HomeMy WebLinkAboutAgenda Report - June 19, 2019 C-25AGENDA ITEM
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AGENDA TITLE:
MEETING DATE:
SUBMITTED BY:
Adopt Resolution Approving Revised Normal Retirement Age in Deferred
Compensation Plan Documents for Mass Mutual
June 19,2019
Deputy City Manager
RECOMMENDED AGTION: Adopt resolution approving revised Normal Retirement Age in
deferred compensation plan documents for Mass Mutual.
BACKGROUND INFORMATION: The City sponsors deferred compensation plans for City employees
through Nationwide Retirement Solutions, ICMA Retirement
Corporation, and Mass Mutual. The City has requested to amend
the plan documents with Mass Mutual to address the following language changes:
The Normal Retirement Age is changed from Age 50 to Age designated by Participant for all
Employees.
The plan documents for Nationwide Retirement Solutions and ICMA Retirement Corporation do not need
to be amended. They already include the above language.
The amended plan documents have been prepared by Mass Mutual and are attached as Exhibit A.
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FISCAL IMPAGT:
FUNDING AVAILABLE
Attachment
$300 plan amendment fee
Expense will abso within existing appropriation
e Post, Human Resources Manager
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Andrew XeVfOèputV CtV lt¡anager
APPROVED
Ste ity Manager
GN - 109402 Specimen 457(b) Plan Document
GPLANLVL – CORRSPND Deferred Compensation Plan
Ver 102011
CITY OF LODI DEFERRED COMPENSATION PLAN
Effective Date of This Document June 19, 2019
Neither MassMutual nor any of its employees can provide legal or tax advice in connection with
the execution of this specimen document. Prior to execution of this document, you should consult
with your legal or tax advisor on whether this document is appropriate for your plan.
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TABLE OF CONTENTS
PREAMBLE .................................................................................................................................. 1
SECTION I DEFINITIONS ........................................................................................................ 2
1.1 Plan Definitions ............................................................................................................2
SECTION II PARTICIPATION AND CONTRIBUTIONS .................................................... 6
2.1 Eligibility .......................................................................................................................6
2.2 Election..........................................................................................................................6
2.3 Commencement of Participation ................................................................................6
2.4 Amendment of Annual Deferral Election, Investment Direction, or
Beneficiary Designation ...............................................................................................7
2.5 Information Provided by the Participant ..................................................................7
2.6 Contributions Made Promptly....................................................................................7
2.7 Employer Contributions ..............................................................................................7
2.8 Leave of Absence ..........................................................................................................7
2.9 Disability ......................................................................................................................7
2.10 Protection of Persons Who Serve in a Uniformed Service ........................................8
2.11 Corrective Measures .....................................................................................................8
SECTION III LIMITATIONS ON AMOUNTS DEFERRED ................................................. 9
3.1 Basic Annual Limitation .............................................................................................9
3.2 Age 50 Catch-up Annual Deferral Contributions ....................................................9
3.3 Special Section 457 Catch-up Limitation ...................................................................9
3.4 Special Rules ...............................................................................................................10
3.5 Correction of Excess Deferrals .................................................................................11
SECTION IV INVESTMENT RESPONSIBILITIES ............................................................. 12
4.1 Investment of Deferred Amount ...............................................................................12
4.2 Investment Election for Future Contributions........................................................12
4.3 Investment Changes for an Existing Account Balance ...........................................12
4.4 Investment Responsibility .........................................................................................12
4.5 Default Investment Fund ...........................................................................................12
4.6 Statements ...................................................................................................................13
SECTION V LOANS .................................................................................................................. 14
5.1 No Loans .....................................................................................................................14
SECTION VI DISTRIBUTIONS .............................................................................................. 15
6.1 Distributions from the Plan.......................................................................................15
6.2 Benefit Distributions Upon Severance from Employment .....................................15
6.3 Distributions on Account of Participant's Death ....................................................16
6.4 Distribution of Small Account Balances Without Participant's Consent .............16
6.5 Forms of Distribution ................................................................................................17
6.6 Minimum Distribution Requirements......................................................................17
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6.7 Payments to Minors and Incompetents....................................................................23
6.8 Procedure When Distributee Cannot Be Located...................................................23
6.9 Direct Rollover ...........................................................................................................24
6.10 Inservice Distributions................................................................................................25
6.11 Qualified Distributions for Retired Public Safety Officers .....................................27
SECTION VII ROLLOVERS AND PLAN TRANSFERS ..................................................... 28
7.1 Eligible Rollover Contributions to the Plan ............................................................28
7.2 Plan-to-Plan Transfers to the Plan ..........................................................................28
7.3 Plan-to-Plan Transfers from the Plan .....................................................................29
7.4 Permissive Service Credit Transfers .......................................................................30
SECTION VIII BENEFICIARY ............................................................................................... 31
8.1 Beneficiary Designation .............................................................................................31
SECTION IX ADMINISTRATION AND ACCOUNTING ................................................... 32
9.1 Administrator .............................................................................................................32
9.2 Administrative Costs .................................................................................................32
9.3 Paperless Administration ..........................................................................................32
SECTION X AMENDMENTS .................................................................................................. 34
10.1 Amendment .................................................................................................................34
10.2 Conformation ..............................................................................................................34
10.3 Plan Termination ........................................................................................................34
SECTION XI TRUST FUND .................................................................................................... 35
11.1 Trust Fund ...................................................................................................................35
SECTION XII MISCELLANEOUS ......................................................................................... 36
12.1 Non-Assignability ........................................................................................................36
12.2 Domestic Relation Orders ..........................................................................................36
12.3 IRS Levy ......................................................................................................................36
12.4 Mistaken Contributions..............................................................................................36
12.5 Employment.................................................................................................................37
12.6 Successors and Assigns ...............................................................................................37
12.7 Written Notice .............................................................................................................37
12.8 Total Agreement..........................................................................................................37
12.9 Gender ..........................................................................................................................37
12.10 Controlling Law ........................................................................................................37
EMPLOYER ADOPTION PAGE ............................................................................................. 38
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GN - 109402 Specimen 457(b) Plan Document
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Ver 102011
457(b) PLAN DOCUMENT
DEFERRED COMPENSATION PLAN
PREAMBLE
Adoption of Plan
The City of Lodi Deferred Compensation Plan (hereinafter "the Plan"), an eligible deferred
compensation plan within the meaning of Section 457(b) of the Internal Revenue Code of 1986, as
amended (hereinafter the "Code"), of a State or local government as described in Code Section
457(e)(1)(A), adopted by City of Lodi (hereinafter the "Employer") effective June 19, 2019.
Purpose of Plan
The primary purpose of this Plan is to permit Employees of the Employer to enter into an
agreement which will provide for deferral of payment of a portion of his or her current
compensation until death, retirement, severance from employment, or other event, in accordance
with the provisions of the Code Section 457(b), with other applicable provisions of the Code, and
in accordance with the General Statutes of the State.
Status of Plan
It is intended that the Plan shall qualify as an eligible deferred compensation plan within the
meaning of Code Section 457(b) sponsored by an eligible employer within the meaning of Code
Section 457(e)(1)(A), i.e., a State, political subdivision of a State, and agency or instrumentality of
a State or political subdivision of a State.
Tax Consequences of Plan
The Employer does not and cannot represent or guarantee that any particular federal or State
income, payroll, or other tax consequence will occur by reason of participation in this Plan. A
Participant should consult with his or her own counsel or other representative regarding all tax or
other consequences of participation in this Plan.
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SECTION I
DEFINITIONS
1.1 Plan Definitions
For purposes of this Plan, the following words and phrases have the meaning set forth below,
unless a different meaning is plainly required by the context:
An "Account Balance" means the bookkeeping account maintained with respect to each
Participant which reflects the value of the deferred Compensation credited to the Participant,
including the Participant's Annual Deferrals, the earnings or loss of the Trust Fund (net of Trust
Fund expenses) allocable to the Participant, any transfers for the Participant's benefit, and any
distribution made to the Participant or the Participant's Beneficiary. If a Participant has more than
one Beneficiary at the time of the Participant's death, then a separate Account Balance shall be
maintained for each Beneficiary. The Account Balance includes any account established under
Section VII for rollover contributions and plan-to-plan transfers made for a Participant, the
account established for a Beneficiary after a Participant's death, and any account or accounts
established for an alternate payee (as defined in Code Section 414(p)(8)).
The "Administrator" means the Employer. The term Administrator includes any person or
persons, committee, or organization appointed by the Employer to administer the Plan.
An "Annual Deferral" means the amount of Compensation deferred in any calendar year.
The "Beneficiary" of a Participant means the person or persons (or, if none, the Participant's
estate) who is entitled under the provisions of the Plan to receive a distribution in the event the
Participant dies before receiving distribution of his or her entire interest under the Plan.
The "Code" means the Internal Revenue Code of 1986, as now in effect or as hereafter amended
from time to time. Reference to a Code Section includes such section and any comparable section
or sections of any future legislation that amends, supplements, or supersedes such section.
