[Adopted 12-17-2014 by Ord. No. 991]
The Commissioners of the Township of South Whitehall hereby
establish the South Whitehall Township Nonuniformed Employees Defined
Contribution Pension Plan in the form provided in this article.
When used in this article with initial capital letters, the
words and phrases defined below shall have the following meanings,
unless the context in which they are used clearly indicates a different
meaning.
The last day of each Plan Year.
The Plan Administrator described in § 58-74.
A person entitled to receive, by virtue of a Qualified Domestic Relations Order (see § 58-70D), some of the benefits under this Plan of a Participant.
Any absence authorized by the Employer under the Employer's
standard personnel practices, provided that all persons under similar
circumstances must be treated alike in the granting of such leaves.
An absence due to service in the uniformed services of the United
States shall be considered an Authorized Leave of Absence if the employee
complies with all of the requirements of federal law in order to be
entitled to reemployment and in fact does return to employment with
the Employer within the period provided by law.
A person who has the right to receive benefits under this Plan as a result of the death of a Participant or Alternate Payee. (See § 58-67 for the method by which Participants may designate their beneficiaries).
The Internal Revenue Code of 1986, as amended (Title 26,
U.S. Code). Reference to a section of the Code shall mean that section
as it may be amended or renumbered from time to time, or any corresponding
provision of any future legislation that amends, supplements or supersedes
that section.
In general. Except as provided in Subsections B through E of this definition, the "Compensation" of a Qualified Employee for a given year (or other period for which a determination is being made) shall mean the Qualified Employee's total Wages from the Employer actually paid, made available, or includible in gross income for the year (or other determination period).
Adjustments.
Certain nontaxable compensation. Except as provided in Subsection B(2), "Compensation" for a given year (or other determination period) shall also include amounts that would otherwise be includible in the Qualified Employee's gross income for the given year (or other determination period) but for the application of Code § 125 (relating to cafeteria plans), Code § 457 (relating to compensation deferred under an eligible deferred compensation plan for state and local governments and tax exempt organizations), Code § 414(h)(2) (relating to employee contributions to governmental plans that are picked up by the employing unit and thus are treated as employer contributions), or Code § 132(f)(4) (relating to qualified transportation fringes), or any elective deferrals [within the meaning of Code § 402(g)(3)] for the given year (or other determination period), but only with respect to contributions made to plans maintained by the Employer.
Cash payments for waiver of benefits. "Compensation" shall not include cash payments made through a cafeteria plan due to the full or partial waiver of health or other coverage, even though such payments are includible in the Qualified Employee's Wages or gross income. The purpose of this Subsection B is to insure that a Participant shall receive the same pension benefits under this Plan regardless of whether the Participant elects through a cafeteria plan to receive health or other coverage or waive the receipt of such coverage, and regardless of the health or other coverage options he/she elects through a cafeteria plan. "Compensation" is the same as it would be if the Employer had maintained coverages which covered all Qualified Employees, required no employee contributions, and provided no incentives to Qualified Employees to select any particular coverage option.
Compensation during periods of uniformed service. In the case
of a period during which a Qualified Employee is serving in the uniformed
services of the United States, the employee's "Compensation"
shall be computed:
At the rate the Qualified Employee would have received but for
the uniformed service; or
In the case that the determination of such rate is not reasonably
certain, on the basis of the Qualified Employee's average rate
of Compensation during the twelve-month period immediately preceding
the period of uniformed service (or, if shorter, the period of employment
immediately preceding such period).
Maximum amount which may be treated as compensation.
General rule. The "Compensation" of a Qualified Employee for
any given Plan Year shall not exceed the amount in effect for such
year under Code § 401(a)(17), as adjusted for changes in
the cost of living. (For any year beginning in 2015, the amount is
$265,000.).
Short years. If Compensation is ever required to be determined
for a period of time which contains fewer than 12 months, the amount
in effect for such period under Code § 401(a)(17) shall
be equal to the amount in effect under Code § 401(a)(17)
for the calendar year in which the period begins, multiplied by a
fraction whose numerator is equal to the number of months in the period,
and whose denominator is equal to 12.
January 1, 2015, the date on which this Plan becomes effective.
With respect to any amount of benefit payments, the spouse
to whom a Participant was married on the earlier of the date such
benefit payments commenced under this Plan, or the date of his death
(except to the extent a former spouse is to be treated as an Eligible
Spouse under a Qualified Domestic Relations Order).
