terms and provisions of this Plan and Trust.
6.02 PARTICIPANT ACCOUNTS. A separate Account in the name of each Participant shall be
created and maintained by the Trustee which shall relate to such Participant's benefit under the
Plan and to which all Deferred Compensation Contributions on behalf of such Participant,
together with all income, gains, losses or increases or decreases derived therefrom shall be
credited.
Each such Account shall be adjusted as of the last day of each Plan Year, or at more frequent
valuation dates as may be established by the Committee, to reflect investment gains, losses, and
appreciation or depreciation of the Trust assets credited to the Participant's Account.
6.03 PLAN INVESTMENTS. The Account of each Participant under the Plan and Trust shall be
invested in the investment options made available under the Plan as elected by the Participant. If
such investment shall be individual or group Contracts issued by a Vendor, the Contracts
purchased by the Trustee shall be as directed by the Employer, but the Trustee shall apply for
and be the legal owner of all such Contracts. If the investment options shall be through the Trust
alone, the investment options shall include any regulated investment company registered under
the Investment Company Act of 1940, any common trust fund or collective investment fund
qualified for collective investments by plans under Code Section 457(b), and any other funding
vehicle permitted by the Employer under the Plan. In no event shall the Employer, the
Committee, the Plan, the Trustee, and their respective members, officers and employees, or any
other person, be responsible for the validity of any Contract or other investment option which may
be held as part of the Trust or distributed to a Participant or Beneficiary to provide benefits under
this Plan, or for the failure of the Vendor to make payments or provide benefits under any such
Contract or investment option, or for any inability to perform or for any delay in performing, any
act occasioned by any restriction or provision of any Contract.
6.04 PARTICIPANT DIRECTED INVESTMENTS. Pursuant to such rules, regulations and procedures
as may be established by the Committee or the Trustee, each Participant shall determine the
manner in which his or her Account, including all earnings and gains on the investments credited
to such Account, is to be invested and reinvested among the investment options designated by
the Employer by providing specific written directions in the manner required by the Committee.
(a) All investment directions shall be in writing on a prescribed form or in such other format
as determined by the Committee. Investment directions may also be transmitted to the
Trustee or a Vendor by telephone or other paperless system in accordance with rules
9
and procedures approved by the Committee. An initial investment direction shall be filed
with the Participant's first Joinder Agreement. All investment directions shall be filed in
accordance with rules and procedures prescribed by the Committee for this purpose.
Investment directions shall be implemented for purposes of the Plan as soon as
administratively possible after the date that such directions are filed with or transmitted to
the Trustee, or its designee, consistent with the orderly administration of such directions
and such procedures as may be established.
(b) An investment direction shall remain in effect and be deemed to be a continuing direction
until a new investment direction is filed by the Participant. A Participant may change an
investment direction as to future Deferred Compensation Contributions as of January 1,
April 1, July 1 or October 1 (the "Change Date ") of any Plan Year, by filing a written
notice of such change in investment direction with the Committee at least thirty (30) days
prior to the Change Date. A Participant may also direct as of such Change Date that all,
or any multiple of, his or her interest in any of the investment funds be liquidated and the
proceeds thereof transferred to another investment fund as of any Change Date,
provided such direction is provided in writing to the Committee at least thirty (30) days
prior to the Change Date.
(c) If the Committee authorizes the transmission of investment directions by telephone,
Internet or other paperless system, a Participant may change an investment direction as
to future contributions, pursuant to rules and procedures established by the Committee,
by providing advance notice of such change in investment direction in accordance with
such rules and procedures as may be established from time to time by the Committee.
(d) Investment directions by a Participant shall be complete as to the terms of the deemed
investment transaction. Directions for the investment of the Participant's Account shall
be stated in percentages of the amount contributed. A Participant's investment directions
may provide for both the investment of existing Account balances and the investment of
future Deferred Compensation Contributions. Participants may file individual investment
directions that change the investment of all or only a portion of existing Account balances
or future contributions. The Trustee and Vendor shall be entitled to fully rely on the
directions furnished to it for the investment of each Account and shall be under no duty to
make any inquiry or investigation with respect thereto. Neither the Employer, the
Committee, the Trustee, any Vendor or any other person, shall have any obligation
whatsoever to select the investment alternatives in which the Participant's Account is to
be invested. However, if a Participant fails to provide directions as to the investment of
any portion of the balance of his or her Account, or if any directions are not clear, such
portion of the Account shall be invested pursuant to rules and procedures established by
the Employer, without liability for loss of income or appreciation, pending receipt of
effective investment directions from the Participant.
(e) If the Committee authorizes the transmission of investment directions by telephone,
Internet or other paperless system, written confirmation of each investment direction shall
be maintained as a Plan record and such records shall be conclusive and binding upon
the Participant and his or her Beneficiaries unless a written objection thereto is filed with
the Trustee within fifteen (15) calendar days of the effective date of the investment
directions, regardless of whether the Plan has issued or the person who made such
investment direction has received confirmation of the investment direction.
(f)
All dividends, distributions, gains and other earnings and losses on the investment option
held for each Account shall be credited directly to such Account, and the Account shall be
charged with all expenses, fees and charges attributable to such investment that are
incurred with respect to the investment and reinvestment of the Account, unless paid by
the Employer. All earnings of a particular investment option shall be automatically
deemed reinvested in such investment option.
10
(g)
(h) All investment directions shall be in accordance with such additional rules and regulations
as the Committee may uniformly establish from time to time for this purpose.
(1)
Following the death of the Participant, each of the Participant's Beneficiaries shall have
the right to direct the investment of the portion of the Account held on behalf of the
Beneficiary, subject to the same terms and conditions as applied to the Participant prior
to his or her death.
