Copyright 2002 McKay Hochman Co., Inc. | AUGUST 2002 |
DEFINITIONS | 1 | |||
1.1ACCRUED BENEFIT | 1 | |||
1.2Actuarial Equivalent (Equivalence) | 2 | |||
1.3Adoption Agreement | 2 | |||
1.4Anniversary Date | 2 | |||
1.5Annual Additions | 2 | |||
1.6Annual Benefit | 3 | |||
1.7Annuity Starting Date | 3 | |||
1.8Applicable Interest Rate | 3 | |||
1.9Applicable Life Expectancy | 3 | |||
1.10Applicable Mortality Table | 3 | |||
1.11Average Annual Compensation | 3 | |||
1.12Basic Normal Retirement Benefit | 4 | |||
1.13Break In Service | 4 | |||
1.14Code | 4 | |||
1.15Compensation | 4 | |||
1.16Covered Compensation | 6 | |||
1.17Custodian | 6 | |||
1.18Defined Benefit Plan | 6 | |||
1.19Defined Benefit Plan Dollar Limitation | 6 | |||
1.20Defined Benefit (Plan) Fraction | 6 | |||
1.21Defined Contribution Plan | 7 | |||
1.22Defined Contribution (Plan) Fraction | 7 | |||
1.23Designated Beneficiary | 7 | |||
1.24Direct Rollover | 7 | |||
1.25Disability | 7 | |||
1.26Distributee | 7 | |||
1.27Distribution Calendar Year | 8 | |||
1.28Earliest Retirement Age | 8 | |||
1.29Early Retirement Age | 8 | |||
1.30Earned Income | 8 | |||
1.31Effective Date | 8 | |||
1.32Election Period | 8 | |||
1.33Elapsed Time | 8 | |||
1.34Eligible Retirement Plan | 8 | |||
1.35Eligible Rollover Distribution | 8 | |||
1.36Employee | 9 | |||
1.37Employer | 9 | |||
1.38Entry Date | 9 | |||
1.39ERISA | 9 | |||
1.40First Distribution Calendar Year | 9 | |||
1.41Fresh-Start Date | 9 | |||
1.42Fresh-Start Group | 9 | |||
1.43Frozen Accrued Benefit | 9 | |||
1.44Frozen Projected Benefit | 10 | |||
1.45Fund | 10 | |||
1.46Highest Average Compensation | 10 | |||
1.47Highly Compensated Employee | 10 | |||
1.48Hour Of Service | 11 | |||
1.49Joint And Survivor Annuity | 12 | |||
1.50Key Employee | 12 | |||
1.51Leased Employee | 12 |
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1.52Limitation Year | 12 | |||
1.53Lookback Month | 12 | |||
1.54Maximum Permissible Amount | 12 | |||
1.55Master Or Prototype Plan | 13 | |||
1.56Month Of Service | 13 | |||
1.57Normal Retirement Age | 14 | |||
1.58Normal Retirement Benefit | 14 | |||
1.59Normal Retirement Date | 14 | |||
1.60Owner-Employee | 14 | |||
1.61Paired Plans | 14 | |||
1.62Participant | 14 | |||
1.63Period Of Severance | 14 | |||
1.64Permissive Aggregation Group | 14 | |||
1.65Plan | 14 | |||
1.66Plan Administrator | 14 | |||
1.67Plan Year | 14 | |||
1.68Present Value | 15 | |||
1.69Projected Annual Benefit | 15 | |||
1.70Qualified Deferred Compensation Plan | 15 | |||
1.71Qualified Domestic Relations Order | 15 | |||
1.72Qualified Early Retirement Age | 15 | |||
1.73Qualified Joint And Survivor Annuity | 15 | |||
1.74Qualified Voluntary Contribution | 15 | |||
1.75Required Aggregation Group | 15 | |||
1.76Required Beginning Date | 16 | |||
1.77Retirement Protection Act Of 1999 (RPA ‘94) Old Law Benefit | 16 | |||
1.78Rollover Contribution | 16 | |||
1.79Self-Employed Individual | 16 | |||
1.80Service | 16 | |||
1.81Shareholder Employee | 16 | |||
1.82Simplified Employee Pension Plan | 16 | |||
1.83Social Security Retirement Age | 16 | |||
1.84Sponsor | 17 | |||
1.85Spouse | 17 | |||
1.86Stability Period | 17 | |||
1.87Straight Life Annuity | 17 | |||
1.88Super Top-Heavy Plan | 17 | |||
1.89Tax Reform Act Of 1986 (TRA ‘86) Accrued Benefit | 17 | |||
1.90Taxable Wage Base | 17 | |||
1.91Theoretical Contribution | 17 | |||
1.92Theoretical ILP Reserve | 17 | |||
1.93Top-Heavy Determination Date | 17 | |||
1.94Top-Heavy Plan | 17 | |||
1.95Top-Heavy Ratio | 18 | |||
1.96Top-Paid Group | 19 | |||
1.97Transfer Contribution | 19 | |||
1.98Trust | 19 | |||
1.99Trustee | 19 | |||
1.100USERRA | 19 | |||
1.101Valuation Date | 19 | |||
1.102Vested Accrued Benefit | 19 | |||
1.103Voluntary After-tax Contribution | 19 | |||
1.104Welfare Benefit Fund | 20 | |||
1.105Year Of Participation | 20 | |||
1.106Year Of Service | 20 | |||
ELIGIBILITY REQUIREMENTS | 22 | |||
2.1Participation | 22 | |||
2.2Change In Classification Of Employment | 22 | |||
2.3Computation Period | 22 |
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2.4Employment Rights | 22 | |||
2.5Service With Controlled Groups | 22 | |||
2.6Leased Employees | 22 | |||
EMPLOYER CONTRIBUTIONS | 24 | |||
3.1Amount | 24 | |||
3.2Expenses And Fees | 24 | |||
3.3Responsibility For Contributions | 24 | |||
3.4Allocations Of Benefits | 24 | |||
3.5Return Of Contributions | 25 | |||
EMPLOYEE CONTRIBUTIONS | 26 | |||
4.1Voluntary After-tax Contributions | 26 | |||
4.2Qualified Voluntary Contributions | 26 | |||
4.3Rollover Contribution | 26 | |||
4.4Transfer Contribution | 26 | |||
4.5Direct Rollover Of Benefits | 27 | |||
4.6Separate Accounts | 27 | |||
4.7Adjustments To Participant Accounts | 27 | |||
4.8Nonforfeitability | 27 | |||
4.9In-Service Withdrawals Of Employee Contributions | 28 | |||
4.10Withdrawal On Termination Of Employment | 28 | |||
4.11Withdrawal On Death | 28 | |||
RETIREMENT BENEFITS | 29 | |||
5.1Normal Retirement Benefit | 29 | |||
5.2Adjusting Frozen Accrued Benefits | 29 | |||
5.3Late Retirement Benefit | 29 | |||
5.4Disability Retirement Benefit | 30 | |||
5.5Definite Benefit Requirements | 30 | |||
5.6Early Retirement Benefit | 31 | |||
5.7Cash-Out Of Accrued Benefits | 31 | |||
5.8Restrictions On Immediate Distributions | 31 | |||
5.9Normal Form Of Payment | 32 | |||
5.10Optional Forms Of Payment | 32 | |||
5.11Commencement Of Benefits | 33 | |||
5.12In-Service Withdrawals Of Employer Contributions | 33 | |||
5.13Claims Procedures | 33 | |||
5.14Suspension Of Benefits | 33 | |||
5.15Special Rules For Fully Insured Plans | 34 | |||
DISTRIBUTION REQUIREMENTS | 36 | |||
6.1Joint And Survivor Annuity Requirements | 36 | |||
6.2Minimum Distribution Requirements | 36 | |||
6.3Limits On Distribution Periods | 36 | |||
6.4Required Beginning Date | 36 | |||
6.5Determination Of Amount To Be Distributed Each Year | 37 | |||
6.6Eligibility For Death Benefits | 39 | |||
6.7Death After Commencement Of Benefits | 39 | |||
6.8Death Prior To Commencement Of Benefits | 39 | |||
6.9Life Expectancy | 40 | |||
6.10Beneficiary Election Of Distribution Method | 40 | |||
6.11Payments To A Child Of The Participant | 40 | |||
6.12Deemed Distribution Starting Date | 40 | |||
6.13No Beneficiary | 40 | |||
6.14Transitional Rules | 40 | |||
JOINT AND SURVIVOR ANNUITY REQUIREMENTS | 42 | |||
7.1Precedence Over Conflicting Provisions | 42 | |||
7.2Payment Of Qualified Joint And Survivor Annuity | 42 |
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7.3Payment Of Qualified Pre-Retirement Survivor Annuity | 42 | |||
7.4Qualified Election | 42 | |||
7.5Notice Requirements For Qualified Joint And Survivor Annuity | 43 | |||
7.6Notice Requirements For Qualified Pre-Retirement Survivor Annuity | 44 | |||
7.7No Notices For Fully Subsidized Plans | 44 | |||
7.8Transitional Joint And Survivor Annuity Rules | 44 | |||
7.9Automatic Joint And Survivor Annuity And Early Survivor Annuity | 44 | |||
7.10Annuity Contracts | 45 | |||
VESTING | 46 | |||
8.1Employer Paid Benefits | 46 | |||
8.2Computation Period | 46 | |||
8.3Requalification After A Break In Service | 46 | |||
8.4Calculating Vested Interest | 46 | |||
8.5Commencement Of Benefits | 46 | |||
8.6Forfeitures | 46 | |||
8.7Unclaimed Benefits | 46 | |||
8.8Amendment Of Vesting Schedule | 47 | |||
8.9Amendments Affecting Vested And/Or Accrued Benefits | 47 | |||
8.10Service With Controlled Groups | 48 | |||
8.11Compliance With Uniformed Service Employment And Reemployment Rights Act Of 1994 | 48 | |||
LIMITATIONS ON BENEFITS | 49 | |||
9.1Participation In This Plan | 49 | |||
9.2Participation In This Plan And Another Employer Plan | 49 | |||
9.3Limitations On Benefits | 50 | |||
ADMINISTRATION | 51 | |||
10.1Plan Administrator | 51 | |||
10.2Persons Serving As Plan Administrator | 52 | |||
10.3Action By Employer | 52 | |||
10.4Responsibilities Of The Parties | 52 | |||
10.5Allocation Of Investment Responsibility | 52 | |||
10.6Appointment Of Investment Manager | 52 | |||
10.7Participant Loans | 53 | |||
10.8Insurance Policies | 54 | |||
10.9Determination Of Qualified Domestic Relations Order (QDRO Or Order) | 55 | |||
10.10Receipt And Release For Payments | 56 | |||
10.11Resignation And Removal | 56 | |||
10.12Claims And Claims Review Procedure | 56 | |||
10.13Bonding | 57 | |||
TRUST PROVISIONS | 58 | |||
11.1Establishment Of The Trust | 58 | |||
11.2Control Of Plan Assets | 58 | |||
11.3Discretionary Trustee | 58 | |||
11.4Nondiscretionary Trustee | 59 | |||
11.5Provisions Relating To Individual Trustees | 59 | |||
11.6Investment Instructions | 59 | |||
11.7Fiduciary Standards | 59 | |||
11.8Powers Of The Trustee | 60 | |||
11.9Appointment Of Additional Trustee And Allocation Of Responsibilities | 62 | |||
11.10Compensation, Administrative Fees And Expenses | 62 | |||
11.11Records | 63 | |||
11.12Limitation On Liability And Indemnification | 63 | |||
11.13Custodian | 64 | |||
11.14Investment Alternatives Of The Custodian | 66 | |||
11.15Prohibited Transactions | 66 | |||
11.16Exclusive Benefit Rules | 66 |
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11.17Assignment And Alienation Of Benefits | 66 | |||
11.18Liquidation Of Assets | 67 | |||
11.19Resignation And Removal | 67 | |||
TOP-HEAVY PROVISIONS | 68 | |||
12.1Applicability Of Rules | 68 | |||
12.2Minimum Benefit | 68 | |||
12.3Minimum Vesting | 69 | |||
12.4Limitations On Benefits | 69 | |||
12.5Benefit Reduction Resulting From Aggregation | 69 | |||
AMENDMENT AND TERMINATION | 72 | |||
13.1Amendment By Sponsor | 72 | |||
13.2Amendment By Employer | 72 | |||
13.3Protected Benefits | 72 | |||
13.4Plan Termination | 72 | |||
13.5Allocation Of Assets Upon Termination | 72 | |||
13.6Early Termination Provisions | 73 | |||
13.7Early Termination Restrictions | 74 | |||
13.8Qualification Of Employer’s Plan | 75 | |||
13.9Mergers And Consolidations | 76 | |||
13.10Resignation And Removal | 76 | |||
13.11Qualification Of Prototype | 76 | |||
GOVERNING LAW | 77 | |||
14.1Governing Law | 77 | |||
14.2State Community Property Laws | 77 | |||
MINIMUM DISTRIBUTION REQUIREMENTS MODEL AMENDMENT | 6 | |||
ARTICLE XV | 6 | |||
15.1Effective Date | 6 | |||
15.2Coordination With Minimum Distribution Requirements Previously In Effect | 6 | |||
15.3Precedence | 6 | |||
15.4Requirements Of Treasury Regulations Incorporated | 6 | |||
15.5TEFRA Section 242(b)(2) Elections | 6 | |||
15.6Required Beginning Date | 6 | |||
15.7Death Of Participant Before Distributions Begin | 6 | |||
15.8Forms Of Distributions | 7 | |||
15.9Amount of Required Minimum Distribution For Each Distribution Calendar Year | 7 | |||
15.10Lifetime Required Minimum Distributions Continue Through Year Of Participant’s Death | 7 | |||
15.11Death On Or After Distributions Begin | 8 | |||
15.12Death Before Date Distributions Begin | 8 | |||
15.13Designated Beneficiary | 8 | |||
15.14Distribution Calendar Year | 8 | |||
15.15Life Expectancy | 9 | |||
15.16Participant’s Vested Accrued Benefit | 9 | |||
15.17Required Beginning Date | 9 | |||
Retroactive annuity starting date MODEL AMENDMENT | 10 |
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(a) | Under the fractional method of calculating Accrued Benefit, the Normal Retirement Benefit at the Participant’s Normal Retirement Age is multiplied by a fraction, as specified in the Adoption Agreement, the numerator of which is either the actual number of Years of Service the Participant has completed with the Employer or the actual number of Years of Participation in the Plan, and the denominator of which is the number of Years of Service or Participation the Participant would have accumulated with the Employer as of such Participant’s Normal Retirement Age, or the current year, if later. If so selected, “Years and Months” will be substituted for “Years” in the preceding sentence. However, if this Plan has had a fresh-start and after the latest Fresh-Start Date the fresh-start rule used under the Plan is the formula with wear-away, the amount in the preceding sentence will not be less than the Participant’s Frozen Accrued Benefit. If this Plan has had a fresh-start and after the latest Fresh-Start Date the fresh-start rule used under the Plan is the formula with wear-away or extended wear-away, in determining the Participant’s Accrued Benefit with respect to Years of Participation or Service after the latest Fresh-Start Date under the formula without wear-away, the numerator of the fraction will be limited to the Participant’s Years of Participation or Service after the latest Fresh-Start Date. |
(1) | If the Employer’s Plan is a Standardized Unit Benefit Plan, a Participant’s Accrued Benefit at any time equals the product of the Normal Retirement Benefit multiplied by a fraction, the numerator of which is the number of Years of Participation at such time, and the denominator of which is the number of Years of Participation the Participant would have at Normal Retirement Age, or the current year if later. | ||
(2) | If the Employer’s Plan is a Standardized Flat Benefit Plan, a Participant’s Accrued Benefit at any time equals the product of the Normal Retirement Benefit multiplied by a fraction, the numerator of which is the number of Years of Participation at such time, and the denominator of which is the number of Years of Participation the Participant would have at Normal Retirement Age, or twenty-five (25) years if greater. |
(b) | Alternately, each Participant may accrue a benefit based on a fixed percentage of Compensation or stated dollar amount per Year of Participation or per Year of Service. When determining the Accrued Benefit under this method, the Basic Normal Retirement Benefit is the total benefit accrued at the Participant’s Normal Retirement Date. If the Participant separates from Service prior to his or her Normal Retirement Date, the Accrued Benefit is equal to the Normal Retirement Benefit as of the date of separation of Service. If the accrual is based on a percentage of Compensation for each Year of Participation, a |
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Participant should not accrue benefits in any year which exceed 133-1/3% of the annual rate at which the Participant could accrue benefits for any prior Plan Year. |
(c) | Under the “three percent (3%) method”, a Participant’s Accrued Benefit at any time shall equal three percent (3%) of the Normal Retirement Benefit, multiplied by the number of Years of Participation including years after Normal Retirement Age (not in excess of 33-1/3). Under this method, the Normal Retirement Benefit is the benefit to which the Participant would be entitled if he or she commenced participation at the earliest possible entry age under the Plan and served continuously until the earlier of age sixty-five (65) or the Plan’s Normal Retirement Age. Compensation is based on the same number of years as specified in the definition of Average Annual Compensation in the Adoption Agreement. |
(a) | Employer contributions, | ||
(b) | Employee contributions (under Article IV), | ||
(c) | forfeitures, | ||
(d) | amounts allocated after March 31, 1984 to an individual medical account, as defined in Code Section 415(l)(2), which is part of a pension or annuity plan maintained by the Employer (these amounts are treated as Annual Additions to a Defined Contribution Plan though they arise under a Defined Benefit Plan), | ||
(e) | amounts derived from contributions paid or accrued after 1985, in taxable years ending after 1985, which are either attributable to post-retirement medical benefits, allocated to the separate account of a Key Employee, as defined in Code Section 419A(d)(3), or under a Welfare Benefit Fund maintained by the Employer are also treated as Annual Additions to a Defined Contribution Plan. (For purposes of this paragraph, an Employee is a Key Employee if he or she meets the requirements of paragraph 1.50 at any time during the Plan Year or preceding Plan Year.) Welfare Benefit Fund is defined at paragraph 1.104; and | ||
(f) | allocations under a Simplified Employee Pension Plan. |
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(a) | the value of a Qualified Joint and Survivor Annuity, | ||
(b) | the value of benefits that are not directly related to retirement benefits (such as the qualified disability benefit, pre-retirement death benefits, and post-retirement medical benefits), and | ||
(c) | the value of post-retirement cost-of-living increases made in accordance with Code Section 415(d) and Federal Income Tax Regulations Section 1.415-3(c)(2)(iii). |
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(a) | CodeSection 3401(a) Wages. Compensation is defined as wages within the meaning of Code Section 3401(a) for the purposes of Federal income tax withholding at the source but determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed [such as the exception for agricultural labor in Code Section 3401(a)(2)]. | ||
(b) | Code Sections 6041, 6051 and 6052 Reportable WagesCompensation is defined as information required to be reported under Code Sections 6041, 6051 and 6052 of the Internal Revenue Code (wages, tips and other compensation as reported on Form W-2). Compensation includes wages at (a) above and all other payments of Compensation to an Employee by the Employer (in the course of the Employer’s trade or business) for which the Employer is required to furnish the Employee a written statement under Code Sections 6041(d), 6051(a)(3) and 6052. Compensation must be determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed [such as the exception for agricultural labor in Code Section 3401(a)(2)]. | ||
(c) | Code Section 415 Compensation. Compensation is defined as Code Section 415 Compensation which is: a Participant’s Earned Income, 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 salesmen, 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 Regulations Section 1.62-2(c)]. For Limitation Years beginning after December 31, 1997, for purposes of applying the definition of this paragraph and the limitations of Article IX, Compensation paid or made available during such Limitation Years shall include any elective deferral [as defined in Code Section 402(g)(3)], and any amount which is contributed or deferred by the Employer at the election of the Employee and which is not includible in gross income of the Employee by reason of Code Sections 125, 132(f) 402(e)(3), 402(h)(1) or 403(b). Compensation excludes the following: |
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(1) | for Limitation Years beginning before January 1, 1998, Employer contributions, made under the terms of a salary deferral agreement between an Employee and the Employer, to a plan of deferred compensation which are not includible in the Employee’s gross income for the taxable year in which contributed. Such contributions shall include any amount deferred under Code Section 125 in connection with a cafeteria plan, Code Section 402(e)(3) in connection with a cash or deferred plan, Code Section 402(h)(1)(B) in connection with a Simplified Employee Pension Plan, Code Section 457 Plan and Code Section 403(b) in connection with a tax-sheltered annuity plan; | ||
(2) | distributions received from a plan of deferred compensation; | ||
(3) | amounts realized from the exercise of a non-qualified stock option, 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; | ||
(4) | amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; and | ||
(5) | other amounts which received special tax benefits, or contributions made by the Employer (whether or not under a salary reduction agreement) towards the purchase of an annuity contract described in Code Section 403(b) (whether or not the contributions are actually excludible from the gross income of the Employee). |
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(a) | 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 Participant or the joint lives (or joint life expectancies) of the Participant and the Participant’s Designated Beneficiary, or for a specified period of ten (10) years or more; | ||
(b) | any hardship withdrawals under Code Section 401(k)(2)(B)(i)(IV) received after December 31, 1998, | ||
(c) | any distribution to the extent such distribution is required under Code Section 401(a)(9); and | ||
(d) | the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to Employer securities). |
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(a) | Each hour for which an Employee is paid, or entitled to payment, for the performance of duties for the Employer. These hours shall be credited to the Employee for the computation period in which the duties are performed; and | ||
(b) | Each hour for which an Employee is paid, or entitled to payment, by the Employer on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including Disability), layoff, jury duty, military duty or leave of absence. No more than 501 Hours of Service shall be credited under this paragraph for any single continuous period (whether or not such period occurs in a single computation period). Hours under this paragraph shall be calculated and credited pursuant to Section 2530.200b-2 of the Department of Labor Regulations which are incorporated herein by this reference; and | ||
(c) | Each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Employer. The same Hours of Service shall not be credited both under paragraph (a) or paragraph (b), as the case may be, and under this paragraph (c). These hours shall be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement or payment is made. | ||
(d) | Hours of Service shall be credited for employment with the Employer and for employment for any period of time with other members of an affiliated service group [as defined in Code Section 414(m)], a controlled group of corporations [as defined in Code Section 414(b)], or a group of trades or businesses under common control [as defined in Code Section 414(c)] of which the adopting Employer is a member, and any other entity required to be aggregated with the Employer pursuant to Code Section 414(o). Hours of Service shall also be credited for any individual considered an Employee for purposes of this Plan under Code Section 414(n) or (o). | ||
