HomeMy WebLinkAbout20082133.tiff RESOLUTION
RE: APPROVE RESTATEMENT OF THE WELD COUNTY 401(k) SAVINGS PLAN AND
AUTHORIZE CHAIR TO SIGN
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Restatement of the Weld County 401(k)
Savings Plan for the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the Department of Finance and Administration,
commencing January 1, 2008, with further terms and conditions being as stated in said plan, and
WHEREAS,after review,the Board deems it advisable to approve said restatement of plan,
a copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Restatement of the Weld County 401(k) Savings Plan for the County
of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,
on behalf of the Department of Finance and Administration, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said restatement of plan.
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the 6th day of August, A.D., 2008.
BOARD OF COUNTY COMMISSIONERS
\v WELD COUNTY, COLORADO
ATTEST: LM
2 �
1Sei W 'am . Jerke, Chair
Weld County Clerk to th o `' ' \h,e
N: 0tc' Robert Q. Masd)en, Pro-Tem
BY:
Deputy Clerk o the Board
WiIILam F. Garcia
APP OVC�.AS TO FOR Ci7 < \ C'j
i
David E. Long -`
ounty Attorney *sir
/ae/Od) ougl Radem her
Date of signature:
2008-2133
PE0010
WELD COUNTY
401 (k) SAVINGS PLAN
401(k) Plan CL2007
Restated January 1, 2008
2008-2133
TABLE OF CONTENTS
INTRODUCTION
ARTICLE I FORMAT AND DEFINITIONS
Section 1.01 Format
Section 1.02 Definitions
ARTICLE II PARTICIPATION
Section 2.01 Active Participant
Section 2.02 Inactive Participant
Section 2.03 Cessation of Participation
ARTICLE III CONTRIBUTIONS
Section 3.01 Employer Contributions
Section 3.01A Voluntary Contributions by Participants
Section 3.01 B Rollover Contributions
Section 3.02 Allocation
Section 3.03 Contribution Limitation
Section 3.04 Excess Amounts
ARTICLE IV INVESTMENT OF CONTRIBUTIONS
Section 4.01 Investment of Contributions
ARTICLE V BENEFITS
Section 5.01 Retirement Benefits
Section 5.02 Death Benefits
Section 5.03 Vested Benefits
Section 5.04 When Benefits Start
Section 5.05 Withdrawal Benefits
ARTICLE VI DISTRIBUTION OF BENEFITS
Section 6.01 Automatic Forms of Distribution
Section 6.02 Optional Forms of Distribution
Section 6.03 Election Procedures
RESTATEMENT JANUARY 1, 2008 i TABLE OF CONTENTS (66947)
ARTICLE VII REQUIRED MINIMUM DISTRIBUTIONS
Section 7.01 Application
Section 7.02 Definitions
Section 7.03 Required Minimum Distributions
Section 7.04 Transitional Rules
ARTICLE VIII TERMINATION OF THE PLAN
ARTICLE IX ADMINISTRATION OF THE PLAN
Section 9.01 Administration
Section 9.02 Expenses
Section 9.03 Records
Section 9.04 Delegation of Authority
Section 9.05 Exercise of Discretionary Authority
Section 9.06 Transaction Processing
ARTICLE X GENERAL PROVISIONS
Section 10.01 Amendments
Section 10.02 Direct Rollovers
Section 10.03 Provisions Relating to the Insurer
Section 10.04 Employment Status
Section 10.05 Rights to Plan Assets
Section 10.06 Beneficiary
Section 10.07 Construction
Section 10.08 Legal Actions
Section 10.09 Small Amounts
Section 10.10 Word Usage
Section 10.11 Military Service
PLAN EXECUTION
RESTATEMENT JANUARY 1, 2008 ii TABLE OF CONTENTS (66947)
INTRODUCTION
The Employer previously established a 401(k) savings plan on January 1, 1985.
The Employer is of the opinion that the plan should be changed. It believes that the best means to
accomplish these changes is to completely restate the plan's terms, provisions and conditions. The
restatement, effective January 1, 2008, is set forth in this document and is substituted in lieu of the prior
document with the exception of any good faith compliance amendment and any model amendment. Such
amendment(s) shall continue to apply to this restated plan until such provisions are integrated into the plan or
such amendment(s) are superseded by another amendment.
The restated plan continues to be for the exclusive benefit of employees of the Employer. All persons
covered under the plan on December 31, 2007, shall continue to be covered under the restated plan with no
loss of benefits.
It is intended that the plan, as restated, shall qualify as a governmental profit sharing plan under the
Internal Revenue Code of 1986, including any later amendments to the Code.
This plan includes the statutory, regulatory, and guidance changes specified in the 2007 Cumulative List
of Changes in Plan Qualification Requirements (2007 Cumulative List) contained in Internal Revenue Service
Notice 2007-94 and the qualification requirements and guidance published before the issuance of such list.
The provisions of this plan apply as of the effective date of the restatement unless otherwise specified.
RESTATEMENT JANUARY 1, 2008 1 INTRODUCTION (66947)
ARTICLE I
FORMAT AND DEFINITIONS
SECTION 1.01--FORMAT.
Words and phrases defined in the DEFINITIONS SECTION of Article I shall have that defined meaning
when used in this Plan, unless the context clearly indicates otherwise.
These words and phrases have an initial capital letter to aid in identifying them as defined terms.
SECTION 1.02--DEFINITIONS.
Account means, for a Participant, his share of the Plan Fund. Separate accounting records are kept for
those parts of his Account that result from:
(a) Voluntary Contributions
(b) Pre-tax Elective Deferral Contributions
(c) Rollover Contributions
A Participant's Account shall be reduced by any distribution of his Vested Account. A Participant's
Account shall participate in the earnings credited, expenses charged, and any appreciation or
depreciation of the Investment Fund. His Account is subject to any minimum guarantees applicable
under the Annuity Contract and to any expenses associated therewith.
Active Participant means an Eligible Employee who is actively participating in the Plan according to the
provisions in the ACTIVE PARTICIPANT SECTION of Article II.
Affiliated Service Group means any group of corporations, partnerships or other organizations of which
the Employer is a part and which is affiliated within the meaning of Code Section 414(m) and the
regulations thereunder. Such a group includes at least two organizations one of which is either a service
organization (that is, an organization the principal business of which is performing services), or an
organization the principal business of which is performing management functions on a regular and
continuing basis. Such service is of a type historically performed by employees. In the case of a
management organization, the Affiliated Service Group shall include organizations related, within the
meaning of Code Section 144(a)(3), to either the management organization or the organization for which
it performs management functions. The term Controlled Group, as it is used in this Plan, shall include
the term Affiliated Service Group.
Alternate Payee means any spouse, former spouse, child, or other dependent of a Participant who is
recognized by a qualified domestic relations order as having a right to receive all, or a portion of, the
benefits payable under the Plan with respect to such Participant.
RESTATEMENT JANUARY 1, 2008 2 ARTICLE I (66947)
Annuity Contract means the annuity contract or contracts into which the Employer enters with the
Insurer for guaranteed benefits, for the investment of Contributions in separate accounts, and for the
payment of benefits under this Plan.
Annuity Starting Date means, for a Participant, the first day of the first period for which an amount is
payable as an annuity or any other form.
Beneficiary means the person or persons named by a Participant to receive any benefits under the Plan
when the Participant dies. See the BENEFICIARY SECTION of Article X.
Catch-up Contributions means Elective Deferral Contributions made to the Plan that are in excess of an
otherwise applicable Plan limit and that are made by Participants who are age 50 or older by the end of
the taxable year. An otherwise applicable Plan limit is a limit in the Plan that applies to Elective Deferral
Contributions without regard to Catch-up Contributions, such as the limits on the Maximum Annual
Additions, as defined in the CONTRIBUTION LIMITATION SECTION of Article III, and the dollar limitation
on Elective Deferral Contributions under Code Section 402(g) (not counting Catch-up Contributions).
Catch-up Contributions are not subject to the limits on the Maximum Annual Additions, as defined in the
CONTRIBUTION LIMITATION SECTION of Article III.
Code means the Internal Revenue Code of 1986, as amended.
Compensation means, except for purposes of the CONTRIBUTION LIMITATION SECTION of Article III,
the total earnings, except as modified in this definition, paid or made available to an Employee by the
Employer during any specified period.
"Earnings" in this definition means wages, salaries, and fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash) for personal services actually
rendered in the course of employment with the Employer maintaining the Plan to the extent that the
amounts are includible in gross income (including, but not limited to, commissions paid to salespersons,
compensation for services on the basis of a percentage of profits, commissions on insurance premiums,
tips, bonuses, fringe benefits, and reimbursements or other expense allowances under a nonaccountable
plan (as described in section 1.62-2(c) of the regulations)), and excluding the following:
(a) employer contributions (other than elective contributions described in Code Section 402(e)(3),
408(k)16), 408(p)(2)(A)(i), or 457(W) to a plan of deferred compensation (including a simplified
employee pension described in Code Section 408(k) or a simple retirement account described in
Code Section 408(p), and whether or not qualified) to the extent such contributions are not
includible in the Employee's gross income for the taxable year in which contributed, and any
distributions (whether or not includible in gross income when distributed) from a plan of deferred
compensation (whether or not qualified);
(b) amounts realized from the exercise of a nonstatutory stock option (that is, an option other than a
statutory stock option as defined in section 1.421-1(b) of the regulations), or when restricted
stock (or property) held by the Employee either becomes freely transferable or is no longer subject
to a substantial risk of forfeiture;
RESTATEMENT JANUARY 1, 2008 3 ARTICLE I (66947)
(c) amounts realized from the sale, exchange or other disposition of stock acquired under a statutory
stock option;
(d) other amounts that receive special tax benefits, such as premiums for group-term life insurance
(but only to the extent that the premiums are not includible in the gross income of the Employee
and are not salary reduction amounts that are described in Code Section 125); and
(e) other items of remuneration that are similar to any of the items listed in (a) through (d) above.
Except as provided herein, Compensation for a specified period is the Compensation actually paid or
made available (or if earlier, includible in gross income) during such period.
For Plan Years beginning on or after July 1, 2007, Compensation for a Plan Year shall also include
Compensation paid by the later of 2 1/2 months after an Employee's Severance from Employment with
the Employer maintaining the Plan or the end of the Plan Year that includes the date of the Employee's
Severance from Employment with the Employer maintaining the Plan, if the payment is regular
Compensation for services during the Employee's regular working hours, or Compensation for services
outside the Employee's regular working hours (such as overtime or shift differential), commissions,
bonuses, or other similar payments, and, absent a Severance from Employment, the payments would
have been paid to the Employee while the Employee continued in employment with the Employer.
Any payments not described above shall not be considered Compensation if paid after Severance from
Employment, even if they are paid by the later of 2 1/2 months after the date of Severance from
Employment or the end of the Plan Year that includes the date of Severance from Employment, except,
payments to an individual who does not currently perform services for the Employer by reason of
qualified military service (within the meaning of Code Section 414(u)(1)) to the extent these payments
do not exceed the amounts the individual would have received if the individual had continued to perform
services for the Employer rather than entering qualified military service.
Back pay, within the meaning of section 1.415(c)-2(g)(8) of the regulations, shall be treated as
Compensation for the Plan Year to which the back pay relates to the extent the back pay represents
wages and compensation that would otherwise be included in this definition.