The responsibility of the Participant (or the Participant's Beneficiary after the death of the
Participant) to direct the investment of his or her Account shall continue until the value of
the Account is reduced to zero.
(j) No person other than the Participant shall be liable hereunder for any loss, or by reason
of any breach, which results from a Participant's exercise of the direction of the
investment of his or her Account.
6.05 LIMITED LIABILITY OF EMPLOYER, TRUSTEE AND VENDORS. In no event shall the
Employer's, a Vendor's, or the Trustee's liability to pay benefits to a Participant under this Plan
exceed the value of the amounts credited to the Participant's Account; and neither the Employer,
the Committee, the Trustee, a Vendor, or any other person shall be liable for losses arising from
the appreciation or depreciation in the value of any investments acquired for a Participant's
Account under the Plan.
ARTICLE 7 PAYMENT OF BENEFITS
7.01 AMOUNT OF BENEFIT. The benefit payable to a Participant will be the amount credited to his
Account, as described in Section 6.02.
7.02 BENEFIT PAYMENTS. When the Participant attains Normal Retirement Age (or, if elected by
the Participant, Late Retirement Age), he or she may retire and begin receiving benefits from the
Plan.
The Participant may elect following his or her Severance from Employment (other than for death
or retirement) to have the amount credited to his or her Account begin to be distributed on a fixed
or determinable date which is no later than the required beginning date described in Section 7.04.
In the absence of a written election delivered to the Committee to defer the commencement of
Plan benefits, the Participant's Account shall commence to be paid on the first valuation date of
the Plan that is sixty (60) days following the Participant's Normal Retirement Age, or, if later,
Severance from Employment.
If the Participant dies prior to or after the commencement of a distribution of his Account, the
Employer will distribute such Account to the Participant's Beneficiary(ies) in accordance with
Section 7.07 and Section 7.13, as applicable.
7.03 POSTPONED RETIREMENT. If the Participant continues employment with the Employer after
his or her Normal Retirement Age, no benefits under the Plan will be payable until the Participant
actually incurs a Severance from Employment.
7.04 WHEN DISTRIBUTION PAYABLE. No distribution of benefits shall be made until the Committee
has received a written application for distribution from the Participant or the Beneficiary entitled to
receive a distribution. The Committee may prescribe rules regarding the form of the application,
the manner of filing such application, and the information required to be furnished in connection
with such application. Payments will begin as soon as administratively practicable under the
11
Participant's election and in accordance with the requirements of the Trustee, the Custodian,
and /or any applicable Vendor.
(a) In accordance with Code section 457(b) and applicable regulations thereunder, benefits
shall not become payable to Participants or Beneficiaries earlier than (i) sixty (60) days
following the date of the Participant's Severance from Employment with the Employer; (ii)
the occasion of an unforeseeable emergency as provided in Section 7.05 hereof; or (iii)
the calendar year in which the Participant attains age seventy and one -half (70 A
Participant may elect to defer the commencement of the distribution of his or her Plan
benefits to a date which is not later than April 1 of the calendar year following the year of
the Participant's retirement or attainment of age seventy and one -half (70Y2), whichever
date is later, by filing a written election with the Committee before the commencement of
distributions under the Plan.
(b) Notwithstanding the foregoing, the manner under the Plan shall meet the distribution
requirements of Code section 401(a)(9) and Code section 457(d) as provided in
Section 7.07. The benefits payable to the Participant shall be distributed to such
Participant no later than the April 1 of the calendar year following the later of (i) the
calendar year in which the employee attains age seventy and one -half (70 or (ii) the
calendar year in which the Employee retires (the "required beginning date "). The benefits
payable to the Participant's Beneficiary when the Participant dies before distributions
begin shall be distributed or begin to be distributed no later than the required distribution
date fro the Plan's death benefit pursuant to Section 7.07.
7.05 UNFORESEEABLE EMERGENCY. A Participant may file a written request with the Committee
requesting an in- service withdrawal. Applications for such withdrawals shall only be accepted for
review in cases of an unforeseeable emergency.
For purposes of this Plan, an "unforeseeable emergency" shall mean a severe financial hardship
to the Participant resulting from a sudden and unexpected illness or accident of the Participant or
of the Participant's spouse or dependent (as defined in Code section 152(a)), or of a Beneficiary's
dependent, the loss of the Participant's or Beneficiary's property due to casualty (including the
need to rebuild a home following damage to a home not otherwise covered by homeowner's
insurance), the need to pay for the funeral expenses of the Participant's spouse or dependents
(as defined in Code section 152(a)) or to other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the Participant or Beneficiary.
An in- service withdrawal shall in no case exceed the amount reasonably needed to satisfy the
unforeseeable emergency (which may include any amounts necessary to pay any federal, state
or local income taxes or penalties reasonably anticipated to result from the withdrawal). In no
case shall an in- service withdrawal be permitted when the unforeseeable emergency is or may be
relieved through reimbursement or compensation by insurance or otherwise, by liquidation of the
Participant's assets when such liquidation would not itself cause severe financial hardship, or by
the cessation of Elective Contributions under this Plan. Examples of events not considered to be
unforeseeable emergencies include the need to send a Participant's child to college or the desire
to purchase a home.
The determination as to whether such an unforeseeable emergency exists shall be based on the
merits of each case. The decision of the Committee regarding payment of benefits under this
Section 7.05 will be final.
The allowed distribution for an unforeseeable emergency shall be in the form determined by the
Committee; provided, however, if the Participant has commenced receiving installment payments
under the Plan, the Participant may request the acceleration of such payments for the
unforeseeable emergency. The Committee may accelerate such payments only to the extent
necessary to meet the unforeseeable emergency.