The "Compensation" of a Participant means all cash compensation for services to the Employer,
including salary, wages, fees, commissions, bonuses, and overtime pay, that is includible in the
Employee's gross income for the calendar year, including, as applicable, compensation attributable
to services as an independent contractor, plus amounts that would be cash compensation for
services to the Employer includible in the Employee's gross income for the calendar year but for a
compensation reduction election under Code Section 125, 132(f), 401(k), 403(b), or 457(b)
(including an election to defer compensation under Section II).
Any payments described below made to a Participant after a Severance from Employment shall
qualify as Compensation for purposes of the Plan, but only if the payments are made by the later of
(a) the end of the calendar year in which the Severance from Employment occurred or (b) within 2
½ months of such Severance from Employment:
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(a) Payments that, absent a Severance from Employment, would have been paid to the
Participant while the Participant continued in employment with the Employer, but only if
such payments constitute regular compensation for services during the Participant's regular
working hours, compensation for services outside the Participant's regular working hours
(such as overtime or a shift differential), commissions, bonuses or other similar
compensation.
(b) Payments for accrued bona fide sick, vacation or other leave, but only if the Participant
would have been able to use the leave if employment had continued.
Any payment that is not described above shall not be considered Compensation if it is paid after
the date of the Participant's Severance from Employment, even if it is paid within 2 ½ months of
such date. Thus, for example, Compensation does not include severance pay.
For years beginning after December 31, 2008, (a) a Participant receiving a differential wage
payment, as defined by Code §3401(h)(2), by reason of qualified military service (within the
meaning of Code Section 414(u)), is treated as an Employee of the Employer making the payment
and (b) the differential wage payment is treated as Compensation.
An "Employee" means each natural person who is employed by the Employer as a common law
employee on a full time basis and any employee in an elected or appointed position; provided,
however, that the term Employee shall not include a leased employee or any employee who is
included in a unit of employees covered by a collective bargaining agreement that does not
specifically provide for participation in the Plan.
Any individual who is not treated by the Employer as a common law employee of the Employer
shall be excluded from Plan participation even if a court or administrative agency determines that
such individual is a common law employee of the Employer, unless the Employer has included the
individual in Plan participation as an independent contractor.
An "Employer" means the eligible employer (within the meaning of Code Section 457(e)(1)) that
has adopted the Plan. In the case of an eligible employer that is an agency or instrumentality of a
political subdivision of a State within the meaning of Code Section 457(e)(1)(A), the term
Employer shall include any other agency or instrumentality of the same political subdivision that
has adopted the Plan.
"Includible Compensation" means, with respect to a taxable year, the Participant’s
compensation as defined in Code Section 415(c)(3) and the regulations thereunder, for services
performed for the Employer. The amount of Includible Compensation is determined without
regard to any community property laws.
"Normal Retirement Age" means age 70 ½, unless the Participant has elected an alternate
Normal Retirement Age and delivered such election to the Administrator. Such date shall be no
earlier than the earliest date that the Participant will become eligible to retire and receive, under the
basic defined benefit pension plan of the Employer (or a money purchase plan in which the
Participant also participates if the Participant is not eligible to participate in a defined benefit plan)
immediate retirement benefits without actuarial or similar reduction because of retirement before
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some later specified age, but not greater than age 70 ½. If a Participant continues employment
after attaining age 70 ½, not having previously elected an alternate Normal Retirement Age, the
Participant's alternate Normal Retirement Age shall not be later than the mandatory retirement age,
if any, established by the Employer, or any age at which the Participant actually has a Severance
from Employment if the Employer has no mandatory retirement age. If the Participant will not
become eligible to receive benefits under a basic defined benefit pension plan (or money purchase
pension plan, if applicable) maintained by the Employer, the Participant's alternate Normal
Retirement Age may not be earlier than age 65 and may not be later than age 70 ½.
In the event a Participant is a qualified police or firefighter (as defined under Code Section
415(b)(2)(H)(ii)(I)) Normal Retirement Age means age 70 ½, unless the Participant has elected an
alternate Normal Retirement Age and delivered such election to the Administrator. Such date shall
be no earlier than the earliest date that the Participant will become eligible to retire and receive,
under the basic defined benefit pension plan of the Employer (or a money purchase plan in which
the Participant also participates if the Participant is not eligible to participate in a defined benefit
plan), immediate retirement benefits without actuarial or similar reduction because of retirement
before some later specified age which may not be earlier than age 40 and may not be later than age
70 ½.
A Participant’s Normal Retirement Age must be the same as his or her normal retirement age
under any other eligible deferred compensation plan or plans sponsored by the Employer. The
designation of a Normal Retirement Age under the Plan does not compel retirement with the
Employer.
The "Participant" means an individual who is currently deferring Compensation, or who has
previously deferred Compensation under the Plan by salary reduction and who has not received a
distribution of his or her entire benefit under the Plan. Only individuals who perform services for
the Employer as an Employee may defer Compensation under the Plan.
"Plan Year" means the calendar year.
"Severance from Employment" means the date that the Employee dies, retires, or otherwise has a
severance from employment with the Employer, as determined by the Administrator (and taking
into account guidance issued under the Code). Solely for the purpose of determining whether the
Participant is entitled to receive a distribution of his or her Account Balance pursuant to Section
6.2, a Participant shall be treated as having incurred a severance from employment during any
period the Participant is performing service in the uniformed services (as defined in chapter 43 of
title 38, United States Code) while on active duty for a period of more than 30 days.
The "State" means the State that is the Employer or of which the Employer is a political
subdivision, and any agency, or instrumentality, including any agency or instrumentality of a
political subdivision of the State, or the State in which the Employer is located.
The "Trust Fund" means the trust fund created under and subject to a trust agreement or a
custodial account or contract described in Code Section 401(f) held on behalf of the Plan.
The "Valuation Date" means each business day.
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SECTION II
PARTICIPATION AND CONTRIBUTIONS
2.1 Eligibility
Each Employee shall be eligible to participate in the Plan and defer Compensation hereunder
immediately upon becoming employed by the Employer.
2.2 Election
An Employee may elect to become a Participant by executing an election to defer a portion of his
or her Compensation (and to have that amount contributed as an Annual Deferral on his or her
behalf) and filing such election with the Administrator. This participation election shall be made
on the deferral agreement provided by the Administrator under which the Employee agrees to be
bound by all the terms and conditions of the Plan. Any such election shall remain in effect until a
new election is filed. The Administrator may establish a minimum deferral amount, and may
change such minimums from time to time. The deferral agreement shall also include designation of
investment funds and a designation of Beneficiary.
(a) Special Deferral Election of Sick, Vacation, or Back Pay: A Participant who has not
had a Severance from Employment may authorize a special election to defer accumulated
sick pay, accumulated vacation pay, and back pay for any calendar month if an election to
defer is entered into before the beginning of the month in which the amounts would
otherwise be paid or made available and the Participant is an Employee on the date the
amounts would otherwise be paid or made available. For this purpose, Compensation that
would otherwise be paid for a payroll period that begins before Severance from
Employment is treated as an amount that would otherwise be paid or made available before
an Employee has a Severance from Employment. In addition, a Participant who is a former
Employee may authorize a special election to defer accumulated sick pay, accumulated
vacation pay, and back pay that is paid by the later of 2 ½ months following the date of the
Participant's Severance from Employment or the end of the calendar year in which the
Severance from Employment occurred, provided that the special election to defer is
entered into before the amount is currently available.
2.3 Commencement of Participation
An Employee shall become a Participant as soon as administratively practicable following the date
the Employee files an election pursuant to Section 2.2. Such election shall become effective no
later than the calendar month following the month in which the election is made. A new Employee
may defer compensation payable in the calendar month during which the Participant first becomes
an Employee if an agreement providing for the deferral is entered into on or before the first day on
which the Participant performs services for the Employer.
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2.4 Amendment of Annual Deferral Election, Investment Direction, or Beneficiary
Designation
Subject to other provisions of the Plan, a Participant may at any time revise his or her participation
election, including a change of the amount of his or her Annual Deferrals, his or her investment
direction and his or her designated Beneficiary. Unless the election specifies a later effective date,
a change in the amount of the Annual Deferrals shall take effect as of the first day of the next
following month or as soon as administratively practicable if later. A change in the investment
direction shall take effect as of the date provided by the Administrator on a uniform basis for all
Employees. A change in the Beneficiary designation shall take effect when the election is accepted
by the Administrator.
2.5 Information Provided by the Participant
Each Employee enrolling in the Plan should provide to the Administrator at the time of initial
enrollment, and later if there are any changes, any information necessary or advisable for the
Administrator to administer the plan, including, without limitation, whether the Employee is a
participant in any other eligible plan under Code Section 457(b).
2.6 Contributions Made Promptly
Annual Deferrals by the Participant under the Plan shall be transferred to the Trust Fund within a
period that is not longer than is reasonable for the proper administration of the Participant's
Account Balance. For this purpose, Annual Deferrals shall be treated as contributed within a
period that is not longer than is reasonable for the proper administration if the contribution is made
to the Trust Fund within 15 business days following the end of the month in which the amount
would otherwise have been paid to the Participant, or earlier if required by law.