Compensation paid or made available during a specified period shall include amounts that would
otherwise be included in Compensation but for an election under Code Section 125(a), 132(f)(4),
402(e)(3), 402(h)(1)(B), 402(k), or 457(b). Compensation shall also include employee contributions
"picked up" by a governmental entity and, pursuant to Code Section 414(h)(2), treated as Employer
contributions.
For years beginning after January 1, 2002, the annual Compensation of each Participant taken into
account in determining contributions and allocations for any determination period (the period over which
Compensation is determined) shall not exceed $200,000, as adjusted for cost-of-living increases in
accordance with Code Section 401(a)(17116). The cost of living adjustment in effect for a calendar year
applies to any determination period beginning with or within such calendar year.
Provided, however, with respect to an eligible Participant, the reduced dollar limitation in the preceding
paragraph does not apply to the extent that the amount of Compensation allowed to be taken into
account under the Plan is reduced below the amount that was allowed to be taken into account under
RESTATEMENT JANUARY 1, 2008 4 ARTICLE I (66947)
the Plan as in effect on July 1. 1993. For this purpose, "eligible Participant" means an individual who
first became a Participant in the Plan during a Plan Year beginning before the first Yearly Date in 1996.
If a determination period consists of fewer than 12 months, the annual compensation limit is an amount
equal to the otherwise applicable annual compensation limit multiplied by a fraction. The numerator of
the fraction is the number of months in the short determination period, and the denominator of the
fraction is 12.
If Compensation for any prior determination period is taken into account in determining a Participant's
contributions or allocations for the current Plan Year, the Compensation for such prior determination
period is subject to the applicable annual compensation limit in effect for that determination period. For
this purpose, in determining contributions and allocations in Plan Years beginning on or after January 1,
2002, the annual compensation limit in effect for determination periods beginning before that date is
$200,000.
Compensation means, for a Leased Employee, Compensation for the services the Leased Employee
performs for the Employer, determined in the same manner as the Compensation of Employees who are
not Leased Employees, regardless of whether such Compensation is received directly from the Employer
or from the leasing organization.
Contingent Annuitant means an individual named by the Participant to receive a lifetime benefit after the
Participant's death in accordance with a survivorship life annuity.
Contributions means Employer Contributions, Participant Contributions, and Rollover Contributions as set
out in Article III, unless the context clearly indicates only specific contributions are meant.
Controlled Group means any group of corporations, trades, or businesses of which the Employer is a part
that are under common control. A Controlled Group includes any group of corporations, trades, or
businesses, whether or not incorporated, which is either a parent-subsidiary group, a brother-sister
group, or a combined group within the meaning of Code Section 414(b), Code Section 414(c) and the
regulations thereunder and, for purposes of determining contribution limitations under the
CONTRIBUTION LIMITATION SECTION of Article III, as modified by Code Section 415(h). The term
Controlled Group, as it is used in this Plan, shall include the term Affiliated Service Group and any other
employer required to be aggregated with the Employer under Code Section 414(o) and the regulations
thereunder.
Direct Rollover means a payment by the Plan to the Eligible Retirement Plan specified by the Distributee.
Distributee means an Employee or former Employee. In addition, the Employee's (or former Employee's)
surviving spouse and the Employee's (or former Employee's) spouse or former spouse who is the
Alternate Payee under a qualified domestic relations order, as defined in Code Section 414(p), are
Distributees with regard to the interest of the spouse or former spouse.
Elective Deferral Contributions means contributions made by the Employer to fund this Plan in
accordance with elective deferral agreements between Eligible Employees and the Employer.
Elective deferral agreements shall be made, changed, or terminated according to the provisions of the
EMPLOYER CONTRIBUTIONS SECTION of Article III,
RESTATEMENT JANUARY 1, 2008 5 ARTICLE I (66947)
Elective Deferral Contributions shall be 100% vested and subject to the distribution restrictions of Code
Section 401(k) when made. See the WHEN BENEFITS START SECTION of Article V.
Elective Deferral Contributions means Pre-tax Elective Deferral Contributions.
Eligibility Service means an Employee's period of service. Eligibility Service shall be determined on the
basis of 30 days equal one month.
However, Eligibility Service is modified as follows:
Period of Military Duty included:
A Period of Military Duty shall be included as service with the Employer to the extent it has not
already been credited.
Eligible Employee means any Employee of the Employer.
Eligible Retirement Plan means an eligible plan under Code Section 457(6) 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,
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), an annuity contract
described in Code Section 403(b), or a qualified plan described in Code Section 401(a), that accepts the
Distributee's Eligible Rollover Distribution. The definition of Eligible Retirement Plan shall also apply in
the case of a distribution to a surviving spouse, or to a spouse or former spouse who is the Alternate
Payee under a qualified domestic relations order, as defined in Code Section 414(p).
For taxable years beginning on or after January 1, 2006, if any portion of an Eligible Rollover Distribution
is attributable to payments or distributions from a designated Roth account, an Eligible Retirement Plan
with respect to such portion shall include only (i) another designated Roth account of the individual from
whose Account the payments or distributions were made under an annuity plan described in Code
Section 403(a) or a qualified plan described in Code Section 401(a); (ii) another designated Roth account
of such individual under an annuity plan described in Code Section 403(b); or (iii) a Roth IRA described in
Code Section 408A of such individual.
Eligible Rollover Distribution means any distribution of all or any portion of the balance to the credit of
the Distributee, except that an Eligible Rollover Distribution does not include: (i) any distribution that is
one of a series of substantially equal periodic payments (not less frequently than annually) made for the
life (or life expectancy) of the Distributee or the joint lives (or joint life expectancies) of the Distributee
and the Distributee's designated Beneficiary, or for a specified period of ten years or more; (ii) any
distribution to the extent such distribution is required under Code Section 401(a)(9); (iii) any hardship
distribution; (iv) the portion of any other distribution(s) that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to employer securities); and
(v) any other distribution(s) that is reasonably expected to total less than $200 during a year.
A portion of a distribution shall not fail to be an Eligible Rollover Distribution merely because the portion
consists of after-tax employee contributions that are not includible in gross income. However, such
RESTATEMENT JANUARY 1, 2008 6 ARTICLE I (66947)
portion may be transferred only to an individual retirement account or individual retirement annuity
described in Code Section 408(a) or (b), or to a qualified defined contribution plan described in Code
Section 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.
A portion of a distribution shall not fail to be an Eligible Rollover Distribution merely because the portion
consists of the portion of a designated Roth account that is not includible in a Participant's gross
income. However, for taxable years beginning on or after January 1, 2006, such portion may be
transferred only to a Roth IRA described in Code Section 408A or to a designated Roth account under
another plan- 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.
If the distribution includes any portion of a designated Roth account, in determining if (v) above applies:
(i) any portion of the distribution from the designated Roth account shall not be treated as an Eligible
Rollover Distribution if it is reasonably expected to total less than $200 during a year and (ii) the balance
of the distribution, if any, shall not be treated as an Eligible Rollover Distribution if it is reasonably
expected to total less than $200 during a year. In addition, for taxable years beginning on or after
January 1, 2006, a designated Roth account and all other accounts under the Ran shall be treated as
accounts held under two separate plans and shall not be combined in determining a mandatory
distribution of an Eligible Rollover Distribution greater than $1,000 in the DIRECT ROLLOVERS SECTION
of Article X.
Employee means an individual who is employed by the Employer or any other employer required to be
aggregated with the Employer under Code Sections 414(b), (c), (m), or (o). A Controlled Group member
is required to be aggregated with the Employer.
The term Employee shall also include any Leased Employee deemed to be an employee of any employer
described in the preceding paragraph as provided in Code Section 414(n) or (o).
Employer means, except for purposes of the CONTRIBUTION LIMITATION SECTION of Article III, Weld
County.
Employer Contributions means Elective Deferral Contributions as set out in Article III.
Employment Commencement Date means the date an Employee first performs an hour of service.
Entry Date means the date an Employee first enters the Plan as an Active Participant. See the ACTIVE
PARTICIPANT SECTION of Article II.
Fiscal Year means the Employer's accounting year. The last day of the Fiscal Year is December 31.
Inactive Participant means a former Active Participant who has an Account. See the INACTIVE
PARTICIPANT SECTION of Article II.
Insurer means Principal Life Insurance Company or the insurance company or companies named by the
Employer.
RESTATEMENT JANUARY 1, 2008 7 ARTICLE I (66947)
Investment Fund means the total of Plan assets, excluding the guaranteed benefit policy portion of any
Annuity Contract.
The Investment Fund shall be valued at current fair market value as of the Valuation Date. The valuation
shall take into consideration investment earnings credited, expenses charged, payments made, and
changes in the values of the assets held in the Investment Fund.
The Investment Fund shall be allocated at all times to Participants, except as otherwise expressly
provided in the Plan. The Account of a Participant shall be credited with its share of the gains and
losses of the Investment Fund. That part of a Participant's Account invested in a funding arrangement
that establishes one or more accounts or investment vehicles for such Participant thereunder shall be
credited with the gain or loss from such accounts or investment vehicles. The part of a Participant's
Account that is invested in other funding arrangements shall be credited with a proportionate share of
the gain or loss of such investments. The share shall be determined by multiplying the gain or loss of
the investment by the ratio of the part of the Participant's Account invested in such funding
arrangement to the total of the Investment Fund invested in such funding arrangement.
Investment Manager means any fiduciary (other than a trustee)
(a) who has the power to manage, acquire, or dispose of any assets of the Plan;
(b) who (i) is registered as an investment adviser under the Investment Advisers Act of 1940; (ii) is
not registered as an investment adviser under such Act by reason of paragraph (1) of section
203A(a) of such Act, is registered as an investment adviser under the laws of the state (referred
to in such paragraph (1)) in which it maintains its principal office and place of business, and, at
the time it last filed the registration form most recently filed by it with such state in order to
maintain its registration under the laws of such state, also filed a copy of such form with the
Secretary of Labor, (iii) is a bank, as defined in that Act; or (iv) is an insurance company qualified
to perform services described in subparagraph (a) above under the laws of more than one state;
and
(c) who has acknowledged in writing being a fiduciary with respect to the Plan.
Late Retirement Date means the first day of any month that is after a Participant's Normal Retirement
Date and on which retirement benefits begin. If a Participant continues to work for the Employer after
his Normal Retirement Date, his Late Retirement Date shall be the earliest first day of the month on or
after the date he has a Severance from Employment. An earlier Retirement Date may apply if the
Participant so elects. A later Retirement Date may apply if the Participant so elects. See the WHEN
BENEFITS START SECTION of Article V.
Leased Employee means any person (other than an employee of the recipient) who, pursuant to an
agreement between the recipient and any other person ("leasing organization"), has performed services
for the recipient (or for the recipient and related persons determined in accordance with Code Section
414(n)(6)) on a substantially full time basis for a period of at least one year, and such services are
performed under primary direction or control by the recipient. Contributions or benefits provided by the
leasing organization to a Leased Employee, which are attributable to service performed for the recipient
employer, shall be treated as provided by the recipient employer.
RESTATEMENT JANUARY 1, 2008 8 ARTICLE I (66947)
A Leased Employee shall not be considered an employee of the recipient if:
(a) such employee is covered by a money purchase pension plan providing (i) a nonintegrated
employer contribution rate of at least 10 percent of compensation, as defined in Code Section
415(c)(3), (ii) immediate participation, and (iii) full and immediate vesting, and
(b) Leased Employees do not constitute more than 20 percent of the recipient's nonhighly
compensated work force.
Monthly Date means each Yearly Date and the same day of each following month during the Plan Year
beginning on such Yearly Date.