(e) | Solely for purposes of determining whether a Break in Service, as defined in paragraph 1.13, for participation and vesting purposes has occurred in a computation period, an individual who is absent from work for maternity or paternity reasons shall receive credit for the Hours of Service which would otherwise have been credited to such individual but for such absence, or in any case in which such hours cannot be determined, eight (8) Hours of Service per day of such absence. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence by reason of the pregnancy of the individual, by reason of a birth of a child of the individual, by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or for purposes of caring for such child for a period beginning immediately following such birth or placement. The Hours of Service credited under this paragraph shall be credited in the computation period in which the absence begins if the crediting is necessary to prevent a Break in Service in that period, or in all other cases, in the following computation period. No more than 501 hours will be credited under this paragraph. | ||
(f) | Hours of Service shall be determined on the basis of either the hours counting or the elapsed time method as selected by the Employer in Section III of the Adoption Agreement. If no selection is made, actual Hours will be used. |
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(a) | The lesser of the Defined Benefit Dollar Limitation or 100% of the Participant’s Highest Average Compensation. | ||
(b) | If the Participant has less than ten (10) years of participation in the Plan, the Defined Benefit Dollar Limitation shall be reduced in the following manner. It shall be multiplied by a fraction, the numerator of which is the number of years (or part thereof) of participation in the Plan, and the denominator of which is ten (10). In the case of a Participant who has less than ten (10) Years of Service with the Employer, the Compensation limitation shall be multiplied by a fraction, the numerator of which is the number of years (or part thereof) of Service with the Employer, and the denominator of which is ten (10). The adjustments of this section (b) shall be applied in the denominator of the Defined Benefit Fraction based upon Years of Service. For purposes of computing the Defined Benefit Fraction only, Years of Service shall include future Years of Service (or part thereof) commencing before the |
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Participant’s Normal Retirement Age. Such future Year of Service shall include the year that contains the date the Participant reaches Normal Retirement Age, only if it can be reasonably anticipated that the Participant will receive a Year of Service for such year, or the year in which the Participant terminates employment, if earlier. This paragraph does not apply for Limitation Years beginning on or after January 1, 2000. | |||
(c) | If the Annual Benefit of the Participant commences before the Participant’s Social Security Retirement Age but on or after age sixty-two (62), the Defined Benefit Dollar Limitation, as reduced in (b) above if necessary, shall be determined as follows: |
(1) | If a Participant’s Social Security Retirement Age is sixty-five (65), the dollar limitation for benefits commencing on or after age sixty-two (62) is determined by reducing the Defined Benefit Dollar Limitation by 5/9 of one percent (1%) for each month by which benefits commence before the month in which the Participant attains age sixty-five (65). | ||
(2) | If a Participant’s Social Security Retirement Age is greater than sixty-five (65), the dollar limitation for benefits commencing on or after age sixty-two (62) is determined by reducing the Defined Benefit Dollar Limitation by 5/9 of one percent (1%) for each of the first thirty-six (36) months and 5/12 of one percent (1%) for each of the additional months [up to twenty-four (24) months] by which benefits commence before the month of the Participant’s Social Security Retirement Age. |
(d) | If the Annual Benefit of a Participant commences prior to age sixty-two (62), the Defined Benefit Dollar Limitation shall be the Actuarial Equivalent of an Annual Benefit beginning at age sixty-two (62), as determined above, reduced for each month by which benefits commence before the month in which the Participant attains age sixty-two (62). The Annual Benefit beginning before age sixty-two (62) shall be determined as the lesser of the equivalent Annual Benefit computed using the interest rate and mortality table (or other tabular factor) equivalence for early retirement benefits, and the equivalent Annual Benefit computed using a five percent (5%) interest rate and the applicable mortality table as defined in the Adoption Agreement. Any decrease in the adjusted Defined Benefit Dollar Limitation determined in accordance with this provision (d) shall not reflect any mortality decrement to the extent that benefits will not be forfeited upon the death of the Participant. | ||
(e) | If the Annual Benefit of a Participant commences after the Participant’s Social Security Retirement Age, the Defined Benefit Dollar Limitation as reduced in (b) above, if necessary, shall be increased so that it is the Actuarial Equivalent of an Annual Benefit of such dollar limitation beginning at the Participant’s Social Security Retirement Age The equivalent Annual Benefit beginning after Social Security Retirement Age shall be determined as the lesser of the equivalent Annual Benefit computed using the interest rate and mortality table (or other tabular factor) specified in the Plan for purposes of determining Actuarial Equivalence for delayed retirement benefits, and the equivalent Annual Benefit computed using a five percent (5%) interest rate assumption and the applicable mortality table as defined in the Adoption Agreement. | ||
(f) | Notwithstanding anything else in this section to the contrary, the benefit otherwise accrued or payable to a Participant under this Plan shall be deemed not to exceed the Defined Benefit Dollar Limitation if: |
(1) | the retirement benefits payable for a Plan Year under any form of benefit with respect to such Participant under this Plan and under all other Defined Benefit Plans (regardless of whether terminated) ever maintained by the Employer do not exceed $1,000 multiplied by the Participant’s number of Years of Service or parts thereof [not to exceed ten (10)] with the Employer; and | ||
(2) | the Employer has not at any time maintained a Defined Contribution Plan, a Welfare Benefit Plan, or an individual medical account in which the Participant participated. |
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(a) | the Participant will continue employment until Normal Retirement Age under the Plan (or current age, if later), and | ||
(b) | the Participant’s Compensation for the current Limitation Year and all other relevant factors used to determine benefits under the Plan will remain constant for all future Limitation Years. |
(a) | the earliest date under the Plan on which a Participant may elect to receive retirement benefits, | ||
(b) | the first day of the 120th month beginning before a Participant reaches Normal Retirement Age, or | ||
(c) | the date on which a Participant begins participation. |
(a) | each qualified plan of the Employer in which at least one Key Employee participates or participated at any time during the determination period (regardless of whether the plan has terminated), and | ||
(b) | any other qualified plan of the Employer which enables a plan described in (a) to meet the requirements of Code Sections 401(a)(4) and 410. |
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(a) | any Plan amendment increasing benefits adopted after the RPA ‘94 freeze date; and | ||
(b) | any cost of living adjustments that become effective after such date. |
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(a) | any change in the terms and conditions of the Plan after May 5, 1986; and | ||
(b) | any cost of living adjustments occurring after May 5, 1986. |
(a) | If the Top-Heavy Ratio for the Employer’s Plan exceeds sixty percent (60%) and this Plan is not part of any Required Aggregation Group or Permissive Aggregation Group of plans. |
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(b) | If the Employer’s Plan is a part of a Required Aggregation Group of plans but not part of a Permissive Aggregation Group and the Top-Heavy Ratio for the group of plans exceeds sixty percent (60%). | ||
(c) | If the Employer’s Plan is a part of a Required Aggregation Group and part of a Permissive Aggregation Group of plans and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds sixty percent (60%). |
(a) | If the Employer maintains one or more Defined Benefit Plans and the Employer has never maintained any Defined Contribution Plan (including any Simplified Employee Pension Plan) which during the five (5) year period ending on the Top-Heavy Determination Date(s) has or has had account balances, the Top-Heavy Ratio for this Plan alone or for the Required or Permissive Aggregation Group, as appropriate, is a fraction, the numerator of which is the sum of the Present Value of Accrued Benefits of all Key Employees as of the Top-Heavy Determination Date(s) [including any part of any Accrued Benefit distributed in the five (5) year period ending on the Top-Heavy Determination Date(s)], and the denominator of which is the sum of the Present Value of Accrued Benefits [including any part of any Accrued Benefit distributed in the five (5) year period ending on the Top-Heavy Determination Date(s)] of all Participants determined in accordance with Code Section 416 and the Regulations thereunder. | ||
(b) | If the Employer maintains one or more Defined Benefit Plans and the Employer maintains or has maintained one or more Defined Contribution Plans (including any Simplified Employee Pension Plan) which during the five (5) year period ending on the Determination Date(s) has or has had any account balances, the Top-Heavy Ratio for any Required or Permissive Aggregation Group, as appropriate, is a fraction, the numerator of which is the sum of account balances under the aggregated Defined Contribution Plans for all Key Employees as of the Top-Heavy Determination Date(s) and the Present Value of Accrued Benefits under the aggregated Defined Benefit Plans for all Key Employees, determined in accordance with (a) above and the denominator of which is the sum of the account balances under the aggregated Defined Contribution Plans for all Participants as of the Top-Heavy Determination Date(s) and the Present Value of Accrued Benefits under the aggregated Defined Benefit Plans determined in accordance with (a) above for all Participants as of the Top-Heavy Determination Date(s), all determined in accordance with Code Section 416 and the Regulations thereunder. The account balances under a Defined Contribution Plan in both the numerator and denominator of the Top-Heavy Ratio are increased for any distribution of an account balance made in the five (5) year period ending on the Top-Heavy Determination Date. | ||
(c) | For purposes of (a) and (b) above, the value of account balances and the Present Value of Accrued Benefits will be determined as of the most recent Valuation Date that falls within or ends with the twelve (12) month period ending on the Top-Heavy Determination Date, except as provided in Code Section 416 and the Regulations thereunder for the first and second Plan Years of a Defined Benefit Plan. The account balances and Accrued Benefits of a Participant (1) who is not a Key Employee but who was a Key Employee in a prior year or (2) who has not been credited with at least one (1) Hour of Service with any Employer maintaining the Plan at any time during the five (5) year period ending on the Top-Heavy Determination Date will be disregarded. The calculation of the Top-Heavy Ratio, and the extent to which distributions, rollovers, and transfers are taken into account will be made in accordance with Code Section 416 and the Regulations thereunder. Qualified Voluntary Employee Contributions will not be taken into account for purposes of computing the Top-Heavy Ratio. When aggregating plans, the value of account balances and Accrued Benefits will be calculated with reference to the Top-Heavy Determination Dates that fall within the same calendar year. | ||
(d) | The Accrued Benefit of a Participant other than a Key Employee shall be determined under the method, if any, that uniformly applies for accrual purposes under all Defined Benefit Plans maintained by the Employer, or if there is no such method, as if such benefit accrued not more rapidly than the slowest accrual rate permitted under the fractional rule of Code Section 411(b)(1)(C). |
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(a) | Employees who have not completed six (6) months of Service. | ||
(b) | Employees who normally work less than 171/2 hours per week. | ||
(c) | Employees who normally do not work more than six (6) months during any year. | ||
(d) | Employees who have not attained age twenty-one (21). | ||
(e) | Employees included in a collective bargaining unit, covered by an agreement between Employee representatives and the Employer, where retirement benefits were the subject of good faith bargaining and provided that ninety percent (90%) or more of the Employer’s Employees are covered by the agreement. | ||
(f) | Employees who are nonresident aliens and who receive no earned income which constitutes income from sources within the United States. |
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(a) | the Participant is credited with at least the number of Hours of Service [or in the event of a Plan using the Elapsed Time Method, one (1) year of employment] for benefit accrual purposes, required under the terms of the Plan in order to accrue a benefit for the accrual computation period, and | ||
(b) | the Participant is included as a Participant under the eligibility provisions of the Plan for at least one day of the accrual computation period. |
(a) | Hours of Service Method- A twelve (12) consecutive month period during which an Employee has not less than the number of Hours of Service specified in Section III of the Adoption Agreement. | ||
(b) | Elapsed Time Method- For purposes of determining either an Employee’s initial or continued eligibility to participate in the Plan, or the nonforfeitable interest in the Participant’s account balance derived from Employer contributions, an Employee will receive credit for the aggregate of all time period(s) worked commencing with the Employee’s first day of employment or reemployment and ending on the date a Break in Service begins. The first day of employment or reemployment is the first day the Employee performs an Hour of Service for the Employer. An Employee will also receive credit for any Period of Severance of less than twelve (12) consecutive months. Fractional periods of a year will be expressed in terms of days. | ||
Each Employee will share in Employer contributions for the period beginning on the date the Employee commences participation under the Plan and ending on the date on which such Employee terminates employment with the Employer or is no longer a member of an eligible class of Employees. | |||
An Employer adopting the Elapsed Time Method is required to credit periods of Service and, under the Service spanning rules, certain periods of severance of twelve (12) months or less. Under the first Service spanning rule, if an Employee severs from Service as a result of resignation, discharge or retirement and then returns to Service within twelve (12) months, the Period of Severance is required to be taken into account. A situation may arise in which an Employee is absent from Service for any |
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reason other than resignation, discharge, retirement and during the absence a resignation, discharge or retirement occurs. The second Service spanning rule provides that, under such circumstances, the Plan is required to take into account the period of time between the severance from Service date (i.e., the date of resignation, discharge or retirement) and the first anniversary of the date on which the Employee was first absent, if the Employee returns to Service on or before such first anniversary date. |
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(a) | a non-integrated Employer contribution rate of at least ten percent (10%) of Compensation [as defined in Code Section 415(c)(3) but including amounts contributed by the Employer pursuant to a salary reduction agreement which are excludable from the Employee’s gross income under a cafeteria |
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plan covered by Code Section 125, a cash or deferred profit-sharing plan under Code Section 401(k), a Simplified Employee Pension Plan under Code Section 402(h)(l)(B), and a tax-sheltered annuity under Code Section 403(b)]; | |||
(b) | immediate participation; and | ||
(c) | full and immediate vesting. |
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(a) | Any contribution forwarded to the Trustee because of a mistake of fact, provided that the contribution is returned to the Employer within one (1) year of the contribution. | ||
(b) | In the event that the Commissioner of Internal Revenue determines that the Plan is not initially qualified under the Internal Revenue Code, any contribution made incident to that initial qualification by the Employer must be returned to the Employer within one (1) year after the date the initial qualification is denied, but only if the application for the qualification is made by the time prescribed by law for filing the Employer’s return for the taxable year in which the Plan is adopted, or such later date as the Secretary of the Treasury may prescribe. | ||
(c) | Contributions forwarded to the Trustee are presumed to be deductible and are conditioned on their deductibility. Contributions which are disallowed under Code Section 404 must be returned to the Employer within one (1) year of the disallowance of the deduction. |
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(a) | the amount distributed to the Participant/Employee is transferred to the Plan no later than the sixtieth day after such distribution was received by the Participant, | ||
(b) | the amount distributed is not one of a series of substantially equal periodic payments made for the life (or life expectancy) of the Participant/Employee or the joint lives (or joint life expectancies) of the Participant/Employee and the Participant’s/Employee’s Designated Beneficiary, or for a specified period of ten (10) years or more, | ||
(c) | the amount distributed is not a required minimum distribution required under Code Section 401(a)(9), | ||
(d) | if the amount distributed included property, such property is rolled over, or if sold the proceeds of such property may be rolled over, and | ||
(e) | the amount distributed is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to Employer securities). |
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(a) | Voluntary After-tax Contributions. | ||
(b) | Qualified Voluntary Contributions. | ||
(c) | Rollover Contributions and Transfer Contributions. |
(a) | any Employee contributions made by the Participant since the last Valuation Date, and | ||
(b) | the Participant’s proportionate share of any investment earnings and increase in the fair market value of the Fund since the last Valuation Date, based on the ratio that each Participant’s account balance bears to all such account balances. |
(c) | any withdrawals or payments made from the Participant’s account since the last Valuation Date, and | ||
(d) | the Participant’s proportionate share of any decrease in the fair market value of the Fund since the last Valuation Date, based on the ratio that each Participant’s account balance bears to all such account balances. |
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(a) | If as of the Participant’s latest Fresh-Start Date the amount of a Participant’s Frozen Accrued Benefit was limited by the application of Code Section 415, the Participant’s Frozen Accrued Benefit will be increased for the years after the latest Fresh-Start Date to the extent permitted under Code Section 415(d)(1). In addition, if a Participant’s Frozen Accrued Benefit includes the Top-Heavy minimum benefits provided in paragraph 12.2, such benefit will be increased to the extent necessary to comply with the average Compensation requirements of Code Section 416(c)(1)(D)(i). | ||
(b) | If the Plan’s Normal Form of benefit in effect on the Participant’s latest Fresh-Start Date is not the same as the Normal Form under the Plan after such Fresh-Start Date and/or the Normal Retirement Age for the Participant on that date was greater than the Normal Retirement Age for the Participant under the Plan after such Fresh-Start Date, the Frozen Accrued Benefit will be expressed as an Actuarial Equivalent benefit in the normal form under the Plan after the Participant’s latest Fresh-Start Date, commencing at the Participant’s Normal Retirement Age in effect after such date. | ||
(c) | If the Plan provides a new optional form of benefit with respect to a Participant’s Frozen Accrued Benefit, such new optional form will be provided with respect to each Participant’s entire Accrued Benefit (including accruals both before and after the Fresh-Start Date). | ||
(d) | If the Plan is a unit credit plan, with respect to Plan Years beginning after the latest Fresh-Start Date, the current benefit formula will provide each Participant in the Fresh-Start Group a benefit of not less than .5% of the Participant’s Average Annual Compensation times the Participant’s Year’s of Service after the latest Fresh-Start Date. | ||
(e) | If the Plan is a flat benefit plan, with respect to Plan Years beginning after the Plan’s latest Fresh-Start Date, the current benefit formula will provide each Participant a benefit of not less than twenty-five percent (25%) of the Participant’s Average Annual Compensation. If a Participant will have less than fifty (50) Years of Service after the latest Fresh-Start Date through the year the Participant attains Normal Retirement Age (or current age, if greater), then such minimum percentage will be reduced by multiplying it by the following ratio: |
50
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(a) | the Applicable Interest Rate if the Present Value of the benefit [using such rate(s)] is not in excess of $25,000; or | ||
(b) | 120% of the Applicable Interest Rate if the Present Value of the benefit exceeds $25,000 [as determined under clause (a) above]. In no event shall the Present Value determined under this clause (b) be less than $25,000. |