12
7.06 PAYMENT OPTIONS. Subject to the requirements of Section 7.07 and Section 7.08, Plan
benefits will be paid in the form elected by the Participant or Beneficiary, as permitted below, prior
to the time benefits become payable from the Plan:
(a) Lump sum cash payment; or
(b) Installment payments in monthly, quarterly, semi - annual, or annual amounts over a
period to be determined by the Participant or Beneficiary, but not extending beyond the
life expectancy of the Participant or Beneficiary.
Any payment option must be elected by the Participant before the first permissible payment date
under the Plan and agreed to by the Committee; and, such payment option must satisfy the
minimum distribution requirements of Code section 401(a)(9) and the Income Tax Regulations
under Code section 401(a)(9) and be permitted by the Contract, if any.
If no form of payment has been elected, benefits will be paid in the form of a lump sum cash
payment. If permitted by the Contract, if any, and /or the Committee, for any year, the Participant
can elect the distribution of a greater amount than that provided under the form of payment that
was selected (not to exceed the amount of the Participant's remaining Account Balance).
7.07 COMPLIANCE WITH DISTRIBUTION REQUIREMENTS OF THE CODE. Notwithstanding
anything herein to the contrary, Plan benefits that are payable to a Participant or Beneficiary shall
commence and be paid in accordance with the following required minimum distribution rules. All
distributions of Plan benefits shall be made in accordance with Code section 401(a)(9) and with
the Income Tax Regulations under Code section 401(a)(9), including the minimum incidental
benefit requirements of Code section 401(a) (9)(G).
(a) Time and Manner of Distribution.
(1) Required Distribution Date. The Participant's entire Account will be distributed,
or begin to be distributed, to the Participant no later than the Participant's
Required Distribution Date.
(2) Death of Participant Before Distributions Beain. If the Participant dies before
distributions begin, the Participant's entire Account will be distributed, or begin to
be distributed, no later than as follows:
(A) If the Participant's surviving spouse is the Participant's sole Designated
Beneficiary, then distributions to the surviving spouse will begin by
December 31 of the calendar year immediately following the calendar
year in which the Participant died, or by December 31 of the calendar
year in which the Participant would have attained age 70'/2, if later.
(B) If the Participant's surviving spouse is not the Participant's sole
Designated Beneficiary, then distributions to the Designated Beneficiary
will begin by December 31 of the calendar year immediately following the
calendar year in which the Participant died.
(C) 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.
(D) If the Participant's surviving spouse is the Participant's sole Designated
Beneficiary and the surviving spouse dies after the Participant but before
distributions to the surviving spouse begin, this subparagraph (A)(2),
13
(3)
other than subparagraph (A)(2)(a) above, will apply as if the surviving
spouse were the Participant.
For purposes of this subparagraph (a)(2) and paragraph (c) below, unless this
subparagraph (a)(2)(D) applies, distributions are considered to begin on the
Participant's Required Distribution Date. If this subparagraph (a)(2)(D) applies,
distributions are considered to begin on the date distributions are required to
begin to the surviving spouse under subparagraph (a)(2)(A) above. If
distributions under an annuity purchased from an insurance company irrevocably
commence to the Participant before the Participant's Required Distribution Date
(or to the Participant's surviving spouse before the date distributions are required
to begin to the surviving spouse under subparagraph (a)(2)(A) above), the date
distributions are considered to begin is the date distributions actually commence.
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 Distribution Date, as of the first Distribution Calendar Year
distributions will be made in accordance with paragraphs (b) and (c) of this
Section 7.07. If the Participant's interest is distributed in the form of an annuity
purchased from an insurance company, distributions thereunder will be made in
accordance with the requirements of Code section 401(a)(9) and the Income Tax
Regulations thereunder.
(b) Required Minimum Distributions During Participant's Lifetime.
(1) Amount of Reauired 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:
(A) the quotient obtained by dividing the Participant's Account by the
distribution period in the Uniform Lifetime Table set forth in Income Tax
Regulation section 1.401(a)(9) -9, using the Participant's age as of the
Participant's birthday in the Distribution Calendar Year; or
(B)
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 by the number in the Joint and Last
Survivor Table set forth in Income Tax Regulation 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.
(2) Lifetime Required Minimum Distributions Continue Through Year of Participant's
Death. Required minimum distributions will be determined under this paragraph
(b) beginning with the first Distribution Calendar Year and up to and including the
Distribution Calendar Year that includes the Participant's date of death.
(c) Required Minimum Distributions After Participant's Death.
(1) Death On or After Date Distributions Begin.
(A) 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 by the longer of
the remaining life expectancy of the Participant or the remaining life
14
expectancy of the Participants Designated Beneficiary, determined as
follows:
(i)
The Participants remaining life expectancy is calculated using
the age of the Participant in the year of death, reduced by one
for each subsequent calendar year.
(ii) If the Participant's surviving spouse is the Participant's sole
Designated Beneficiary, the remaining life expectancy of the
surviving spouse is calculated for each Distribution Calendar
Year after the year of the Participant's death using the surviving
spouse's age as of the spouse's birthday in that year. For
Distribution Calendar Years after the year of the surviving
spouse's death, the remaining life expectancy of the surviving
spouse is calculated using the age of the surviving spouse as of
the spouse's birthday in the calendar year of the spouse's death,
reduced by one for each subsequent calendar year.
(iii) If the Participant's surviving spouse is not the Participants 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 calendar year.
(B) 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 Participants 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 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 calendar year.
(2) Death Before Date Distributions Begin.
(A) Participant Survived by Designated Beneficiary. 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 Participants death is the quotient
obtained by dividing the Participants Account by the remaining life
expectancy of the Participants Designated Beneficiary, determined as
provided in subparagraph (c)(1).
(B) No Desianated 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 Participants death,
distribution of the Participant's entire interest will be completed by
December 31 of the calendar year containing the fifth anniversary of the
Participants death.