Normal Form means a single life annuity with installment refund.
Normal Retirement Date means the earliest first day of the month on or after the date the Participant
reaches his 65th birthday. Unless otherwise provided in this Plan, a Participant's retirement benefits
shall begin on his Normal Retirement Date if he has had a Severance from Employment on such date and
has a Vested Account. Even if the Participant is an Employee on his Normal Retirement Date, he may
choose to have his retirement benefit begin on such date.
Participant means either an Active Participant or an Inactive Participant.
Participant Contributions means Voluntary Contributions as set out in Article III.
Period of Military Duty means, for an Employee
(a) who served as a member of the armed forces of the United States, and
(b) who was reemployed by the Employer at a time when the Employee had a right to reemployment
in accordance with seniority rights as protected under Chapter 43 of Title 38 of the U.S. Code,
the period of time from the date the Employee was first absent from active work for the Employer
because of such military duty to the date the Employee was reemployed.
Plan means the 401(k) savings plan of the Employer set forth in this document, including any later
amendments to it.
Plan Administrator means the person or persons who administer the Plan.
The Plan Administrator is the Employer.
Plan Fund means the total of the Investment Fund and the guaranteed benefit policy portion of any
Annuity Contract. The Investment Fund shall be valued as stated in its definition. The guaranteed
benefit policy portion of any Annuity Contract shall be determined in accordance with the terms of the
Annuity Contract and, to the extent that such Annuity Contract allocates contract values to Participants,
allocated to Participants in accordance with its terms. The total value of all amounts held under the Plan
Fund shall equal the value of the aggregate Participants' Accounts under the Plan.
RESTATEMENT JANUARY 1, 2008 9 ARTICLE I (66947)
•
Plan Year means a period beginning on a Yearly Date and ending on the day before the next Yearly Date.
Pre-tax Elective Deferral Contributions means a Participant's Elective Deferral Contributions that are not
includible in the Participant's gross income at the time deferred.
Reentry Date means the date a former Active Participant reenters the Plan. See the ACTIVE
PARTICIPANT SECTION of Article II.
Retirement Date means the date a retirement benefit will begin and is a Participant's Normal or Late
Retirement Date, as the case may be.
Rollover Contributions means the Rollover Contributions which are made by an Eligible Employee or an
Inactive Participant according to the provisions of the ROLLOVER CONTRIBUTIONS SECTION of
Article III.
Severance from Employment means, except for purposes of the CONTRIBUTION LIMITATION SECTION
of Article III, an Employee has ceased to be an Employee. The Plan Administrator shall determine if a
Severance from Employment has occurred in accordance with section 1.401(k)-1 (d)(2) of the
regulations.
Social Security Retirement Age means age 65 in the case of a Participant attaining age 62 before
January 1, 2000 (i.e. born before January 1, 1938), age 66 for a Participant attaining age 62 after
December 31, 1999 and before January 1, 2017 (i.e., born after December 31, 1937, but before
January 1, 1955), and age 67 for a Participant attaining age 62 after December 31, 2016 (i.e., born
after December 31, 1954).
Valuation Date means the date on which the value of the assets of the Investment Fund is determined.
The value of each Account that is maintained under this Plan shall be determined on the Valuation Date.
In each Plan Year, the Valuation Date shall be the last day of the Plan Year. At the discretion of the Plan
Administrator or Insurer (whichever applies) and in a nondiscriminatory manner, assets of the Investment
Fund may be valued more frequently. These dates shall also be Valuation Dates.
Vested Account means the vested part of a Participant's Account. The Participant's Vested Account is
equal to his Account.
Voluntary Contributions means contributions by a Participant that are 100% vested when made to the
Plan and are not required as a condition of employment or participation. See the VOLUNTARY
CONTRIBUTIONS BY PARTICIPANTS SECTION of Article III.
Yearly Date means January 1, 1985, and the same day of each following year.
RESTATEMENT JANUARY 1, 2008 10 ARTICLE I (66947)
ARTICLE II
PARTICIPATION
SECTION 2.01--ACTIVE PARTICIPANT.
(a) An Employee shall first become an Active Participant (begin active participation in the Plan) on the
earliest date on which he is an Eligible Employee and has met the eligibility requirement set forth
below. This date is his Entry Date.
(1) He has completed six months of Eligibility Service before his Entry Date.
Each Employee who was an Active Participant on December 31, 2007, shall continue to be an
Active Participant if he is still an Eligible Employee on January 1, 2008, and his Entry Date shall
not change.
(b) An Inactive Participant shall again become an Active Participant (resume active participation in the
Plan) on the date he again becomes an Eligible Employee. This date is his Reentry Date.
Upon again becoming an Active Participant, he shall cease to be an Inactive Participant.
(c) A former Participant shall again become an Active Participant (resume active participation in the
Plan) on the date he again becomes an Eligible Employee. This date is his Reentry Date.
There shall be no duplication of benefits for a Participant because of more than one period as an Active
Participant.
SECTION 2.02--INACTIVE PARTICIPANT.
An Active Participant shall become an Inactive Participant (stop accruing benefits) on the earlier of the
following:
(a) the date he ceases to be an Eligible Employee, or
(b) the effective date of complete termination of the Plan under Article VIII.
An Employee or former Employee who was an Inactive Participant on December 31, 2007, shall
continue to be an Inactive Participant on January 1, 2008. Eligibility for any benefits payable to the Participant
or on his behalf and the amount of the benefits shall be determined according to the provisions of the prior
document, unless otherwise stated in this document or any subsequent documents.
SECTION 2.03--CESSATION OF PARTICIPATION.
A Participant shall cease to be a Participant on the date he is no longer an Eligible Employee and his
Account is zero.
RESTATEMENT JANUARY 1 , 2008 11 ARTICLE III (66947)
ARTICLE II!
CONTRIBUTIONS •
SECTION 3.01--EMPLOYER CONTRIBUTIONS.
Employer Contributions shall be made without regard to excess revenues (excess of receipts over
expenditures) of the Employer. Notwithstanding the foregoing, the Plan shall continue to be designed to
qualify as a profit sharing plan for purposes of Code Sections 401(a) and 402. Such Contributions shall be
equal to the Employer Contributions as described below:
(a) The amount of each Elective Deferral Contribution for a Participant shall be equal to a portion of
Compensation as specified in the elective deferral agreement. An Employee who is eligible to
participate in the Plan for purposes of Elective Deferral Contributions may file an elective deferral
agreement with the Employer. The Participant shall modify or terminate the elective deferral
agreement by filing a new elective deferral agreement. The elective deferral agreement may not
be made retroactively and shall remain in effect until modified or terminated.
The elective deferral agreement to start or modify Elective Deferral Contributions shall be effective
as soon as administratively feasible on or after the Participant's Entry Date (Reentry Date, if
applicable) or any following date. The elective deferral agreement must be entered into on or
before the date it is effective.
The elective deferral agreement to stop Elective Deferral Contributions may be entered into on any
date. Such elective deferral agreement shall be effective as soon as administratively feasible
following the date on which the elective deferral agreement is entered into.
A Participant who is age 50 or older by the end of the taxable year shall be eligible to make
Catch-up Contributions.
Elective Deferral Contributions are 100% vested and nonforfeitable.
No Participant shall be permitted to have Elective Deferral Contributions, as defined in the EXCESS
AMOUNTS SECTION of this article, made under this Plan, or any other plan, contract, or arrangement
maintained by the Employer, during any calendar year, in excess of the dollar limitation contained in Code
Section 402(g) in effect for the Participant's taxable year beginning in such calendar year. The dollar limitation
in the preceding sentence shall be increased by the dollar limit on Catch-up Contributions under Code Section
414(v)(2)(8)(i) for the taxable year for any Participant who will be age 50 or older by the end of the taxable
year.
The dollar limitation contained in Code Section 402(g) is $10,500 for taxable years beginning in 2000
and 2001, increasing to $11,000 for taxable years beginning in 2002, and increasing by $1,000 for each year
thereafter up to $15,000 for taxable years beginning in 2006 and later years. After 2006, the $15,000 limit
will be adjusted by the Secretary of the Treasury for cost-of-living increases under Code Section 402(g)(4(.
Any such adjustments will be in multiples of $500.
RESTATEMENT JANUARY 1, 2008 12 ARTICLE III (66947)
Catch-up Contributions for a Participant for a taxable year may not exceed the dollar limit on Catch-up
Contributions under Code Section 414(v)(2)(B)(i) for the taxable year. The dollar limit on Catch-up
Contributions under Code Section 414(v)(2)(B)(i) is $1,000 for taxable years beginning in 2002, increasing by
$1,000 for each year thereafter up to $5,000 for taxable years beginning in 2006 and later years. After 2006,
the $5,000 limit will be adjusted by the Secretary of the Treasury for cost-of-living increases under Code
Section 414(v)(2)(C). Any such adjustments will be in multiples of $500.
An elective deferral agreement (or change thereto) must be made in such manner and in accordance
with such rules as the Employer may prescribe in a nondiscriminatory manner (including by means of voice
response or other electronic system under circumstances the Employer permits) and may not be made
retroactively.
Employer Contributions are allocated according to the provisions of the ALLOCATION SECTION of this
article.
A portion of the Plan assets resulting from Employer Contributions (but not more than the original
amount of those Contributions) may be returned if the Employer Contributions are made because of a mistake
of fact. The amount involved must be returned to the Employer within one year after the date the Employer
Contributions are made by mistake of fact. Except as provided under this paragraph and in Article VIII, 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.
SECTION 3.01A--VOLUNTARY CONTRIBUTIONS BY PARTICIPANTS.
An Active Participant may make Voluntary Contributions in accordance with nondiscriminatory
procedures set up by the Plan Administrator.
A Participant's participation in the Plan is not affected by stopping or changing Voluntary Contributions.
An Active Participant's request to start, change or stop his Voluntary Contributions must be made in such
manner and in accordance with such rules as the Employer may prescribe (including by means of voice
response or other electronic system under circumstances the Employer permits).
Voluntary Contributions shall be credited to the Participant's Account when made.
The part of the Participant's Account resulting from Voluntary Contributions is 100% vested and
nonforfeitable at all times.
SECTION 3.01B--ROLLOVER CONTRIBUTIONS.
A Rollover Contribution may be made by an Eligible Employee or Inactive Participant if the following
conditions are met:
(a) The Contribution is a Participant Rollover Contribution or a direct rollover of a distribution made
after December 31, 2001 from the types of plans specified below,
Direct Rollovers. The Plan will accept a direct rollover of an Eligible Rollover Distribution from (i) a
qualified plan described in Code Section 401(a) or 403)a), including after-tax employee
RESTATEMENT JANUARY 1, 2008 13 ARTICLE III (66947)
contributions and excluding any portion of a designated Roth account; Iii) an annuity contract
described in Code Section 403(b), including after-tax employee contributions and excluding any
portion of a designated Roth account; and (Hi) 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.
Participant Rollover Contributions from Other Plans. The Plan will accept a Participant
contribution of an Eligible Rollover Distribution from (i) a qualified plan described in Code Section
401(a) or 403(a), excluding distributions of a designated Roth account; (ii) an annuity contract
described in Code Section 403(b), excluding distributions of a designated Roth account; and OH)
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.
Participant Rollover Contributions from IRAs. The Plan will accept a Participant Rollover
Contribution of the portion of a distribution from an individual retirement account or individual
retirement annuity described in Code Section 408(a) or (b) that is eligible to be rolled over and
would otherwise be includible in the Participant's gross income.