The Sponsor and all Related Employers which have adopted
this Plan, and their successors.
The Employee Retirement Income Security Act of 1974 (P.L.
93-406), as amended (29 U.S. Code § 1001 et seq.). Reference
to a section of ERISA shall mean that section as it may be amended
or renumbered from time to time, or any corresponding provision of
any future legislation that amends, supplements, or supersedes that
section.
The Trustees, the Administrator, any Investment Manager,
and any other person who exercises any discretionary authority or
discretionary control respecting the management of the Plan; or who
exercises any authority or control respecting the management or disposition
of Plan assets; or who renders investment advice for a fee or other
direct or indirect compensation with respect to any monies or property
of the Plan or has any authority or responsibility to do so; or has
any discretionary authority or discretionary responsibility in the
administration of the Plan.
An investment manager appointed under § 58-72F.
Age 65.
An "Active Participant" or an "Inactive Participant":
ACTIVE PARTICIPANTA Qualified Employee who is currently an Active Participant in this Plan (see § 58-59).
INACTIVE PARTICIPANTAny person, other than an Active Participant, who had previously been an Active Participant, and still has accounts with positive balances in the Plan.
The South Whitehall Township Nonuniformed Employees Defined
Contribution Pension Plan and Trust, as set forth in this article,
as it may be amended from time to time.
Any twelve-consecutive-month period beginning on January
1 and ending on the following December 31.
As of any given date, any person employed by the Employer for
a stated salary or compensation in a position for which work is regularly
scheduled for more than 1,500 hours per year (or would be so scheduled
except for authorized sick time, holidays, vacation time, leave, and
similar paid or unpaid time off); provided such person is neither:
A person who was employed by the Employer at any time before
January 1, 2015, in a position for which work was regularly scheduled
for more than 1,500 hours per year (or would have been so scheduled
except for authorized sick time, holidays, vacation time, leave, and
similar paid or unpaid time off);
A nonresident alien who receives no remuneration from the Employer
which constitutes income from sources within the United States (within
the meaning of the Code);
A person who is included in a unit of employees covered by a
negotiated collective bargaining agreement which does not provide
for his/her inclusion as a Qualified Employee eligible for participation
in this Plan, provided that retirement benefits were the subject of
good faith bargaining and less than 2% of the employees of the Employer
who are covered pursuant to that agreement are "professionals" as
defined in Treas. Regs. § 1.410(b)-9(g);
An employee of a police department or fire department organized
and operated by the Employer, if the employee provides police protection,
firefighting services, or emergency medical services for any area
within the jurisdiction of the Employer; nor
The Township Treasurer, Tax Collector, a per diem employee,
or an elected official, other than those who are employed by the Employer
in an independent employee status. In the later event, the person
shall only be considered a Qualified Employee with respect to the
independent employee status.
No self-employed individual or leased employee who is not a
common-law employee of the Employer may be a Qualified Employee or
a Participant in this Plan.
Any a) corporation which is a member of a controlled group of corporations [as defined in Code § 414(b)] which includes the Sponsor; b) trade or business (whether or not incorporated) which is under common control [as defined in Code § 414(c)] with the Sponsor; c) member of an affiliated service group [as defined in Code § 414(m)] which includes the Sponsor; and d) other entity required to be aggregated with the Sponsor pursuant to Code § 414(o) and the regulations thereunder; provided that for purposes of § 58-63 (relating to Maximum Additions), the definitions of Code §§ 414(b) and (c) shall be read as modified by Code § 415(h).
In general. The term "Separation from Service" shall mean the
end of a continuous period of employment of a given person by the
Employer (or any Related Employer) and may result from retirement,
death, resignation, involuntary termination, unauthorized absence,
or by failure to return to active employment with the Employer (or
any Related Employer) or to retire by the date on which an Authorized
Leave of Absence expires. For purposes of the preceding sentence only,
periods of Authorized Leaves of Absence and temporary layoffs are
considered to be periods of employment by the Employer. A person "Separates
from Service" if he incurs a Separation from Service.
Temporary layoffs. If the Employer (or any Related Employer)
shall terminate a person's employment due to insufficient work
for such person and shall indicate that the termination is temporary
and that the Employer (or Related Employer) anticipates being able
to re-employ the person within six months, the termination shall be
considered a "temporary lay-off" and not a "Separation from Service."