(C) Death of Surviving Spouse Before Distributions to Surviving Spouse Are
Required to Begin. If the Participant dies before the date distributions
begin, and 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
subparagraph (a)(2)(A), this subparagraph (c)(2) will apply as if the
surviving spouse were the Participant.
(d) Definitions. For purposes of this Section 7.07, the following terms shall have the following
meaning:
(1) Designated Beneficiary. The individual who is designated as the Beneficiary under
Section 7.13 of the Plan and who is also a designated beneficiary under Code
section 401(a)(9) and Income Tax Regulation section 1.401(a)(9) -1, Q &A -4.
(2) Distribution Calendar Year. A calendar year for which a minimum distribution is
required for a Participant. For distributions beginning before the Participant's death,
the first Distribution Calendar Year is the Calendar Year immediately preceding the
Participant's Required Distribution 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 7.07(a)(2). The required minimum
distribution for the Participant's first Distribution Calendar Year will be made on or
before the Participant's Required Distribution Date. The required minimum
distribution for other Distribution Calendar Years, including the required minimum
distribution for the Distribution Calendar Year in which the Participant's Required
Distribution Date occurs, will be made on or before December 31 of that Distribution
Calendar Year.
(3)
Life Expectancy. Life expectancy as computed by use of the Single Life Table in
Income Tax Regulation section 1.401(a)(9) -9.
(4) Participant's Account. The Participant's nonforfeitable Account as of the last
valuation date of the Plan 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 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 for the
valuation calendar year includes any amounts 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.
(5)
Required Distribution Date. The Required Distribution Date is the April 1 following
the later of (a) the calendar year in which the Participant attains age 70%, or (ii) the
calendar year in which the Participant incurs a Severance from Employment.
7.08 DISTRIBUTION OF SMALL ACCOUNT. Notwithstanding anything in this Article 7 to the
contrary, if the value of a Participant's Account at the time of the first permissible payment date
under the Plan does not exceed $5,000 (excluding any portion of the Account that is attributable
to the Participant's rollover contributions pursuant to Section 4.05), the only form of payment shall
be a single lump sum payment and such amount shall be distributed as soon as administratively
practicable, if the Participant does not make an election to receive such Account. In the event of
a mandatory distribution on or after March 28, 2005, that is greater than $1,000 (including any
portion of the Account that is attributable to the Participant's rollover contributions under
Section 4.05), if the Participant does not elect to have such distribution paid directly to an eligible
retirement plan specified by the Participant in a direct rollover or to receive the distribution
directly, then the Trustee will pay the distribution in a direct rollover to an individual retirement
plan designated by the Committee.
Notwithstanding any provision in this Plan to the contrary, a Participant may elect to receive a
distribution of his entire Account before his Severance From Employment provided that (1) the
16
value of the Participant's Account does not exceed $5,000 (excluding any portion of the Account
that is attributable to the Participant's rollover contributions pursuant to Section 4.05); (2) no
Deferred Compensation Contributions have been made under the Plan by or for the Participant
during the two (2) year period ending on the date of such distribution; and (3) there has been no
prior distribution under the Plan to the Participant pursuant to this Section 7.08.
7.09 WITHHOLDING AND FACILITY OF PAYMENT. All benefit payments from the Plan shall be
subject to all tax payment and withholding requirements of federal, state and local tax laws, and
the Employer shall withhold from each benefit payment to its Employees and remit to the proper
governmental agency all income, FICA, or other taxes which are required to be withheld from
such payment. If a benefit is payable to a minor or person declared incompetent, any payment
due to such person under the Plan (unless prior claim therefor shall have been made by a duly
authorized guardian or other legal representative) may be paid to the guardian, conservator, legal
representative or person having care or custody of such minor or incompetent person, and such
payment shall completely discharge the Plan, the Trustee, the Custodian, the Committee, and the
Employer from all liability with respect to such benefit payment.
7.10 TRANSFER OF ACCOUNT TO GOVERNMENTAL 457(b) PLAN. In accordance with the
requirements of Code section 457 and pursuant to such rules and regulations as may be
promulgated by the Committee, the Committee may permit a class of Participants or Beneficiaries
to elect to have all or any portion of the amount credited to their Account transferred to an eligible
governmental deferred compensation plan (within the meaning of Income Tax Regulation
Section 1.457 -2(f)) maintained by another governmental employer, if:
(a)
the other employer's eligible deferred compensation plan provides for the acceptance of
plan -to -plan transfers with respect to Participants and Beneficiaries and for each
Participant and Beneficiary to have an amount deferred under the other plan immediately
after the transfer at least equal to the amount transferred;
the Participant or Beneficiary and the other employer have signed such agreements and
releases as are required by the Committee to assure that the Plan's liability to pay
benefits to the Participant has been discharged and assumed by the other employer;
The Participant or Beneficiary whose amounts deferred are being transferred will have an
amount deferred immediately after the transfer at least equal to the amount deferred with
respect to that Participant immediately before the transfer; and
The Participant or Beneficiary whose amounts deferred are being transferred has had a
Severance from Employment and is performing services for the employer maintaining the
transferee plan; provided, however, this Section 7.10(d) is not required to be satisfied if:
(1)
(3)
all of the assets held by the Plan are transferred;
(2) the transfer is to another eligible deferred compensation plan maintained by a
state entity within the same state; and
the Participant whose deferred amounts are being transferred are not eligible for
additional contributions in the transferee plan unless they are performing services
for the entity maintaining the transferee plan.
The Committee shall require such documentation from the other eligible deferred compensation
plan as it deems necessary to effectuate the transfer, to confirm that such plan is an eligible
deferred compensation plan within the meaning of Code section 457(b), and to assure that the
transfer will be accepted by such plan. Such transfers shall be made only under such
circumstances as are permitted under Code section 457 and the regulations thereunder.