2.7 Employer Contributions
Nothing in this Plan prohibits the Employer from making annual deferrals to the Account Balance
of a Participant on a non-elective basis, subject to the Participant's contribution limits in Section
III.
2.8 Leave of Absence
Unless an election is otherwise revised, if a Participant is absent from work by leave of absence,
Annual Deferrals under the Plan shall continue to the extent that Compensation continues.
2.9 Disability
A disabled Participant (as determined by the Administrator) may elect Annual Deferrals during
any portion of the period of his or her disability to the extent that he or she has actual
Compensation (not imputed Compensation and not disability benefits) from which to make
contributions to the Plan and has not had a Severance from Employment.
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2.10 Protection of Persons Who Serve in a Uniformed Service
An Employee whose employment is interrupted by qualified military service under Code Section
414(u) or who is on a leave of absence for qualified military service under Code Section 414(u)
may elect to make additional Annual Deferrals upon resumption of employment with the
Employer equal to the maximum Annual Deferrals that the Employee could have elected during
that period if the Employee's employment with the Employer had continued (at the same level of
Compensation) without the interruption or leave, reduced by the Annual Deferrals, if any, actually
made for the Employee during the period of the interruption or leave. This right applies for five
years following the resumption of employment (or, if sooner, for a period equal to three times the
period of the interruption or leave).
A reemployed Employee shall also be entitled to an allocation of any additional Employer
Contributions, if applicable, that such Employee would have received under the Plan had the
Employee continued to be employed as an eligible Employee during the period of qualified
military service. Such restorative Employer Contributions (without interest), if applicable, shall be
remitted by the Employer to the Plan on behalf of the Employee within 90 days after the date of the
Employee's reemployment or, if later, as of the date the contributions are otherwise due for the
year in which the applicable qualified military service was performed.
2.11 Corrective Measures
In the event that an otherwise eligible Employee is erroneously omitted from Plan participation, or
an otherwise ineligible individual is erroneously included in the Plan, the Employer shall take such
corrective measures as may be permitted by applicable law. Such measures may include, in the
case of an erroneously omitted Employee, contributions made by the Employer to the Plan on
behalf of such Employee equal to the missed deferral opportunity, subject to the Participant's
contribution limits in Section III, and, in the case of an erroneously included individual, a payment
by the Employer to such individual of additional compensation in an amount equal to the amount
of the individual's elective deferrals under the Plan.
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SECTION III
LIMITATIONS ON AMOUNTS DEFERRED
3.1 Basic Annual Limitation
(a) The maximum amount of the Annual Deferral and, if applicable, Employer Contributions
under the Plan for any calendar year shall not exceed the lesser of:
(i) The "applicable dollar amount" (as defined in paragraph (b) below); or
(ii) The Participant's Includible Compensation for the calendar year.
(b) The "applicable dollar amount" means the amount established under Code Section
457(e)(15), as indexed, and in accordance with Section 3.4(a).
(c) Rollover amounts received by the Plan under Treasury Regulation Section 1.457-10(e) and
any plan-to-plan transfer into the Plan made pursuant to Section 7.2 shall not be applied
against the Annual Deferral limit.
3.2 Age 50 Catch-up Annual Deferral Contributions
A Participant who will attain age 50 or more by the end of a calendar year is permitted to elect an
additional amount of Annual Deferral for the calendar year, up to the maximum age 50 catch-up
Annual Deferral limit under §414(v)(2), as indexed.
The amount of the age 50 catch-up Annual Deferral for any calendar year cannot exceed the
amount of the Participant's Compensation, reduced by the amount of the elective deferred
compensation, or other elective deferrals, made by the Participant under the Plan and in
accordance with Section 3.4(a).
The age 50 catch-up Annual Deferral limit is not available to a Participant for any calendar year for
which the Special Section 457 Catch-up Limitation described in Section 3.3 is available and
applied.
3.3 Special Section 457 Catch-up Limitation
Notwithstanding the provisions of Sections 3.1 and 3.2, with respect to a year that is one of a
Participant's last three (3) calendar years ending before the year in which the Participant attains
Normal Retirement Age and the amount determined under this Section 3.3 exceeds the amount
computed under Sections 3.1 and 3.2, then the Annual Deferral limit under this Section 3.3 shall be
the lesser of:
(a) An amount equal to two (2) times the Section 3.1 Applicable Dollar Amount for such year;
or
(b) The sum of:
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(i) An amount equal to (A) the aggregate Section 3.1 limit for the current year plus
each prior calendar year beginning after December 31, 2001, during which the
Participant was an Employee under the Plan, minus (B) the aggregate amount of
Compensation that the Participant deferred under the Plan during such years, plus
(ii) An amount equal to (A) the aggregate limit referred to in Code Section 457(b)(2)
for each prior calendar year beginning after December 31, 1978, and before
January 1, 2002, during which the Participant was an Employee (determined
without regard to Sections 3.2 and 3.3), minus (B) the aggregate contributions to
Pre-2002 Coordination Plans (as defined in Section 3.4(c)) made by or on behalf of
the Participant for such years.
However, in no event can the deferred amount be more than the Participant's Compensation for the
year.
3.4 Special Rules
For purposes of this Section III, the following rules shall apply:
(a) Participant Covered By More Than One Eligible Plan. If the Participant is or has been a
participant in one or more other eligible plans within the meaning of Code Section 457(b),
then this Plan and all such other plans shall be considered as one plan for purposes of
applying the foregoing limitations of this Section III. For this purpose, the Administrator
shall take into account any other such eligible plan maintained by the Employer and shall
also take into account any other such eligible plan for which the Administrator receives
from the Participant sufficient information concerning his or her participation in such other
plan.
(b) Pre-Participation Years. In applying Section 3.3, a year shall be taken into account only if
(i) the Participant was eligible to participate in the Plan during all or a portion of the year
and (ii) Compensation deferred, if any, under the Plan during the year was subject to the
Basic Annual Limitation described in Section 3.1 or any other plan ceiling required by
Code Section 457(b).
(c) Pre-2002 Coordination Years. For purposes of Section 3.3(b)(ii)(B), "contributions to
Pre-2002 Coordination Plans" means any employer contribution, salary reduction or
elective contribution under any other eligible Code Section 457(b) plan, or a salary
reduction or elective contribution under any Code Section 401(k) qualified cash or
deferred arrangement, Code Section 402(h)(1)(B) simplified employee pension
(SARSEP), Code Section 403(b) annuity contract, and Code Section 408(p) simple
retirement account, or under any plan for which a deduction is allowed because of a
contribution to an organization described in Code Section 501(c)(18), including plans,
arrangements or accounts maintained by the Employer or any employer for whom the
Participant performed services. However, the contributions for any calendar year are only
taken into account for purposes of Section 3.3(b)(ii)(B) to the extent that the total of such
contributions does not exceed the aggregate limit referred to in Code Section 457(b)(2) for
that year.
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(d) Disregard Excess Deferral. For purposes of Sections 3.1, 3.2, and 3.3, an individual is
treated as not having deferred compensation under a plan for a prior taxable year if excess
deferrals under the plan are distributed, as described in Section 3.5. To the extent that the
combined deferrals for pre-2002 years exceeded the maximum deferral limitations, the
amount is treated as an excess deferral for those prior years.
3.5 Correction of Excess Deferrals
If the Annual Deferral on behalf of a Participant for any calendar year exceeds the limitations
described above, or the Annual Deferral on behalf of a Participant for any calendar year exceeds
the limitations described above when combined with other amounts deferred by the Participant
under another eligible deferred compensation plan under Code Section 457(b) for which the
Participant provides information that is accepted by the Administrator, then the Annual Deferral,
to the extent in excess of the applicable limitation (adjusted for any income or loss in value, if any,
allocable thereto), shall be distributed to the Participant as soon as administratively practicable
after the Administrator determines that the amount is an excess deferral.
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SECTION IV
INVESTMENT RESPONSIBILITIES
4.1 Investment of Deferred Amount
Each Participant or Beneficiary shall direct the investment of amounts held in his or her Account
Balance under the Plan among the investment options of the Trust Fund. The investment of
amounts segregated on behalf of an alternate payee pursuant to a Plan approved domestic relations
order (as defined under Code Section 414(p)) may be directed by such alternate payee to the extent
provided in such order. In the absence of such direction, such amounts shall be invested in the
same manner as they were immediately before such segregation was made on account of such
order. Each Account Balance shall share in any gains or losses of the investment(s) in which such
account is invested.
4.2 Investment Election for Future Contributions
A Participant may amend his or her investment election at such times and by such manner and
form as prescribed by the Administrator. Such election will, unless specifically stated otherwise,
apply onl y to future amounts contributed under the Plan.
4.3 Investment Changes for an Existing Account Balance
The Participant, Beneficiary, alternate payee, or Administrator may elect to transfer amounts in his
Account Balance among and between those investments available under the Trust Fund at such
times and by such manner and form prescribed by the Administrator, subject further to any
restrictions or limitations placed on any investment by the Administrator to be uniformly applied
to all Participants.
4.4 Investment Responsibility
To the extent that a Participant, Beneficiary, or alternate payee exercises control over the
investment of amounts credited to his Account Balance, the Employer, the Administrator, and any
other fiduciary of the Plan shall not be liable for any losses that are the direct and necessary result
of investment instructions given by a Participant, Beneficiary or an alternate payee.