In that case, if the person does not return to active employment with
the Employer (or any Related Employer) immediately upon recall and
within six months, he shall incur a "Separation from Service" as of
the earlier of:
Transfers among related employers. The term "Separation from
Service" shall not include transfers between employers all of whom
are included within the definition of "Employer" or "Related Employer,"
or the mere cessation of a person's status as a "Qualified Employee"
if he remains in the employment of the Employer (or any Related Employer).
Sale of business.
A person shall not incur a "Separation from Service" if the
Employer or any Related Employer sells the trade or business for which
the person performs services to an unrelated purchaser, but the person
continues to work for the trade or business. Thereafter, the person
shall incur a "Separation from Service" if he does so under the provisions
of this definition as modified by substituting the purchaser of the
trade or business (and his related employers) for the Employer (and
Related Employers).
A person shall not incur a "Separation from Service" if the
corporation for which he works shall cease to be included within the
definition of "Employer" or "Related Employer" (e.g., through the
sale of its stock), but the person continues to work for the corporation.
Thereafter, the person shall incur a "Separation from Service" if
he does so under the provisions of this definition as modified by
substituting the corporation for which he works (and its related employers)
for the Employer (and Related Employers).
Uniformed service. In the case of a person who is absent to
perform service in the uniformed services of the United States and
who could be entitled to reemployment with the Employer under the
Uniformed Services Employment and Reemployment Rights Act of 1994,
38 U.S.C. § 4301 et seq., following the completion of such
service, the person shall incur a Separation from Service (and be
entitled to commence the receipt of Plan benefits) as of the earliest
of the following dates: 1) the date elected by the person (which may
not be earlier than the date the person files the election with the
Administrator); 2) the date of the person's death; or 3) the
date the Administrator determines that the person no longer is legally
entitled to reemployment with the Employer, provided that if the person
complies with all of the requirements of federal law in order to be
entitled to reemployment and does in fact return to employment with
the Employer within the period provided by law, the person shall thereafter
be treated as not having incurred a Separation from Service with respect
to the period of uniformed service. The person shall not be required
or permitted to return any benefits received from the Plan prior to
his return to employment with the Employer.
South Whitehall Township, Lehigh County, Pennsylvania, a
Pennsylvania first-class township and municipal corporation, and its
successors.
The trust established for this Plan in § 58-72A.
Those individuals or corporations who at any given time are
the trustees of the Trust (see § 1572B).
Any and all assets held under the Plan or the Trust by the
Trustees.
Wages as defined in Code § 3401(a) and all other
payments of compensation to an employee by the Employer (in the course
of such employer's trade or business) for which the Employer
is required to furnish the employee a written statement under Code
§§ 6401(d), 6051(a)(3), and 6052. See Treas. Regs.
§§ 1.6041-1(a), 1.6041-2(a)(1), 1.6052-1, 1.6052-2,
31.6051-1(a)(1)(i)(C). Compensation shall be determined without regard
to any rules under Code § 3401(a) that limit covered employment
based on the nature or location of the employment or the services
performed [such as the exception for agricultural labor in Code § 3401(a)(2)].
(This amount is the amount shown on the "Wages, Tips, and Other Compensation"
box on Form W-2 for federal income tax purposes.)
A.
In general. In order to be eligible to become an Active Participant in this Plan, a person must be a Qualified Employee. The eligible person shall become an Active Participant at the time provided in Subsection B, and shall remain an Active Participant only so long as he remains a Qualified Employee. After he ceases to be a Qualified Employee, he shall become an Inactive Participant until all of his Plan accounts are distributed, or until he becomes an Active Participant again.
B.
Entry date.
(1)
In general. A person shall become an Active Participant as of the first day the person satisfies the eligibility requirements of Subsection A.
(2)
Rehired employees. Subject to Subsection B(3), a person who Separates from Service and who later returns to employment with the Employer as a Qualified Employee shall become an Active Participant again upon his/her return to employment with the Employer as a Qualified Employee. A person who ceases to be a Qualified Employee but does not Separate from Service, and who becomes a Qualified Employee again, shall become an Active Participant again on the date he becomes a Qualified Employee again.