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Upon the transfer of assets under this Section 7.10, the Plan's liability to pay benefits to the
Participant or Beneficiary under this Plan shall be discharged to the extent of the amount so
transferred for the Participant or Beneficiary.
7.11 PERMISSIVE SERVICE CREDIT TRANSFERS. If a Participant is also a participant in a tax -
qualified defined benefit governmental plan (as defined in Code section 414(d)) that provides for
the acceptance of plan -to -plan transfers with respect to the Participant, then the Participant may
elect to have any portion of the Participant's Account transferred to the defined benefit
governmental plan. A transfer under this Section 7.11 may be made before the Participant has
had a Severance from Employment.
A transfer may be made under this Section 7.11 only if the transfer is either for the purchase of
permissive service credit (as defined in Code section 415(n)(3)(A)) under the receiving defined
benefit governmental plan or a repayment to which Code section 415 does not apply by reason of
Code section 415(k)(3).
7.12 ROLLOVER DISTRIBUTION. Subject to such rules and regulations as may be established by
the Committee which are consistent with Income Tax Regulations issued under Code section
401(a)(31), a Participant or other distributee may elect, at the time and in the manner prescribed
by the Committee, to have any portion of an eligible rollover distribution paid directly to an eligible
retirement plan specified by the distributee in a direct rollover. For these purposes, the following
terms are defined as follows:
(a) Eligible rollover distribution: 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 Code section 401(a)(9); and
any distribution which is made upon hardship of the Employee.
(b) Eliaible retirement plan: An eligible retirement plan is an individual retirement account
described in Code section 408(a), an individual retirement annuity described in Code
section 408(b), an annuity plan described in Code section 403(a), a qualified trust
described in Code section 401(a), an annuity contract described in Code section 403(b),
or an eligible plan under Code section 457(b) which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or political subdivision of
a state and which agrees to separately account for amounts transferred into such plan
from this Plan. The definition of eligible retirement plan shall also apply in the case of a
distribution to a surviving spouse, or to a spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Code section 414(p). For
purposes of a distribution on behalf of a Designated Beneficiary (as defined in Section
7.07(d)(1)) who is not a spouse or former spouse of the Participant, "eligible retirement
plan" shall mean an individual retirement account described in Code section 408(a) or an
individual retirement annuity described in Code section 408(b) established for the
purpose of receiving a distribution on behalf of the Designated Beneficiary and that will
be treated as an inherited IRA pursuant to the provisions of Code section 402(c)(11).
(c) Distributee: A distributee includes a Participant or former Participant, and the
Participant's surviving spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in Code section 414(p). Distributee shall
also include a Participant's Designated Beneficiary (as defined in Section 7.07(d)(1)) who
is not the Participant's surviving spouse or former spouse.
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(d) Direct Rollover: A direct rollover is a payment by the Plan to the eligible retirement Plan
specified by the distributee.
7.13 BENEFICIARY DESIGNATION. Each Participant shall have the right, at any time, to designate
any person or persons as Beneficiary or Beneficiaries (both primary as well as contingent) to
whom payment under this Plan shall be made in the event of Participant's death prior to complete
distribution of the benefits due to the Participant under the Plan. Any Beneficiary designation
may be changed by a Participant by the written filing of such change on a form prescribed by the
Committee. The filing of a new Beneficiary designation form will cancel all Beneficiary
designations previously filed.
If a Participant fails to designate a Beneficiary as provided above, or if all designated
Beneficiaries predecease the Participant, then the Participant's designated Beneficiary shall be
deemed to be the person or persons surviving Participant in the first of the following classes in
which there is a survivor, share and share alike:
(a) The Participant's surviving spouse;
(b) The Participant's surviving children, including adopted children, in equal shares.
(c) The Participant's living parents in equal shares.
(d) The personal representative (executor or administrator) of the Participant's estate.
If a Beneficiary of the Participant should die after the Participant but before the complete
distribution of the amount credited to such Beneficiary under the Account, the remaining balance
of the Account shall be paid in a single lump sum payment to any secondary Beneficiary
designated by the Participant in his or her Beneficiary designation on file with the Committee or,
in the absence of a secondary Beneficiary designation, to the estate of the deceased Beneficiary.
Payment of the Plan's benefit to the designated or deemed Beneficiary shall completely
discharge the Employer's obligations under this Plan.
ARTICLE 8 ADMINISTRATION
8.01 ADVISORY COMMITTEE. This Plan shall be administrated by an Advisory Committee of one or
more members appointed by the Employer. The Committee shall have the sole responsibility and
authority for the administration of this Plan, which responsibility is specifically described in this
Plan. It is intended that the Committee shall be responsible for the proper exercise of its own
powers, duties, responsibilities and obligations under this Plan and generally shall not be
responsible for any act or failure to act by the Employer.