(b) The Contribution is of amounts that the Code permits to be transferred to a plan that meets the
requirements of Code Section 401(a).
(c) The Contribution is made in the form of a direct rollover under Code Section 401(a)(31) or is a
rollover made under Code Section 402(c) or 408(d)(3)(A) within 60 days after the Eligible
Employee or Inactive Participant receives the distribution.
(d) The Eligible Employee or Inactive Participant furnishes evidence satisfactory to the Plan
Administrator that the proposed rollover meets conditions (a), (b), and lc) above.
(e) In the case of an Inactive Participant, the Contribution must be of an amount distributed from
another plan of the Employer, or a plan of a Controlled Group member, that satisfies the
requirements of Code Section 401(a).
A Rollover Contribution shall be allowed in cash only and must be made according to procedures set up
by the Plan Administrator.
If the Eligible Employee is not an Active Participant when the Rollover Contribution is made, he shall be
deemed to be an Active Participant only for the purpose of investment and distribution of the Rollover
Contribution. Employer Contributions shall not be made for or allocated to the Eligible Employee and he may
not make Participant Contributions until the time he meets all of the requirements to become an Active
Participant.
Rollover Contributions made by an Eligible Employee or an Inactive Participant shall be credited to his
Account. The part of the Participant's Account resulting from Rollover Contributions is 100% vested and
nonforfeitable at all times. Separate accounting records shall be maintained for those parts of his Rollover
Contributions consisting of (i) voluntary contributions which were deducted from the Participant's gross income
for Federal income tax purposes and (H) after-tax employee contributions, including the portion that would not
have been includible in the Participant's gross income if the contributions were not rolled over into this Plan.
RESTATEMENT JANUARY 1, 2008 14 ARTICLE III (66947)
SECTION 3.02--ALLOCATION.
Elective Deferral Contributions shall be allocated to the Participants for whom such Contributions are
made under the EMPLOYER CONTRIBUTIONS SECTION of this article. Such Contributions shall be allocated
when made and credited to the Participant's Account.
If Leased Employees are Eligible Employees, in determining the amount of Employer Contributions
allocated to a person who is a Leased Employee, contributions provided by the leasing organization that are
attributable to services such Leased Employee performs for the Employer shall be treated as provided by the
Employer. Those contributions shall not be duplicated under this Plan.
SECTION 3.03--CONTRIBUTION LIMITATION.
Contributions to the Plan shall be limited in accordance with Code Section 415 and the regulations
thereunder. The limitations of this section shall apply to Limitation Years beginning on or after July 1, 2007,
except as otherwise provided herein.
la) Definitions. For the purpose of determining the contribution limitation set forth in this section, the
following terms are defined.
Annual Additions means the sum of the following amounts credited to a Participant's account for
the Limitation Year:
(1) employer contributions;
(2) employee contributions; and
(3) forfeitures.
Annual Additions to a defined contribution plan, as defined in section 1.415(c)-1(a)(2)(.0 of the
regulations, shall also include the following:
(4) mandatory employee contributions, as defined in Code Section 411(c)(2)(C) and section
1 .411(c)-1(c)(4) of the regulations, to a defined benefit plan;
(5) contributions allocated to any individual medical benefit account, as defined in Code
Section 41 510(2), which is part of a pension or annuity plan maintained by the Employer;
(6) amounts attributable to post-retirement medical benefits, allocated to the separate account
of a key employee, as defined in Code Section 419A(d)(3), under a welfare benefit fund, as
defined in Code Section 419(e), maintained by the Employer; and
(7) annual additions under an annuity contract described in Code Section 403(b).
Compensation means wages, salaries, and fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash) for personal services
actually rendered in the course of employment with the Employer maintaining the plan to the
extent that the amounts are includible in gross income (including, but not limited to, commissions
RESTATEMENT JANUARY 1, 2008 15 ARTICLE III (66947)
paid to salespersons. compensation for services on the basis of a percentage of profits.
commissions on insurance premiums, tips, bonuses, fringe benefits, and reimbursements or other
expense allowances under a nonaccountable plan (as described in section 1.62-2(c) of the
regulations)), and excluding the following:
(1) employer contributions (other than elective contributions described in Code Section
402(e)(3), 408(k)16), 408(p)(2)(A)li), or 457(W) to a plan of deferred compensation
(including a simplified employee pension described in Code Section 408(k) or a simple
retirement account described in Code Section 408(p), and whether or not qualified) to the
extent such contributions are not includible in the employee's gross income for the taxable
year in which contributed, and any distributions (whether or not includible in gross income
when distributed) from a plan of deferred compensation (whether or not qualified);
(2) amounts realized from the exercise of a nonstatutory stock option (that is, an option other
than a statutory stock option as defined in section 1.421-1(b) of the regulations), or when
restricted stock (or property) held by the employee either becomes freely transferable or is
no longer subject to a substantial risk of forfeiture;
(3) amounts realized from the sale, exchange or other disposition of stock acquired under a
statutory stock option;
(4) other amounts that receive special tax benefits, such as premiums for group-term life
insurance (but only to the extent that the premiums are not includible in the gross income
of the employee and are not salary reduction amounts that are described in Code Section
125); and
(5) other items of remuneration that are similar to any of the items listed in (1) through (4)
above.
Except as provided herein, Compensation for a Limitation Year is the Compensation actually paid
or made available (or if earlier, includible in gross income) during such Limitation Year.
For Limitation Years beginning on or after July 1, 2007, Compensation for a Limitation Year shall
also include Compensation paid by the later of 2 1/2 months after an employee's Severance from
Employment with the Employer maintaining the plan or the end of the Limitation Year that
includes the date of the employee's Severance from Employment with the Employer maintaining
the plan, if the payment is regular Compensation for services during the employee's regular
working hours, or Compensation for services outside the employee's regular working hours (such
as overtime or shift differential), commissions, bonuses, or other similar payments, and, absent a
Severance from Employment, the payments would have been paid to the employee while the
employee continued in employment with the Employer.
Any payments not described above shall not be considered Compensation if paid after Severance
from Employment, even if they are paid by the later of 2 1/2 months after the date of Severance
from Employment or the end of the Limitation Year that includes the date of Severance from
Employment, except, payments to an individual who does not currently perform services for the
Employer by reason of qualified military service (within the meaning of Code Section 414(u)(1)) to
the extent these payments do not exceed the amounts the individual would have received if the
RESTATEMENT JANUARY 1, 2008 16 ARTICLE III (66947)
individual had continued to perform services for .the Employer rather than entering qualified
military service.
Back pay, within the meaning of section 1.415(c)-2(g)(8) of the regulations, shall be treated as
Compensation for the Limitation Year to which the back pay relates to the extent the back pay
represents wages and compensation that would otherwise be included in this definition.
Compensation paid or made available during such Limitation Year shall include amounts that
would otherwise be included in Compensation but for an election under Code Section 125(a),
132(f)(4), 402(e)(3), 402(h)(1((8), 402(k), or 4571b1.
Compensation shall not include amounts paid as Compensation to a nonresident alien, as defined
in Code Section 7701(6)11)(B), who is not a Participant in the Plan to the extent the
Compensation is excludible from gross income and is not effectively connected with the conduct
of a trade or business within the United States.
Defined Contribution Dollar Limitation means, effective for Limitation Years beginning after
December 31, 2001, $40,000, automatically adjusted under Code Section 415(d), effective
• January 1 of each year, as published in the Internal Revenue Bulletin. The new limitation shall
apply to Limitation Years ending with or within the calendar year of the date of the adjustment,
but a Participant's Annual Additions for a Limitation Year cannot exceed the currently applicable
dollar limitation (as in effect before the January 1 adjustment) prior to January 1. However, after
a January 1 adjustment is made, Annual Additions for the entire Limitation Year are permitted to
reflect the dollar limitation as adjusted on January 1.
Employer means the employer that adopts this Plan, and all members of a controlled group of
corporations (as defined in Code Section 414(6) as modified by Code Section 415(h)), all
commonly controlled trades or businesses (as defined in Code Section 414(c), as modified, except
in the case of a brother-sister group of trades or businesses under common control, by Code
Section 415(h)), or affiliated service groups (as defined in Code Section 414(m)) of which the
adopting employer is a part, and any other entity required to be aggregated with the employer
pursuant to Code Section 414(o).
Limitation Year means the consecutive 12-month period ending on the last day of each Plan Year,
including corresponding consecutive 12-month periods before January 1, 1985. If the Limitation
Year is other than the calendar year, execution of this Plan (or any amendment to this Plan
changing the Limitation Year) constitutes the Employer's adoption of a written resolution electing
the Limitation Year. If the Limitation Year is amended to a different consecutive 12-month period,
the new Limitation Year must begin on a date within the Limitation Year in which the amendment
is made.
Maximum Annual Addition means, for Limitation Years beginning on or after January 1, 2002,
except for catch-up contributions described in Code Section 414(v), the Annual Addition that may
be contributed or allocated to a Participant's Account under the Plan for any Limitation Year. This
amount shall not exceed the lesser of:
11) The Defined Contribution Dollar Limitation, or
RESTATEMENT JANUARY 1, 2008 17 ARTICLE III (66947)
(2) 100 percent of the Participant's Compensation for the Limitation Year.
A Participant's Compensation for a Limitation Year shall not include Compensation in excess of
the limitation under Code Section 401(a)(17) that is in effect for the calendar year in which the
Limitation Year begins.
The compensation limitation referred to in (2) shall not apply to an individual medical benefit
account (as defined in Code Section 4151)); or a post-retirement medical benefits account for a
key employee (as defined in Code Section 419A(d)(11).
If a short Limitation Year is created because of an amendment changing the Limitation Year to a
different consecutive 12-month period, the Maximum Annual Addition will not exceed the Defined
Contribution Dollar Limitation multiplied by the following fraction:
Number of months (including any fractional parts of a month)
in the short Limitation Year
12
If the Plan is terminated as of a date other than the last day of the Limitation Year, the Plan is
treated as if the Plan was amended to change the Limitation Year and create a short Limitation
Year ending on the date the Plan is terminated.
If a short Limitation Year is created, the limitation under Code Section 401(a)(1 7) shall be prorated
in the same manner as the Defined Contribution Dollar Limitation.
Predecessor Employer means, with respect to a Participant, a former employer if the Employer
maintains a plan that provides a benefit which the Participant accrued while performing services
for the former employer. Predecessor Employer also means, with respect to a Participant, a
former entity that antedates the Employer if, under the facts and circumstances, the Employer
constitutes a continuation of all or a portion of the trade or business of the former entity.
Severance from Employment means an employee has ceased to be an employee of the Employer
maintaining the plan. An employee does not have a Severance from Employment if, in connection
with a change of employment, the employee's new employer maintains the plan with respect to
the employee.
(b) If the Participant does not participate in another defined contribution plan, as defined in section
1.41 5(c)-1(a)(2)(i) of the regulations (without regard to whether the plan(s) have been terminated)
maintained by the Employer, the amount of Annual Additions that may be credited to the
Participant's Account for any Limitation Year shall not exceed the lesser of the Maximum Annual
Addition or any other limitation contained in this Plan. If the Employer Contribution that would
otherwise be contributed or allocated to the Participant's Account would cause the Annual
Additions for the Limitation Year to exceed the Maximum Annual Addition, the amount
contributed or allocated shall be reduced so that the Annual Additions for the Limitation Year will
equal the Maximum Annual Addition.