(3)
Uniformed service. A Qualified Employee who Separates from Service
as a result of service in the uniformed services of the United States
and who returns to employment with the Employer at a time when the
Employer is legally obligated to reemploy the person under the Uniformed
Services Employment and Reemployment Rights Act of 1994, 38 U.S.C.
§ 4301 et seq., shall be treated as not having incurred
that Separation from Service, shall be treated as having been a Qualified
Employee during the period of such uniformed service, and shall be
treated as having remained an Active Participant during the period
of such uniformed service.
C.
Required information. The Administrator may require a Qualified Employee
to submit relevant information to the Plan in connection with his
entry into participation in this Plan. The Administrator shall be
fully protected from any loss which may result from the Qualified
Employee's failure to submit such information or from the Plan's
reliance on incorrect information.
D.
Year of service.
(1)
In general. A person is credited with one Year of Service for each Computation Period (see Subsection F) during which he is credited with at least 1,000 Hours of Service (see Subsection G). The Year is generally credited as of the end of the Computation Period. However, if a person Separated from Service during the Computation Period and had already been credited with at least 1,000 Hours of Service, the Year will credited as of the date of the Separation from Service.
(2)
Service before age 18. Notwithstanding Subsection D(1), a person shall not be credited with a Year of Service for a Computation Period if he has not attained age 18 by the end of the Computation Period.
E.
Break in service.
(2)
Lengthy Breaks in Service.
(3)
Hours of service: special rule.
(b)
Limitation. No more than 501 hours shall be credited under Subsection E(3)(a)[2] for any one period of Parental Leave.
(c)
Computation period to which parental leave is credited. If a person is credited with fewer than 501 hours under Subsection E(3)(a)[1] for the Computation Period in which his/her Parental Leave begins, all of the hours credited under Subsection E(3)(a)[2] for any one period of Parental Leave shall be credited in the Computation Period in which his/her Parental Leave begins. Otherwise, all of the hours credited under Subsection E(3)(a)[2] for any one period of Parental Leave shall be credited in the first Computation Period after the Computation Period in which the person's Parental Leave begins.
(4)
Parental leave.
(a)
In general. For purposes of this Subsection E, a "Parental Leave" occurs when a person is absent from work or terminates employment due to:
(b)
Administrative determination. The Administrator shall determine
whether a person's termination of employment or absence from
work is due to a Parental Leave and the duration of such Leave based
on information provided to the Administrator by the person. All information
required by the Administrator to determine whether a Parental Leave
has occurred shall be provided within such reasonable time, and all
determinations under this section shall be made under such reasonable
rules, as the Administrator may establish for each group of persons
similarly situated. Nothing in this subsection shall be construed
to affect in any way the Employer's employment policy with respect
to Parental Leaves.
F.
Computation period. Computation Periods shall be determined separately
for each person. Each of the following periods of time shall constitute
a Computation Period for any given person:
(1)
The one-year period which begins on the first day the person is credited with one Hour of Service under Subsection G for the performance of duties.
G.
Hour of service. A person is credited with an Hour of Service for
each of the following, as administered in accordance with the rules
set forth in Section 2530.200b-2 of the Department of Labor Regulations
relating to Minimum Standards for Employee Benefit Plans (Title 29,
Code of Federal Regulations):
(1)
Work time: each hour for which the person is paid, or entitled to
payment, for the performance of duties for the Employer or any Related
Employer (regardless of whether the Related Employer has adopted this
Plan). These hours will be credited to the employee for the computation
period in which the duties are performed;
(2)
Compensated time off: each hour, up to 501 hours for any single continuous
period, during which the person performs no duties but is directly
or indirectly paid or entitled to payment by the Employer or any Related
Employer (regardless of whether employment has terminated) due to
vacation, holiday, illness, incapacity (including disability), layoff,
jury duty, military duty or leave of absence; excluding, however,
any period for which a payment is made or due under this Plan or under
a plan maintained solely for the purpose of complying with workers'
compensation or unemployment compensation or disability insurance
laws, or solely to reimburse the person for medical or medically related
expenses. A person shall be deemed to be "directly or indirectly paid,
or entitled to payment" by the Employer or any Related Employer regardless
of whether such payment is 1) made by or due from the Employer or
Related Employer directly, or 2) made indirectly through a trust fund,
insurer or other entity to which the Employer or Related Employer
contributes or pays premiums;
(3)
Back pay: each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Employer or any Related Employer. However, Hours of Service credited under Subsection G(1) or (2) shall not be duplicated under this Subsection G(3). Periods for which back pay is awarded or agreed to which correspond to periods described in Subsection G(2) shall be subject to the same 501 hour restriction for single continuous periods which applies under Subsection G(2). These hours will be credited to the employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the award, agreement, or payment is made.