4.5 Default Investment Fund
The Employer shall maintain a Default Investment Fund which shall be held and administered
under the Trust Fund. Any Participant who does not make an investment election on the deferral
agreement provided by the Administrator will have his contributions invested in the Default
Investment Fund until such time he provides investment direction under Sections 4.2 and 4.3.
Additionally, a Beneficiary or alternate payee who does not make an investment election will have
his Account Balance invested in the Default Investment Fund until such time he provides
investment direction under Section 4.3. The interest of each Participant, Beneficiary, or alternate
payee under the Plan in the Default Investment Fund shall be an undivided interest.
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4.6 Statements
The Administrator will cause statements to be issued periodically to reflect the contributions and
actual earnings posted to the Account Balances.
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SECTION V
LOANS
5.1 No Loans
There shall be no loans made to Participants from the Plan.
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SECTION VI
DISTRIBUTIONS
6.1 Distributions from the Plan
(a) Earliest Distribution Date. Payments from a Participant’s Account Balance shall not be
made earlier than:
(i) the Participant’s Severance from Employment pursuant to Section 6.2
(ii) the Participant’s death pursuant to Section 6.3
(iii) Plan termination under Section 10.3
(iv) an unforeseeable emergency withdrawal pursuant to Section 6.10(a), if permitted
under the Plan
(v) a de minimis account balance distribution pursuant to Section 6.10(b), if permitted
under the Plan
(vi) a rollover account withdrawal pursuant to Section 6.10(c), if permitted under the
Plan
(vii) attainment of age 70 ½ withdrawal pursuant to Section 6.10(d), if permitted under
the Plan
(viii) Qualified Military Service Deemed Severance withdrawal pursuant to Section
6.10(e), if permitted under the Plan
(ix) Qualified Military Reservist withdrawal pursuant to Section 6.10(f), if permitted
under the Plan
(x) Qualified Distributions for Retired Public Safety Officers pursuant to Section 6.11,
if permitted under the Plan
(b) Latest Distribution Date. In no event shall any distribution under this Section VI begin later
than the Participant’s "required beginning date". Such required minimum distributions
must be made in accordance with Section 6.6.
(c) Amount of Account Balance. Except as provided in Section 6.3, the amount of any
payment under this Section VI shall be based on the amount of the Account Balance as of
the Valuation Date.
6.2 Benefit Distributions Upon Severance from Employment
Upon Severance from Employment (other than due to death), a Participant may elect to commence
distribution of benefits at any time after such Severance from Employment by filing a request with
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the Administrator before the date on which benefits are to commence. However, in no event may
distribution of benefits commence later than his or her "required beginning date".
Distributions required to commence under this section shall be made in the form of benefit
provided under Section 6.5. Distributions postponed until the Participant’s "required beginning
date" will be made in a manner that meets the requirements of Section 6.6.
6.3 Distributions on Account of Participant's Death
Upon receipt of satisfactory proof of the Participant’s death, the designated Beneficiary may file a
request with the Administrator to elect a form of benefit provided under Section 6.5 and made in a
manner that meets the requirements of Section 6.6.
(a) Death of Participant Before Distributions Begin. If the Participant dies before his or her
distributions begin, the designated Beneficiary may elect to have distributions to be made
(i) in full within 5 years of the Participant’s death (5-year rule) or (ii) in installments over
the designated Beneficiary’s "life expectancy" (life expectancy rule).
If the designated Beneficiary does not make an election by September 30 of the year
following the year of the Participant's death, the Participant's Account Balance will be
distributed in a lump sum payment by December 31 of the calendar year containing the
fifth anniversary of the Participant's death or if the Participant’s spouse is the sole
designated Beneficiary by December 31 of the year the Participant would have attained age
70 ½.
(b) Death of Participant On or After Date Distributions Begin. If the Participant dies on or after
his or her distributions began, the Participant's Account Balance shall be paid to the
Beneficiary at least as rapidly as under the payment option used before the Participant's
death.
For purposes of this Section, a Participant who dies on or after January 1, 2007, while performing
qualified military service (as defined in Code Section 414(u)) will be deemed to have resumed
employment in accordance with the Participant's reemployment rights under chapter 43 of title 38,
United States Code, on the day preceding death and to have terminated employment on the actual
date of death for purposes of determining the entitlement of the Participant's survivors to any
additional benefits (other than benefit accruals relating to the period of qualified military service)
provided under the Plan, in accordance with the provisions of Code Sections 401(a)(37),
414(u)(9), and 457(g)(4).
6.4 Distribution of Small Account Balances Without Participant's Consent
Notwithstanding any other provision of the Plan to the contrary, if the amount of a Participant’s or
Beneficiary’s Account Balance (including the rollover contribution separate account) is not in
excess of the amount specified below on the date that payments commence under Section 6.2 or on
the date the Administrator is notified of the Participant's death, the Administrator may direct
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payment without the Participant’s or Beneficiary’s consent as soon as practicable following the
Participant's retirement, death, or other Severance from Employment.
(a) The Plan does not provide for distribution of small Account Balances without Participant
or Beneficiary consent.
6.5 Forms of Distribution
In an election to commence benefits under Section 6.2, a Participant entitled to a distribution of
benefits under this Section VI may elect to receive payment in any of the following forms of
distribution:
(a) a lump sum payment of the Participant’s total Account Balance.
(b) partial distribution of the Participant’s Account Balance.
(c) in a series of installments over a period of years (payable on a monthly, quarterly,
semi-annual or annual basis) which extends no longer than the life expectancy of the
Participant as permitted under Code Section 401(a)(9).
(d) a purchase of a single premium nontransferable annuity contract for such term and in such
form as the Participant selects that provides for payments in the form of an irrevocable
annuity each calendar year of amounts not less than the amount required under Code
Section 401(a)(9).
6.6 Minimum Distribution Requirements
(a) General Rules.
Notwithstanding anything in this Plan to the contrary, distributions from this Plan shall
commence and be made in accordance with Code Section 401(a)(9) and the regulations
promulgated thereunder. Additionally, the requirements of this Section 6.6 will take
precedence over any inconsistent provisions of the Plan.
(b) Time and Manner of Distribution.
(i) Required Beginning Date. The Participant's entire interest will be distributed, or
begin to be distributed, to the Participant no later than the Participant's "required
beginning date".
(ii) Death of Participant Before Distributions Begin. If the Participant dies before
distributions begin, the Participant's entire interest will be distributed, or begin to
be distributed, no later than as follows:
(A) If the Participant's surviving spouse is the Participant's sole "designated
Beneficiary", then distributions to the surviving spouse will begin by
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December 31 of the calendar year immediately following the calendar year
in which the Participant dies, or by December 31 of the calendar year in
which the Participant would have attained age 70 ½, if later.
(B) If the Participant's surviving spouse is not the Participant's sole "designated
Beneficiary" (i.e., multiple beneficiaries), then distributions to the
"designated Beneficiaries" will begin by December 31 of the calendar year
immediately following the calendar year in which the Participant died.
(C) If the Participant's sole "designated Beneficiary" is not the Participant’s
spouse, then distributions to the "designated Beneficiary" will begin by
December 31 of the calendar year immediately following the calendar year
in which the Participant died.
(D) If there is no "designated Beneficiary" as of September 30 of the year
following the year of the Participant's death, the Participant's Account
Balance will be distributed in a lump sum payment by December 31 of the
calendar year containing the fifth anniversary of the Participant's death.
(E) If the Participant's surviving spouse is the Participant's sole "designated
Beneficiary" and the surviving spouse dies after the Participant but before
distributions to the surviving spouse begin, this subparagraph (b)(ii), other
than subsection (b)(ii)(A), will apply as if the surviving spouse were the
Participant.
For purposes of this subparagraph (ii) and paragraph (d), unless subsection
(b)(ii)(D) applies, distributions are considered to begin on the Participant's
"required beginning date". If subsection (b)(ii)(E) applies, distributions are
considered to begin on the date distributions are required to begin to the surviving
spouse under subsection (b)(ii)(A). If distributions under an annuity purchased
from an insurance company irrevocably commence to the Participant before the
Participant's "required beginning date" (or to the Participant's surviving spouse
before the date distributions are required to begin to the surviving spouse under
subsection (b)(ii)(A)), the date distributions are considered to begin is the date
distributions actually commence.
(iii) Death of Participant On or After Distributions Begin. If the Participant dies on or
after distributions begin and before depleting his or her Account Balance,
distributions must commence to the "designated Beneficiary" by December 31 of
the calendar year immediately following the calendar year in which the Participant
died.
(iv) Forms of Distribution. Unless the Participant's Account Balance is distributed in
the form of an annuity contract or in a lump sum on or before the Participant’s
"required beginning date", as of the first distribution calendar year, distributions
will be made in accordance with paragraphs (c) and (d). If the Participant's interest
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is distributed in the form of an annuity contract, distributions thereunder will be
made in accordance with the requirements of Code Section 401(a)(9).
(c) Required Minimum Distributions During the Participant's Lifetime.