(c) If, in addition to this Plan, the Participant is covered under another defined contribution plan, as
defined in section 1.415(c)-1(a)(2)(i) of the regulations, (without regard to whether the plan(s)
RESTATEMENT JANUARY 1, 2008 18 ARTICLE III (66947)
have been terminated) maintained by the Employer that provides an Annual Addition during any
Limitation Year, the Annual Additions that may be credited to a Participant's Account under this
Plan for any such Limitation Year will not exceed the Maximum Annual Addition, reduced by the
Annual Additions credited to a Participant's Account under the defined contribution plan(s) for the
same Limitation Year. If the Annual Additions with respect to the Participant under the other
defined contribution plan(s) maintained by the Employer are less than the Maximum Annual
Addition, and the Employer Contribution that would otherwise be contributed or allocated to the
Participant's Account under this Plan would cause the Annual Additions for the Limitation Year to
exceed this limitation, the amount contributed or allocated will be reduced so that the Annual
Additions under all such plans and funds for the Limitation Year will equal the Maximum Annual
Addition. If the Annual Additions with respect to the Participant under the other defined
contribution plan(s) in the aggregate are equal to or greater than the Maximum Annual Addition,
no amount will be contributed or allocated to the Participant's Account under this Plan for the
Limitation Year.
(d) The limitation of this section shall be determined and applied taking into account the rules in
subparagraph (e) below.
(e) Other Rules
(1) Aggregating Plans. For purposes of applying the limitations of this section for a Limitation
Year, all defined contribution plans (as defined in section 1.415(c)-1(a)(2)(i) of the
regulations and without regard to whether the plan(s) have been terminated) ever
maintained by the Employer and all defined contribution plans of a Predecessor Employer (in
the Limitation Year in which such Predecessor Employer is created) under which a
Participant receives Annual Additions are treated as one defined contribution plan.
(2) Break-up of Affiliated Employers. The Annual Additions under a formerly affiliated plan (as
defined in section 1.4151f)-1(b)(2)(ii) of the regulations) of the Employer are taken into
account for purposes of applying the limitations of this section for the Limitation Year in
which the cessation of affiliation took place.
(3) Previously Unaggreqated Plans. The limitations of this section are not exceeded for the ,
first Limitation Year in which two or more existing plans, which previously were not
required to be aggregated pursuant to section 1.415(f) of the regulations, are aggregated,
provided that no Annual Additions are credited to a Participant after the date on which the
plans are required to be aggregated if the Annual Additions already credited to the
Participant in the existing plans equal or exceed the Maximum Annual Addition.
(4) Aggregation with Multiemployer Plan. If the Employer maintains a multiemployer plan, as
defined in Code Section 414(f), and the multiemployer plan so provides, only the Annual
Additions under the multiemployer plan that are provided by the Employer shall be treated
as Annual Additions provided under a plan maintained by the Employer for purposes of this
section.
SECTION 3.04--EXCESS AMOUNTS.
(a) Definitions. For purposes of this section, the following terms are defined:
RESTATEMENT JANUARY 1 , 2008 19 ARTICLE III (66947)
Catch-up Contributions means Elective Deferral Contributions made to a plan that are in excess of
an otherwise applicable plan limit and that are made by participants who are age 50 or older by
the end of the taxable year. An otherwise applicable plan limit is a limit in the plan that applies to
Elective Deferral Contributions without regard to Catch-up Contributions, such as the limits on the
maximum annual additions under Code Section 415, the dollar limitation on Elective Deferral
Contributions under Code Section 402(g) (not counting Catch-up Contributions), and the limit
imposed by the nondiscrimination test described in Code Section 401(k)(3).
Elective Deferral Contributions means any employer contributions made to a plan at the election of
a participant in lieu of cash compensation. With respect to any taxable year, a participant's
Elective Deferral Contributions are the sum of all employer contributions made on behalf of such
participant pursuant to an election to defer under any qualified cash or deferred arrangement
described in Code Section 401(k), any salary reduction simplified employee pension plan described
in Code Section 408(k)(6), any SIMPLE IRA plan described in Code Section 408(p), any plan
described under Code Section 501(c)(18), and any employer contributions made on behalf of a
participant for the purchase of an annuity contract under Code Section 403(b) pursuant to a
salary reduction agreement. For taxable years beginning after December 31, 2005, Elective
Deferral Contributions include Pre-tax Elective Deferral Contributions and Roth Elective Deferral
Contributions. Elective Deferral Contributions shall not include any deferrals properly distributed
as excess annual additions.
Excess Elective Deferrals means those Elective Deferral Contributions of a Participant that either (i)
are made during the Participant's taxable year and exceed the dollar limitation under Code Section
402(g) or (ii) are made during a calendar year and exceed the dollar limitation under Code Section
402(g) for the Participant's taxable year beginning in such calendar year, counting only Elective
Deferral Contributions made under this Plan and any other plan, contract, or arrangement
maintained by the Employer. The dollar limitation shall be increased by the dollar limit on Catch-up
Contributions under Code Section 414(v), if applicable.
Excess Elective Deferrals shall be treated as Annual Additions, as defined in the CONTRIBUTION
LIMITATION SECTION of this article, under the Plan, unless such amounts are distributed no later
than the first April 15 following the close of the Participant's taxable year.
Matching Contributions means employer contributions made to this or any other defined
contribution plan, or to a contract described in Code Section 403(6), on behalf of a participant on
account of a Participant Contribution made by such participant, or on account of a participant's
Elective Deferral Contributions, under a plan maintained by the Employer or a Controlled Group
member.
Participant Contributions means contributions (other than Roth Elective Deferral Contributions)
made to the plan by or on behalf of a participant that are included in the participant's gross
income in the year in which made and that are maintained under a separate account to which the
earnings and losses are allocated.
Pre-tax Elective Deferral Contributions means a participant's Elective Deferral Contributions that
are not includible in the participant's gross income at the time deferred.
RESTATEMENT JANUARY 1, 2008 20 ARTICLE III (66947)
Roth Elective Deferral Contributions means a participant's Elective Deferral Contributions that are
not excludible from the participant's gross income at the time deferred and have been irrevocably
designated as Roth Elective Deferral Contributions by the participant in his elective deferral
agreement. Whether an Elective Deferral Contribution is not excludible from a participant's gross
income will be determined in accordance with section 1.40(k)-110(2) of the regulations. In the
case of a self-employed individual, an Elective Deferral Contribution is not excludible from gross
income only if the individual does not claim a deduction for such amount.
(b) Excess Elective Deferrals. A Participant may assign to this Plan any Excess Elective Deferrals
made during a taxable year of the Participant by notifying the Plan Administrator in writing on or
before the first following March 1 of the amount of the Excess Elective Deferrals to be assigned to
the Plan. A Participant is deemed to notify the Plan Administrator of any Excess Elective Deferrals
that arise by taking into account only those Elective Deferral Contributions made to this Plan and
any other plan, contract, or arrangement of the Employer or a Controlled Group member. The
Participant's claim for Excess Elective Deferrals shall be accompanied by the Participant's written
statement that if such amounts are not distributed, such Excess Elective Deferrals will exceed the
limit imposed on the Participant by Code Section 402(g) (including, if applicable, the dollar
limitation on Catch-up Contributions under Code Section 414(v)) for the year in which the deferral
occurred. The Excess Elective Deferrals assigned to this Plan cannot exceed the Elective Deferral
Contributions allocated under this Plan for such taxable year.
Notwithstanding any other provisions of the Plan, Elective Deferral Contributions in an amount
equal to the Excess Elective Deferrals assigned to this Plan, plus any income and minus any loss
allocable thereto, shall be distributed no later than April 15 to any Participant to whose Account
Excess Elective Deferrals were assigned for the preceding year and who claims Excess Elective
Deferrals for such taxable year or calendar year.
The Excess Elective Deferrals shall be adjusted for any income or loss. The income or loss
allocable to such Excess Elective Deferrals shall be equal to the income or loss allocable to the
Participant's Elective Deferral Contributions for the taxable year in which the excess occurred
multiplied by a fraction. The numerator of the fraction is the Excess Elective Deferrals. The
denominator of the fraction is the closing balance without regard to any income or loss occurring
during such taxable year (as of the end of such taxable year) of the Participant's Account resulting
from Elective Deferral Contributions.
For purposes of determining income or loss on Excess Elective Deferrals for taxable years
beginning on or after January 1, 2006, any Excess Elective Deferrals, in addition to any
adjustment for income or loss for the taxable year in which the excess occurred, shall be adjusted
for income or loss for the gap period between the end of such taxable year and the date of
distribution. Such income or loss allocable to the gap period shall be equal to 10% of the income
or loss allocable to the Excess Elective Deferrals for the taxable year multiplied by the number of
complete months (counting a partial month of 16 days or more as a complete month) in the gap
period.
Any Matching Contributions that were based on the Elective Deferral Contributions distributed as
Excess Elective Deferrals, plus any income and minus any loss allocable thereto, shall be forfeited
whether or not such amounts are distributed as Excess Elective Deferrals.
RESTATEMENT JANUARY 1, 2008 21 ARTICLE III (66947)
ARTICLE IV
INVESTMENT OF CONTRIBUTIONS
SECTION 4.01--INVESTMENT OF CONTRIBUTIONS.
The handling of Contributions and Plan assets is governed by the provisions of the Annuity Contract and
any other relevant document (for the purposes of this paragraph alone, the Annuity Contract and such other
documents will each be referred to as a "document" or collectively as the "documents"), duly entered into by
or with regard to the Plan that govern such matters. To the extent permitted by the documents, the parties
named below shall direct the Contributions for investment in any of the investment options or investment
vehicles available to the Plan under or through the documents, and may request the transfer of amounts
resulting from those Contributions between such investment options and investment vehicles. To the extent
that a Participant who has the ability to provide investment direction fails to give timely investment direction,
the amount for which no investment direction is in place shall be invested in such investment options and
investment vehicles as provided in the service and expense agreement or such other documents duly entered
into by or with regard to the Plan that govern such matters. If the Employer has investment direction, the
Contributions shall be invested ratably in the investment options and investment vehicles available to the Plan
under or through the documents. The Employer shall have investment direction for amounts that have not
been allocated to Participants. To the extent an investment is no longer available, the Employer may require
that amounts currently held in such investment be reinvested in other investments.
(a) Elective Deferral Contributions: The Participant, with the consent of the Employer shall direct the
investment of Elective Deferral Contributions and transfer of amounts resulting from those
Contributions.
lb) Participant Contributions: The Participant, with the consent of the Employer shall direct the
investment of Participant Contributions and transfer of amounts resulting from those
Contributions.
cl Rollover Contributions: The Participant, with the consent of the Employer shall direct the
investment of Rollover Contributions and transfer of amounts resulting from those Contributions.
However, the Plan Administrator may delegate to the Investment Manager investment discretion for
Contributions and amounts which are not subject to Participant direction.
All Contributions are forwarded by the Employer to the Insurer to be deposited under the Annuity
Contract.
RESTATEMENT JANUARY 1, 2008 22 ARTICLE IV 166947)
ARTICLE V
BENEFITS
SECTION 5.01--RETIREMENT BENEFITS.
On a Participant's Retirement Date, his Vested Account shall be distributed to him according to the
distribution of benefits provisions of Article VI and the provisions of the SMALL AMOUNTS SECTION of
Article X.
SECTION 5.02--DEATH BENEFITS.
If a Participant dies before his Annuity Starting Date, his Vested Account shall be distributed according
to the distribution of benefits provisions of Article VI and the provisions of the SMALL AMOUNTS SECTION of
Article X.