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(a) | If either the Present Value of a Participant’s Vested Accrued Benefit derived from Employer and Employee contributions exceeds (or at the time of any prior distribution exceeded) $5,000 or there are remaining payments to be made with respect to a particular distribution option that previously commenced, and the Accrued Benefit is immediately distributable, the Participant and the Participant’s Spouse (or where either the Participant or the Spouse has died, the survivor) must consent to any distribution of such Accrued Benefit. The consent of the Participant and the Participant’s Spouse shall be obtained in writing within the ninety (90) day period ending on the Annuity Starting Date. The Annuity Starting Date is the first day of the first period for which an amount is paid as an annuity or any other form. The Plan Administrator shall notify the Participant and the Participant’s Spouse of the right to defer any distribution until the Participant’s Accrued Benefit is no longer immediately distributable. Such notification shall include a general description of the material features and an explanation of the relative values of, the optional forms of benefit |
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available under the Plan in a manner that would satisfy the notice requirements of Code Section 417(a)(3), and shall be provided no less than thirty (30) days and no more than ninety (90) days prior to the Annuity Starting Date. | |||
(b) | The Annuity Starting Date for a distribution in a form other than a Qualified Joint and Survivor Annuity may be less than thirty (30) days after receipt of the written explanation described in the preceding paragraph provided: |
(i) | the Participant has been provided with information that clearly indicates that the Participant has at least thirty (30) days to consider whether to waive the Qualified Joint and Survivor Annuity and has affirmatively elected (with spousal consent) to a form of distribution other than a Qualified Joint and Survivor Annuity; | ||
(ii) | the Participant is permitted to revoke any affirmative distribution election at least until the Annuity Starting Date or, if later, at any time prior to the expiration of the seven (7) day period that begins the day after the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant; and | ||
(iii) | the Annuity Starting Date is a date after the date that the written explanation was provided to the Participant. |
Notwithstanding the foregoing, only the Participant need consent to the commencement of a distribution in the form of a Qualified Joint and Survivor Annuity while the Accrued Benefit is immediately distributable. Neither the consent of the Participant nor the Participant’s Spouse shall be required to the extent that a distribution is required to satisfy Code Sections 401(a)(9) or 415. | |||
Present Value shall be determined in accordance with Section III of the Adoption Agreement. An Accrued Benefit is immediately distributable if any part of the Accrued Benefit could be distributed to the Participant (or Surviving Spouse) before the Participant attains (or would have attained if not deceased) the later of Normal Retirement Age or age sixty-two (62). | |||
(c) | For purposes of determining the applicability of the foregoing consent requirements to distributions made before the first day of the first Plan Year beginning after 1988, the Participant’s Vested Accrued Benefit shall not include amounts attributable to Qualified Voluntary Employee Contributions. | ||
(d) | Transitional Rule for Cash Out Limits- For distributions made before March 22, 1999, if the Present Value of a Participant’s Vested Accrued Benefit derived from Employer and Employee Contributions exceeds (or at the time of any prior distribution in Plan Years beginning before August 6, 1997, exceeded $3,500 or in Plan Years beginning after August 5, 1997, exceeded $5,000) and the Accrued Benefit is immediately distributable, the Participant and the Participant’s Spouse (or where either the Participant or the Spouse has died, the survivor) must consent to any distribution of such Accrued Benefit. |
(a) | Straight Life Annuity. | ||
(b) | Life annuity with not more than 240 monthly payments guaranteed. |
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(c) | Joint and Survivor Annuity with a minimum of fifty percent (50%) and a maximum of 100% of the Participant’s benefit continuing to his or her Spouse for life after the Participant’s death. | ||
(d) | Lump sum payment. | ||
(e) | Other form(s) permitted in the Adoption Agreements. |
(a) | the Participant attains age sixty-five (65) (or Normal Retirement Age if earlier), | ||
(b) | occurs the tenth anniversary of the year in which the Participant commenced participation in the Plan, or | ||
(c) | the Participant terminates Service with the Employer. |
(a) | state the specific reason or reasons for the denial, | ||
(b) | provide specific reference to pertinent Plan provisions on which the denial is based, | ||
(c) | provide a description of any additional material or information necessary for the Participant or his representative to perfect the claim and an explanation of why such material or information is necessary, and | ||
(d) | explain the Plan’s claim review procedure as contained herein. |
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(a) | Normal or Early Retirement Benefits in pay status will be suspended for each calendar month during which the Participant completes at least forty (40) Hours of Service with the Employer in ERISA Section 203(a)(3)(B) service. Similarly, the actuarial value of benefits which commence later than Normal Retirement Age will be computed without regard to amounts which would have been suspended under the preceding sentence as if the Participant had been receiving benefits since Normal Retirement Age. | ||
(b) | Resumption of Payment —If benefit payments have been suspended, payments shall resume no later than the first day of the third calendar month after the calendar month in which the Participant ceases to be employed in ERISA Section 203(a)(3)(B) service. The initial payment upon resumption shall include the payment scheduled to occur in the calendar month when payments resume and any amounts withheld during the period between the cessation of ERISA Section 203(a)(3)(B) service and the resumption of payments. | ||
(c) | Notification —No payment shall be withheld by the Plan pursuant to this paragraph unless the Plan notifies the Participant by personal delivery or first class mail during the first calendar month or payroll period in which the Plan withholds payments that his or her benefits are suspended. Such notifications shall contain a description of the specific reasons why benefit payments are being suspended, a description of the Plan provision relating to the suspension of payments, a copy of such provisions, and a statement to the effect that applicable Department of Labor regulations may be found in Regulations Section 2530.203-3. In addition, the notice shall inform the Participant of the Plan’s procedures for affording a review of the suspension of benefits. Requests for such reviews may be considered in accordance with the claims procedure adopted by the Plan pursuant to ERISA Section 503 and applicable Regulations. | ||
(d) | Amount Suspended: |
(1) | Life Annuity —In the case of benefits payable periodically on a monthly basis for as long as a life (or lives) continues, such as a Straight Life Annuity or a Qualified Joint and Survivor Annuity, an amount equal to the portion of a monthly benefit payment derived from Employer contributions. | ||
(2) | Other Benefit Forms —In the case of a benefit payable in a form other than the form described in sub-paragraph (1) above, an amount of the Employer-derived portion of benefit payments for a calendar month in which the Participant is employed in ERISA Section 203(a)(3)(B) service, equal to the lesser of: |
(i) | the amount of benefits which would have been payable to the Participant if he had been receiving monthly benefits under the Plan since actual retirement based on a single Straight Life Annuity commencing at actual retirement age; or | ||
(ii) | the actual amount paid or scheduled to be paid to the Participant for such month. Payments which are scheduled to be paid less frequently than monthly may be converted to monthly payments for purposes of the above sentence. |
(e) | This section does not apply to the minimum benefit to which the Participant is entitled under the Top-Heavy rules of paragraph 12.2. |
(a) | This Plan may be funded exclusively by the purchase of individual insurance contracts, except for any Top-Heavy sidefund trust maintained for purposes of meeting the minimum benefit requirements of Code Section 416(c). | ||
(b) | All contracts will provide for level annual premium payments to be paid for the period commencing with the date that each individual became a Participant in the Plan (or, in the case of an increase in benefits, commencing at the time such increase becomes effective) and extending to the Normal Retirement Age for each such Participant. |
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(c) | A fully insured Plan may provide that the amount of retirement benefit provided by insurance or annuity contracts will not be provided or increased until the Participant’s Compensation is large enough to provide or increase the retirement benefit by a specified minimum amount. This minimum can be no greater than $120 per year or $10 per month. | ||
(d) | In a fully insured Plan, the current benefit formula may not recognize Years of Service before an Employee commences participation in the Plan. Notwithstanding the foregoing, a Plan with a current benefit formula that was adopted and in effect on September 19, 1991, may continue to recognize Years of Service prior to an Employee’s participation in the Plan, to the extent provided in the Plan on such date. The preceding sentence does not apply with respect to an Employee who first becomes a Participant in the Plan after that date. | ||
(e) | A fully insured Plan satisfies the permitted disparity rules of Code Section 401(l) if each Participant’s benefit under the Plan’s benefit formula satisfies the permitted disparity rules otherwise applicable to Defined Benefit Plans. This includes any required reductions of up to 0.75% to the maximum excess allowance, or, if applicable, the maximum offset allowance. However, the applicable factor as determined must be further reduced by multiplying it by 0.80. | ||
(f) | For fully insured Plans, adjustments are not required for benefits beginning at a time other than Normal Retirement Age. | ||
(g) | Benefits provided by the Plan are equal to the benefits provided under each contract at Normal Retirement Age under the Plan and are guaranteed by an insurance carrier (licensed under the laws of a state to do business with the Plan) to the extent premiums have been paid. | ||
(h) | The premium payments for a Participant who continues benefiting after Normal Retirement Age are equal to the amount necessary to fund additional benefits that accrued under the Plan’s benefit formula for the Plan Year. | ||
(i) | Each Participant’s Accrued Benefit as of any applicable date is the cash surrender value of the Participant’s insurance contract, or if greater, the cash surrender value the Participant’s insurance contracts would have had on such applicable date if (i) premiums payable for such Participant’s Years of Participation for the current Plan Year and all prior Plan Years under such contracts had been paid before lapse and (ii) no rights under such contracts had been subject to a security interest at any time, and (iii) no policy loans were outstanding at any time. | ||
(j) | All benefits must be funded through contracts of the same series which must have cash values based on the same terms (including interest and mortality assumptions) and the same conversion rights. A Plan does not fail to satisfy this requirement, however, if any prospective change in the contract series or insurer applies on the same terms to all Participants in the Plan. | ||
(k) | No rights under any contracts will be subject to a security interest at any time, and no policy loans, including loans to Participants, will be made at any time. |
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(a) | the life of the Participant; | ||
(b) | the life of the Participant and a Designated Beneficiary; | ||
(c) | a period certain not extending beyond the life expectancy of the Participant; or | ||
(d) | a period certain not extending beyond the joint and last survivor expectancy of the Participant and a Designated Beneficiary. |
(a) | The April 1 of the calendar year following the calendar year in which the Participant attains age 701/2. | ||
(b) | The April 1 of the calendar year following the calendar year in which the Participant attains age 701/2, except that benefit distributions to a Participant [other than a five percent (5%)owner] with respect to benefits accrued after the later of the adoption or effective date of the amendment to the Plan must commence by the later of the April 1 of the calendar year following the calendar year in which the Participant attains age 701/2 or retires. | ||
(c) | The later of the April 1 of the calendar year following the calendar year in which the Participant attains age 701/2 or retires except that benefit distributions to a five percent (5%) owner must commence by the April 1 of the calendar year following the calendar year in which the Participant attains age 701/2. |
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(a) | Non-five percent (5%) owners. The Required Beginning Date of a Participant who is not a five percent (5%) owner is the first day of April of the calendar year following the calendar year in which the later of retirement or attainment of age 701/2 occurs. The Required Beginning Date of a Participant who is not a five percent (5%) owner, who attains age 701/2 during 1988 and who has not retired as of 1989, is April 1, 1990. | ||
(b) | Five percent (5%) owners. The Required Beginning Date of a Participant who is a five percent (5%) owner during any year beginning after 1979, is the first day of April following the later of: |
(1) | the calendar year in which the Participant attains age 701/2, or | ||
(2) | the earlier of the calendar year with or within which ends the Plan Year in which the Participant becomes a five percent (5%) owner, or the calendar year in which the Participant retires. |
(c) | A Participant is treated as a five percent (5%) owner for purposes of this paragraph if such Participant is a five percent (5%) owner as defined in Code Section 416(i) (determined in accordance with Code Section 416 but without regard to whether the Plan is Top-Heavy) at any time during the Plan Year ending with or within the calendar year in which such owner attains age 661/2 or any subsequent Plan Year. | ||
(d) | Once distributions have begun to a five percent (5%) owner under this paragraph, they must continue to be distributed, even if the Participant ceases to be a five percent (5%) owner in a subsequent year. |
(a) | If the Participant’s interest is to be paid in the form of Straight Life Annuity distribution under the Plan, payments under the annuity shall satisfy the following requirements: |
(1) | the annuity distributions must be paid in periodic payments made at intervals not longer than one (1) year; | ||
(2) | the distribution period must be over a life (or lives) or over a period certain not longer than a life expectancy (or joint life and last survivor expectancy) described in Code Sections 401(a)(9)(A)(ii) or 401(a)(9)(b)(iii) whichever is applicable; | ||
(3) | the life expectancy (or joint life and last survivor expectancy) for purposes of determining the period certain shall be determined without recalculation of life expectancy; | ||
(4) | once payments have begun over a period certain, the period certain may not be lengthened even if the period certain is shorter than the maximum permitted; | ||
(5) | payments must either be nonincreasing or increase only as follows: |
(i) | with any percentage increase in a specified and generally recognized cost-of-living index; |
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(ii) | to the extent of the reduction to the amount of the Participant’s payments to provide for a survivor benefit upon death, but only if the beneficiary whose life was being used to determine the distribution period described in paragraph 6.3 above dies and the payments continue otherwise in accordance with that section over the life of the Participant; | ||
(iii) | to provide cash refunds of Employee contributions upon the Participant’s death; or | ||
(iv) | because of an increase in benefits under the Plan. |
(6) | If the annuity is a Straight Life Annuity [or a life annuity with a period certain not exceeding twenty (20) years], the amount which must be distributed on or before the Participant’s Required Beginning Date (or, in the case of distributions after the death of the Participant, the date distributions are required to begin pursuant to paragraph 6.9 below) shall be the payment which is required for one payment interval. The second payment need not be made until the end of the next payment interval even if that payment interval ends in the next calendar year. Payment intervals are the periods for which payments are received, e.g., bi-monthly, monthly, semi-annually, or annually. | ||
If the annuity is a period certain annuity without a life contingency [or is a life annuity with a period certain exceeding twenty (20) years], periodic payments for each distribution calendar year shall be combined and treated as an annual amount. The amount which must be distributed by the Participant’s Required Beginning Date or, in the case of distributions after the death of the Participant, the date distributions are required to begin pursuant to paragraph 6.9 is the annual amount for the First Distribution Calendar Year. The annual amount for other Distribution Calendar Years, including the annual amount for the calendar year in which the Participant’s Required Beginning Date (or the date distributions are required to begin pursuant to paragraph 6.9 below) occurs, must be distributed on or before December 31 of the calendar year for which the distribution is required. |
(b) | Annuities purchased after 1988, are subject to the following additional conditions: |
(1) | Unless the Participant’s Spouse is the Designated Beneficiary, if the Participant’s interest is being distributed in the form of a period certain annuity without a life contingency, the period certain as of the beginning of the First Distribution Calendar Year may not exceed the applicable period determined using the table set forth in Q&A A-5 of Regulations Section 1.401(a)(9)-2, as proposed. | ||
(2) | If the Participant’s interest is being distributed in the form of a Joint and Survivor Annuity for the joint lives of the Participant and a non-Spouse beneficiary, annuity payments to be made on or after the Participant’s Required Beginning Date to the Designated Beneficiary after the Participant’s death must not at any time exceed the applicable percentage of the annuity payment for such period that would have been payable to the Participant using the table set forth in Q&A A-6 of Regulations Section 1.401(a)(9)-2, as proposed. |
(c) | Transitional Rule- If payments under an annuity which complies with sub-paragraph (a) above begin prior to 1989, the minimum distribution requirements in effect as of July 27, 1987, shall apply to distributions from this Plan, regardless of whether the annuity form of payment is irrevocable. This transitional rule also applies to deferred annuity contracts distributed to or owned by the Participant prior to 1989, unless additional contributions are made under the Plan by the Employer with respect to such contract. | ||
(d) | If the form of distribution is an annuity made in accordance with this paragraph 6.5, any additional benefits accruing to the Participant after his or her Required Beginning Date shall be distributed as a separate and identifiable component of the annuity beginning with the first payment interval ending in the calendar year immediately following the calendar year in which such amount accrues. | ||
(e) | Any part of the Participant’s interest which is in the form of an individual account shall be distributed in a manner satisfying the requirements of Code Section 401(a)(9) and the Regulations thereunder. | ||
(f) | Except with respect to all Participants in a governmental or church plan, or a five percent (5%) owner in other plans, a Participant’s Accrued Benefit is actuarially increased to take into account the period |
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after age 701/2 in which the Employee does not receive any benefits under the Plan. The actuarial increase begins on the April 1 following the calendar year in which the Employee attains age 701/2 (January 1, 1997 in the case of an Employee who attained age 701/2 prior to 1996), and ends on the date on which benefits commence after retirement in an amount sufficient to satisfy Code Section 401(a)(9). | |||
The amount of actuarial increase payable as of the end of the period for actuarial increases must be no less than the Actuarial Equivalent of the Employee’s retirement benefits that would have been payable as of the date the actuarial increase must commence plus the Actuarial Equivalent of additional benefits accrued after that date, reduced by the Actuarial Equivalent of any distributions made after that date. The actuarial increase is generally the same as, and not in addition to, the actuarial increase required for that same period under Code Section 411 to reflect the delay in payments after Normal Retirement, except that the actuarial increase required under Code Section 401(a)(9)(C) must be provided even during the period during which an Employee is in ERISA Section 203(a)(3)(B) service. | |||
For purposes of Code Section 411(b)(1)(H), the actuarial increase will be treated as an adjustment attributable to the delay in distribution of benefits after the attainment of Normal Retirement Age. Accordingly, to the extent permitted under Code Section 411(b)(1)(H), the actuarial increase required under Code Section 401(a)(9)(C)(iii) may reduce the benefit accrual otherwise required under Code Section 411(b)(1)(H)(i), except that the rules on the suspension of benefits are not applicable. |