The Committee shall have the discretionary power and authority to adopt, interpret, alter, amend,
or revoke rules and procedures necessary to administer the Plan, to delegate ministerial duties,
and to employ such outside professionals as may be required for prudent administration of the
Plan. The Committee shall also have the authority to enter into agreements on behalf of the
Employer as may be necessary to implement the Plan. In extension and not in limitation of the
foregoing, the Committee shall have the following discretionary powers and duties:
(a) To determine the rights of eligibility of an Employee to participate in the Plan, and the value
of a Participant's Account;
(b) To determine all questions of fact as to age, Years of Service, Compensation, termination
of employment, Normal Retirement Ages, and similar items based upon records made
19
available by the Employer; to certify such facts to the Trustee; and to determine any other
facts which may be necessary for the Trustee properly to carry out the terms of the Plan
and Trust;
(c) To adopt rules of procedure and regulations necessary for the proper and efficient
administration of the Plan provided the rules are not inconsistent with the terms of this Plan
and Trust;
(d) To interpret and construe, in its discretionary authority, and to enforce the terms of the Plan
and the rules and regulations it adopts, and determine all questions arising in the
interpretation and application of the Plan, and all such determinations shall be conclusive
and binding on all persons, subject, however, to the provisions of the Code;
(e) To direct the Trustee as respects the crediting and distribution of the Accounts under the
Trust;
(f)
(g)
(1)
To review and render decisions respecting a claim for (or denial of a claim for) a benefit
under the Plan;
To furnish the Employer with information which the Employer may require for tax or other
purposes;
(h) To engage the service of agents whom it may deem advisable to assist it with the
performance of its duties;
To engage the services of an investment manager or managers, each of whom will have
full power and authority to manage, acquire or dispose (or direct the Trustee with respect to
acquisition or disposition) of any Plan asset under its control;
8.02 ACCOUNTS. The Committee shall provide each Participant as of the end of each Plan Year a
report showing the current value of his or her Account. More frequent reports of the value of the
Account may be provided at the Committee's discretion.
8.03 AMENDMENT OF PLAN. The Plan and Trust may be amended, in writing, by the Employer at
any time, in whole or in part. However, except as may be required by law, no such amendment
will affect the rights of Participants or Beneficiaries with respect to Deferred Compensation
Contributions made before the amendment is adopted.
8.04 TERMINATION OF PLAN. The Plan may be terminated, in whole or in part, in writing, by the
Employer at any time. In this event, all Joinder Agreements will be terminated and Deferred
Compensation Contributions will cease. Plan benefits will be paid as provided in Article 7 after
the termination of the Plan. In the event the Plan is terminated, the Employer may distribute all
Accounts to Participants as soon as administratively practicable after the termination of the Plan.
Such distribution may include eligible rollover distributions (as described in Section 7.12).
Alternatively, in the event the Plan is terminated, the Employer may transfer such Deferred
Compensation Contributions, and earnings thereon, to another governmental plan in accordance
with Section 7.10.
8.05 ASSIGNMENT OF BENEFITS. Except as provided in Section 8.06, no Participant or Beneficiary
will have any right to commute, sell, assign, pledge, transfer or otherwise convey or encumber the
right to receive any payments hereunder, which payments and rights are expressly declared to be
nonassignable and nontransferable; nor will any unpaid benefits be subject to attachment,
garnishment or execution, or be transferable by operation of law in event of bankruptcy or
insolvency, except to the extent otherwise required by law.
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8.06 DOMESTIC RELATIONS ORDER. Notwithstanding the provisions of Section 8.05, the Plan shall
comply with any directions set forth in a qualified domestic relations order meeting the
requirements of Code section 414(p); provided, however, no benefits will be paid, assigned, or
set aside for any person who is an eligible alternate payee unless and until the Plan has received
such releases and benefit waivers from the Participant or alternate payee as the Employer or
Committee may deem necessary or appropriate to protect the Plan, the Trustee and the
Employer from any claims which may arise as a result of the Plan complying with the provisions
of any qualified domestic relations order. In no event shall the Plan recognize any domestic
relations order which alters, changes or provides for a form of benefit not otherwise provided
under the Plan, increases benefits not otherwise provided by the Plan, or accelerates or defers
the time of payment of Plan benefits, except to the limited extent allowed under Code section
414(p).
Notwithstanding the foregoing, a qualified domestic relations order may require an immediate
distribution of benefits to an alternate payee even though the Participant is not eligible to receive
a distribution of Plan benefits under the Plan. If an alternate payee receives rights to amounts in
a Participants Account under a domestic relations order, the amount so awarded to the alternate
payee shall be set aside in a separate Account for the benefit of the alternate payee until it is
distributed in compliance with the Plan and the qualified domestic relations order. Until the
separate Account of the alternate payee is completely distributed, the alternate payee shall be
subject to and the separate Account shall be held, administered and invested in accordance with
all applicable terms and provisions of this Plan and Trust, except that the alternate payee shall
direct the investment of the separate Account pursuant to the provisions of Section 6.04, if
applicable. The Participants Account under the Plan shall be reduced by the amount set aside or
paid to any alternate payee under a qualified domestic relations order.
The Committee shall establish procedures in accordance with Code section 414(p) for
determining the qualified status of a domestic relations order served upon the Plan. The Plan
and the Committee shall follow all applicable procedures set forth in Code section 414(p) which
apply when a domestic relations order is received, including issuing appropriate instructions to
the Trustee and any Vendor with respect to segregating amounts in separate accounts pending
the resolution of all matters relating to the domestic relations order and the distribution of Plan
benefits with respect thereto.
8.07 RELATIONSHIP TO OTHER PLANS AND EMPLOYMENT. This Plan serves in addition to any
other retirement, pension, or benefit plan or system presently in existence or hereinafter
established for the benefit of the Employer's employees, and participation hereunder shall not
affect benefits receivable under any such plan or system. Nothing contained in this Plan shall be
deemed to constitute an employment contract or agreement between any Participant and the
Employer or to give any Participant the right to be retained in the employ of the Employer. Nor
shall anything herein be construed to modify the terms of any employment contract or agreement
between a Participant and the Employer.
8.08 APPLICABLE LAW. This Plan will be construed under the laws of the State of Nebraska and is
established with the intent that it meet the requirements of an "eligible state deferred compensa-
tion plan" under Code section 457. The provisions of this Plan shall be interpreted wherever
possible in conformity with the requirements of Code section 457, as amended.
8.09 GENDER AND NUMBER. Whenever used herein, the masculine gender will include the
feminine and the singular will include the plural.