(i) Amount of Required Minimum Distribution For Each "Distribution Calendar
Year". During the Participant's lifetime, the minimum amount that will be
distributed for each distribution calendar year is the lesser of:
(A) The quotient obtained by dividing the "Participant's account balance" by the
distribution period in the Uniform Lifetime Table set forth in Treasury
Regulation Section 1.401(a)(9)-9, Q&A-2 using the Participant's age as of
the Participant's birthday in the "distribution calendar year"; or
(B) if the Participant's sole "designated Beneficiary" for the "distribution
calendar year" is the Participant's spouse and the spouse is more than 10
years younger than the Participant, the quotient obtained by dividing the
"Participant's account balance" by the distribution period in the Joint and
Last Survivor Table set forth in Treasury Regulation Section 1.401(a)(9)-9,
Q&A-3 using the Participant's and spouse's attained ages as of the
Participant's and spouse's birthdays in the "distribution calendar year".
(ii) Lifetime Required Minimum Distributions Continue Through Year of Participant's
Death. Required minimum distributions will be determined under this paragraph
(c) beginning with the first "distribution calendar year" and up to and including the
"distribution calendar year" that includes the Participant's date of death.
(d) Required Minimum Distributions After Participant's Death.
For purposes of this Section 6.6(d), the Participant’s and Beneficiary’s "life expectancy"
determination will use the Single Life Table set forth in Treasury Regulation Section
1.401(a)(9)-9, Q&A-1.
(i) Death On or After Date Distributions Begin.
(A) Participant Survived by Designated Beneficiary.
If the Participant dies on or after the date distributions begin and there is a
"designated Beneficiary", the minimum amount that will be distributed for
each "distribution calendar year" after the year of the Participant's death is
the quotient obtained by dividing the "Participant's account balance" by the
longer of the remaining "life expectancy" of the Participant or the
remaining "life expectancy" of the Participant's "designated Beneficiary",
determined as follows:
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(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" (i.e., multiple beneficiaries), the
"designated Beneficiary's" remaining "life expectancy" is calculated
using the age of the oldest Beneficiary in the year following the year
of the Participant's death, reduced by one for each subsequent year.
(4) If the Participant's sole "designated beneficiary" is not the
Participant’s spouse, 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 account balance" by the
Participant's remaining "life expectancy" calculated using the age of the
Participant in the year of death, reduced by one for each subsequent year.
(ii) Death Before Date Distributions Begin.
(A) Participant Survived by Designated Beneficiary.
Except as provided in this Section, if the Participant dies before the date
distributions begin and there is a "designated Beneficiary", the minimum
amount that will be distributed for each "distribution calendar year" after
the year of the Participant's death is the quotient obtained by dividing the
"Participant's account balance" by the remaining "life expectancy" of the
Participant's "designated Beneficiary", determined as follows:
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(1) 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.
(2) If the Participant's surviving spouse is not the Participant's sole
"designated Beneficiary" (i.e., multiple beneficiaries), the
"designated Beneficiary's" remaining "life expectancy" is calculated
using the age of the oldest Beneficiary in the year following the year
of the Participant's death, reduced by one for each subsequent year.
(3) If the Participant's sole "designated beneficiary" is not the
Participant’s spouse, 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 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 distributed 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 subsection (b)(ii)(A), this subparagraph (d)(ii) will
apply as if the surviving spouse were the Participant.
(e) Definitions.
(i) A Participant’s "required beginning date" is April 1 of the year that follows the later
of (1) the calendar year the Participant attains age 70 ½ or (2) retires due to
Severance from Employment. If the Participant postpones the required distribution
due in calendar year he or she attains age 70 ½ or severs employment, to the
"required beginning date", the second required minimum distribution must be taken
by the end of that year.
(ii) Participant’s "designated Beneficiary" means the individual who is designated as
the Beneficiary under Section 8.1 and is the designated Beneficiary under Code
Section 401(a)(9) and Treasury Regulation Section 1.401(a)(9)-4.
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(iii) A "distribution calendar year" means a calendar year for which a minimum
distribution is required. For distributions beginning before the Participant's death,
the first "distribution calendar year" is the calendar year the Participant attains age
70 ½ or retires, if later. For distributions beginning after the Participant's death, the
first "distribution calendar year" is the calendar year in which distributions are
required to begin under subparagraph (b)(ii).
The required minimum distribution for the Participant's first "distribution calendar
year" will be made on or before the Participant's "required beginning date". The
required minimum distribution for other "distribution calendar years", including
the required minimum distribution for the "distribution calendar year" in which the
Participant's "required beginning date" occurs, will be made on or before December
31 of that "distribution calendar year".
(iv) A married Participant’s "life expectancy", whose spouse is the sole Beneficiary and
is more than 10 years younger than the Participant, means the Participant’s and
spouse Beneficiary’s life expectancy as computed by use of the Joint and Last
Survivor Life Table under Treasury Regulation Section 1.401(a)(9)-9, Q&A 3. All
other Participants will have his or her life expectancy computed by use of the
Uniform Lifetime Table under Treasury Regulation Section 1.401(a)(9)-9, Q&A 2.
A deceased Participant’s or Beneficiary’s "life expectancy" means his or her life
expectancy as computed by use of the Single Life Table under Treasury Regulation
Section 1.401(a)(9)-9, Q&A 1.
(v) A "Participant's account balance" means the Account Balance as of the last
valuation date in the calendar year immediately preceding the "distribution
calendar year" (valuation calendar year) increased by the amount of any
contributions made and allocated or forfeitures allocated to the Account Balance as
of dates in the valuation calendar year after the valuation date and decreased by
distributions made in the valuation calendar year after the valuation date. The
Account Balance for the valuation calendar year includes any amounts rolled over
or transferred to the Plan either in the valuation calendar year or in the "distribution
calendar year" if distributed or transferred in the valuation calendar year.
(f) Special Provision Applicable to 2009 Required Minimum Distributions.
A Participant who would otherwise be required to receive a minimum distribution from the
Plan in accordance with Code Section 401(a)(9) for the 2009 "distribution calendar year"
may elect not to receive any such distribution that is payable with respect to the 2009
"distribution calendar year".
Notwithstanding the provisions of Section 6.9(b)(iii), the Administrator may permit a
Participant who receives a minimum distribution from the Plan for the 2009 "distribution
calendar year" to make a direct rollover of such distribution to an "eligible retirement plan"
in accordance with the provisions of Section 6.9.
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The Administrator may also permit a Participant or former Participant who has received a
minimum distribution for the 2009 "distribution calendar year" to roll over such
distribution back into the Plan, provided the requirements of Code Section 402(c), as
modified by Notice 2009-82, extending the 60-day rollover deadline, and the requirements
of Section 7.1 are otherwise satisfied. If the distribution received by the Participant
included amounts in addition to the minimum required under Code Section 401(a)(9), the
Administrator may allow the Participant to include a portion or all of the amount that was
not a minimum distribution in the Rollover Contribution made to the Plan in accordance
with this paragraph.
The provisions of this Section 6.6(f) are effective for minimum payments made for the
2009 "distribution calendar year" and do not include any minimum payment that is made in
2009, but is attributable to a different year (i.e., the participant reached his required
beginning date in 2008, but payment of the 2008 minimum is not made until 2009).
6.7 Payments to Minors and Incompetents
If a Participant or Beneficiary entitled to receive any benefits hereunder is a minor or is adjudged
to be legally incapable of giving valid receipt and discharge for such benefits, or is deemed so by
the Administrator, benefits will be paid to such person as the Administrator or a court of competent
jurisdiction may designate for the benefit of such Participant or Beneficiary. Such payments shall
be considered a payment to such Participant or Beneficiary and shall, to the extent made, be
deemed a complete discharge of any liability for such payments under the Plan.
6.8 Procedure When Distributee Cannot Be Located
The Administrator shall make all reasonable attempts to determine the identity and address of a
Participant or a Participant's Beneficiary entitled to benefits under the Plan. For this purpose, a
reasonable attempt means (a) the mailing by certified mail of a notice to the last known address
shown in the Administrator's records; (b) use of a commercial locator service, the internet or other
general search method; or (c) use such other methods as the Administrator believes prudent.
If the Participant or Beneficiary has not responded within 6 months, the Plan shall continue to hold
the benefits due such person until, in the Administrator’s discretion, the Plan is required to take
other action under applicable law.
Notwithstanding the foregoing, if the Administrator is unable to locate a person entitled to benefits
hereunder after applying the search methods set forth above, then the Administrator, in its sole
discretion, may pay an amount that is immediately distributable to such person in a direct rollover
to an individual retirement plan designated by the Administrator.
6.9 Direct Rollover
(a) A Participant or spouse Beneficiary (or a Participant's spouse or former spouse who is the
alternate payee under a domestic relations order, as defined in Code Section 414(p)) who is
entitled to an "eligible rollover distribution" may elect, at the time and in the manner
prescribed by the Administrator, to have all or any portion of the distribution paid directly
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to an "eligible retirement plan" specified by the Participant or spouse Beneficiary in a
direct rollover.