SECTION 5.03--VESTED BENEFITS.
If an Inactive Participant's Vested Account is not payable under the SMALL AMOUNTS SECTION of
Article X, he may elect, but is not required, to receive a distribution of any part of his Vested Account after he
has a Severance from Employment. A distribution under this paragraph shall be a retirement benefit and shall
be distributed to the Participant according to the distribution of benefits provisions of Article VI.
A Participant may not elect to receive a distribution under the provisions of this section after he again
becomes an Employee until he subsequently has a Severance from Employment and meets the requirements of
this section.
If an Inactive Participant does not receive an earlier distribution, upon his Retirement Date or death, his
Vested Account shall be distributed according to the provisions of the RETIREMENT BENEFITS SECTION or the
DEATH BENEFITS SECTION of this article.
SECTION 5.04--WHEN BENEFITS START.
(a) The Participant may elect to have benefits begin after the later of his Normal Retirement Date or
the date he has a Severance from Employment, subject to the following provisions of this section.
The Participant shall make the election in writing. Such election must be made before his Normal
Retirement Date or the date he has a Severance from Employment, if later. The Participant shall
not elect a date for beginning benefits or a form of distribution that would result in a benefit
payable when he dies which would be more than incidental within the meaning of governmental
regulations.
Benefits shall begin by the Participant's Required Beginning Date, as defined in the DEFINITIONS
SECTION of Article VII.
(b) The Participant's Vested Account that results from Elective Deferral Contributions may not be
distributed earlier than Severance from Employment (separation from service for Plan Years
RESTATEMENT JANUARY 1, 2008 23 ARTICLE V (66947)
beginning before January 1. 2002), death, or disability. Such amount may also be distributed
upon:
(1) Termination of the Plan, as permitted in Article VIII.
(2) The attainment of age 59 1/2 as permitted in the definition of Normal Retirement Date in
the DEFINITIONS SECTION of Article I.
(3) The hardship of the Participant as permitted in the WITHDRAWAL BENEFITS SECTION of
this article.
All distributions that may be made pursuant to one or more of the foregoing distributable events
will be a retirement benefit and shall be distributed to the Participant according to the distribution
of benefits provisions of Article VI. In addition, distributions that are triggered by the termination
of the Plan must be made in a lump sum. A lump sum shall include a distribution of an annuity
contract.
SECTION 5.05--WITHDRAWAL BENEFITS.
A Participant may withdraw any part of his Vested Account resulting from Voluntary Contributions. A
Participant may make only two such withdrawals in any 12-month period.
•
A Participant may withdraw any part of his Vested Account resulting from the following Contributions:
Elective Deferral Contributions
in the event of hardship due to an immediate and heavy financial need. Withdrawals from the Participant's
Account resulting from Elective Deferral Contributions shall be limited to the amount of the Participant's
Elective Deferral Contributions plus income allocable thereto credited to his Account as of December 31, 1988.
Immediate and heavy financial need shall be limited to: (i) expenses incurred or necessary for medical
care that would be deductible under Code Section 213(d) (determined without regard to whether the expenses
exceed 7.5% of adjusted gross income); (ii) the purchase (excluding mortgage payments) of a principal
residence for the Participant; (iii) payment of tuition, related educational fees, and room and board expenses,
for the next 12 months of post-secondary education for the Participant, his spouse, children, or dependents (as
defined in Code Section 152 without regard to Code Sections 152(6)(1), (b)(2), and (d)(1MB)); (iv) payments
necessary to prevent the eviction of the Participant from, or foreclosure on the mortgage of, the Participant's
principal residence; (v) payments for funeral or burial expenses for the Participant's deceased parent, spouse,
child, or dependent (as defined in Code Section 152 without regard to Code Section 152(d)11)(B)1; (vi)
expenses to repair damage to the Participant's principal residence that would qualify for a casualty loss
deduction under Code Section 165 (determined without regard to whether the loss exceeds 10% of adjusted
gross income); or (vii) any other distribution which is deemed by the Commissioner of Internal Revenue to be
made on account of immediate and heavy financial need as provided in Treasury regulations.
No withdrawal shall be allowed which is in excess of the amount required to relieve the financial need or
if such need can be satisfied from other resources that are reasonably available to the Participant. The amount
of an immediate and heavy financial need may include any amount necessary to pay any Federal, state, or local
income taxes or penalties reasonably anticipated to result from the distribution. The Participant's request for a
RESTATEMENT JANUARY 1, 2008 24 ARTICLE V (66947)
withdrawal shall include his written statement that the amount requested does not exceed the amount needed
to meet the financial need. The Participant's request for a withdrawal shall include his written statement that
the need cannot be relieved: (i) through reimbursement or compensation by insurance or otherwise; (ii) by
reasonable liquidation of the Participant's assets, to the extent such liquidation would not itself cause
immediate and heavy financial need; (iii) by cessation of elective contributions or participant contributions
under the Plan; or (iv) by other distributions or nontaxable (at the time of the loan) loans currently available
from plans maintained by the Employer or any other employer, or by borrowing from commercial sources on
reasonable commercial terms.
A request for withdrawal shall be made in such manner and in accordance with such rules as the
Employer will prescribe for this purpose (including by means of voice response or other electronic means under
circumstances the Employer permits). Withdrawals shall be a retirement benefit and shall be distributed to the
Participant according to the distribution of benefits provisions of Article VI.
RESTATEMENT JANUARY 1, 2008 25 ARTICLE V (66947)
ARTICLE VI
DISTRIBUTION OF BENEFITS
SECTION 6.01--AUTOMATIC FORMS OF DISTRIBUTION.
Unless an optional form of benefit is selected pursuant to an election within the election period (see the
ELECTION PROCEDURES SECTION of this article), the automatic form of benefit payable to or on behalf of a
Participant is determined as follows:
(a) Retirement Benefits. The automatic form of retirement benefit for a Participant who does not die
before his Annuity Starting Date shall be the Normal Form.
(b) Death Benefits. The automatic form of death benefit for a Participant who dies before his Annuity
Starting Date shall be a single sum payment to the Participant's Beneficiary.
SECTION 6.02--OPTIONAL FORMS OF DISTRIBUTION.
(a) Retirement Benefits. The optional forms of retirement benefit shall be the following: (i) a straight
life annuity; (ii) single life annuities with certain periods of 5, 10, or 15 years; (hi) a single life
annuity with installment refund; (iv) survivorship life annuities with installment refund and
survivorship percentages of 50%, 66 2/3%, or 100%; (v) fixed period annuities for any period of
whole months that is not less than 60; (vi) a fixed period installment option; and (vii) a fixed
payment installment option. A single sum payment is also available.
The fixed period installment option is an optional form of benefit under which the Participant
elects to receive substantially equal annual payments over a fixed period of whole years. The
annual payment may be paid in annual, semi-annual, quarterly, or monthly installments as elected
by the Participant. The Participant may elect to receive additional payments.
The fixed payment installment option is an optional form of benefit under which the Participant
elects to receive a specified dollar amount each year. The annual payment may be paid in annual,
semi-annual, quarterly, or monthly installments as elected by the Participant. The Participant may
elect to receive additional payments.
Under the installment options the amount payable in the Participant's first Distribution Calendar
Year, as defined in the DEFINITIONS SECTION of Article VII, must satisfy the minimum
distribution requirements of Article VII for such year. Distributions for later Distribution Calendar
Years must satisfy the minimum distribution requirements of Article VII for such years. If the
Participant's Annuity Starting Date does not occur until his second Distribution Calendar Year, the
amount payable for such year must satisfy the minimum distribution requirements of Article VII for
both the first and second Distribution Calendar Years.
Election of an optional form is subject to the election provisions of the ELECTION PROCEDURES
SECTION of this article and the distribution requirements of Article VII.
Any annuity contract distributed shall be nontransferable.
RESTATEMENT JANUARY 1, 2008 26 ARTICLE VI (66947
lb) Death Benefits. The optional forms of death benefit are a single sum payment and any annuity
that is an optional form of retirement benefit.
Election of an optional form is subject to the election provisions of the ELECTION PROCEDURES
SECTION of this article and the distribution requirements of Article VII.
SECTION 6.03--ELECTION PROCEDURES.
The Participant or Beneficiary shall make any election under this section in writing. The Plan
Administrator may require such individual to complete and sign any necessary documents as to the provisions
to be made. Any election permitted under (a) and (b) below shall be subject to the election provisions of (c)
below.
(a) Retirement Benefits. A Participant may elect his Beneficiary or Contingent Annuitant and may
elect to have retirement benefits distributed under any of the optional forms of retirement benefit
available in the OPTIONAL FORMS OF DISTRIBUTION SECTION of this article.
(b) Death Benefits. A Participant may elect his Beneficiary and may elect to have death benefits
distributed under any of the optional forms of death benefit available in the OPTIONAL FORMS OF
DISTRIBUTION SECTION of this article.
If the Participant has not elected an optional form of distribution for the death benefit payable to
his Beneficiary, the Beneficiary may, for his own benefit, elect the form of distribution, in like
manner as a Participant.
(c) Election. The Participant or Beneficiary may make an election at any time during the election
period. The Participant or Beneficiary may revoke the election made (or make a new election) at
any time and any number of times during the election period.
(1) Election Period for Retirement Benefits. A Participant may make an election as to
retirement benefits at any time before the Annuity Starting Date.
121 Election Period for Death Benefits. A Participant may make an election as to death benefits
at any time before he dies. The Beneficiary's election period begins on the date the
Participant dies and ends on the date benefits begin.
RESTATEMENT JANUARY 1, 2008 27 ARTICLE VI (66947
ARTICLE VII
REQUIRED MINIMUM DISTRIBUTIONS
SECTION 7.01--APPLICATION.
The optional forms of distribution are only those provided in Article VI. An optional form of distribution
shall not be permitted unless it meets the requirements of this article. The timing of any distribution must meet
the requirements of this article.
SECTION 7.02--DEFINITIONS.
For purposes of this article, the following terms are defined:
Designated Beneficiary means the individual who is designated by the Participant (or the Participant's
surviving spouse) as the Beneficiary of the Participant's interest under the Plan and who is the
designated beneficiary under Code Section 401(a)(9) and section 1.401(a)(9)-4 of the regulations.
Distribution Calendar Year means a calendar year for which a minimum distribution is required. For
distributions beginning before the Participant's death, the first Distribution Calendar Year is the calendar
year immediately preceding the calendar year that contains the Participant's Required Beginning Date.
For distributions beginning after the Participant's death, the first Distribution Calendar Year is the
calendar year in which distributions are required to begin under (b)(2) of the REQUIRED MINIMUM
DISTRIBUTIONS SECTION of this article. The required minimum distribution for the Participant's first
Distribution Calendar Year will be made on or before the Participant's Required Beginning Date. The
required minimum distribution for other Distribution Calendar Years, including the required minimum
distribution for the Distribution Calendar Year in which the Participant's Required Beginning Date occurs,
will be made on or before December 31 of that Distribution Calendar Year.
Life Expectancy means life expectancy as computed by use of the Single Life Table in Q&A-1 in section
1.401(a)(9)-9 of the regulations.
Participant's Account Balance means the Account balance as of the last Valuation Date in the calendar
year immediately preceding the Distribution Calendar Year (valuation calendar year) increased by the
amount of any contributions made and allocated or forfeitures allocated to the Account as of dates in
the valuation calendar year after the Valuation Date and decreased by distributions made in the valuation
calendar year after the Valuation Date. The Account balance for the valuation calendar year includes
any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the
Distribution Calendar Year if distributed or transferred in the valuation calendar year.