(a) | If any portion of the Participant’s interest is payable to a Designated Beneficiary, distributions may be made in substantially equal installments over the life or over a period certain not greater than the life expectancy of the Designated Beneficiary commencing on or before December 31 of the calendar year immediately following the calendar year in which the Participant died. | ||
(b) | If the Designated Beneficiary is the Participant’s Surviving Spouse, the date distributions are required to begin in accordance with (a) above shall not be earlier than the later of: |
(1) | December 31 of the calendar year immediately following the calendar year in which the Participant died, and | ||
(2) | December 31 of the calendar year in which the Participant would have attained at 701/2. |
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If the Spouse dies before payments begin, subsequent distributions shall be made pursuant to this paragraph 6.8 with the exception of sub-paragraph (b) as if the Spouse had been the Participant. |
(a) | December 31 of the calendar year in which distributions would be required to begin under said paragraph, or | ||
(b) | December 31 of the calendar year which contains the fifth anniversary of the date of death of the Participant. If the Participant has no Designated Beneficiary, or if the Designated Beneficiary does not elect a method of distribution, distribution of the Participant’s entire interest must be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death. |
(a) | Notwithstanding the other requirements of this Article and subject to the requirements of Article VII, Joint and Survivor Annuity Requirements, distribution on behalf of any Participant, including a five percent (5%) owner, may be made in accordance with all of the following requirements (regardless of when such distribution commences): |
(1) | The distribution by the Plan is one which would not have disqualified such Plan under Code Section 401(a)(9) as in effect prior to amendment by the Deficit Reduction Act of 1984. | ||
(2) | The distribution is in accordance with a method of distribution designated by the Participant whose interest in the Plan is being distributed or, if the Participant is deceased, by a beneficiary of such Participant. |
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(3) | Such designation was in writing, was signed by the Participant or the beneficiary, and was made before 1984. | ||
(4) | The Participant had accrued a benefit under the Plan as of December 31, 1983. | ||
(5) | The method of distribution designated by the Participant or the beneficiary specifies the time at which distribution will commence, the period over which distributions will be made, and in the case of any distribution upon the Participant’s death, the beneficiaries of the Participant listed in order of priority. |
(b) | A distribution upon death will not be covered by this transitional rule unless the information in the designation contains the required information described above with respect to the distributions to be made upon the death of the Participant. | ||
(c) | For any distribution which commences before 1984 but continues after 1983, the Participant, or the beneficiary to whom such distribution is being made, will be presumed to have designated the method of distribution under which the distribution is being made if the method of distribution was specified in writing and the distribution satisfies the requirements in subsections (a)(1) and (5). | ||
(d) | If a designation is revoked any subsequent distribution must satisfy the requirements of Code Section 401(a)(9) and the Regulations thereunder. If a designation is revoked subsequent to the date distributions are required to begin, the Plan must distribute by the end of the calendar year following the calendar year in which the revocation occurs the total amount not yet distributed which would have been required to have been distributed to satisfy Code Section 401(a)(9) and the Regulations thereunder, but for the Tax Equity and Fiscal Responsibility Act Section 242(b)(2) election. For calendar years beginning after 1988, such distributions must meet the minimum distribution incidental benefit requirements in Regulations Section 1.401(a)(9)-2. Any changes in the designation will be considered to be a revocation of the designation. However, the mere substitution or addition of another beneficiary (one not named in the designation) will not be considered to be a revocation of the designation, so long as such substitution or addition does not alter the period over which distributions are to be made under the designation, directly or indirectly (for example, by altering the relevant measuring life). In the case in which an amount is transferred or rolled over from one plan to another plan, the rules in Q&A J-21 and Q&A J-3 of Regulations Section 1.401(a)(9)-1 shall apply. |
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(a) | If a Participant dies after the Earliest Retirement Age, the Participant’s Surviving Spouse (if any) will receive the same benefit that would be payable if the Participant had retired with an immediate Qualified Joint and Survivor Annuity on the day before the Participant’s date of death. | ||
The Surviving Spouse may elect to commence payment under such annuity within a reasonable period after the Participant’s death. The actuarial value of benefits which commence later than the date on which payments would have been made to the Surviving Spouse under a Qualified Joint and Survivor Annuity in accordance with this provision shall be adjusted to reflect the delayed payment. | |||
(b) | If a Participant dies on or before the Earliest Retirement Age, the Participant’s Surviving Spouse (if any) will receive the same benefit that would be payable if the Participant had: |
(1) | separated from Service on the date of death, | ||
(2) | survived to the Earliest Retirement Age, | ||
(3) | retired with an immediate Qualified Joint and Survivor Annuity at the Earliest Retirement Age, and | ||
(4) | died on the day after the Earliest Retirement Age. |
(a) | the Participant’s Spouse consents in writing to the election; |
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(b) | the election designates a specific beneficiary, including any class of beneficiaries or any contingent beneficiaries, which may not be changed without spousal consent (or the Spouse expressly permits designations by the Participant without any further spousal consent); | ||
(c) | the Spouse’s consent acknowledges the effect of the election; and | ||
(d) | the Spouse’s consent is witnessed by a Plan representative or notary public. |
(a) | the terms and conditions of a Qualified Joint and Survivor Annuity; | ||
(b) | the Participant’s right to make and the effect of an election to waive the Qualified Joint and Survivor Annuity form of benefit; | ||
(c) | the rights of a Participant’s Spouse; | ||
(d) | the right to make, and the effect of, a revocation of a previous election to waive the Qualified Joint and Survivor Annuity; and | ||
(e) | the relative values of the various optional forms of benefits under the Plan. |
(f) | the Participant has been provided with information that clearly indicates that the Participant has at least thirty (30) days to consider whether to waive the Qualified Joint and Survivor Annuity and has affirmatively elected (with spousal consent) to a form of distribution other than a Qualified Joint and Survivor Annuity; | ||
(g) | the Participant is permitted to revoke any affirmative distribution election at least until the Annuity Starting Date or, if later, at any time prior to the expiration of the seven (7) day period that begins the day after the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant; and | ||
(h) | the Annuity Starting Date is a date after the date that the written explanation was provided to the Participant. |
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(a) | the period beginning with the first day of the Plan Year in which the Participant attains age thirty-two (32) and ending with the close of the Plan Year preceding the Plan Year in which the Participant attains age thirty-five (35); | ||
(b) | a reasonable period ending after the individual becomes a Participant; | ||
(c) | a reasonable period ending after this paragraph ceases to apply to the Participant; | ||
(d) | a reasonable period ending after this Article first applies to the Participant. Notwithstanding the foregoing, notice must be provided within a reasonable period ending after separation from Service in the case of a Participant who separates from Service before attaining age thirty-five (35). |
(a) | Any living Participant not receiving benefits on August 23, 1984, who would otherwise not receive the benefits prescribed by the previous paragraphs of this Article, must be given the opportunity to elect to have the prior paragraphs of this Article apply if such Participant is credited with at least one (1) Hour of Service under this Plan or a predecessor Plan in a Plan Year beginning on or after January 1, 1976 and such Participant had at least ten (10) Years of Service for vesting purposes when he or she separated from Service. | ||
(b) | Any living Participant not receiving benefits on August 23, 1984, who was credited with at least one (1) Hour of Service under this Plan or a predecessor Plan on or after September 2, 1974, and who is not otherwise credited with any Service in a Plan Year beginning on or after January 1, 1976, must be given the opportunity to have his or her benefits paid in accordance with paragraph 7.9. | ||
(c) | The respective opportunities to elect [as described in (a) and (b) above] must be afforded to the appropriate Participants during the period commencing on August 23, 1984 and ending on the date benefits would otherwise commence to said Participants. |
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(a) | Automatic Joint and Survivor Annuity. If benefits in the form of a Straight Life Annuity become payable to a married Participant who: |
(1) | begins to receive payments under the Plan on or after Normal Retirement Age; or | ||
(2) | dies on or after Normal Retirement Age while still working for the Employer; or | ||
(3) | begins to receive payments on or after the Qualified Early Retirement Age; or | ||
(4) | separates from Service on or after attaining Normal Retirement (or the Qualified Early Retirement Age) and after satisfying the eligibility requirements for the payment of benefits under the Plan and thereafter dies before beginning to receive such benefits, |
then such benefits will be received under this Plan in the form of a Qualified Joint and Survivor Annuity, unless the Participant has elected otherwise during the Election Period. The Election Period must begin at least six (6) months before the Participant attains Qualified Early Retirement Age and end not more than ninety (90) days before the commencement of benefits. Any election hereunder will be in writing and may be changed by the Participant at any time. | |||
(b) | Election of Early Survivor Annuity. A Participant who is employed after attaining the Qualified Early Retirement Age will be given the opportunity to elect, during the Election Period, to have a survivor annuity payable on death. If the Participant elects the survivor annuity, payments under such annuity must not be less than the payments which would have been made to the Spouse under the Qualified Joint and Survivor Annuity if the Participant had retired on the day before his or her death. Any election under this provision will be in writing and may be changed by the Participant at any time. The Election Period begins on the later of: |
(1) | the 90th day before the Participant attains the Qualified Early Retirement Age, or | ||
(2) | the date on which participation begins, |
and ends on the date the Participant terminates employment. |
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(a) | The Plan Administrator shall notify Participants or beneficiaries by certified or registered mail to his or her last known address of record with the Employer when their benefits become distributable. If a Participant does not respond to the notice within ninety (90) days of the date of the notice, the Plan Administrator may take reasonable steps to locate the Participant including, but not limited to, requesting assistance from the Employer, Employees, Social Security Administration, the Pension Benefit Guaranty Corporation, and/or the Internal Revenue Service. |
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(b) | If the Participant cannot be located after a period of twelve (12) months, or such other period determined in a uniform and nondiscriminatory manner by the Plan Administrator, the Plan Administrator shall treat the benefit as a forfeiture pursuant to paragraph 8.6. | ||
(c) | If a Participant or Beneficiary later makes a claim for such benefit, the Plan Administrator shall validate such claim and provide the Participant or beneficiary with all notices and other information necessary for the Participant or beneficiary to perfect the claim. If the Plan Administrator validates the claim for benefits, the Participant’s account balance shall be restored to the benefit amount treated as forfeiture. The funds necessary to restore the Participant’s account will first be taken from amounts eligible for reallocation or other disposition as forfeitures with respect to the Plan Year. If such funds do not exist or if such funds are insufficient, the Employer will make a contribution prior to the date on which the benefit is payable to restore such Participant’s account. Such benefit shall be paid or commence to be paid in the same manner as if the benefit was eligible for distribution on the date the claim for benefit is validated. | ||
(d) | The Plan Administrator shall follow the same procedure in locating and subsequently treating as a forfeiture the benefit of a Participant whose benefit has been properly paid under Plan terms but where the Participant or Beneficiary has not negotiated the benefit check(s). | ||
(e) | The Plan Administrator may use any reasonable procedure to dispose of distributable Plan assets including but not limited to any of the following: (i) establishing an IRA in the name of the Participant or Beneficiary with any institution, (ii) purchasing an annuity contract in the name of the Participant or Beneficiary with the assets attributable to them in the Trust, or (iii) establishing a bank account for and in the name of the Participant or Beneficiary. This provision will only be operative when the Plan is terminated. | ||
(f) | Notwithstanding the foregoing, the Plan Administrator in his discretion may establish alternative procedures for locating and administering the benefits of missing Plan Participants. |
(a) | sixty (60) days after the amendment is adopted; | ||
(b) | sixty (60) days after the amendment becomes effective; or | ||
(c) | sixty (60) days after the Participant is issued written notice of the amendment by the Employer or the Trustee. |
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(a) | The Annual Benefit otherwise payable to a Participant at any time will not exceed the Maximum Permissible Amount as defined at paragraph 1.54. The limitations of this paragraph may be applied to the Participant’s Projected Benefit, Accrued Benefit or the actual benefit payable after converting to the desired optional form of benefit. If the benefit the Participant would otherwise accrue in a Limitation Year would produce an Annual Benefit in excess of the Maximum Permissible Amount, the benefit must be limited (or the rate of accrual reduced) so that the Annual Benefit will equal the Maximum Permissible Amount. | ||
(b) | If a Participant makes Voluntary Contributions, or mandatory employee contributions as defined Code Section 411(c)(2)(C), under the terms of this Plan, the amount of such contributions is treated as an Annual Addition to a qualified Defined Contribution Plan, for purposes of paragraphs 9.1(a) and 9.2(b) of this Article. |
(a) | If a Participant is or has ever been covered under more than one Defined Benefit Plan maintained by the Employer, the sum of the Participant’s Annual Benefits from all such plans may not exceed the Maximum Permissible Amount. Unless specified otherwise in the Adoption Agreement, it is assumed that this Plan is the only Plan accruing benefits on behalf of any Participant and that any reductions in accruals to satisfy Code Section 415(b) will be made to this Plan. Alternatively, the Employer will choose in Section VIII of the Adoption Agreement the method by which the combined plans will meet this limitation. | ||
(b) | For Limitation Years beginning before January 1, 2000, if the Employer maintains or at any time maintained one or more qualified Defined Contribution Plans covering any Participant in this Plan, a Welfare Benefit Fund as defined in paragraph 1.104, under which amounts attributable to post-retirement medical benefits are allocated to separate accounts of Key Employees, an individual medical account plan as defined in Code Section 415(l)(2), or a Simplified Employee Pension Plan the sum of the Participant’s Defined Contribution Fraction and Defined Benefit Fraction will not exceed 1.0 in any Limitation Year, and the Annual Benefit otherwise payable to the Participant under this Plan will be limited in accordance with Section VIII of the Adoption Agreement. | ||
Unless, a different group of Employees is elected in the Adoption Agreement, benefit increases resulting from the repeal of Code Section 415(e) will be provided to all current and former Participants [with benefits limited by Code Section 415(e)] who have an Accrued benefit under the Plan immediately before the first day of the first Limitation Year beginning in 2000. | |||
(c) | In the case of an individual who was a Participant in one or more Defined Benefit Plans of the Employer as of the first day of the first Limitation Year beginning after December 31, 1986, the application of the limitations of this Article shall not cause the Maximum Permissible Amount for such individual under all such Defined Benefit Plans to be less than the individual’s TRA ’86 |
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Accrued Benefit. The preceding sentence applies only if all such Defined Benefit Plans meet the requirements of Code Section 415 for all Limitation Years beginning before January 1, 1987. | |||
(d) | In the case of an individual who was a Participant in one or more Defined Benefit Plans of the Employer as of the first day of the first Limitation Year beginning after December 31, 1994, the application of the limitations of this Article shall not cause the Maximum Permissible Amount for such individual under all such Defined Benefit Plans to be less than the individual’s Retirement Protection Act of 1994 (RPA ‘94) Old Law Benefit. The preceding sentence applies only if such Defined Benefit Plans met the requirements of Code Section 415 on December 7, 1994. |
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(a) | appointing the Plan’s attorney, accountant, Service Provider, actuary, Trustee, Custodian, investment manager, or any other party needed to administer the Plan; | ||
(b) | directing the appropriate party with respect to payments from the Trust; | ||
(c) | communicating with Employees regarding their participation and benefits under the Plan, including the administration of all claims procedures; | ||
(d) | maintaining all necessary records for the administration of the Plan, antidiscrimination testing, and filing any returns and reports with the Internal Revenue Service, Department of Labor, or any other governmental agency; | ||
(e) | reviewing and approving any financial reports, investment reviews, or other reports prepared by any party appointed by the Employer under paragraph (a); | ||
(f) | establishing a funding policy and investment objectives consistent with the purposes of the Plan and ERISA; | ||
(g) | construing and resolving any question of Plan interpretation and questions of fact. The Plan Administrator’s interpretation of Plan provisions and resolution of questions of facts including eligibility and amount of benefits under the Plan is final and unless it can be shown to be arbitrary and capricious, will not be subject to “de novo” review; | ||
(h) | monitoring the activities of the Trustee and the performance of, and making changes when necessary to, the portfolio of the Plan; | ||
(i) | obtaining a legal determination of the qualified status of all domestic relations orders and complying with the requirements of the law with regard thereto; | ||
(j) | administering the loan program including ensuring that any and all loans made by the Plan are in compliance with the requirements of the Internal Revenue Code and the Regulations issued thereunder, and the Regulations issued by the Department of Labor; | ||
(k) | determining from the records of the Employer, the Compensation, Service, records, status, and the other facts regarding Participants and Employees; | ||
(l) | to the extent provided in the Adoption Agreement, directing the Trustee or Custodian with respect to the investments, in the Plan Administrator’s capacity as named fiduciary; and | ||
(m) | the right to employ others, including legal counsel who may, but need not, be counsel to the Employer, to render advice regarding any questions which may arise with respect to its rights, duties and responsibilities under the Plan, and may rely upon the opinions or certificates of any such person. |
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(a) | The Employer and the Plan Administrator shall cooperate with each other in all respects, including the provision to each other of records and other information relating to the Plan, as may be necessary or appropriate for the proper operation of the Plan or as may be required under the Code or ERISA. | ||