(4)
Military time:
(a)
Each hour for which the person normally would have received
credit but for the fact that the person was performing service in
the uniformed services of the United States, provided that:
[1]
Such service immediately follows service with the Employer or
any Related Employer as a Qualified Employee; and
[2]
The person returns to employment with the Employer or any Related
Employer at a time when the Employer or any Related Employer is legally
obligated to reemploy the person under the Uniformed Services Employment
and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et
seq., and any amendments, supplements, or successor legislation.
A.
Accounts.
(1)
Paper accounts of participants. The Administrator shall create and
maintain adequate records to disclose the interest in the Trust Fund
of each Participant who was a Qualified Employee at any time on or
after the Effective Date and for each Beneficiary of such a Participant.
Such records shall be in the form of individual accounts, created
and closed as appropriate. Credits and charges shall be made to such
accounts in the manner described in this Plan. Each such Participant
and Beneficiary shall have an Employer Contribution Account to hold
employer contributions to the Plan for the Participant, and the earnings
thereon.
(2)
Paper accounts of plan. The Administrator shall create and maintain
adequate records to disclose the portions of the Trust Fund which
represent amounts not currently allocated to the accounts of persons
with an interest in the Plan. There shall be three such accounts created
with respect to each particular Employer which maintains this Plan
(unless there would be zero balances in any such account):
(3)
Alternate payee accounts. Alternate Payee Accounts under this Plan and Trust shall be created at such times as provided in § 58-70D(3) (relating to Alternate Payee Accounts under Qualified Domestic Relations Orders).
(4)
Segregation of assets.
(b)
Segregated accounts. The Trustees may segregate the assets of
the Trust Fund if they so desire. If the Trustees earmark any assets
to the accounts of specific Participants, they shall first obtain
the consent of the Participant or shall earmark such assets ratably
among the accounts of all Participants.
B.
Income of trust fund.
(1)
Definition. For the purposes of this Subsection, the "Income" of
the Trust Fund or any group of assets shall mean the net gain or loss
of the Trust Fund or group of assets from investments, as reflected
by interest payments, dividends, realized and unrealized gains and
losses on securities and other property, and administrative and other
expenses paid from the Trust Fund or the group of assets. All administrative
and other expenses which are fairly chargeable to one or more segregated
groups of assets shall be charged to those assets alone, regardless
of the fund from which those expenses were initially paid. All administrative
and other expenses which are fairly chargeable to all of the assets
of the Trust Fund shall be charged pro rata against all of the segregated
groups of assets, regardless of the fund from which those expenses
were initially paid.
(2)
Annual determination. The Trustees shall determine the Income of
the Trust Fund since the most recent determination as of each Accounting
Date.
(3)
Special determination. If a distribution of benefits is to begin
from the general Trust Fund during a given month, the Trustees shall
determine the Income of the Trust Fund since the most recent determination
as of the end of the month immediately preceding the calendar month
of the distribution.
(4)
Termination of trust. The Trustees shall determine the Income of
the Trust Fund since the most recent determination upon the Termination
of the Trust and liquidation of its assets.
(5)
Valuation of assets upon segregation. The Trustees shall determine
the Income of a group of assets at any time they choose to segregate
certain assets from the larger group.
(6)
Return of segregated assets to general pool of investments. Whenever
any segregated group of assets is to be merged with another group
of assets, the Trustees shall determine the Income of the two groups
of assets in the Trust Fund since their most recent valuation.
(7)
Distribution from segregated group of assets. The Trustees shall
determine the Income of a segregated group of assets whenever they
are to make a distribution from such segregated group of assets.
(8)
Other determination. The Trustees may determine the Income of the
Trust Fund or any segregated portion of it since its most recent valuation
at any time they think it prudent to do so (e.g., the Trustees may
decide to determine the Income for certain segregated bank accounts,
mutual funds, or other assets quarterly, monthly, or even daily);
provided that elections to make such determinations are not made in
a fashion likely to discriminate among persons with an interest in
the Plan.