Required Beginning Date means, for a Participant, the April 1 of the calendar year following the later of
the calendar year in which he attains age 70 1/2 or the calendar year in which he retires.
RESTATEMENT JANUARY 1, 2008 28 ARTICLE VII (66947)
SECTION 7.03--REQUIRED MINIMUM DISTRIBUTIONS.
(a) General Rules.
(1) The requirements of this article shall apply to any distribution of a Participant's interest and
will take precedence over any inconsistent provisions of this Plan. Unless otherwise
specified, the provisions of this article apply to calendar years beginning after
December 31, 2002.
(2) All distributions required under this article shall be determined and made in accordance with
the regulations under Code Section 401(a)(9) and the minimum distribution incidental
benefit requirement of Code Section 401(a)(9)(G).
(b) Time and Manner of Distribution.
(1) Required Beginning Date. The Participant's entire interest will be distributed, or begin to be
distributed, to the Participant no later than the Participant's Required Beginning Date.
(2) Death of Participant Before Distributions Begin. If the Participant dies before distributions
begin, the Participant's entire interest will be distributed, or begin to be distributed, no
later than as follows:
(i) If the Participant's surviving spouse is the Participant's sole Designated Beneficiary,
then distributions to the surviving spouse will begin by December 31 of the
calendar year immediately following the calendar year in which the Participant died,
or by December 31 of the calendar year in which the Participant would have
attained age 70 1/2, if later, except to the extent that an election is made to
receive distributions in accordance with the 5-year rule under (e) below. Under the
5-year rule, the Participant's entire interest will be distributed to the Designated
Beneficiary by December 31 of the calendar year containing the fifth anniversary of
the Participant's death.
(ii) 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, except to the extent that an election is made to receive
distributions in accordance with the 5-year rule under (el below. Under the 5-year
rule, the Participant's entire interest will be distributed to the Designated
Beneficiary by December 31 of the calendar year containing the fifth anniversary of
the Participant's death.
(iii) If there is no Designated Beneficiary as of September 30 of the year following the
year of the Participant's death, the Participant's entire interest will be distributed
by December 31 of the calendar year containing the fifth anniversary of the
Participant's death.
(iv) If the Participant's surviving spouse is the Participant's sole Designated Beneficiary
and the surviving spouse dies after the Participant but before distributions to the
RESTATEMENT JANUARY 1, 2008 29 ARTICLE VII (66947)
surviving spouse are required to begin, this (b)(2), other than Ib11211i1, will apply as
if the surviving spouse were the Participant.
For purposes of this (b)12) and (d) below, unless (b)(2)(iv) above applies, distributions are
considered to begin on the Participant's Required Beginning Date. If (b)(2)(iv) above
applies, distributions are considered to begin on the date distributions are required to
begin to the surviving spouse under (b)(2)(i) above. If distributions under an annuity
purchased from an insurance company irrevocably commence to the Participant before
the Participant's Required Beginning Date (or to the Participant's surviving spouse before
the date distributions are required to begin to the surviving spouse under (b)(2)(i) 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 Beginning Date, as of the first Distribution Calendar Year distributions will be
made in accordance with (c) and (d) below. 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
regulations thereunder.
(c) 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:
(i) the quotient obtained by dividing the Participant's Account Balance by the
distribution period in the Uniform Lifetime Table set forth in O&A-2 in section
1 .401(a)(9)-9 of the regulations, using the Participant's age as of the Participant's
birthday in the Distribution Calendar Year; or
(ii) if the Participant's sole Designated Beneficiary for the Distribution Calendar Year is
the Participant's spouse, the quotient obtained by dividing the Participant's
Account Balance by the number in the Joint and Last Survivor Table set forth in
O&A-3 in section 1.401(a)I9)-9 of the regulations, using the Participant's and
spouse's attained ages as of the Participant's and spouse's birthdays in the
Distribution Calendar Year.
(2) Lifetime Required Minimum Distributions Continue Through Year of Participant's Death.
Required minimum distributions will be determined under this (c) beginning with the first
Distribution Calendar Year and continuing up to, and including, the Distribution Calendar
Year that includes the Participant's date of death.
(d) Required Minimum Distributions After Participant's Death.
(1) Death On or After Date Distributions Begin.
RESTATEMENT JANUARY 1, 2008 30 ARTICLE VII (66947)
(i) Participant Survived by Designated Beneficiary. If the Participant dies on or after
the date distributions begin and there is a Designated Beneficiary, the minimum
amount that will be distributed for each Distribution Calendar Year after the year of
the Participant's death is the quotient obtained by dividing the Participant's
Account Balance by the longer of the remaining Life Expectancy of the Participant
or the remaining Life Expectancy of the Participant's Designated Beneficiary,
determined as follows:
A. The Participant's remaining Life Expectancy is calculated using the age of
the Participant in the year of death, reduced by one for each subsequent
year.
B. If the Participant's surviving spouse is the Participant's sole Designated
Beneficiary, the remaining Life Expectancy of the surviving spouse is
calculated for each Distribution Calendar Year after the year of the
Participant's death using the surviving spouse's age as of the spouse's
birthday in that year. For Distribution Calendar Years after the year of the
surviving spouse's death, the remaining Life Expectancy of the surviving
spouse is calculated using the age of the surviving spouse as of the spouse's
birthday in the calendar year of the spouse's death, reduced by one for each
subsequent calendar year.
C. If the Participant's surviving spouse is not the Participant's sole Designated
Beneficiary, the Designated Beneficiary's remaining Life Expectancy is
calculated using the age of the Beneficiary in the year following the year of
the Participant's death, reduced by one for each subsequent year.
(ii) No Designated Beneficiary. If the Participant dies on or after the date distributions
begin and there is no Designated Beneficiary as of September 30 of the year after
the year of the Participant's death, the minimum amount that will be distributed for
each Distribution Calendar Year after the year of the Participant's death is the
quotient obtained by dividing the Participant's Account Balance by the Participant's
remaining Life Expectancy calculated using the age of the Participant in the year of
death, reduced by one for each subsequent year.
(2) Death Before Date Distributions Begin.
(i) 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 Account
Balance by the remaining Life Expectancy of the Participant's Designated
Beneficiary, determined as provided in (d)(1) above, except to the extent that an
election is made to receive distributions in accordance with the 5-year rule under
(e) below. Under the 5-year rule, the Participant's entire interest will be distributed
to the Designated Beneficiary by December 31 of the calendar year containing the
fifth anniversary of the Participant's death.
RESTATEMENT JANUARY 1, 2008 31 ARTICLE VII (66947)
(ii) No Designated Beneficiary. If the Participant dies before the date distributions
begin and there is no Designated Beneficiary as of September 30 of the year
following the year of the Participant's death, distribution of the Participant's entire
interest will be completed by December 31 of the calendar year containing the fifth
anniversary of the Participant's death.
(iii) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required
to Begin. If the Participant dies before the date distributions begin, the
Participant's surviving spouse is the Participant's sole Designated Beneficiary, and
the surviving spouse dies before distributions are required to begin to the surviving
spouse under (b)(2)li) above, this (d)(2) will apply as if the surviving spouse were
the Participant.
(e) Election of 5-year Rule. Participants or Beneficiaries may elect on an individual basis whether the
5-year rule in (b)(2) and (d)(2) above applies to distributions after the death of a Participant who
has a Designated Beneficiary. The election must be made no later than the earlier of
September 30 of the calendar year in which the distribution would be required to begin under
(b)(2) above if no such election is made, or by September 30 of the calendar year which contains
the fifth anniversary of the Participant's (or, if applicable, surviving spouse's) death.
SECTION 7.04--TRANSITION RULES.
To the extent the Plan was effective before 2003, required minimum distributions were made pursuant
to (a) and (b) below:
(a) 2000 and Before. Required minimum distributions for calendar years after 1984 and before 2001
were made in accordance with Code Section 401(a)(9) and the proposed regulations thereunder
published in the Federal Register on July 27, 1987 (the 1987 Proposed Regulations).
(b) 2001 and 2002. Required minimum distributions for calendar years 2001 and 2002 were made
pursuant to the proposed regulations under Code Section 401(a)(9) published in the Federal
Register on January 17, 2001 (the 2001 Proposed Regulations). Distributions were made in 2001
under the 1987 Proposed Regulations prior to June 14, 2001, and the special transition rule in
Announcement 2001-82, 2001-2 C.B. 123, applied.
•
RESTATEMENT JANUARY 1, 2008 32 ARTICLE VII (66947)
ARTICLE VIII
TERMINATION OF THE PLAN
The Employer expects to continue the Plan indefinitely but reserves the right to terminate the Plan in
whole or in part at any time upon giving written notice to all parties concerned. Complete discontinuance of
Contributions constitutes complete termination of the Plan.
The Account of each Participant shall be 100% vested and nonforfeitable as of the effective date of
complete termination of the Plan. The Account of each Participant who is included in the group of Participants
deemed to be affected by the partial termination of the Plan shall be 100% vested and nonforfeitable as of the
effective date of the partial termination of the Plan. The Participant's Vested Account shall continue to
participate in the earnings credited, expenses charged, and any appreciation or depreciation of the Investment
Fund until his Vested Account is distributed.
A Participant's Vested Account that does not result from Elective Deferral Contributions may be
distributed to the Participant after the effective date of the complete termination of the Plan. A Participant's
Account resulting from such Contributions may be distributed upon complete termination of the Plan, but
only if neither the Employer nor any Controlled Group member maintain another defined contribution plan
(other than an employee stock ownership plan as defined in Code Section 4975(e)(7) or 409(a), a simplified
employee pension plan as defined in Code Section 408(k), a SIMPLE IRA plan as defined in Code Section
408(p)), a plan or contract that satisfies the requirements of Code Section 403(b), or a plan described in
Code Section 457(b) or (f)) at any time during the period beginning on the date of complete termination of
the Plan and ending 12 months after all assets have been distributed from the Plan. Such distribution is
made in a lump sum. A distribution under this article shall be a retirement benefit and shall be distributed to
the Participant according to the provisions of Article VI. However, the fixed period and fixed payment
installment options shall not be available.
If a Participant or Beneficiary is receiving payments under the fixed period or fixed payment
installment option, the Vested Account shall be paid to such person in a single sum.
The Participant's entire Vested Account shall be paid in a single sum to the Participant as of the
effective date of complete termination of the Plan if (i) the requirements for distribution of Elective Deferral
Contributions in the above paragraph are met and (ii) the Participant's Vested Account is $5,000 or less. This
is a small amounts payment. The small amounts payment is in full settlement of all benefits otherwise payable.
Upon complete termination of the Plan, no more Employees shall become Participants and no more
Contributions shall be made.
The assets of this Plan shall not be paid to the Employer at any time, except that, after the satisfaction
of all liabilities under the Plan, any assets remaining may be paid to the Employer. The payment may not be
made if it would contravene any provision of law.
RESTATEMENT JANUARY 1, 2008 33 ARTICLE VIII 166947)
APTI'LE IX
ADMINISTRATION OF THE PLAN
SECTION 9.01--ADMINISTRATION.
Subject to the provisions of this article, the Plan Administrator has complete control of the
administration of the Plan. The Plan Administrator has all the powers necessary for it to properly carry out its
administrative duties. Not in limitation, but in amplification of the foregoing, the Plan Administrator has
complete discretion to construe or interpret the provisions of the Plan, including ambiguous provisions, if any,
and to determine all questions that may arise under the Plan, including all questions relating to the eligibility of
Employees to participate in the Plan and the amount of benefit to which any Participant, Beneficiary, or
Contingent Annuitant may become entitled. The Plan Administrator's decisions upon all matters within the
scope of its authority shall be final.