(b) | The Plan Administrator may delegate in writing all or any part of the Plan Administrator’s responsibilities under the Plan to agents or others by written agreement communicated to the delegate and to the Employer or, if the Employer is no longer in existence, to such person or persons selected following the approach in paragraph 10.2 and, in the same manner, may revoke any such delegation of responsibility. Any action of a delegate in the exercise of such delegated responsibilities shall have the same force and effect for all purposes as if such action had been taken by the Plan Administrator. The delegate shall have the right, in such person’s sole discretion, by written instrument delivered to the Plan Administrator, to reject and refuse to exercise any such delegated authority. The Trustee/Custodian need not act on instructions of such a delegate despite any knowledge of such delegation, but may require the Plan Administrator to give the Trustee/Custodian all instructions necessary under the Plan. |
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(a) | No loan, when aggregated with any outstanding loan(s) to the Participant, shall exceed the lesser of (i) $50,000 reduced by the excess, if any, of the Participant’s highest outstanding balance of all loans on any day during the one (1) year period ending on the day before the loan is made, over the outstanding balance of loans from the Plan on the date the Participant’s loan is made or (ii) one-half of the Present Value of the Participant’s Vested Accrued Benefit consisting of contributions as specified in the loan policy. An election may be made in the loan policy, that if the Participant’s Vested Accrued Benefit is $20,000 or less, the maximum loan shall not exceed the lesser of $10,000 or 100% of the Participant’s Vested Accrued Benefit. For the purpose of the above limitation, all loans from all plans of the Employer and other members of a group of employers described in Code Sections 414(b), 414(c), and 414(m) are aggregated. An assignment or pledge of any portion of the Participant’s interest in the Plan and a loan, pledge, or assignment with respect to any insurance contract purchased under the Plan, will be treated as a loan under this paragraph. | ||
(b) | All applications must be in accordance with procedures adopted by the Plan Administrator. | ||
(c) | Any loan shall bear interest at a rate reasonable at the time of application, considering the purpose of the loan and the rate being charged by representative commercial banks in the local area for a similar loan unless the Plan Administrator sets forth a different method for determining loan interest rates in its written loan procedures. The loan agreement shall also provide that the payment of principal and interest be amortized in level payments not less frequently than quarterly. | ||
(d) | The term of such loan shall not exceed a period of five (5) years except in the case of a loan for the purpose of acquiring any house, apartment, condominium, or mobile home that is used or is to be used within a reasonable time as the principal residence of the Participant. The Plan Administrator in accordance with the Plan’s loan policy shall determine the term of such loan. | ||
(e) | The principal and interest paid by a Participant on his or her loan shall be credited to the Plan in the same manner as for any other Plan investment. Unless otherwise provided in the loan policy, loans will be treated as segregated investments of the individual Participant on whose behalf the loan was made. This provision is not available if its election will result in discrimination in the operation of the Plan. | ||
(f) | If the Plan Administrator approves a Participant’s loan request, it shall be evidenced by a note, loan agreement, and assignment of up to 50% of his or her interest in the Trust as collateral for the loan. The Participant must obtain the consent of his or her Spouse, if any, within the ninety (90) day period before the time his or her accrued benefit is used as security for the loan. A new consent is required if the accrued benefit is used for any renegotiation, extension, renewal or other revision of the loan, including an increase in the loan amount. The consent must be written, must acknowledge the effect of the loan, and must be witnessed by a Plan representative or notary public. Such consent shall subsequently be binding with respect to the consenting Spouse or any subsequent Spouse. | ||
(g) | If a valid Spousal consent has been obtained in accordance with (f), then, notwithstanding any other provision of this Plan, the portion of the Participant’s Vested Accrued Benefit used as a security interest held by the Plan by reason of a loan outstanding to the Participant shall be taken into account for purposes of determining the amount of the accrued benefit payable at the time of death or distribution, but only if the reduction is used as repayment of the loan. If less than 100% of the Participant’s Vested Accrued Benefit (determined without regard to the preceding sentence) is |
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payable to the surviving Spouse, then the accrued benefit shall be adjusted by first reducing the Vested Accrued Benefit by the amount of the security used as repayment of the loan, and then determining the benefit payable to the surviving Spouse. | |||
(h) | Any loan made hereunder shall be subject to the provisions of a loan agreement, promissory note, security agreement, payroll withholding authorization and, if applicable, financial disclosure. Such documentation may contain additional loan terms and conditions not specifically itemized in this section provided that such terms and conditions do not conflict with this section. Such additional terms and conditions may include, but are not limited to, procedures regarding default, a grace period for missed payments, and acceleration of a loan’s maturity date on specific events such as termination of employment. | ||
(i) | No loans will be made to Owner-Employees or Shareholder Employees. | ||
(j) | Liquidation of a Participant’s assets for the purpose of the loan will be allocated on a pro-rata basis across all the investment alternatives in a Participant’s account, unless otherwise specified by the Participant, Plan Administrator, or the Plan’s loan policy. | ||
(k) | If a request for a loan is approved by the Plan Administrator, funds shall be withdrawn from the recordkeeping subaccounts specified by the Participant or in the absence of such a specification, from the recordkeeping subaccounts in the order specified in the loan policy. | ||
(l) | If a Plan permits loans to Participants, the Trustee/Custodian may appoint the Employer as its agent, and if the Employer accepts such appointment, agree to hold all notes and other evidence of any loans made to Participants. If provided in the loan policy, the Plan Administrator may also require additional collateral in order to adequately secure the loan. The Employer shall hold such notes and evidence under such conditions of safekeeping as is prudent and as required by ERISA. The Trustee/Custodian may account for all loans in the aggregate so that all Participant loans will be shown collectively as a single asset of the Plan. | ||
(m) | Unless otherwise elected in the Adoption Agreement, loan payments will be suspended under this Plan as permitted under Code Section 414(u). |
(a) | The face amount of any policy purchased hereunder shall be determined by the Employer on a uniform basis for all Participants but shall not exceed 100 times the projected Basic Normal Retirement Benefit expressed as a monthly amount. Alternatively, if insurance is purchased based on the Theoretical ILP Reserve, the amount of insurance purchased may not exceed sixty-six percent (66%) of the Theoretical Contribution for whole life and thirty-three percent (33%) for term and/or universal life. Additional policies shall be purchased as of the first day of any Plan Year with respect to benefit increases in order to maintain the proper ratio between the death benefit and the Basic Normal Retirement Benefit. However, no new policy shall be issued unless the Basic Normal Retirement Benefit expressed as a monthly amount increases by $10 or more. | ||
(b) | The Trustee shall be applicant and owner of any policies issued hereunder. | ||
(c) | All policies or contracts purchased hereunder shall be endorsed as nontransferable, and must provide that proceeds will be payable to the Trustee; however, the Trustee shall be required to pay over the appropriate portion of the proceeds of the contracts to the Participant’s Designated Beneficiary in accordance with the distribution provisions of this Plan. | ||
(d) | Each Participant shall be entitled to designate a beneficiary under the terms of any contract issued; however, such designation will be given to the Trustee which must be the named beneficiary on any policy. Such designation shall remain in force until revoked by the Participant by filing a new beneficiary form with the Trustee. A Participant’s Spouse will be the Designated Beneficiary of the proceeds in all circumstances unless a Qualified Election has been made in accordance with |
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paragraph 7.4. On death, the beneficiary of a deceased Participant shall receive the benefit provided in Section X of the Adoption Agreement. | |||
(e) | The beneficiary of a Participant who is uninsurable shall be entitled to receive the Actuarial Equivalent of the Participant’s Accrued Benefit in the event of the Participant’s death. | ||
(f) | Any payments by the insurer on account of credits, such as dividends, experience rating credits, or surrender or cancellation credits, shall be applied within the taxable year of the Employer in which received or within the next succeeding taxable year toward the next premiums due before any further Employer contributions are so applied. | ||
(g) | If Employer contributions are inadequate to pay all premiums on insurance policies, the Trustee may, at the direction of the Employer, utilize other amounts remaining in the Fund to pay the premiums, allow the policies to lapse, reduce the policies to a level at which they may be maintained, or borrow against the policies on a prorated basis, provided that the borrowing does not discriminate in favor of the policies on the lives of officers, shareholders, and Highly Compensated Employees. | ||
(h) | On retirement or termination of employment of a Participant, or upon the elimination of the insurance provisions stated in this paragraph, the Employer shall direct the Trustee to cash surrender the Participant’s policy and credit the proceeds to the Fund. However, before so doing, the Trustee shall first offer to transfer ownership of the policy to the Participant in exchange for payment by the Participant of the cash value of the policy at the time of transfer. Such payment shall be credited to the Fund. All distributions resulting from the application of this paragraph shall be subject to the Joint and Survivor Annuity Requirements of Article VII. | ||
(i) | The Plan Administrator shall be solely responsible to see that these insurance provisions are administered properly and that if there is any conflict between the terms of this Plan and the terms of any insurance contracts held hereunder, the Plan provisions shall control. |
(a) | The name and last known mailing address (if any) of the Participant and of each alternate payee covered by the QDRO. However, if the QDRO does not specify the current mailing address of the alternate payee, but the Plan Administrator has independent knowledge of that address, the QDRO will still be valid. | ||
(b) | The dollar amount or percentage of the Participant’s benefit to be paid by the Plan to each alternate payee, or the manner in which the amount or percentage will be determined. | ||
(c) | The number of payments or period for which the order applies. | ||
(d) | The specific Plan (by name) to which the domestic relations order applies. |
(e) | any type or form of benefit or any option not already provided for in the Plan; | ||
(f) | increased benefits or benefits in excess of the Participant’s vested rights; | ||
(g) | payment of a benefit earlier than allowed by the Plan’s earliest retirement provisions; or | ||
(h) | payment of benefits to an alternate payee which are required to be paid to another alternate payee under another QDRO. |
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(a) | The Employer shall appoint within the Adoption Agreement who may be the Sponsor (or an affiliate) of this Basic Plan Document #02 or an individual(s), institution or other party, to serve as Trustee or Custodian (if applicable) of the Plan. The Employer shall also have the right, but is not required, to appoint a Custodian in the Adoption Agreement to have custody of the Plan’s assets. The Employer may execute a separate trust or custodial agreement outlining the Trustee’s or Custodian’s duties and responsibilities which shall be incorporated by reference and made part of this Basic Plan Document #02. No such ancillary agreement may conflict with any provision(s) of this document. Any provision which would jeopardize the tax-qualified status of this Plan shall be null and void. Unless otherwise elected in the Adoption Agreement, the Trust and/or Custodial provisions of this Article XI and Article X, as applicable, of the Basic Plan Document #02 together with any such ancillary agreement shall be operative. If the Sponsor is a bank, trust company or other financial organization, a person or institution other than the Sponsor or its affiliate may not serve as Trustee or Custodian of the Plan without the express written consent of the Sponsor. If a financial organization is the Sponsor, and is not named Trustee, the Sponsor may serve as Custodian under the Plan as provided at paragraph 11.13 herein. The Trustee shall invest the Trust Fund in any of the investment alternatives as provided in paragraph 11.8. If a Custodian is appointed, the Trust Fund shall be invested in accordance with paragraph 11.14. | ||
(b) | The Employer establishes with the Trustee a Trust which shall consist of all money and property received under Articles III and IV of this document, increased by any income on or increment in such value of assets and decreased by any investment loss, expense, benefit payment, withdrawal or other distribution by the Trustee in accordance with the provisions of the Plan. The Trustee/Custodian shall hold the Trust fund without distinction between principal and income. The Trust fund will be held, invested, reinvested and administered by the Trustee in accordance with this Article and any ancillary documents as provided for in this Article. |
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(a) | Notwithstanding any other provisions of the Plan to the contrary, the provisions of this paragraph shall apply if one (1) or more individuals are named as Trustee(s) in the Adoption Agreement and shall not apply to any institutional Trustee named in the Adoption Agreement. | ||
(b) | If there shall be more than one individual acting in the capacity of Trustee, they shall act by a majority of their number, unless they unanimously decide that one (1) or more of them may act on the matter or category of matters involved without the approval of the others and they may authorize in writing that one (1) or more of them shall act on their behalf including but not limited to executing documents and authorizing distributions on behalf of the Trustees. | ||
(c) | Any person may rely, without having to make further inquiry, upon instructions appearing to be genuine instructions from any individual serving as Trustee as being the will, intent and action of all individuals so serving if no allocation of duties has been made. | ||
(d) | The Trustee shall be paid such reasonable compensation for services as shall from time to time be agreed upon in writing by the Employer and the Trustee, provided that an individual serving as Trustee who already receives full-time Compensation from the Employer shall not receive compensation for serving as such from the Plan. |
(a) | borrow from the Plan or pledge any of the assets of the Plan as security for a loan, | ||
(b) | buy property or assets from or sell property or assets to the Plan, | ||
(c) | charge any fee for services rendered to the Plan, or | ||
(d) | receive any services from the Plan on a preferential basis. |
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(a) | such investments are prudent under ERISA, as amended, and the Regulations thereunder, | ||
(b) | such investments are sufficiently diversified to minimize the risk of large losses, | ||
(c) | such investments are made in accordance with the provisions of this Plan and Trust document, and | ||
(d) | such investments are made with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character with like aims. |
(a) | receiving contributions under the terms of the Plan; | ||
(b) | implementing an investment program based on the Employer’s investment policy statement, funding policy, investment objectives and ERISA, as amended; | ||
(c) | invest the Trust in any form of property, including common and preferred stocks, exchange-traded covered put and call options, bonds, money market instruments, mutual funds (including funds for which the Sponsor, Trustee or its affiliates receive compensation for providing investment advisory, custody, transfer agency or other services), savings accounts, plan loans, certificates of deposit, securities issued by the U.S. government or by governmental agencies, insurance policies and contracts, or in any other property, real or personal, having a ready market, including securities issued by the Trustee and/or affiliates of the Trustee as permitted by law. The Trustee may invest in time deposits (including, if applicable, its own or those of affiliates) which bear a reasonable interest rate. No portion of any Qualified Voluntary Contribution, or the earnings thereon, may be invested in life insurance contracts or, as with any Participant-directed investment, in tangible personal property characterized by the IRS as a collectible; | ||
(d) | invest any assets of the Trust in a group or collective trust fund established to permit the pooling of funds of separate pension and profit-sharing trusts, provided the Internal Revenue Service has ruled such group or collective trust to be qualified under Code Section 401(a) and exempt under Code Section 501(a) (or the applicable corresponding provision of any other Revenue Act) or to any other common, collective, or commingled trust fund which has been or may hereafter be established and maintained by the Trustee, affiliate(s) of the Trustee, the Custodian or investment manager. Such commingling of assets of the Trust with assets of other qualified trusts is specifically authorized, and to the extent of the investment of the Trust in such a group or collective trust, the terms of the instrument establishing the group or collective trust shall be a part hereof as though set forth herein. The name of the group or collective trust fund shall be specified in an addendum to the Adoption Agreement. The Employer expressly understands and agrees that any such collective fund may provide for the lending of its securities by the collective fund trustee and that such collective fund’s trustee will receive compensation from such collective fund for the lending of securities that is separate from any compensation of the Trustee hereunder, or any compensation of the collective fund trustee for the management of such collective fund; | ||
(e) | for collective investment purposes, may combine into one trust fund the Trust created under this Plan with the Trust created under any other qualified retirement plan the Employer maintains. However, the Trustee must maintain separate records of account for the assets of each Trust in order to reflect properly each Participant’s Vested Accrued Benefit under the Plan(s) in which he is a Participant; | ||
(f) | invest up to 100% of the Trust in the common stock, debt obligations, or any other security issued by the Employer or by an affiliate of the Employer within the limitations provided under ERISA Sections 406, 407, and 408, as amended, and further provided that such investment does not constitute a prohibited transaction under Code Section 4975. Any such investment in Employer securities shall only be made upon written direction of the Employer who shall be solely responsible for the propriety of such investment. Additional directives regarding the purchase, sale, retention or valuing of such securities may be addressed in an investment management or trust agreement, which is incorporated by reference. If there are any conflicts between this document and the above referenced agreements, this document shall govern; |
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(g) | hold cash uninvested and deposit the same with any banking or savings institution, including its own banking department or the banking department of an affiliate; | ||
(h) | utilize a general disbursement account, i.e., in the form of a demand deposit account and/or time deposit account, for distributions from the Trust, without incurring any liability for payment of interest thereon, notwithstanding the Trustee’s receipt of income with respect to float involving the disbursement account; | ||
(i) | hold contributions in an omnibus account, i.e., in the form of a demand deposit and/or time deposit account, maintained by the Trustee for up to three (3) business days (or such longer period as may result due to circumstances beyond the Trustee’s control), without liability for interest thereon. (The Employer acknowledges that any float earnings associated with the assets held in such omnibus account are retained by the Trustee as part of its compensation for performing services with respect to the allocation of contributions to Participants’ accounts); | ||
(j) | join in or oppose the reorganization, recapitalization, consolidation, sale or merger of corporations or properties, including those in which it or its affiliates are interested as Trustee, upon such terms as it deems advisable; | ||
(k) | hold investments in nominee or bearer form; | ||
(l) | exercise all ownership rights including the voting of proxies and the exercise of tender offers but only with respect to assets over which the Trustee has investment management responsibility; | ||
(m) | to hold, manage and control all property forming part of the Trust Fund and to sell, convey, transfer, exchange and otherwise dispose of the same from time to time; | ||