8.10 CLAIMS PROCEDURE. The Employer shall make all determinations as to the right of any
person to receive benefits under this Plan. In this respect, the Employer may establish
reasonable procedures governing the determination of benefits under the Plan, as well as
procedures governing the approval of a claim for benefits that was initially denied.
21
8.11 MISTAKEN CONTRIBUTIONS. If any contribution (or any portion of a contribution) is made to
the Plan by a good faith mistake of fact, then within one year after the payment of the
contribution, and upon receipt in good order of a proper request approved by the Committee, the
amount of the mistaken contribution (adjusted for any income or loss in value, if any, allocable
thereto) shall be returned directly to the Participant or, to the extent required or permitted by the
Committee, to the Employer.
8.12 PAYMENTS TO MINORS AND INCOMPETENTS. If a Participant or Beneficiary entitled to
receive any benefits hereunder is a minor or is adjudged to be legally incapable of giving valid
receipt and discharge for such benefits, or is deemed so by the Committee, benefits will be paid
to such person as the Committee may designate for the benefit of such Participant or Beneficiary.
Such payments shall be considered a payment to such Participant or Beneficiary and shall, to the
extent made, be deemed a complete discharge of any liability for such payments under the Plan.
8.13 REPRESENTATIONS. The Employer does not represent or guarantee that any particular federal
or state income, payroll, personal property or other tax consequence will result from participation
in this Plan. Furthermore, the Employer does not represent or guarantee successful investment
of Deferred Compensation Contributions and shall not be required to restore any loss which may
result from such investment or lack of investment.
8.14 TELEPHONIC AND ELECTRONIC MEDIA. The Employer, Committee and Trustee may use
telephone or electronic media to satisfy any administrative duty or notice requirements required
by this Plan, to the extent permissible under the Code or Income Tax Regulations (or other
generally applicable guidance). The Committee and Trustee may also use telephonic or
electronic media to conduct Plan transactions, such as enrolling Participants, electing and
changing investment directions, and other Plan transactions to the extent permissible under the
Code or Income Tax Regulations.
ARTICLE 9 TRUST AND TRUSTEE POWERS AND DUTIES
9.01 TRUST FUND. In accordance with Code section 457(g), this Plan and Trust creates and
establishes a Trust fund to hold all assets of the Plan for the exclusive benefit for the Participants
and Beneficiaries.
9.02 TRUSTEE POWERS AND DUTIES. The Trustee shall act as official custodian of the cash,
securities, and other assets of the Trust not in the custody of the financial institution under
contract to invest the Trust or under agreement to safekeep Plan assets, and shall provide or
make arrangements for adequate safe deposit facilities for the preservation of such assets
subject to the direction of the Committee, and shall receive all contributions made to the Plan and
provide for all transfers of cash and money necessary for investment of the Trust; provided,
however, the payment of any money to Participants, beneficiaries, or for the expenses of the Plan
shall be payable only upon the direction of the Trustee and all deposit and withdrawal
agreements with outside financial institutions handling Plan assets shall require that Plan assets
and moneys may be withdrawn only upon the direction of the Trustee. The Trustee shall keep
and maintain adequate records of the investments of the Trust and shall be responsible for
maintaining the Participant Accounts. The Trustee shall, to the extent required by the Employer,
furnish a surety bond payable to the Plan and /or Employer in such amount as may be acceptable
to the Employer insuring the Trustee's duties and responsibilities hereunder. The cost of any
such bond shall be paid by the Employer.
In addition to the preceding provisions of this Section 9.02, the Trustee shall have the following
powers, rights, and duties:
22
(a) To apply for and invest all or any part of the asset of the Trust in Contracts or other
investment options offered by a Vendor selected by the Employer or, if delegated
such duty by the Employer, the Committee, and to purchase or subscribe for any
securities or other property and to retain the same in trust.
(b) To sell, exchange, convey, transfer 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.
(c) To vote 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; 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 held as part of the Trust fund.
(d) To cause any securities, Contracts, or other property held as part of the Trust
Fund, to be registered in the name of the Trustee or in the name of the Trustee's
nominee.
(e) To borrow or raise money for the purpose of the Trust in such amount, and upon
such terms and conditions as the Trustee shall deem advisable; for any sums so
borrowed, to issue its promissory note as Trustee; 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 loaned or to inquire
into the validity, expediency or propriety of any such borrowing.
(f) To make, execute, acknowledge and deliver any and all deeds, assignments,
conveyances, and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted.
(g) To settle, compromise, abandon, or submit to arbitration, any claims, debts, or
damages due or owing to, or from, the Trust fund; to commence or defend suits or
legal or administrative proceedings; and to represent the Trust fund in all suits,
legal and administrative proceedings.
(h) To employ suitable agents and counsel (who may be counsel to the Employer),
and pay their reasonable expenses and compensation.
(1) To make, or cause to be made, proper application for any Contracts to be
purchased as herein provided, to purchase such Contracts, to hold all such
Contracts in trust pursuant to the terms of this Trust.
Q) With respect to the Contracts held for the benefit of Participants hereunder, to sell
or assign such Contracts, to receive all dividends thereon, to surrender such
Contracts for cash, to change and successively change the Beneficiary or
Beneficiaries named in such Contracts, to designate methods of payment and
distribution or settlement of the proceeds and values thereof, to convert Contracts
from one form to another, and otherwise to exercise all the rights and privileges of
ownership of such Contracts.
23
(k) To do all such acts, take all such proceedings, and exercise all such rights and privileges,
although not specifically mentioned herein, as the Trustee may deem necessary to
administer the Trust fund and to carry out the purposes of this Trust.