Unless otherwise set out in the Plan or Annuity Contract, the Plan Administrator may delegate
recordkeeping and other duties which are necessary to assist it with the administration of the Plan to any
person or firm which agrees to accept such duties. The Plan Administrator shall be entitled to rely upon all
tables, valuations, certificates and reports furnished by the consultant or actuary appointed by the Plan
Administrator and upon all opinions given by any counsel selected or approved by the Plan Administrator.
The Plan Administrator shall receive all claims for benefits by Participants, former Participants,
Beneficiaries, and Contingent Annuitants. The Plan Administrator shall determine all facts necessary to
establish the right of any claimant to benefits and the amount of those benefits under the provisions of the
Plan. The Plan Administrator may establish rules and procedures to be followed by claimants in filing claims for
benefits, in furnishing and verifying proofs necessary to determine age, and in any other matters required to
administer the Plan.
SECTION 9.02--EXPENSES.
Expenses of the Plan, to the extent that the Employer does not pay such expenses, may be paid out of
the assets of the Plan provided that such payment is consistent with any law to which the Plan is subject.
Such expenses include, but are not limited to, expenses for recordkeeping and other administrative services;
fees and expenses of the Annuity Contract; expenses for investment education service; and direct costs that
the Employer incurs with respect to the Plan. Expenses that relate solely to a specific Participant or Alternate
Payee may be assessed against such Participant or Alternate Payee as provided in the service and expense
agreement or such other documents duly entered into by or with regard to the Plan that govern such matters.
SECTION 9.03--RECORDS.
All acts and determinations of the Plan Administrator shall be duly recorded. All these records, together
with other documents necessary for the administration of the Plan, shall be preserved in the Plan
Administrator's custody.
Writing (handwriting, typing, printing), photostating, photographing, microfilming, magnetic impulse,
mechanical or electrical recording, or other forms of data compilation shall be acceptable means of keeping
records.
RESTATEMENT JANUARY 1, 2008 34 ARTICLE IX (66947)
SECTION 9.04--DELEGATION OF AUTHORITY.
All or any part of the administrative duties and responsibilities under this article may be delegated by the
Plan Administrator to a retirement committee. The duties and responsibilities of the retirement committee shall
be set out in a separate written agreement.
SECTION 9.05--EXERCISE OF DISCRETIONARY AUTHORITY.
The Employer, Plan Administrator, and any other person or entity who has authority with respect to the
management, administration, or investment of the Plan may exercise that authority in its/his full discretion,
subject only to the duties imposed under any law to which the Plan is subject. This discretionary authority
includes, but is not limited to, the authority to make any and all factual determinations and interpret all terms
and provisions of the Plan documents relevant to the issue under consideration. The exercise of authority will
be binding upon all persons; will be given deference in all courts of law to the greatest extent allowed under
law; and will not be overturned or set aside by any court of law unless found to be arbitrary and capricious or
made in bad faith.
SECTION 9.06--TRANSACTION PROCESSING.
Transactions (including, but not limited to, investment directions, trades, loans, and distributions) shall
be processed as soon as administratively practicable after proper directions are received from the Participant or
other parties. No guarantee is made by the Plan, Plan Administrator, Insurer, or Employer that such
transactions will be processed on a daily or other basis, and no guarantee is made in any respect regarding the
processing time of such transactions.
Notwithstanding any other provision of the Plan, the Employer or the Plan Administrator reserves the
right to not value an investment option on any given Valuation Date for any reason deemed appropriate by the
Employer or the Plan Administrator.
Administrative practicality will be determined by legitimate business factors (including, but not limited to,
failure of systems or computer programs, failure of the means of the transmission of data, force majeure, the
failure of a service provider to timely receive values or prices, and correction for errors or omissions or the
errors or omissions of any service provider) and in no event will be deemed to be less than 14 days. The
processing date of a transaction shall be binding for all purposes of the Plan and considered the applicable
Valuation Date for any transaction.
RESTATEMENT JANUARY 1, 2008 35 ARTICLE IX 166947)
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01--AMENDMENTS.
The Employer may amend this Plan at any time, including any remedial retroactive changes (within the
time specified by Internal Revenue Service regulations), to comply with any law or regulation issued by any
governmental agency to which the Plan is subject. We may correct obvious and unambiguous typographical
errors and cross references that merely correct a reference but that do not in any way change the original
intended meaning of the provisions.
An amendment may not allow reversion or diversion of Plan assets to the Employer at any time, except
as may be required to comply with any law or regulation issued by any governmental agency to which the Plan
is subject.
SECTION 10.02--DIRECT ROLLOVERS.
Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's
election under this section, a Distributee may elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover.
In the event of a mandatory distribution of an Eligible Rollover Distribution greater than $1,000 in
accordance with the SMALL AMOUNTS SECTION of this article (or which is a small amounts payment under
Article VIII at complete termination of the Plan), 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, the Plan Administrator will pay the distribution in a Direct Rollover to an individual
retirement plan designated by the Plan Administrator.
In the event of any other Eligible Rollover Distribution to a Distributee in accordance with the SMALL
AMOUNTS SECTION of this article (or which is a small amounts payment under Article VIII at complete
termination of the Plan), if the Distributee does not elect to have such distribution paid directly to an Eligible
Retirement Plan specified by the Distributee in a Direct Rollover or to receive the distribution directly, the Plan
Administrator will pay the distribution to the Distributee.
SECTION 10.03--PROVISIONS RELATING TO THE INSURER.
The obligations of an Insurer shall be governed solely by the provisions of the Annuity Contract. The
Insurer shall not be required to perform any act not provided in or contrary to the provisions of the Annuity
Contract. Each Annuity Contract when purchased shall comply with the Plan. See the CONSTRUCTION
SECTION of this article.
The Insurer is not a party to the Plan, nor bound in any way by the Plan provisions. It shall not be
required to look to the terms of this Plan, nor to determine whether the Employer or the Plan Administrator
have the authority to act in any particular manner or to make any contract or agreement.
RESTATEMENT JANUARY 1, 2008 36 ARTICLE X (66947)
Until notice of any amendment or termination of this Plan has been received by the Insurer at its home
office, the Insurer is and shall be fully protected in assuming that the Plan has not been amended or terminated
according to the latest information which it has received at its home office.
SECTION 10.04--EMPLOYMENT STATUS.
Nothing contained in this Plan gives an Employee the right to be retained in the Employer's employ or to
interfere with the Employer's right to discharge any Employee.
SECTION 10.05--RIGHTS TO PLAN ASSETS.
An Employee shall not have any right to or interest in any assets of the Plan upon termination of
employment or otherwise except as specifically provided under this Plan, and then only to the extent of the
benefits payable to such Employee according to the Plan provisions.
Any final payment or distribution to a Participant or his legal representative or to any Beneficiaries or
Contingent Annuitant of such Participant under the Plan provisions shall be in full satisfaction of all claims
against the Plan, the Plan Administrator, the Insurer, and the Employer arising under or by virtue of the Plan.
SECTION 10.06--BENEFICIARY.
Each Participant may name a Beneficiary to receive any death benefit (other than any income payable to
a Contingent Annuitant) that may arise out of his participation in the Plan. The Participant may change his
Beneficiary from time to time. The Participant's Beneficiary designation and any change of Beneficiary shall be
subject to the provisions of the ELECTION PROCEDURES SECTION of Article VI.
It is the responsibility of the Participant to give written notice to the Plan Administrator of the name of
the Beneficiary on a form furnished for that purpose. The Plan Administrator shall maintain records of
Beneficiary designations for Participants before their Retirement Dates. However, the Plan Administrator may
delegate to another party the responsibility of maintaining records of Beneficiary designations. In that event,
the written designations made by Participants shall be filed with such other party. If a party other than the
Insurer maintains the records of Beneficiary designations and a Participant dies before his Retirement Date,
such other party shall certify to the Insurer the Beneficiary designation on its records for the Participant.
If there is no Beneficiary named or surviving when a Participant dies, the Participant's Beneficiary shall
be the Participant's surviving spouse, or where there is no surviving spouse, the executor or administrator of
the Participant's estate.
SECTION 10.07--CONSTRUCTION.
The validity of the Plan or any of its provisions is determined under and construed according to Federal
law and, to the extent permissible, according to the laws of the state in which the Employer has its principal
office. In case any provision of this Plan is held illegal or invalid for any reason, such determination shall not
affect the remaining provisions of this Plan, and the Plan shall be construed and enforced as if the illegal or
invalid provision had never been included.
RESTATEMENT JANUARY 1, 2008 37 ARTICLE X (66947)
•
In the event of any conflict between the provisions of the Plan and the terms of any Annuity Contract
issued hereunder, the provisions of the Plan control.
SECTION 10.08--LEGAL ACTIONS.
No person employed by the Employer; no Participant, former Participant, or their Beneficiaries; nor any
other person having or claiming to have an interest in the Plan is entitled to any notice of process. A final
judgment entered in any such action or proceeding shall be binding and conclusive on all persons having or
claiming to have an interest in the Plan.
SECTION 10.09--SMALL AMOUNTS.
If the Vested Account of a Participant is $5,000 or less, his entire Vested Account shall be paid in a
single sum as of the earliest of his Retirement Date, the date he dies, or the date he has a Severance from
Employment for any other reason (the date the Employer provides notice to the record keeper of the Plan of
such event, if later). If a Participant would have received a distribution under the first sentence of this
paragraph but for the fact that the Participant's Vested Account exceeded the small amount cash out limit, and
if at a later time the Participant's Vested Account is equal to or less than the small amount cash out limit and
such Participant has not again become an Employee, such Vested Account shall be paid in a single sum. This
is a small amounts payment.
If a small amounts payment is made as of the date the Participant dies, the small amounts payment shall
be made to the Participant's Beneficiary. If a small amounts payment is made while the Participant is living,
the small amounts payment shall be made to the Participant. The small amounts payment is in full settlement
of all benefits otherwise payable.
No other small amounts payments shall be made.
SECTION 10.10--WORD USAGE.
The masculine gender, where used in this Plan, shall include the feminine gender and the singular words,
where used in this Plan, shall include the plural, unless the context indicates otherwise.
The words "in writing" and "written," where used in this Plan, shall include any other forms, such as
voice response or other electronic system, as permitted by any governmental agency to which the Plan is
subject.
SECTION 10.11--MILITARY SERVICE.
Notwithstanding any provision of this Plan to the contrary, the Plan shall provide contributions, benefits,
and service credit with respect to qualified military service in accordance with Code Section 414(u).
RESTATEMENT JANUARY 1, 2008 38 ARTICLE X (66947)
By executing this Plan, the Employer acknowledges having counseled to the extent necessary with
selected-legal and tax advisors regarding the Plan's legal and tax implications.
Executed this 6th day of August , 200R •
WELD COUNTY
Attest: � �,�:.lrw � . By: <. 2/
1j
William H. Jerke lsbl 1 �`� -- AUG 0 6 2008
By: / w/2L t: ��� Chair, Weld County Board of Commissioners
Deputy Cl j to Title
Defined Contribution Plan CL20O7
•
RESTATEMENT JANUARY 1, 2008 39 PLAN EXECUTION (66947)
Subtype 110218
'eoa- a/33
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