(n) | to apply for and procure from an insurance company as an investment of the Trust such annuity, or other contracts on the life of any Participant as the Plan Administrator shall deem proper; to exercise, at any time or from time to time, whatever rights and privileges may be granted under such annuity, or other contracts; to collect, receive, and settle for the proceeds of any such annuity, or other contracts as and when entitled to do so under the provisions thereof; | ||
(o) | unless otherwise provided by a directive as described by paragraph 11.6, the Employer will pass through shareholder rights (including voting rights) on Employer securities to Plan Participants. If no directive is provided, the Trustee shall exercise any shareholder rights (including voting rights) with respect to any securities held, but only in accordance with the instructions of the person or persons responsible for the investment of such securities subject to and as permitted by, any applicable rules of the Securities and Exchange Commission and any national securities exchange. Voting rights with respect to shares of registered investment companies held in the Trust shall be directed by the Named Investment Fiduciary responsible for selection of such registered investment companies as permissible investment alternatives. In the event of any conflict with any other provision of this Article or this Basic Plan Document #02, the provision of this paragraph shall control. The Employer shall be responsible for preparing and distributing all required prospectuses for Employer securities and making such materials available to Plan Participants; | ||
(p) | to retain and employ such attorneys, agents and servants as may be necessary or desirable, in the opinion of the Trustee, in the administration of the Plan, and to pay them such reasonable compensation for their services as may be agreed upon as an expense of administration of the Plan, including power to employ and retain counsel upon any matter of doubt as to the meaning or interpretation to be placed upon this Plan or any provisions thereof with reference to any question arising in the administration of the Plan or pertaining to the rights and liabilities of the Trustee hereunder. The Trustee in any such event, any act in reliance upon the advice, opinions, records, statements and computations of any attorneys and agents and on the records, statements and computations of any servants so selected by it in good faith and shall be released and exonerated of and from all liability to anyone in so doing (except to the extent that liability is imposed under ERISA); |
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(q) | to institute, prosecute and maintain, or to defend, any proceeding at law or in equity concerning the Plan or the assets thereof or any claims thereto, or the interests of Participants and Beneficiaries hereunder at the sole cost and expense of the Plan or at the sole cost and expense of the Participant that may be concerned therein or that may be affected thereby, as, in its opinion, shall be fair and equitable in each case, and to compromise, settle and adjust all claims and liabilities asserted by or against the Plan or asserted by or against it, or such terms as it, in each such case, shall deem reasonable and proper. The Trustee shall be under no duty or obligation to institute, prosecute, maintain or defend any suit, action or other legal proceeding unless it shall be indemnified to its satisfaction against all expenses and liabilities (including without limitation, legal and other professional fees) which it may sustain or anticipate by reason thereof; and | ||
(r) | the Trustee is expressly authorized to the fullest extent permitted by law to (1) retain the services of any broker-dealer, registered investment advisor or other financial services entity (including the Trustee and any of its affiliates) and any future successors in interest thereto collectively, for the purposes of this paragraph referred to as the “Affiliated Entities”), to provide services to assist or facilitate the purchase or sale of investments in the Trust, (2) acquire as assets of the Trust shares of mutual funds to which Affiliated Entities provide, for a fee, services in any capacity and (3) acquire in the Trust any other services or products of any kind or nature from the Affiliated Entities regardless of whether the same or dissimilar services or products are available from other institutions. The Trust may pay directly or indirectly (through mutual funds fees and charges for example) pay management fees, transaction fees and other commissions to the Affiliated Entities for the services or products provided to the Trust and/or such mutual funds at such Affiliated Entities’ standard or published rates without offset (unless required by law) from any fees charged by the Trustee for its services as Trustee. The Trustee may also deal directly with the Affiliated Entities regardless of the capacity in which it is then acting, to purchase, sell, exchange or transfer assets of the Trust even though the Affiliated Entities are receiving compensation or otherwise profiting from such transaction or are acting as principal in such transaction. Each of the Affiliated Entities is authorized to effect transactions on national securities exchanges for the Trust as directed by the Trustee, and retain any transactional fees related thereto, consistent with Section 11(a)(1) of the Securities and Exchange Act of 1934, as amended and related Rule 11a2-2(T). Included specifically, but not by way of limitation in the transactions authorized by this provision, are transactions in which any of the Affiliated Entities is serving as an underwriting or member of an underwriting syndicate for a security being purchased or is purchasing or selling a security for its own account. In the event the Trustee is directed by the Plan Administrator, any named fiduciary, designated Investment Manager, Participant and/or Beneficiary, as applicable hereunder (collectively referred to as for purposes of this paragraph as the “Directing Party”), the Directing Party shall be authorized, and expressly retains the right hereunder, to direct the Trustee to retain the services of, and conduct transactions with, Affiliated Entities fully in the manner described above. |
(a) | The payment of such expense would constitute a “prohibited transaction” within the meaning of ERISA Section 406 or Code Section 4975 for which no statutory or administrative exemption is available. |
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(b) | The Employer actually pays such expenses directly. Any and all reasonable additional administrative expenses incurred to effect investment directives made by the Participants and by each Beneficiary under this Plan shall be paid by the Trust and as determined by the Employer shall either be charged (in accordance with such reasonable nondiscriminatory rules as the Employer deems appropriate under the circumstances) to the account of the individual issuing such directive, or treated as a general expense of the Trust. If charged to a Participant’s account and if the assets of such account are insufficient to satisfy such charges, the Employer shall pay any deficit to the Trustee. Notwithstanding the foregoing, nothing in this section shall prevent the Employer from paying the administrative expenses of the Plan directly. | ||
(c) | All transaction related expenses incurred to effect a specific investment for a Participant directed account (such as brokerage commissions and other transaction related expenses), shall, as determined by the Employer, either be paid from or otherwise be charged directly to the account of the Participant providing such direction or treated as a general expense of the Trust. | ||
(d) | If there are insufficient liquid assets of the Trust to cover the fees of the Trustee or the Custodian, then assets of the Trust shall be liquidated to the extent necessary to cover fees. | ||
(e) | Notwithstanding the foregoing, no compensation other than reimbursement for expenses incurred shall be paid to a Plan Administrator who is the Employer or Employee of the Employer. | ||
(f) | In the event any part of the Plan becomes subject to tax, all taxes incurred will be paid from the Plan at the direction of the Plan Administrator. | ||
(g) | Any investment gain or loss of the Trust that is not directly attributable to the investment of the account of any Participant (including, but not limited to, for example, any “float” earned on the disbursement account established for the Plan and not treated as part of the compensation of the Trustee or paying agent for the Plan, and any 12b-1 or similar fees paid to the Plan) will be applied to pay administrative expenses of the Plan, with any excess remaining at the close of the Plan Year being allocated among the Participant’s accounts in accordance with the procedure established by the Plan Administrator for this purpose. |
(a) | The Trustee shall have the authority to manage and govern the Trust to the extent provided in this instrument, but does not guarantee the Trust in any manner against investment loss or depreciation in asset value, or guarantee the adequacy of the Trust to meet and discharge all or any liabilities of the Plan. |
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(b) | The Trustee and/or Custodian shall not be liable for the making, retention, or sale of any investment or reinvestment made by it, as herein provided, or for any loss to, or diminution of the Trust, or for any other loss or damage which may result from the discharge of its duties hereunder except to the extent it is judicially determined such loss or damage is attributable to the Trustee/Custodian’s breach of its duties hereunder or under ERISA. | ||
(c) | An institution acting as a Custodian or nondiscretionary Trustee shall have no discretion or investment management responsibility, unless otherwise expressly agreed in writing (pursuant to an investment management agreement, for example) and shall only be responsible to perform the functions described at paragraph 11.5 hereof. Neither the Custodian nor Trustee (whether nondiscretionary or discretionary) shall have any responsibility with respect to Plan investments and does not guarantee the adequacy of the Trust to meet and discharge any or all liabilities associated with the Plan. | ||
(d) | The Employer warrants that all directions issued to the Trustee or Custodian by it or the Plan Administrator will be in accordance with the terms of the Plan and the auxiliary agreement and not contrary to the provisions of ERISA, as amended, and the Regulations issued thereunder. | ||
(e) | Neither the Trustee nor the Custodian shall be answerable for any action taken pursuant to any direction, consent, certificate, or other paper or document in the belief that the same is genuine. All directions by the Employer, Participant, the Plan Administrator, Named Fiduciary or an investment manager shall be made pursuant to pre-approved communication procedures to which all such parties, as applicable, shall have consented to in writing. The Employer shall deliver to the Trustee and Custodian written notification identifying the individual or individuals authorized to act on behalf the Plan and shall deliver specimens of their signatures to the Trustee/Custodian. | ||
(f) | The duties and obligations of the Trustee and the Custodian shall be limited to those expressly imposed by this instrument or subsequently agreed upon by the parties in writing. Responsibility for administrative duties required under the Plan or applicable law not expressly imposed upon or agreed to by the Trustee or the Custodian shall rest solely with the Employer. | ||
(g) | The Employer shall indemnify the Trustee/Custodian against, and agrees to hold the Trustee/Custodian harmless from, all liabilities and claims and expenses including attorney’s fees and expenses incurred in defending against such liability or claims against the Trustee/Custodian, unless such liability or claim results from the negligent action or inaction of the Trustee/Custodian, or where the Trustee/Custodian is found to have breached its duties under this Article or Part 4 of Title I of ERISA by a final judgment of a court of competent jurisdiction. Except as otherwise provided by the preceding sentence, the Employer also shall indemnify the Trustee/Custodian against and agrees to hold the Trustee/Custodian harmless from all liabilities, claims and expenses including attorney’s fees and other expenses incurred in defending against such liabilities or claims, arising from any actions or breach of responsibility by any party other than the Trustee/Custodian, including without limitation by specification any acts of a prior Trustee or of another Trustee or Custodian appointed by the Employer. | ||
(h) | Without limiting any provision in the prior paragraph, the Employer expressly agrees to indemnify the Trustee/Custodian against any liability or claim (including attorney’s fees and expenses in defending against such liabilities or claims) arising as a result of any act taken or failure to act, in accordance with the directions received from the Employer, Plan Administrator, investment manager, Participant, or a designee specified by the Employer directly or transmitted by a designated Service Provider to the Plan and without limitation by specification. | ||
(i) | The Trustee/Custodian will take all reasonable steps to assure the security of any data received from the Employer in connection with services provided to the Plan. The Employer will be responsible for retaining duplicate copies of any such data or materials it forwards to the Trustee/Custodian and for taking all other reasonable and necessary precautions in event such data or materials are lost or destroyed, regardless of cause, or in the event reprocessing is needed for any reason. The Trustee/Custodian will maintain records in connection with the performance of services hereunder for the applicable period as required by law, or if no period is required, for such period as is reasonable under the law. |
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(j) | No waiver of any breach of this agreement shall constitute a waiver of any other breach, whether of the same or any other covenant, term or condition. The subsequent performance of any of the terms, covenants and conditions of this Article shall not constitute a waiver of any preceding breach, nor shall any delay or omission of any party’s exercise of any rights arising from any default effect or impair the party’s rights as to the same or future default. | ||
(k) | Neither the Trustee or the Custodian shall be responsible in any way for any actions taken, or failure to act, by a prior trustee/custodian. The Employer shall indemnify and hold harmless the Trustee/Custodian for such prior trustee/custodian’s acts or inactions for any periods applicable, including periods for which the Plan must retroactively comply with any tax law or regulations thereunder. | ||
(l) | A fiduciary with respect to the Plan shall not be liable for a breach of fiduciary responsibility of another fiduciary with respect to the Plan except to the extent that: |
(1) | it participates knowingly in, or knowingly undertakes to conceal, an act or omission of such other fiduciary, knowing such act or omission is a breach; | ||
(2) | by its failure to comply with ERISA Section 404(a)(1) in the administration of its specific responsibilities which give rise to its status as a fiduciary, it has enabled such other fiduciary to commit a breach; or | ||
(3) | it has knowledge of a breach by such other fiduciary, unless it makes reasonable efforts under the circumstances to remedy the breach. |
(m) | If the assets of the Plan are held by two (2) or more Trustees, each Trustee will use reasonable care to prevent a co-Trustee from committing a breach of duty under the Employee Retirement Income Security Act of 1974, as amended, and they shall jointly manage and control the assets of the Plan; provided however, that such co-Trustee shall be authorized to allocate specific responsibilities, obligations or duties among the co-Trustees pursuant to a written agreement. If co-Trustees do enter into such an agreement, then a Trustee to whom certain responsibilities, obligations or duties have not been allocated shall not be liable either individually or as Trustee for any loss resulting to the Plan arising from the acts or omissions on the part of another Trustee to which such responsibilities, obligations or duties have been allocated. |
(a) | receiving contributions under the terms of the Plan, but not determining the amount or enforcing the payment thereof, | ||
(b) | making distributions from the Plan in accordance with instructions received from the Plan Administrator or an authorized representative of the Employer, | ||
(c) | keeping records reflecting its administration of the Trust or the custodial account and making such records, statements and reports available to the Employer for review and audit at such times as agreed to between the Custodian, Plan Administrator, and the Employer, and |
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(d) | retaining and employing such attorneys, agents and servants as may be necessary or desirable, in the opinion of the Custodian, in the administration of the Plan, and to pay them such reasonable compensation for their services as may be agreed upon as an expense of administration of the Plan, including power to employ and retain counsel upon any matter of doubt as to the meaning or interpretation to be placed upon this Plan or any provisions thereof with reference to any question arising in the administration of the Plan or pertaining to the rights and liabilities of the Trustee hereunder. The Custodian in any such event, any act in reliance upon the advice, opinions, records, statements and computations of any attorneys and agents and on the records, statements and computations of any servants so selected by it in good faith shall be released and exonerated of and from all liability to anyone in so doing (except to the extent that liability is imposed under ERISA). |
(a) | The Custodian shall hold any or all assets received from the Trustee or its agents. If the Custodian holds title to Plan assets and such ownership requires action on the part of the registered owner, such action will be taken by the Custodian only upon receipt of specific instructions from the Trustee, or its designated agents or the Named Investment Fiduciary. Proxies shall be voted by or pursuant to the express direction of the Trustee its’ authorized agent or the Named Investment Fiduciary. The Custodian shall not render any investment advice, including any opinion on the prudence of directed investments. The Employer and Trustee and its agents thereof assume all responsibility for adherence to fiduciary standards under ERISA, as amended, and the Regulations issued thereunder. | ||
(b) | Where the Sponsor serves as Custodian, the Trust shall only be invested in investment alternatives the Custodian makes available in the ordinary course of business unless the Custodian is directed otherwise by the Employer, the Trustee or any properly designated agent thereof. The Custodian under applicable Federal or state laws, may limit the investment alternatives including but not limited to savings accounts, savings certificates, or in other savings instruments offered by the Sponsor or its affiliates. Such investments shall be made at the direction of the Employer or Trustee(s) or other Named Investment Fiduciary and the Custodian shall have no responsibility for the propriety of such investments. |
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(a) | Minimum Top-Heavy Benefits for a Defined Benefit Plan or for Paired Defined Benefit Plans —When the Employer maintains one Plan or a combination of Paired or non-Paired Defined Benefit Plans which are Top-Heavy or Super Top-Heavy, the Employer shall provide a minimum non-integrated Accrued Benefit for each Year of Top-Heavy Service while a Participant of two percent (2%) of such Participant’s Average Annual Compensation for the five (5) consecutive years for which the Participant had the highest Top-Heavy Compensation. The aggregate Compensation for the years during such five-year period in which the Participant was credited with a Year of Service will be divided by the number of such years in order to determine Average Annual Compensation. No additional benefit accruals shall be provided under this paragraph on behalf of a Participant attributable to Employer contributions to the extent that the total accruals on behalf of a Participant will provide a benefit expressed as a life annuity commencing at Normal Retirement Age which equals or exceeds twenty percent (20%) of such Participant’s highest Average Annual Compensation for the five (5) consecutive years for which the Participant had the highest Compensation. Average Annual Compensation shall be calculated as above. | ||
(b) | Minimum Top-Heavy Benefits for Paired Defined Contribution and Defined Benefit Plans where the Plans are not Super Top-Heavy —The minimum Top-Heavy benefit set forth in (a) above shall apply except that the minimum non-integrated Accrued Benefit shall be three percent (3%) of the highest five (5) consecutive year Average Annual Compensation as calculated in (a) above for each Participant in this Plan, not to exceed a cumulative Accrued Benefit of thirty percent (30%). | ||
(c) | Minimum Top-Heavy Contributions for Paired Defined Contribution and Defined Benefit Plans where the Plans are Super Top-Heavy —The minimum Top-Heavy benefit set forth in (a) above shall apply to any Participant in this Plan without regard to whether the Participant also participates in Paired Defined Contribution Plan #01001, #01002 or #01009. |
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(a) | for Limitation Years beginning before January 1, 2000, the lesser of the Maximum Permissible Amount (defined in paragraph 1.54), of the Plan or the Code Section 415(e) aggregated limitation. For purposes of this paragraph, the Code Section 415(e) aggregated limitation is the product of: |
(1) | one (1) minus the Defined Contribution Fraction (as defined in paragraph 1.22 of the Plan), and | ||
(2) | the lesser of 125% of the adjusted dollar limitation (as defined below), or 140% of the Participant’s Highest Average Compensation; or |
(b) | for Limitation Years beginning on or after January 1, 2000, the Maximum Permissible Amount as defined in paragraph 1.54 of the Plan. | ||