9.03 TRUSTEE FEES AND EXPENSES TO BE PAID FROM TRUST FUND. The Trustee will receive
reasonable annual compensation as may be agreed upon from time to time between the
Employer and the Trustee. No person who is receiving full pay from the Employer may receive
compensation for services as Trustee. The Trustee may pay from the Trust fund all fees and
expenses reasonably incurred by the Plan, to the extent such fees and expenses are for the
ordinary and necessary administration and operation of the Plan, unless the Employer pays the
fees and expenses. Any fee or expense paid, directly or indirectly, by the Employer is not an
Employer contribution to the Plan, provided the fee or expense relates to the ordinary and
necessary administration of the Trust fund.
9.04 TAXES AND EXPENSES. All expenses of the Trust, other than the direct transaction and
investment expenses which are charged against the Participant Accounts pursuant to Section
6.04, shall be paid from the assets of the Trust unless otherwise paid by the Employer. All taxes
of any kind or description which may be assessed against or in respect of the Trust fund shall be
paid from the Trust. All such expenses and taxes payable by the Trust shall be proportionately
charged and assessed against the Accounts of the Participants.
9.05 PAYMENT OF BENEFITS. Benefits from the Plan may be made by the Trustee or by a Vendor
at the direction of the Employer. The Trustee shall not be liable with respect to any distribution of
Trust assets made at the direction of the Employer.
9.06 RECORDS AND STATEMENTS. The Trustee, or its designee (including, if applicable, the
Custodian), shall maintain accurate records of all receipts, investments, disbursements, and other
transactions on behalf of the Plan and Trust performed in its capacity as Trustee. The Trustee's
records shall be open to inspection at any time by the Committee and the Employer. The Trustee
shall furnish to the Employer or, if applicable, the Custodian, on a timely basis all information and
records necessary for the preparation by the Employer of all reports, returns and information
required under the Code or any other laws applicable to the Plan. The Trustee shall have no
further duty to account or report to the Employer, the Participants or any other person except as
may be specifically required by law.
9.07 PARTIES TO LITIGATION. Unless otherwise required by law, no Participant or Beneficiary is a
necessary party or is required to receive notice of process in any court proceeding involving the
Plan, the Trust or any fiduciary of the Plan. Any final judgment entered in any proceeding will be
conclusive upon the Employer, the Plan Administrator, the Committee, the Trustee, and the
Participants and Beneficiaries.
9.08 PROFESSIONAL AGENTS. The Trustee may employ and pay from the Trust fund reasonable
compensation to agents, attorneys, accountants and other persons to advise the Trustee as in its
opinion may be necessary. The Trustee may delegate to any agent, attorney, accountant or
other person selected by it any non - Trustee power or duty vested in it by the Plan, and the
Trustee may act or refrain from acting on the advice or opinion of any agent, attorney,
accountant, or other person so selected.
9.09 THIRD PARTY /MULTIPLE TRUSTEES. No person dealing with the Trustee is obligated to see
to the proper application of any money paid or property delivered to the Trustee, or to inquire
whether the Trustee has acted pursuant to any of the terms of the Plan. Each person dealing
with the Trustee may act upon any notice, request or representation in writing by the Trustee, or
by the Trustee's duly authorized agent, and is not liable to any person in so acting. The
certificate of the Trustee that it is acting in accordance with the Plan will be conclusive in favor of
any person relying on the certificate. If more than two persons act as Trustee, a decision of the
majority of such persons controls with respect to any decision regarding the administration or
24
investment of the Trust, or any portion of the Trust fund with respect to which such persons act as
Trustee. However, the signature of only one Trustee is necessary to effect any transaction on
behalf of the Trust.
9.10 RESIGNATION /REMOVAL OF TRUSTEE.
(a) The Trustee may resign at any time by written notice to Employer, which shall be
effective thirty (30) days after receipt of such notice unless Employer and Trustee agree
otherwise. The Trustee may be removed by Employer on thirty (30) days' notice or upon
shorter notice accepted by Trustee.
(b) If the Trustee resigns or is removed, the Employer shall appoint a third party, such as a
bank trust department or other party that may be granted trustee powers under state law,
as a successor to replace Trustee upon resignation or removal. The appointment shall
be effective when accepted in writing by the new Trustee, who shall have all of the rights
and powers of the former Trustee.
9.11 INTERIM DUTIES AND SUCCESSOR TRUSTEE. Each successor Trustee succeeds to the title
to the Trust vested in its predecessor by accepting in writing its appointment as successor
Trustee and filing the acceptance with the former Trustee and the Committee without the signing
or filing of any further statement. The resigning or removed Trustee, upon receipt of acceptance
in writing of the Trust by the successor Trustee, must execute all documents and do all acts
necessary to vest the title of record in any successor Trustee. Each successor Trustee has and
enjoys all of the powers, both discretionary and ministerial, conferred under this Agreement upon
his predecessor. A successor Trustee is not personally liable for any act or failure to act of any
predecessor Trustee. With the approval of the Employer and the Committee, a successor
Trustee, with respect to the Plan, may accept the account rendered and the property delivered to
it by a predecessor Trustee without incurring any liability or responsibility for so doing.
The successor Trustee need not examine the records and acts of any prior Trustee and the
successor Trustee shall not be responsible for, and Employer shall indemnify and defend the
successor Trustee from, any claim or liability resulting from any action or inaction of any prior
Trustee or from any other past event, or any condition existing at the time it becomes successor
Trustee.
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IN WITNESS WHEREOF, the City of Blair, Nebraska, as the Employer, and the Trustee have
caused this amended and restated plan document for the City of Blair, Nebraska Employees Retirement
Plan to be executed by its duly authorized officer(s) this day of , 2008,
effective July 1, 2008.
CITY OF BLAIR, NEBRASKA, Employer
By:
DELAWARE CHARTER GUARANTEE AND TRUST
COMPANY, Trustee
By:
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Printed Name Title
Printed Name Title