C.
Allocation of income.
(1)
In general. Except as provided in Subsection C(2), the Income of each segregated portion of the Trust Fund shall be allocated to the accounts described in Subsection A(1) through (3) as of the day such Income is determined, but only to those accounts which have a positive balance on such day and which have been assigned to that segregated portion of the Trust Fund. If more than one of those accounts have been assigned to that segregated portion of the Trust Fund, the Income will be allocated among the accounts according to each account's portion of the following total:
(a)
The balances in the accounts as of the last asset valuation
date (to the extent the accounts are assigned to that segregated portion
of the Trust Fund); less
(b)
The amount of any distributions or transfers from the accounts
during the period concerned (to the extent the segregated portion
of the Trust Fund is used to make such distributions or transfers)
multiplied by a fraction whose numerator is the number of days in
the period after the date of distribution or transfer and whose denominator
is the total number of days in the period; plus
(c)
The amount of any contributions or transfers to the accounts
during the period concerned (to the extent the contributions or transfers
are assigned to the segregated portion of the Trust Fund) multiplied
by a fraction whose numerator is the number of days in the period
after the date as of which the contributions or transfers were credited
to the accounts and whose denominator is the total number of days
in the period.
(2)
Early employer contributions account. Any positive net Income which is allocated under Subsection C(1) to the Early Employer Contributions Account during a Plan Year shall be allocated as of the last day of the Plan Year among the Employer Contribution Accounts of the Qualified Recipients for that Plan Year by increasing the percentage in effect under § 58-61A (relating to Additions to Employer Contribution Accounts — Annual Allocation) as described in that Subsection. All of such Income must be used to provide additional credits for Qualified Recipients beyond those which would have been received in the absence of such Income.
D.
Valuation of assets. In determining the value of Trust Fund assets
for any purpose under this Plan, assets shall be valued on the basis
of their fair market value as of the valuation date.
A.
Annual allocation.
(1)
In general. Subject to the provisions of § 58-63 (relating to Maximum Additions), Subsection D(2) (relating to Uniformed Service), and subject to modification under Subsection A(2), as of the last day of each Plan Year, the Employer Contribution Account of each Qualified Recipient (see Subsection B) shall be credited with an amount equal to 6% of the Qualified Recipient's Compensation attributable to service as a Qualified Employee (or service in the uniformed services of the United States recognized under this Plan due to service as a Qualified Employee) for the portion of the Plan Year during which he/she was an Active Participant.
(2)
Increase. The percentage under Subsection A(1) shall be increased for any given Plan Year if and to the extent necessary so that the total amount of credits provided for that Plan Year under this subsection and Subsection D(2) (relating to Payment of Employer Contributions — Uniformed Service), as modified by § 58-63 (relating to Maximum Additions) is not less than the sum of:
(b)
Any Income to be allocated to the Employer Contribution Accounts of Qualified Recipients for the Plan Year under § 58-60C(2) (relating to Early Employer Contributions Account); and
(c)
Any amount to be allocated to the Employer Contribution Accounts of Qualified Recipients for the Plan Year under Subsection D(4)(b)[1] (relating to contributions of state aid in excess of the amount required).
B.
Qualified recipients. For purposes of this section, a "Qualified
Recipient" for any Plan Year shall mean:
(1)
A person who is an Active Participant on the last day of the Plan
Year; or
(2)
A person who Separated from Service during the Plan Year:
(3)
Who was an Active Participant on the date of the Separation from
Service.
C.
Funding of credits; employer contributions. The credits described in Subsections A and D(2) shall be funded:
(1)
First, by withdrawals from the Forfeiture Account (including amounts
forfeited on the last day of the Plan Year); and
(2)
Then, if necessary, by contributions to the Plan and Trust Fund from
the Employer, which the Employer hereby covenants and agrees to make,
which may be from funds of the Employer and/or grants from the Commonwealth
of Pennsylvania and/or others.
D.
Payment of employer contributions.
(1)
In general. Employer contributions under this article for a given
plan year are due to be paid to the Trustees as soon as administratively
possible following the end of the plan year, but in no event later
than December 31 of the following plan year. All amounts contributed
before the end of the plan year shall be held unallocated in a separate
early employer contributions account until the end of the plan year,
when they shall be withdrawn and allocated as if they were contributed
on the last day of the plan year.