(c) | The adjusted dollar limitation is $90,000 payable in the form of a Straight Life Annuity commencing at the Participant’s Social Security Retirement Age, as defined in paragraph 1.83 of the Plan. | ||
(d) | If the Participant has less than ten (10) Years of Participation (as defined in paragraph 1.105 of the Plan) in the Plan, the Defined Benefit Plan Dollar Limitation shall be multiplied by a fraction (i) the numerator of which is the number of Years (or part thereof) of Participation in the Plan, and (ii) the denominator of which is ten (10). To the extent provided in Regulations or in other guidance issued by the Internal Revenue Service, the preceding sentence shall be applied separately with respect to each change in the benefit structure of the Plan. If the Participant has less than ten (10) Years of Service with the Employer, the Compensation limitation shall be multiplied by a fraction (i) the numerator of which is the number of Years (or part thereof) of Service with the Employer and the denominator of which is ten (10). The adjustments of this sub-paragraph (d) shall be applied in the denominator of the Defined Benefit Fraction based upon Years of Service. For purposes of computing the Defined Benefit Plan Fraction only, Years of Service shall include future years (or part |
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thereof) occurring before the Participant’s Normal Retirement Age. Such future Years of Service shall include the year which contains the date the Participant reaches Normal Retirement Age, or the year in which the Participant terminates employment, if earlier. | |||
(e) | If the Annual Benefit of the Participant commences before the Participant’s Social Security Retirement Age, but on or after age sixty-two (62), the adjusted dollar limitation is reduced above, if necessary, shall be determined as follows: |
(1) | If a Participant’s Social Security Retirement Age is sixty-five (65), the dollar limitation for benefits commencing on or after age sixty-two (62) is determined by reducing the adjusted dollar limitation by 5/9 of one percent (1%) for each month by which benefits commence before the month in which the Participant attains age sixty-five (65). | ||
(2) | If a Participant’s Social Security Retirement Age is greater than sixty-five (65), the dollar limitation for benefits commencing on or after age sixty-two (62) is determined by reducing the adjusted dollar limitation by 5/9 of one percent (1%) for each of the first thirty-six (36) months and 5/12 of one percent (1%) for each of the additional months [up to twenty-four (24) months] by which benefits commence before the month of the Participant’s Social Security Retirement Age. |
(f) | If the Annual Benefit of a Participant commences prior to age sixty-two (62), the adjusted dollar limitation shall be an Annual Benefit that is the Actuarial Equivalent of the Defined Benefit Dollar Limitation for age sixty-two (62), as determined above, reduced for each month by which benefits commence before the month in which the Participant attains age sixty-two (62). The Annual Benefit beginning prior to age sixty-two (62) shall be determined as the lesser of the equivalent Annual Benefit computed using the interest rate and mortality table (or other tabular factor) equivalence for early retirement benefits and the equivalent Annual Benefit computed using a five percent (5%) interest rate and the Applicable Mortality Table as defined in paragraph 1.10 of the Plan. Any decrease in the adjusted Defined Benefit Dollar Limitation determined in accordance with this provision (f) shall not reflect any mortality decrement to the extent that the benefits will not be forfeited upon the death of the Participant. | ||
(g) | If the Annual Benefit of a Participant commences after the Participant’s Social Security Retirement Age, the Defined Benefit Dollar Limitation as reduced in (d) above, if necessary, shall be increased so that it is the Actuarial Equivalent of an Annual Benefit of such dollar limitation beginning at the Participant’s Social Security Retirement Age. The equivalent Annual Benefit beginning after Social Security Retirement Age shall be determined as the lesser of the equivalent Annual Benefit computed using the interest rate and mortality table (or other tabular factor) specified in the Plan for purposes of determining Actuarial Equivalence for delayed retirement benefits, and the equivalent annual benefit computed using a five percent (5%) interest rate assumption and the Applicable Mortality Table as defined in paragraph 1.10 of the Plan. | ||
(h) | Notwithstanding anything else in this Article to the contrary, the benefit otherwise accrued or payable to a Participant under this Plan shall be deemed not to exceed the Defined Benefit Dollar Limitation if: |
(1) | the retirement benefits payable for a Plan Year under any form of benefit with respect to such Participant under this Plan and all other defined benefit plans (regardless of whether terminated) ever maintained by the employer do not exceed $1,000 multiplied by the Participant’s number of Years of Service or parts thereof [not to exceed ten (10)] with the Employer; and | ||
(2) | the Employer has not at any time maintained a Defined Contribution Plan, a Welfare Benefit Plan, or an individual medical account in which the Participant participated. | ||
Notwithstanding the above, in the case of an individual who was a Participant in one or more Defined Benefit Plans of the Employer as of the first day of the first Limitation Year beginning after December 31, 1986, the adjusted Maximum Permissible Amount shall not be less than a Participant’s TRA ‘86 Accrued Benefit, as defined at paragraph 1.89. |
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Notwithstanding the above, in the case of an individual who was a Participant in one or more Defined Benefit Plans of the Employer as of the first Limitation Year beginning after December 31, 1994, the adjusted Maximum Permissible Amount shall not be less than the Participant’s Retirement Protection Act of 1994 (RPA ‘94) Old Law Benefit. The Participant’s RPA ‘94 old law benefit is the Participant’s Accrued Benefit under the terms of the Plan as of the close of the last Limitation Year beginning before January 1, 1995 (the RPA ‘94 freeze date), determined as if the Participant had separated from Service as of that date. In determining the amount of a Participant’s RPA ‘94 old law benefit, the following shall be disregarded: |
(i) | any Plan amendment increasing benefits adopted after the RPA ‘94 freeze date; and | ||
(ii) | any cost of living adjustments that become effective after such date. |
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(a) | Benefits accrued for Participants from Employee contributions. | ||
(b) | Costs for Participants who have been receiving benefits or who have been eligible to receive Normal Retirement Benefits for more than three (3) years as of the date of termination. | ||
(c) | Costs for Participants who have been receiving benefits or who have been eligible to receive Normal Retirement Benefits for less than three (3) years as of the date of termination. |
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(d) | Costs for Participants who were eligible to receive early retirement benefits as of the date of termination. | ||
(e) | Costs for all other benefits insured by the Pension Benefit Guaranty Corporation. | ||
(f) | Costs for any other benefits. |
(a) | Prior to the date the pre-termination restrictions in paragraph 13.5 are effective, Employer contributions on behalf of any of the twenty-five (25) highest paid Employees at the time the Plan is established and whose anticipated Annual Benefit exceeds $1,500 will be restricted as provided in paragraph 13.6(b) upon the occurrence of the following conditions: |
(1) | the Plan is terminated within ten (10) years after its establishment; | ||
(2) | the benefits of such highest paid Employee become payable within ten (10) years after the establishment of the Plan; or | ||
(3) | if Code Section 412 [without regard to Code Section 412(h)(2)] does not apply to this Plan, the benefits of such Employee become payable after the Plan has been in effect for ten years, and the full current costs of the Plan for the first ten (10) years have not been funded. |
(b) | Employer contributions which may be used for the benefit of an Employee described in paragraph 13.6(a) shall not exceed the greater of $20,000, or twenty percent (20%) of the first $50,000 of the Employee’s Compensation multiplied by the number of years between the date of the establishment of the Plan and: |
(1) | the date of the termination of the Plan if 13.6(a)(1) applies, | ||
(2) | the date the benefits become payable if 13.6(a)(2) applies, or | ||
(3) | the date of the failure to meet the full current costs if 13.6(a)(3) applies. |
(c) | If the Plan is amended so as to increase the benefit actually payable in event of the subsequent termination of the Plan, or the subsequent discontinuance of contributions thereunder, then the provisions of the above paragraphs shall be applied to the Plan as so changed as if it were a new Plan established on the date of the change. The original group of twenty-five (25) Employees [as described in 13.6(a) above] will continue to have the limitations in 13.6(b) apply as if the Plan had not been changed. The restrictions relating to the change of Plan should apply to benefits or funds for each of the twenty-five (25) highest paid Employees on the Effective Date of the change except that such restrictions need not apply with respect to any Employee in this group for whom the normal annual pension or annuity provided by the Employer contributions prior to that date and during the |
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ensuing ten (10) years, based on his or her rate of Compensation on that date, could not exceed $1,500. | |||
The Employer contributions which may be used for the benefit of the new group of twenty-five (25) Employees will be limited to the greater of: |
(1) | the Employer contributions (or funds attributable thereto) which would have been applied to provide the benefits for the Employee if the previous Plan had been continued without change, | ||
(2) | $20,000, or | ||
(3) | the sum of (A) the Employer contributions (or funds attributable thereto) which would have been applied to provide benefits for the Employee under the previous Plan if it had been terminated the date before the Effective Date of change, and (B) an amount computed by multiplying the number of years for which the current costs of the Plan after that date are met by twenty percent (20%) of his or her annual Compensation, or $10,000, whichever is smaller. |
(d) | Notwithstanding the above limitations, the following limitations will apply if they would result in a greater amount of Employer contributions to be used for the benefit of the restricted Employee: |
(1) | in the case of a substantial owner [as defined in Section 4022(b)(5) of the Employee Retirement Income Security Act, (ERISA)], a dollar amount which equals the Present Value of the benefit guaranteed for such Employee under Section 4022 of ERISA, or if the Plan has not terminated, the Present Value of the benefit that would be guaranteed if the Plan terminated on the date the benefit commences, determined in accordance with regulations of the Pension Benefit Guaranty Corporation (PBGC), and | ||
(2) | in the case of the other restricted Employees, a dollar amount which equals the present value of the maximum benefit described in Section 4022(b)(3)(B) of ERISA (determined on the earlier of the date the Plan terminates or the date benefits commence, and determined in accordance with regulations of the PBGC) without regard to any other limitations in Section 4022 of ERISA. |
(e) | If, as of the date of this Plan terminates, the value of Plan assets is not less than the Present Value of all Accrued Benefits (whether or not nonforfeitable) distributions of assets to each Participant equal to the Present Value of that Participant’s Accrued Benefit will not be discriminatory if the formula for computing benefits as of the date of termination is not discriminatory. All Present Values and the value of Plan assets will be computed using assumptions satisfying Section 4044 of ERISA. Upon the occurrence of the above situation, the amount by which the value of Plan assets exceeds the Present Value of Accrued Benefits (whether or not nonforfeitable) will revert to the Employer. | ||
(f) | Notwithstanding the otherwise applicable restrictions on distributions of benefits incident to early Plan termination, a Participant’s otherwise restricted benefit may be distributed in full upon depositing with an acceptable depository property having a fair market value equal to 125% of the amount which would be repayable had the Plan terminated on the date of the lump sum distribution. If the market value of the property held by the depository falls below 110% of the amount which would be repayable if the Plan were then to terminate, additional property necessary to bring the value of the property held by the depository up to 125% of such amount will be deposited. |
(a) | For Plan Years beginning on or after the date set forth in the Adoption Agreement, benefits distributed to any of the twenty-five (25) most Highly Compensated active and former Highly Compensated Employees, with the greatest Compensation in the current or any prior Plan Year, are restricted such that the annual payments are no greater than an amount equal to the payment that would be made on behalf of the Employee under a Straight Life Annuity that is the Actuarial |
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Equivalent of the sum of the Employee’s Accrued Benefit and the Employee’s other benefits under the Plan [other than a social security supplement within the meaning of Regulations Section 1.411(a)-7(c)(4)(ii)], and the amount the Employee is entitled to receive under social security. |
(b) | The preceding sub-paragraph (a) shall not apply if: |
(1) | after payment of the benefit to an Employee described in the preceding paragraph, the value of Plan assets equals or exceeds 110% of the value of current liabilities, as defined in Code Section 412(1)(7), or | ||
(2) | the value of the benefits for an Employee described above is less than one percent (1%) of the value of current liabilities before distribution, or | ||
(3) | the value of the benefits payable under the Plan to an Employee described above does not exceed $3,500. |
(c) | An Employee’s otherwise restricted benefit may be distributed in full to the affected Employee if prior to the receipt of the restricted amount, the Employee enters into a written agreement with the Plan Administrator to secure repayment to the Plan of the restricted amount. The restricted amount is the excess of the amounts distributed to the Employee (accumulated with reasonable interest) over the amounts that could have been distributed to the Employee under a Straight Life Annuity described in sub-paragraph (a) above (accumulated with reasonable interest). The Employee may secure repayment of the restricted amount upon distribution by: |
(1) | entering into an agreement for promptly depositing in escrow with an acceptable depository property having a fair market value equal to at least 125% of the restricted amount, | ||
(2) | providing a bank letter of credit in an amount equal to at least 100% of the restricted amount, or | ||
(3) | posting a bond equal to at least 100% of the restricted amount. | ||
If the Employee elects to post the bond, the bond will be furnished by an insurance company, bonding company or other surety for federal bonds. |
(d) | The escrow arrangement may provide that an Employee may withdraw amounts in excess of 125% of the restricted amount. If the market value of the property in the escrow account falls below 110% of the remaining restricted amount, the Employee must deposit additional property to bring the value of the property held by the depository up to 125% of the restricted amount. The escrow arrangement may provide that the Employee may have the right to receive any income from the property placed in escrow, subject to the Employee’s obligation to deposit additional property, as set forth in the preceding sentence. | ||
(e) | A surety or bank may release any liability on a bond or letter of credit in excess of 100% of the restricted amount. | ||
(f) | If the Plan Administrator certifies to the depository, surety or bank that the Employee (or the Employee’s estate) is no longer obligated to repay any restricted amount, the depository may redeliver to the Employee any property held under the escrow agreement, and a surety or bank may release any liability on an Employee’s bond or letter of credit. |
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(a) | In the case of any merger or consolidation of the Employer’s Plan with, or transfer of assets or liabilities of the Employer’s Plan to any other plan, Participants in the Employer’s Plan shall be entitled to receive benefits immediately after the merger, consolidation, or transfer which are equal to or greater than the benefits they would have been entitled to receive immediately before the merger, consolidation, or transfer if the Plan had then terminated. | ||
(b) | Any corporation into which the Trustee, Custodian or any successor thereto may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Trustee, Custodian or any successor thereto may be a party, or any corporation to which all or substantially all the business of the Trustee, Custodian or any successor thereto may be transferred, shall automatically be the successor of such Trustee without the filing of any instrument or performance of any further act, before any court. |
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1. | Paragraph 1.15 of the Basic Plan Document #02 entitled “Compensation”, under the paragraph entitled “Limitation on Compensation” is amended effective for Plan Years beginning after December 31, 2001, by the addition of the following at the end of the paragraph: | |
“Unless specified otherwise in the Adoption Agreement, for purposes of determining benefit accruals in Plan Years ending after December 31, 2001, Compensation even for Plan Years ending before the 2001 Plan Year shall be $200,000, as adjusted. The cost-of-living adjustment in effect for a calendar year applies to annual Compensation for the determination period that begins with or within such calendar year.” | ||
2. | Paragraph 1.19 of the Basic Plan Document #02 entitled “Defined Benefit Dollar Limitation” is amended by the addition of the following sub-paragraph at the end thereof: | |
“For Limitation Years ending after December 31, 2001, the “Defined Benefit Dollar Limitation” is $160,000, as adjusted. Said Defined Benefit Dollar Limitation shall be effective January 1 of each year and is determined under Code Section 415(d) in such manner as the Secretary shall prescribe, and is payable in the form of a Straight Life Annuity. A limitation as adjusted under Code Section 415(d) will apply to Limitation Years ending with or within the calendar year for which the adjustment applies.” | ||
3. | Paragraph 1.34 of the Basic Plan Document #02 entitled “Eligible Retirement Plan” is amended by the addition of the following at the end thereof: | |
“The following shall apply only to distributions made after December 31, 2001. For purposes of the Direct Rollover provisions in paragraph 4.5 of the Plan, an Eligible Retirement Plan shall also mean an annuity contract described in Code Section 403(b) and 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 which agrees to separately account for amounts transferred into such plan from this Plan. The definition of Eligible Retirement Plan shall also apply in the case of a distribution to a surviving Spouse, or to a Spouse or former Spouse who is the alternate payee under a Qualified Domestic Relations Order, as defined in Code Section 414(p). | ||
For purposes of the Direct Rollover provisions in paragraph 4.5 of the Plan, a portion of the distribution shall not fail to be an Eligible Rollover Distribution merely because the portion consists of Voluntary After-tax Contributions that are not includible in gross income. However, such portion may be transferred only to an individual retirement account or 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.” | ||
4. | Paragraph 1.50 of the Basic Plan Document #02 entitled “Key Employee”, is deleted in its entirety and replaced with the following for Plan Years beginning after December 31, 2001: | |
“1.50Key EmployeeKey Employee means any Employee or former Employee (including any deceased Employee) who at any time during the Plan Year that includes the determination date was an officer of the Employer having annual Compensation greater than $130,000 [as adjusted |
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under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002], a five percent (5%) owner of the Employer, or a one percent (1%) owner of the Employer having annual Compensation of more than $150,000. For this purpose, annual Compensation means Compensation within the meaning of Code Section 415(c)(3). The determination of who is a Key Employee will be made in accordance with Code Section 416(i)(1) and the applicable Regulations and other guidance of general applicability issued thereunder.” | ||
5. | Paragraph 1.54 of the Basic Plan Document #02 entitled “Maximum Permissible Amount”, is amended by the addition of the following sub-paragraphs (g) — (k): |
"(g) | The “Maximum Permissible Amount” is the lesser of the Defined Benefit Dollar Limitation or the defined benefit compensation limitation [both adjusted where required, as provided in (h) and, if applicable, in (i) or (j) below]. | ||
(h) | If the Participant has fewer than 10 Years of Participation in the Plan, the Defined Benefit Dollar Limitation shall be multiplied by a fraction, (1) the numerator of which is the number of Years (or part thereof) of Participation in the Plan and (2) the denominator of which is 10. In the case of a Participant who has fewer than 10 Years of Service with the Employer, the defined benefit compensation limitation shall be multiplied by a fraction, (1) the numerator of which is the number of Years (or part thereof) of Service with the Employer and (2) the denominator of which is 10. | ||