(b) For purposes of this Section 6.9, an "eligible rollover distribution" means any distribution
of all or any portion of a Participant's Account Balance, except that an eligible rollover
distribution does not include (i) any distribution that is one of a series of substantially equal
periodic payment made not less frequently than annually for the life or life expectancy of
the Participant or the joint lives or life expectancies of the Participant and the Participant’s
designated beneficiary, or for a specified period of ten years or more (ii) any distribution
made as a result of an unforeseeable emergency, or (iii) any distribution that is a required
minimum distribution under Code Section 401(a)(9).
In addition, an "eligible retirement plan" with respect to the Participant, the participant’s
spouse, or the Participant’s spouse or former spouse who is an alternate payee under a
domestic relations order as defined in Code Section 414(p) means any of the following: (i)
an individual retirement account described in Code Section 408(a), (ii) an individual
retirement annuity described in Code Section 408(b), (iii) an annuity plan described in
Code Section 403(a), (iv) a qualified defined contribution plan described in Code Section
401(a), (v) an annuity contract described in Code Section 403(b), (vi) an eligible deferred
compensation plan described in Code Section 457(b) that is maintained by a State, political
subdivision of a State, or any agency or instrumentality of a State or political subdivision of
a State, or (vii) effective for distributions made on or after January 1, 2008, a Roth IRA, as
described in Code Section 408A, provided, that for distributions made before January 1,
2010, such rollover shall be subject to the limitations contained in Code Section
408A(c)(3)(B) .
(c) A Beneficiary who is not the spouse of the deceased Participant may elect a direct rollover
of a distribution to an individual retirement account described in Code Section 408(b) or to
a Roth individual retirement account described in Code Section 408A(b) ("IRA"), provided
that the distributed amount satisfies all the requirements to be an eligible rollover
distribution. The direct rollover must be made to an IRA established on behalf of the
designated nonspouse Beneficiary that will be treated as an inherited IRA pursuant to the
provisions of Code Section 402(c)(11). The IRA must be established in a manner that
identifies it as an IRA with respect to a deceased Participant and also identifies the
deceased Participant and the nonspouse Beneficiary. This Section applies to distributions
made on or after January 1, 2007.
6.10 Inservice Distributions
(a) Unforeseeable Emergency Distributions. If the Participant who has not incurred a
Severance from Employment or Beneficiary has an unforeseeable emergency, the
Administrator may approve a single sum distribution of the amount requested or, if less,
the maximum amount determined by the Administrator to be permitted to be distributed
under this Section 6.10(a), Treasury Regulation Section 1.457-6(c) or other regulatory
guidance. The Administrator shall determine whether an unforeseeable emergency exists
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based on relevant facts and circumstances, and Treasury Regulation Section 1.457-6(c) or
other regulatory guidance.
(i) An unforeseeable emergency is defined as a severe financial hardship resulting
from the following:
(A) an illness or accident of the Participant or Beneficiary, the Participant's or
Beneficiary’s spouse, or the Participant’s or Beneficiary’s dependent or the
Participant’s "primary Beneficiary";
(B) loss of the Participant's or Beneficiary’s property due to casualty (including
the need to rebuild a home following damage to a home not otherwise
covered by homeowner's insurance, e.g., as a result of a natural disaster);
(C) the need to pay for the funeral expenses of a Participant’s or Beneficiary’s
spouse, Participant’s or Beneficiary’s dependent or "primary Beneficiary"
of the Participant;
(D) the need to pay for medical expenses of the Participant or Beneficiary, the
Participant's or Beneficiary’s spouse, Participant's or Beneficiary’s
dependent or the Participant's "primary Beneficiary" which are not
reimbursed or compensated by insurance or otherwise, including
non-refundable deductibles, as well as for the cost of prescription drug
medication;
(E) the imminent foreclosure of or eviction from the Participant's or
Beneficiary’s primary residence; or
(F) other similar extraordinary and unforeseeable circumstances arising as a
result of events beyond the control of the Participant or Beneficiary.
However, except as otherwise specifically provided in this Section 6.10(a),
certain circumstances are not considered an unforeseen emergency such as
the purchase of a home or the payment of college tuition or credit card debt.
For purposes of this paragraph, if the Participant is not deceased, a "primary
Beneficiary" shall be limited to a primary Beneficiary under the Plan, which is an
individual who is named as a Beneficiary pursuant to Section 8.1 and has an
unconditional right to all or a portion of the Participant's Account Balance upon the
death of the Participant, and which shall not include a contingent beneficiary.
Additionally, dependent shall be limited to the definition under Code Section
152(a), and, for taxable years beginning on or after January 1, 2005, without regard
to Code Sections 152(b)(1), (b)(2) and (d)(1)(B).
(ii) Unforeseeable emergency distribution standard. A distribution on account of
unforeseeable emergency may not be made to the extent that such emergency is or
may be relieved through reimbursement or compensation from insurance or
otherwise; by liquidation of the Participant's assets, to the extent the liquidation of
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such assets would not itself cause severe financial hardship; or by cessation of
deferrals under the Plan if the cessation of deferrals would alleviate the financial
need.
(iii) Distribution necessary to satisfy emergency need. Distributions because of an
unforeseeable emergency may not exceed the amount reasonably necessary to
satisfy the emergency need (which may include any amounts necessary to pay any
federal, State, or local income taxes or penalties reasonably anticipated to result
from the distribution).
(b) De minimis Account Balance Distributions. A Participant before Severance of
Employment may request a distribution of his or her total Account Balance (excluding the
rollover contribution separate account), which shall be paid in a lump sum payment as soon
as practical following the direction if (i) the total Account Balance does not exceed $5,000
(or the dollar limit under Code Section 411(a)(11), if greater), (ii) the Participant has not
previously received a distribution of their total Account Balance payable to the Participant
under this Section 6.10(b), and (iii) no Annual Deferral has been made with respect to the
Participant during the two-year period ending immediately before the date of the
distribution.
The Plan does not permit the Administrator to direct payments under the terms of this
Section 6.10(b) without the Participant’s consent.
(c) Rollover Account Distributions. If a Participant has a separate account attributable to
rollover contributions under the Plan, the Participant before Severance of Employment
may at any time elect to receive an inservice distribution of all or any portion of the amount
held in the rollover separate account.
(d) Age 70 ½ Distributions. Prior to Severance from Employment, a Participant may withdraw
all or a portion of his or her Account Balance on or after first day of the calendar year in
which the Participant shall attain age 70½.
(e) Qualified Military Service Deemed Severance Distributions. The Plan does not permit
"qualified military service deemed severance withdrawals".
(f) Qualified Military Reservist Distributions. Notwithstanding any other provision of the
Plan to the contrary, a Participant who is a member of a reserve component (as defined in
Section 101 of Title 37 of the United States Code) who is ordered or called to active duty
for a period in excess of 179 days, or for an indefinite period, may elect to receive a
withdrawal of all or any portion of his or her Annual Deferrals. Any distribution made to a
Participant pursuant to this Section 6.10(f) must be made during the period beginning on
the date the Participant is ordered or called to active duty and ending on the close of his
active duty period.
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6.11 Qualified Distributions for Retired Public Safety Officers
A Participant who is an "eligible retired public safety officer" may elect to have qualified health
insurance premiums deducted from amounts to be distributed to the Participant from the Plan, and
to have such amounts paid directly to the insurer or group health plan, subject to the provisions of
this Section 6.11. "Qualified health insurance premiums" include premiums for accident and
health insurance (including under a self-insured plan) or qualified long-term care insurance
contracts for the Participant and the Participant's spouse and dependents. It is intended that,
pursuant to Code Section 402(l), the distribution shall be excluded from the Participant's gross
income to the extent that the aggregate amount of the distributions does not exceed the amount
used to pay the qualified health insurance premiums of the Participant and the Participant's spouse
and dependents.
(a) A Participant shall qualify as an "eligible retired public safety officer" for purposes of this
Section 6.11 only if the Participant is an individual who separated from service, either by
reason of disability (as determined by the Administrator) or after attainment of normal
retirement age, as a public safety officer with the Employer. Consequently, a public safety
officer who retires before the attainment of normal retirement age is not an eligible retired
public safety officer unless the public safety officer retires by reason of disability (as
determined by the Administrator).
(b) For purposes of this Section 6.11, the term "public safety officer" means an individual
serving the Employer in an official capacity, with or without compensation, as a law
enforcement officer, a firefighter, a chaplain, or as a member of a rescue squad or
ambulance crew.
(c) In order to avoid unintended taxation, the aggregate amount that a Participant elects to have
directly distributed to an insurer or group health plan pursuant to this Section 6.11 for any
calendar year shall be limited to $3,000. Moreover, for purposes of applying this $3,000
limitation, distributions with respect to the Participant that are used to pay for qualified
health insurance premiums from all qualified retirement plans of the Employer shall be
aggregated.
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SECTION VII
ROLLOVERS AND PLAN TRANSFERS
7.1 Eligible Rollover Contributions to the Plan
(a) A Participant who is an Employee and who is entitled to receive an eligible rollover
distribution from another "eligible retirement plan", as defined in 6.9(b) excluding the
direct rollover of after-tax contributions, may request to have all or a portion of the eligible
rollover distribution paid to the Plan. The Administrator may require such documentation
from the distributing plan as it deems necessary to effectuate the rollover in accordance
with Code Section 402 and to confirm that such plan is an "eligible retirement plan" within
the meaning of Code Section 402(c)(8)(B).