[Amended 4-6-2016 by Ord.
No. 1008]
(2)
Uniformed service. Employer contributions under this section for a Participant with respect to any period of service in the uniformed services of the United States shall be made at the later of: 1) the time set forth in Subsection D(1); or 2) within a reasonable period of time after the Participant returns to employment with the Employer or any Related Employer, provided that the Participant returns to employment at a time when the Employer or any Related Employer is legally obligated to reemploy the person under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq., and any amendments, supplements, or successor legislation. The amount of such contributions shall not be adjusted for any earnings or forfeitures which may otherwise have accrued to the benefit of the Participant during the period between the time when the contributions would have been made had the Participant not provided service in the uniformed services of the United States, and the time when the contributions were actually made.
(3)
Additional contributions for interest on late contributions. If any
amount of Employer contributions for a Plan Year remains unpaid as
of December 31 of that Plan Year, the amount of Employer contributions
for that Plan Year shall be increased by interest on the unpaid amount
as of December 31, from January 1 of the Plan Year until the date
of payment at a rate equal to the interest assumption used for the
required actuarial valuation report under the Municipal Pension Plan
Funding Standard and Recovery Act, 53 P.S. § 895.101 et
seq., or the discount rate applicable to treasury bills issued by
the Treasury Department of the United States with a six-month maturity
as of the last business day in December of the Plan Year, whichever
is greater, expressed as a monthly rate and compounded monthly. Such
"interest" contributions shall be treated as Income of the Plan for
the period after the end of the Plan Year.
(4)
Mistake of fact. The actual required Employer contributions for a
given Plan Year cannot be known until the end of the Plan Year, since
an employee's qualification for a contribution and the amount
of his/her Compensation for the Plan Year cannot be determined until
that time. Consequently, the estimates made by the Employer in determining
the minimum municipal obligation for the Plan Year and in making contributions
to the Plan during the Plan Year most likely will be either higher
or lower than the actual required contributions; therefore:
(a)
If the amount in the Early Employer Contributions Account as of the last day of the Plan Year is insufficient to cover the required allocations to Participants under Subsection A (subject to modifications under § 58-63, relating to Maximum Additions), the Employer must contribute the amount of the shortfall to the Plan as soon as possible, together with interest as described in Subsection D(3).
(b)
If there otherwise would remain a positive balance in the Early Employer Contributions Account as of the last day of the Plan Year after making the required allocations to Participants under Subsection A [subject to modifications under § 58-63, relating to Maximum Additions, and after any Income earned by the Early Employer Contributions Account for the Plan Year is allocated to other accounts as described in §§ 58-60C(2) and 58-61A(2)(b), then:
[1]
That portion of the Early Employer Contributions Account as of the last day of the Plan Year which otherwise would remain and which is attributable to grants by the Commonwealth under the General Municipal Pension System State Aid Program shall be transferred to the South Whitehall Township Office Personnel Pension Plan and Trust, together with the Income earned on that amount from the last day of the Plan Year until the date of the transfer, except that if such portion does not exceed $500, then such portion shall instead be allocated as of the last day of the Plan Year among the Employer Contribution Accounts of the Qualified Recipients for that Plan Year by increasing the percentage in effect under Subsection A (relating to Additions to Employer Contribution Accounts — Annual Allocation) as described in that subsection.
[2]
That portion of the Early Employer Contributions Account which
is not attributable to grants by the Commonwealth under the General
Municipal Pension System State Aid Program shall either be:
(c)
For purposes of this Plan, Employer contributions to the Early Employer Contributions Account shall be deemed to be attributable to grants under the General Municipal Pension System State Aid Program to the extent the governing body of the Employer allocates the grants to this Plan, and all amounts allocated to Participant accounts under Subsection A and D(2) from the Early Employer Contributions Account shall be deemed to be attributable to grants under the General Municipal Pension System State Aid Program until the amount of such grants allocated to this Plan has been exhausted.
E.
Multiple employers. For any Plan Year in which more than one employer
is included within the definition of "Employer," the following rules
shall apply:
(1)
Employer contributions. Employer contributions to be allocated to
the account of a given Participant shall be made by his particular
employer.