(i) | If the benefit of a Participant begins prior to age 62, the Defined Benefit Dollar Limitation applicable to the Participant at such earlier age is an Annual Benefit payable in the form of a Straight Life Annuity beginning at the earlier age that is the Actuarial Equivalent of the Defined Benefit Dollar Limitation applicable to the Participant at age 62 [adjusted under (h) above, if required]. The Defined Benefit Dollar Limitation applicable at an age prior to age 62 is determined as the lesser of (1) the Actuarial Equivalent (at such age) of the Defined Benefit Dollar Limitation computed using the interest rate and mortality table (or other tabular factor) specified in Section III(B) of the Adoption Agreement and (2) the Actuarial Equivalent (at such age) of the Defined Benefit Dollar Limitation computed using a 5% interest rate and the applicable mortality table as defined in Section III(B) of the Adoption Agreement. Any decrease in the Defined Benefit Dollar Limitation determined in accordance with this paragraph (i) shall not reflect a mortality decrement if benefits are not forfeited upon the death of the Participant. If any benefits are forfeited upon death, the full mortality decrement is taken into account. | ||
(j) | If the benefit of a Participant begins after the Participant attains age 65, the Defined Benefit Dollar Limitation applicable to the Participant at the later age is the Annual Benefit payable in the form of a Straight Life Annuity beginning at the later age that is actuarially equivalent to the Defined Benefit Dollar Limitation applicable to the Participant at age 65 [adjusted under (i) above, if required]. The Actuarial Equivalent of the Defined Benefit Dollar Limitation applicable at an age after age 65 is determined as (1) the lesser of the Actuarial Equivalent (at such age) of the Defined Benefit Dollar Limitation computed using the interest rate and mortality table (or other tabular factor) specified in Section III(B) of the Adoption Agreement and (2) the Actuarial Equivalent (at such age) of the Defined Benefit Dollar Limitation computed using a 5% interest rate assumption and the applicable mortality table as defined in Section III(B) of the Adoption Agreement. For these purposes, mortality between age 65 and the age at which benefits commence shall be ignored. | ||
(k) | Unless indicated otherwise in the Adoption Agreement, benefit increases resulting from the increase in the above limitations will be provided to all Participants who have one Hour of Service on or after the first day of the first Plan Year ending after December 31, 2001.” |
6. | Paragraph 4.3 of the Basic Plan Document #02 entitled “Rollover Contributions”, is amended by the addition of the following paragraph (f) which shall read as follows: |
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“(f) | If elected by the Employer in the Adoption Agreement, the Plan will accept Participant Rollover Contributions and/or Direct Rollovers of distributions made after December 31, 2001, from the types of plans specified in the Adoption Agreement, beginning on the Effective Date specified in the Adoption Agreement.” |
7. | Paragraph 4.5 of the Basic Plan Document #02 entitled “Direct Rollover of Benefits”, is amended effective January 1, 2002 by the addition of the following paragraph: | |
“The following shall apply only to distributions made after December 31, 2001. For purposes of the Direct Rollover provisions in this paragraph 4.5 of the Plan, an Eligible Retirement Plan shall also mean an annuity contract described in Code Section 403(b) and 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 which agrees to separately account for amounts transferred into such plan from this Plan. The definition of Eligible Retirement Plan shall also apply in the case of a distribution to a surviving Spouse, or to a Spouse or former Spouse who is the alternate payee under a Qualified Domestic Relations Order, as defined in Code Section 414(p). | ||
For purposes of the Direct Rollover provisions in this paragraph 4.5 of the Plan, a portion of the distribution shall not fail to be an Eligible Rollover Distribution merely because the portion consists of Voluntary After-tax Contributions that are not includible in gross income. However, such portion may be transferred only to an individual retirement account or 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.” | ||
8. | Effective as of the date set forth in the Adoption Agreement in the section entitled “Treatment of Rollovers in Application of Involuntary Cash-out Provisions”, paragraph 4.10 of the Basic Plan Document #02 entitled “Withdrawal on Termination of Employment “ is amended by the addition of the following at the end thereof: | |
“If elected by the Employer in the Adoption Agreement, the value of a Participant’s Vested Accrued Benefit shall be determined without regard to that portion of the Accrued Benefit that is attributable to Rollover Contributions (and the earnings allocable thereto) within the meaning of Code Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii) and 457(e)(16). If the value of the Participant’s Vested Accrued Benefit as so determined is $5,000 or less, the Plan shall, within normal administrative policy, immediately distribute the Participant’s entire nonforfeitable Accrued Benefit.” | ||
9. | Paragraph 10.7 of the Basic Plan Document #02 entitled “Participant Loans” is amended effective January 1, 2001 by deleting the language at subsection (i) and replacing it with the following: |
“(i) | Effective for Plan loans made after December 31, 2001, Plan provisions prohibiting loans to any Owner-Employee or Shareholder Employee shall cease to apply.” |
10. | Paragraph 12.2 of the Basic Plan Document #02 entitled “Minimum Benefit” is amended for Plan Years beginning after December 31, 2001 by the addition of the following new subparagraphs at the end of the paragraph that shall read as follows: | |
“Contributions Under Other Plans —The Employer may provide in the Adoption Agreement that the minimum benefit requirement shall be met in another plan, including another plan that consists solely of a cash or deferred arrangement which meets the requirements of Code Section 401(k)(12) and Matching Contributions that meet the requirements of Code Section 401(m)(11). | ||
Determining Years of Top-Heavy Service—For purposes of satisfying the minimum benefit requirements of Code Section 416(c)(1) and the Plan, in determining Years of Service with the Employer, any Service with the Employer shall be disregarded to the extent that such Service occurs during a Plan Year when the Plan benefits [within the meaning of Code Section 410(b)] no |
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Key Employee or former Key Employee.” | ||
11. | Paragraph 12.5 of Basic Plan Document #02 entitled “Benefit Reduction Resulting From Aggregation” shall be amended by the addition of a new sub-paragraph at the end thereof that shall read as follows: | |
“The provisions of this paragraph 12.5 shall be superceded by the amended definition of Maximum Permissible Amount for Plan Years beginning after 2001.” | ||
12. | This paragraph shall apply for purposes of determining whether the Plan is a Top-Heavy Plan under Code Section 416(g) for Plan Years beginning after December 31, 2001, and whether the Plan satisfies the minimum benefits requirements of Code Section 416(c) for such years. This section amends Article XII of the Basic Plan Document #02 by adding paragraph 12.6 entitled “Determination of Top-Heavy Status”. The paragraph shall read as follows: |
“12.6 | Determination Of Top-Heavy Status |
(a) | Determination of Present Values and Amounts —This paragraph 12.6 shall apply for purposes of determining the Present Values of Accrued Benefits and the amounts of account balances of Employees as of the Top-Heavy Determination Date. | ||
(b) | Distributions During the Plan Year Ending on the Top-Heavy Determination Date —The Present Value of Accrued Benefits and the amounts of account balances of an Employee as of the Top-Heavy Determination Date shall be increased by the distributions made with respect to the Employee under the Plan and any plan aggregated with this Plan under Code Section 416(g)(2) during the 1-year period ending on the Top-Heavy Determination Date. The preceding sentence shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with this Plan under Code Section 416(g)(2)(A)(i). In the case of a distribution made for a reason other than separation from Service, death, or Disability, this provision shall be applied by substituting “5-year period” for “1-year period”. | ||
(c) | Employees Not Performing Services During the Plan Year Ending on the Top-Heavy Determination Date —The Accrued Benefits and accounts of any individual who has not performed services for the Employer during the 1-year period ending on the Top-Heavy Determination Date shall not be taken into account.” |
13. | A new Paragraph 5.16 entitled “Application of the 1994 Group Annuity Reserving Table” is added at the end of Article V that shall read as follows: |
“5.16 | Application of the 1994 Group Annuity Reserving Table | ||
(a) | Unless indicated otherwise in the Adoption Agreement, this paragraph will apply to distributions with Annuity Starting Dates after December 31, 2001. | ||
(b) | Notwithstanding any other Plan provisions to the contrary, the applicable mortality table used for purposes of adjusting any benefit or limitation under Code Sections 415(b)(2)(B), (C), or (D) as set forth in Section III(B) of the Adoption Agreement and the applicable mortality table used for purposes of satisfying the requirements of Code Section 417(e) as set forth in Section III(B) of the Adoption Agreement is the table prescribed in Revenue Ruling 2001-62. | ||
However, in lieu of the sub-paragraph immediately above, if the Plan uses the applicable mortality table for reasons other than those listed above, then notwithstanding any other |
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Plan provisions to the contrary, any reference in the Plan to the mortality table prescribed in Revenue Ruling 95-6 shall be construed as a reference to the mortality table prescribed in Revenue Ruling 2001-62 for all purposes under the Plan.” | |||
(c) | For any distribution with an Annuity Starting Date on or after the effective date of this paragraph and before the adoption date of this paragraph, if application of the amendment as of the Annuity Starting Date would have caused a reduction in the amount of any distribution, such reduction is not reflected in any payment made before the adoption date of this paragraph. However, the amount of any such reduction that is required under Section 415(b)(2)(B) of the Internal Revenue Code must be reflected actuarially over any remaining payments to the Participant. |
14. | Pursuant to Article XIII, paragraph 15.1 of the Prototype Basic Plan Document #02 and in accordance with Revenue Ruling 2002-27, the Basic Plan Document #02 is amended as follows effective for Plan Years and Limitation Years beginning on or after January 1, 2002, except that, for any such Employer sponsors of the Plan who operated the Plan in accordance with the definition below prior to January 1, 2002 and in Plan Years beginning on or after January 1, 1998, such amendment is also effective for all years during such period in which the Plan operated in accordance with this definition. | |
For purposes of the definition of Compensation under paragraph 1.15, amounts under Code Section 125 include any amounts not available to a Participant in cash in lieu of group health coverage because the Participant is unable to certify that he or she has other health coverage. An amount will be treated as an amount under Code Section 125 only if the Employer does not request or collect information regarding the Participant’s other health coverage as part of the enrollment process for the health plan.” |
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(a) | If the Participant’s surviving Spouse is the Participant’s sole Designated Beneficiary, then, except as provided in the Adoption Agreement, 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 701/2, if later. | ||
(b) | If the Participant’s surviving Spouse is not the Participant’s sole Designated Beneficiary, then, except as provided in the Adoption Agreement, distributions to the Designated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died. |
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(c) | If there is no Designated Beneficiary as of September 30 of the year following the year of the Participant’s death, the Participant’s entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death. | ||
(d) | If the Participant’s surviving Spouse is the Participant’s sole Designated Beneficiary and the surviving Spouse dies after the Participant but before distributions to the surviving Spouse begin, this paragraph 15.7, other than paragraph 15.7(a), will apply as if the surviving Spouse were the Participant. |
(a) | The annuity distributions will be paid in periodic payments made at intervals not longer than one (1) year; | ||
(b) | The distribution period will be over a life (or lives) or over a period certain not longer than the period described in this paragraph 15.9 and paragraphs 15.10, 15.11 and 15.12; | ||
(c) | Once payments have begun over a period, the period may only be changed in accordance with Q & A -13 of Section 1.401(a)(9)-6 of the Final Treasury Regulations; | ||
(d) | Payments will either be nonincreasing or increase only as permitted by Q & A - -14 of Section 401(a)(9)-6 of the Final Treasury Regulations. |
Any additional benefits accruing to the Participant in a calendar year after the first Distribution Calendar Year will be distributed beginning with the first payment interval ending in the calendar year immediately following the calendar year in which such amount accrued.
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(a) | Participant Survived By Designated Beneficiary- If the Participant dies on or after the date distributions begin and there is a Designated Beneficiary, the minimum amount that will be distributed for each Distribution Calendar Year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s vested accrued benefit by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant’s Designated Beneficiary, determined as follows: |
(1) | The Participant’s remaining life expectancy is calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. | ||
(2) | If the Participant’s surviving Spouse is the Participant’s sole Designated Beneficiary, the remaining life expectancy of the surviving Spouse is calculated for each Distribution Calendar Year after the year of the Participant’s death using the surviving Spouse’s age as of the Spouse’s birthday in that year. For Distribution Calendar Years after the year of the surviving Spouse’s death, the remaining life expectancy of the surviving Spouse is calculated using the age of the surviving Spouse as of the Spouse’s birthday in the calendar year of the Spouse’s death, reduced by one for each subsequent calendar year. | ||
(3) | If the Participant’s surviving Spouse is not the Participant’s sole Designated Beneficiary, the Designated Beneficiary’s remaining life expectancy is calculated using the age of the Beneficiary in the year following the year of the Participant’s death, reduced by one for each subsequent year. |
(b) | No Designated Beneficiary- If the Participant dies on or after the date distributions begin and there is no Designated Beneficiary as of September 30 of the year after the year of the Participant’s death, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s vested accrued benefit by the Participant’s remaining life expectancy calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. |
(a) | Participant Survived By Designated Beneficiary —Except as provided in the Adoption Agreement, 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 vested accrued benefit by the remaining life expectancy of the Participant’s Designated Beneficiary, determined as provided in paragraph 15.11. | ||
(b) | No Designated Beneficiary —If the Participant dies before the date distributions begin and there is no Designated Beneficiary as of September 30 of the year following the year of the Participant’s death, distribution of the Participant’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death. | ||
(c) | Death Of Surviving Spouse Before Distributions To Surviving Spouse Are Required To Begin —If the Participant dies before the date distributions begin, 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 paragraph 15.7(a), this paragraph 15.12 will apply as if the surviving Spouse were the Participant. |
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(a) | The Participant’s Spouse (including an alternate payee under a Qualified Domestic Relations Order) has consented to the distribution in a manner that would satisfy the requirements of Code Section 417(a)(2). Such spousal consent requirement shall not apply if the amount of the Spouse’s survivor annuity payments under the Retroactive Annuity Starting Date election is not less than the amount that such survivor payments would have been under an optional form of benefit that would satisfy the requirements of a Qualified Joint and Survivor Annuity, as defined in Code Section 417(b), and that has an Annuity Starting Date after the date the written explanation was provided. | ||
(b) | The Retroactive Annuity Starting Date distribution (including appropriate interest adjustments) will satisfy the requirements of Code Section 415 based upon the substitution of the date the distribution commences for the Annuity Starting Date with respect to all Plan purposes, including the determination of the applicable interest rate and the applicable mortality table. However, if a form of benefit would not have been subject to the present value requirements in the event the distribution had actually commenced on the Retroactive Annuity Starting Date, the requirement to apply Code Section 415 as of the date the distribution commences shall not be applicable if the date the distribution commences is twelve (12) months or less from the Retroactive Annuity Starting Date. | ||
(c) | If a form of benefit would have been subject to Section 417(e)(3) of the Code had distribution commenced as of the Retroactive Annuity Starting Date, the distribution shall be not less than the benefit produced by applying the applicable interest rate and the applicable mortality table (as of the date the distribution commences) to the annuity form that corresponds to the annuity form used to determine the benefit amount as of the Retroactive Annuity Starting Date. | ||
(d) | If a Participant elects a Retroactive Annuity Starting Date, future periodic payments must be the same as the future periodic payments, if any, that would have been paid to the Participant had payments actually commenced on the Retroactive Annuity Starting Date. A make-up payment shall be paid to an affected Participant that reflects any missed payment or payments for the period from the Retroactive Annuity Starting Date to the date of the actual make-up payment. (Such make-up payment shall be appropriately adjusted for interest from the date the missed payment or payments would have been made to the date of the actual make-up payment.) |
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“(n) | Special Rules for the application of the provisions of the Katrina Emergency Tax Relief Act of 2005 (KETRA) and the Gulf Opportunity Zone Act of 2005 (GOZA)- If applicable, the Plan Sponsor is authorized to comply with the provisions of KETRA, GOZA and any otherwise applicable IRS and DOL guidance and is deemed to have retroactively amended its Plan to comply with applicable law and regulation. The following provisions shall apply to participant loans made to qualified Plan Participants whose principal residence was in a federally proclaimed disaster area affected by Hurricane Katrina, Hurricane Rita or Hurricane Wilma, and as a result of any or all of such Hurricanes incurred an economic loss. For purposes of these provisions, such rules will apply to participant loans that are granted at any time on or after August 25, 2005 and before December 31, 2006 with respect to Hurricane Katrina, at any time on or after December 21, 2005 and before December 31, 2006, with respect to Hurricane Rita, and at any time on or after December 21, 2005 and before December 31, 2006, with respect to Hurricane Wilma. |
(1) | For participant loans made to Plan Participants eligible for KETRA or GOZA relief during the foregoing periods, the maximum permissible dollar limit for participant loans is increased from $50,000 to $100,000. | ||
(2) | In calculating the maximum available loan amount available for a Plan Participant eligible for KETRA or GOZA relief, the entire present value of the Participant’s vested accrued benefit under the Plan shall be used. | ||
(3) | In the event a Participant who is eligible for relief under KETRA or GOZA had an outstanding participant loan as of August 25, 2005 with respect to Hurricane Katrina, September 23, 2005 with respect to Hurricane Rita, or October 23, 2005 with respect to Hurricane Wilma, and the current maturity date of such participant loan is on or before December 31, 2006, the applicable maturity date of such participant loan shall be extended for one (1) year. Repayment amounts of such affected participant loans shall be adjusted to take into account the extension and additional interest accruing during such extension. For purposes of this relief, the extension period shall be disregarded in determining the five-year period under Code Section 72. | ||
(4) | Additionally, the Plan could have provided for special hurricane-related loans to Plan Participants who lived or worked in the Hurricane Katrina disaster area that qualified for individual relief from the Federal Emergency Management Agency. Similar relief is not available for Hurricanes Rita and Wilma. These special loans could also have been made available to Plan Participants residing outside the disaster area if they had a child, parent, grandparent or other dependent that lived or worked in the disaster area. These loans are subject to and must satisfy the requirements of Code Section 72(p). The increase in the loan limit to $100,000 as specified in (1) above did not apply to these loans.” |
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