(b) If an Employee makes a rollover contribution to the Plan of amounts that have previously
been distributed to him or her, the Employee must deliver to the Administrator the cash that
constitutes his or her rollover contribution within 60 days of receipt of the distribution from
the distributing "eligible retirement plan". Such delivery must be made in the manner
prescribed by the Administrator.
(c) The Plan shall establish and maintain for the Participant a separate account for any eligible
rollover distribution paid to the Plan from any "eligible retirement plan" that is an eligible
governmental plan under Code Section 457(b). In addition, the Plan shall establish and
maintain for the Participant a separate account for any eligible rollover distribution paid to
the Plan from any "eligible retirement plan" that is not an eligible governmental plan under
Code Section 457(b).
7.2 Plan-to-Plan Transfers to the Plan
At the direction of the Employer, the Administrator may permit Participants or Beneficiaries who
are participants or beneficiaries in another eligible governmental plan under Code Section 457(b)
to transfer assets to the Plan as provided in this Section 7.2. Such a transfer is permitted only if the
other plan provides for the direct transfer of each Participant's or Beneficiary’s interest therein to
the Plan. The Administrator may require in its sole discretion that the transfer be in cash or other
property acceptable to the Administrator. The Administrator may require such documentation
from the other plan as it deems necessary to effectuate the transfer in accordance with Code
Section 457(e)(10) and Treasury Regulation Section 1.457-10(b) and to confirm that the other plan
is an eligible governmental plan as defined in Treasury Regulation Section 1.457-2(f). The amount
so transferred shall be credited to the Participant's Account Balance and shall be held, accounted
for, administered and otherwise treated in the same manner as an Annual Deferral by the
Participant under the Plan, except that the transferred amount shall not be considered an Annual
Deferral under the Plan in determining the maximum deferral under Section III.
7.3 Plan-to-Plan Transfers from the Plan
(a) At the direction of the Employer, the Administrator may permit Participants or
Beneficiaries to elect to have his or her Account Balance transferred to another eligible
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governmental plan within the meaning of Treasury Regulatory Section 1.457-2(f), if the
other eligible governmental plan provides for the receipt of transfers, the Participant or
Beneficiary whose amounts deferred are being transferred will have an amount deferred
immediately after the transfer at least equal to the amount deferred with respect to that
Participant or Beneficiary immediately before the transfer, and the conditions of
subparagraph (i), (ii), or (iii) are met.
(i) A transfer from the Plan to another eligible governmental plan is permitted in the
case of a transfer for a Participant if the Participant has had a Severance from
Employment with the Employer and is performing services for the entity
maintaining the other eligible governmental plan.
(ii) A transfer from the Plan to another eligible governmental plan is permitted if:
(A) The transfer is to another eligible governmental plan within the same State
as the Plan;
(B) All the assets held by the Plan are transferred; and
(C) A Participant or Beneficiary whose amounts deferred are being transferred
is not eligible for additional annual deferrals in the other eligible
governmental plan unless he or she is performing services for the entity
maintaining the other eligible governmental plan.
(iii) A transfer from the Plan to another eligible governmental plan of the Employer is
permitted if:
(A) The transfer is to another eligible governmental plan of the Employer (and,
for this purpose, an employer is not treated as the Employer if the
Participant's compensation is paid by a different entity); and
(B) A Participant or Beneficiary whose deferred amounts are being transferred
is not eligible for additional annual deferrals in the other eligible
governmental plan unless he or she is performing services for the entity
maintaining the other eligible governmental plan.
(b) Upon the transfer of assets under this Section 7.3, the Plan's liability to pay benefits to the
Participant or Beneficiary under this Plan shall be discharged to the extent of the amount so
transferred for the Participant or Beneficiary. The Administrator may require such
documentation from the receiving plan as it deems appropriate or necessary to comply with
this Section (for example, to confirm that the receiving plan is an eligible governmental
plan under paragraph (a) of this Section 7.3, and to assure that the transfer is permitted
under the receiving plan) or to effectuate the transfer pursuant to Treasury Regulation
Section 1.457-10(b).
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7.4 Permissive Service Credit Transfers
(a) If a Participant is also a participant in a tax-qualified defined benefit governmental plan (as
defined in Code Section 414(d)) that provides for the acceptance of plan-to-plan transfers
with respect to the Participant, then the Participant may elect to have any portion of the
Participant's Account Balance transferred to the defined benefit governmental plan. A
transfer under this Section 7.4(a) may be made before the Participant has had a Severance
from Employment and without regard to whether the defined benefit governmental plan is
maintained by the Employer. The distribution rules applicable to the defined benefit
governmental plan to which any amounts are transferred under this Section 7.4 shall apply
to the transferred amounts and any benefits attributable to the transferred amounts.
(b) A transfer may be made under Section 7.4(a) only if the transfer is either for the purchase
of permissive service credit (as defined in Code Section 415(n)(3)(A)) under the receiving
defined benefit governmental plan, including service credit for periods for which there is
no performance of services, service credited in order to provide an increased benefit for
service credit which a participant is receiving under the plan, and service (including
parental, medical, sabbatical, and similar leave) as an employee (other than as an employee
described in Code Section 415(n)(3)(C)(i)) of an educational organization described in
Code Section 170(b)(1)(A)(ii) which is a public, private, or sectarian school which
provides elementary or secondary education (through grade 12) or a comparable level of
education, as determined under the applicable law of the jurisdiction in which the service
was performed, without application of the limitations of Code Section 415(n)(3)(B) in
determining whether the transfer is for the purchase of permissive service credit, or a
repayment to which Code Section 415 does not apply by reason of Code Section 415(k)(3).
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SECTION VIII
BENEFICIARY
8.1 Beneficiary Designation
A Participant has the right, by written notice filed with the Administrator, to designate one or more
beneficiaries to receive any benefits payable under the Plan in the event of the Participant’s death
prior to the complete distribution of benefits. The Participant accepts and acknowledges that he or
she has the burden for executing and filing, with the Administrator, a proper beneficiary
designation form.
The form for this purpose shall be provided by the Administrator. The form is not valid until it is
signed, filed with the Administrator by the Participant, and accepted by the Administrator. Upon
the Participant filing the form and acceptance by the Administrator, the form revokes all
beneficiary designations filed prior to that date by the Participant.
If no such designation is in effect upon the Participant’s death, or if no designated Beneficiary
survives the Participant, the Beneficiary shall be the Participant’s estate. If a Beneficiary dies after
becoming entitled to receive a distribution under the Plan but before distribution is made to him or
her in full the estate of the deceased Beneficiary shall be the Beneficiary as to the balance of the
distribution.
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SECTION IX
ADMINISTRATION AND ACCOUNTING
9.1 Administrator
The Administrator shall have the responsibility and authority to control the operation and
administration of the Plan in accordance with the terms of the Plan, the Code and regulations
thereunder, and any State law as applicable.
The Administrator may contract with a financially responsible independent contractor to
administer and coordinate the Plan under the direction of the Administrator. The Administrator
shall have the right to designate a plan coordinator or other party of its choice to perform such
services under this agreement as may be mutually agreed to between the Administrator and the
plan coordinator or other party. Notwithstanding any other provisions to the contrary, the
Administrator agrees that it shall be solely responsible to the Employer for any and all services
performed by a plan coordinator, subcontractor, assignee, or designee under this agreement.
The Administrator has full and complete discretionary authority to determine all questions of Plan
interpretation, policy, participation, or benefit eligibility in a manner consistent with the Plan’s
documents, such determinations shall be conclusive and binding on all persons except as otherwise
provided by law.
9.2 Administrative Costs
All reasonable expenses of administration may be paid out of the Plan assets unless paid (or
reimbursed) by the Employer. Such expenses shall include any expenses incident to the
functioning of the Administrator, or any person or persons retained or appointed by any named
fiduciary incident to the exercise of his or her duties under the Plan, including, but not limited to,
fees of accountants, counsel, investment managers, agents (including nonfiduciary agents)
appointed for the purpose of assisting the Administrator in carrying out the instructions of
Participants as to the directed investment of his or her accounts and other specialists and his or her
agents, and other costs of administering the Plan. In addition, unless specifically prohibited under
statute, regulation or other guidance of general applicability, the Administrator may charge to the
Account Balance of an individual a reasonable charge to offset the cost of making a distribution to
the Participant, Beneficiary, or Alternate Payee. If liquid assets of the Plan are insufficient to cover
the fees of the Administrator, then Plan assets shall be liquidated to the extent necessary for such
fees. In the event any part of the Plan assets becomes subject to tax, all taxes incurred will be paid
from the Plan assets. Until paid, the expenses shall constitute a liability of the Trust Fund described
in Section 11.1.
9.3 Paperless Administration
The Administrator may use telephonic or electronic media to satisfy any notice requirements
required by this Plan, to the extent permissible under regulations (or other generally applicable
guidance). In addition, a Participant's consent to immediate distribution may be provided through
telephonic or electronic means, to the extent permissible under regulations (or other generally
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applicable guidance). The Administrator also may use telephonic or electronic media to conduct
plan transactions such as enrolling participants, making (and changing) salary reduction elections,
electing (and changing) investment allocations, and other transactions, to the extent permissible
under regulations (or other generally applicable guidance).
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SECTION X
AMENDMENTS
10.1 Amendment
The Employer may at any time either prospectively or retroactively amend the Plan by notifying
Participants of such action. The Employer shall not have the right to reduce or affect the value of
any Participant’s Account Balance or any rights accrued under the Plan prior to amendment.
10.2 Conformation
The Employer shall amend and interpret the Plan to the extent necessary to conform to the
requirements of Code Section 457 and any other applicable law, regulation or ruling, including
amendments that are retroactive. In the event the Plan is deemed by the Internal Revenue Code to
be administered in a manner inconsistent with Code Section 457, the Employer shall correct such
inconsistency within the period provided in Code Section 457(b).
10.3 Plan Termination
In the event of the termination of the Plan, all Account Balances shall be disposed to or for the
benefit of each Participant or Beneficiary in accordance with the provisions of Section VI or
Section VII as soon as reasonably practicable following the Plan’s termination. The Employer
shall not have the right to reduce or affect the value of any Participant’s account or any rights
accrued under the Plan prior to termination of the Plan. The Participant’s or Beneficiary’s written
consent to the commencement of distribution shall not be required regardless of the value of his or
her Account Balance.
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SECTION XI
TRUST FUND
11.1 Trust Fund
All amounts in a Participant’s or Beneficiary’s Account Balance, all property and rights purchased
with such amounts, and all income attributable to such amounts, property, or rights shall be held
and invested in the Trust Fund in accordance with this Plan. The Trust Fund, and any subtrust
established under the Plan, shall be established pursuant to a written agreement that constitutes a
valid trust, custodial agreement, annuity contract, or similar agreement under the laws of the State.
All investments, amounts, property, and rights held under the Trust Fund shall be held in trust for
the exclusive benefit of Participants and their Beneficiaries and defraying reasonable expenses of
the Plan and of the Trust Fund. Prior to the satisfaction of all liabilities with respect to Participants
and their Beneficiaries, no part of the assets and income of the Trust Fund may be used for, or
diverted to, for purposes other than for the exclusive benefit of Participants and their Beneficiaries.
The Employer has no beneficial interest in the Trust Fund and no part of the Trust Fund shall ever
revert to the Employer, directly or indirectly, provided, however, that a contribution or any portion
thereof made by the Employer through a mistake of fact under Section 12.4 shall upon written
request of the Employer, reduced by losses attributable thereto, shall be returned to the Employer.
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SECTION XII
MISCELLANEOUS
12.1 Non-Assignability
Except as provided in Sections 12.2 and 12.3, no benefit under the Plan at any time shall be subject
in any manner to anticipation, alienation, assignment (either at law or in equity), encumbrance,
garnishment, levy, execution, or other legal or equitable process; and no person shall have power
in any manner to anticipate, transfer, assign (either law or in equity), alienate or subject to
attachment, garnishment, levy, execution, or other legal or equitable process, or in any way
encumber his or her benefits under the Plan, or any part thereof, and any attempt to do so shall be
void except to such extent as may be required by law.
12.2 Domestic Relation Orders
The Employer shall establish reasonable procedures to determine the status of domestic relations
orders and to administer distributions under domestic relations orders which are deemed to be
qualified orders. Such procedures shall be in writing and shall comply with the provisions of Code
Section 414(p) and regulations issued thereunder.
Notwithstanding Section 12.1, the Administrator may affect a Participant's Account Balance for a
"qualified domestic relations order" as defined in Code Section 414(p), and those other domestic
relations orders permitted to be so treated by the Administrator under the provisions of the
Retirement Equity Act of 1984. The amount of the Participant's Account Balance shall be paid in
the manner and to the person or persons so directed in the qualified domestic relations order. Such
payment shall be made without regard to whether the Participant is eligible for a distribution of
benefits under the Plan.
12.3 IRS Levy
Notwithstanding Section 12.1, the Administrator may pay from a Participant's or Beneficiary's
Account Balance the amount that the Administrator finds is lawfully demanded under a levy
issued by the Internal Revenue Service to the Plan with respect to that Participant or Beneficiary or
is sought to be collected by the United States Government under a judgment resulting from an
unpaid tax assessment against the Participant or Beneficiary.
12.4 Mistaken Contributions
Notwithstanding any other provision of the Plan or the Trust Fund to the contrary, in the event any
contribution of an Employer is made under a mistake of fact (and not a Plan operational error),
such contribution may be returned to the Employer within one year after the payment of the
contribution. Earnings attributable to the excess contribution may not be returned to the Employer,
but losses attributable thereto must reduce the amount to be so returned.
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12.5 Employment
Neither the establishment of the Plan nor any modification thereof, nor the establishment of any
account, nor the payment of any benefits, shall be construed as giving to any Participant or other
person any legal or equitable right against the Employer except as herein provided; and, in no
event, shall the terms or employment of any Employee be modified or in any way affected hereby.
12.6 Successors and Assigns
The Plan shall be binding upon and shall inure to the benefit of the Employer, its successors and
assigns, all Participants and Beneficiaries and their heirs and legal representatives.
12.7 Written Notice
Any notice or other communication required or permitted under the Plan shall be in writing, and if
directed to the Administrator shall be sent to the designated office of the Administrator, and, if
directed to a Participant or to a Beneficiary, shall be sent to such Participant or Beneficiary at his or
her last known address as it appears on the Administrator’s record. To the extent permitted by law,
regulation or other guidance from an appropriate regulatory agency, the Administrator, Employer
or any other party may provide any notice or disclosure, obtain any authorization or consent, or
satisfy any other obligation under the Plan through the use of any other medium acceptable to the
Administrator. Such other medium may include, but is not necessarily limited to, electronic or
telephonic medium. In addition, any communication or disclosure to or from Participants or
Beneficiaries that is required under the terms of the Plan to be made in writing may be provided in
any other medium (electronic, telephonic, or otherwise) that is acceptable to the Administrator and
permitted under applicable law.
12.8 Total Agreement
This Plan and Participant deferral election, and any subsequently adopted Plan amendment
thereof, shall constitute the total agreement or contract between the Employer and the Participant
regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant.
12.9 Gender
As used herein the masculine shall include the neuter and the feminine where appropriate.
12.10 Controlling Law
This Plan is created and shall be construed, administered and interpreted in accordance with Code
Section 457 and the regulations thereunder, and under laws of the State as the same shall be at the
time any dispute or issue is raised. If any portion of this Plan is held illegal, invalid or
unenforceable, the legality, validity and enforceability of the remainder shall be unaffected.
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EMPLOYER ADOPTION PAGE
IN WITNESS WHEREOF, the Employer has executed this Plan document this ________ day of
_________________,_____________.
City of Lodi
SEAL
By ______________________________________
Name_____________________________________
Title______________________________________
Attest:
___________________________________ _________________________________________
Title (Witness)
RESOLUTION NO, 2019-111
A RESOLUTION OF THE LODI CITY COUNCIL
APPROVING REVISED NORMAL RETIREMENT
AGE IN DEFERRED COMPENSATION PLAN
DOCUMENTS FOR MASS MUTUAL
WHEREAS, the Lodi City Council had previously approved and adopted the City of Lodi
Deferred compensation plan ("Plan") with Mass Mutual to provide employees of the City of Lodi
will retirement benefits, and
WHEREAS, the Lodi City Council declares the intention of the City of Lodi to continue
the Plan; but reserves the right to terminate or amend the Plan at any time; and
WHEREAS, the Lodi City Council is authorized to take such actions and to execute such
documents as they deem necessary or desiraþle in order to carry out the intent of the forgoing
resolutions and required under the Plan to make the Plan fully effective in accordance with the
terms and intent.
NOW, THEREFORE, BE lT RESOLVED that the Lodi City Council does hereby approve
amending the Normal Retirement Age from Age 50 to Age designated by the Participant for all
Employees; and
BE lT FURTHER RESOLVED that the Lodi City Council does hereby approve the
amendment to the Plan with Mass Mutual effective .June 19,2019; and
BE lT FURTHER RESOLVED that the Lodi City Council does hereby authorize the
City Manager to take such actions and to execute such documents as deemed necessary or
desirable in order to carry out the intent of the forgoing resolutions and required under the Plan
to make the Plan fully effective in accordance with the terms and intent.
Dated. June 19,2019
I hereby certify that Resolution No. 2019-111 was passed and adopted by the City
Council of the City of Lodi in a regular meeting held June 19,2019, by the following vote:
AYES: COUNCIL MEMBERS - Johnson, Kuehne, Mounce, and Nakanishi
NOES: COUNCIL MEMBERS - None
ABSENT; COUNCIL MEMBERS - Mayor Chandler
ABSTAIN: COUNCIL MEMBERS - None
t^Aã^r.-{"
J IFER
2019-111
City Clerk
ERRAIOLO