(2)
Forfeitures. For the purpose of allocating forfeitures, amounts derived
from the contributions of a particular employer shall be allocated
only to employees of that particular employer. Separate subaccounts
shall be maintained in the Forfeiture Account for this purpose.
A.
No contributions. No employee contributions shall be required or
permitted under this Plan.
A.
COMPENSATION
(1)
(2)
(3)
(4)
(a)
(b)
(c)
(5)
(a)
(b)
(6)
(a)
(b)
(7)
(8)
(a)
(b)
EMPLOYER
LIMITATION YEAR
General definitions. When used in this section, the words and phrases
defined in this subsection shall have the following meanings, unless
the context in which they are used clearly indicates a different meaning:
The term "Compensation" for a Participant for a Limitation
Year shall mean:
In general. All wages within the meaning of Code § 3401(a)
(for purposes of income tax withholding at the source), and all other
payments of compensation to an employee by the Employer (in the course
of such employer's trade or business) for which the Employer
is required to furnish the employee a written statement under Code
§§ 6401(d), 6051(a)(3), and 6052, plus amounts that
would be included in wages but for an election under Code §§ 125(a),
132(f)(4), 402(e)(3), 402(h)(1)(B), 402(k), or 457(b). Compensation
shall be determined without regard to any rules under Code § 3401(a)
that limit covered employment based on the nature or location of the
employment or the services performed [such as the exception for agricultural
labor in Code § 3401(a)(2)].
Payment during limitation year. Except as otherwise provided in this definition, in order to be taken into account for a Limitation Year, amounts under Subsection (1) of this definition must be actually paid or made available to the Participant (or, if earlier, includible in the gross income of the Participant) within the Limitation Year. For this purpose, an amount is treated as paid on a date if it is actually paid on that date or it would have been paid on that date but for an election under Code §§ 125, 132(f)(4), 401(k), 403(b), 408(k), 408(p)(2)(A)(i), or 457(b).
Payment prior to severance from employment. Except as otherwise provided in Subsections (4) and (5) of this definition, in order to be taken into account for a Limitation Year, amounts under Subsection (1) must be paid or treated as paid to the Participant [in accordance with the rules of Subsection (2)] prior to the Participant's severance from employment [within the meaning of Treas. Regs. § 1.415(a)-1(f)(5)] with the Employer. Thus, for example, "Compensation" generally does not include severance pay or parachute payments.
Regular pay after severance from employment. Notwithstanding Subsection (3) of this definition, a payment of an amount described in Subsection (1) after severance from employment will be considered "Compensation" for the Limitation Year which includes the date of severance from employment if it:
Is regular compensation for services during the Participant's
regular working hours, or compensation for services outside the employee's
regular working hours (such as overtime or shift differential), commissions,
bonuses, or other similar payments;
Would have been paid to the Participant prior to a severance
from employment if the Participant had continued in employment with
the Employer; and
Is paid by the later of 2.5 months after severance from employment
with the Employer maintaining the plan or the end of the Limitation
Year which includes the date of severance from employment.
Leave cashouts. Notwithstanding Subsection (3) of this definition, a payment of an amount described in Subsection (1) after severance from employment will be considered "Compensation" for the Limitation Year which includes the date of severance from employment if it:
Is payment for unused accrued bona fide sick, vacation, or other
leave, but only if the Participant would have been able to use the
leave if employment had continued; and
Is paid by the later of 2.5 months after severance from employment
with the Employer maintaining the plan or the end of the Limitation
Year which includes the date of severance from employment.
Qualified military service. For purposes of this definition,
a Participant who is in qualified military service [within the meaning
of Code § 414(u)(5)] shall be treated as receiving Compensation
from the Employer during such period of qualified military service
equal to:
The Compensation the Participant would have received during
such period if the Participant were not in qualified military service,
determined based on the rate of pay the Participant would have received
from the Employer but for absence during the period of qualified military
service; or
If the compensation the Participant would have received during
such period was not reasonably certain, the Participant's average
Compensation from the Employer during the twelve-month period immediately
preceding the qualified military service (or, if shorter, the period
of employment immediately preceding the qualified military service).
Back pay. Payments awarded by an administrative agency or court
or pursuant to a bona fide agreement by an employer to compensate
an employee for lost wages are Compensation within the meaning of
this definition for the Limitation Year to which the back pay relates,
but only to the extent such payments represent wages and compensation
that would otherwise be included in compensation under this definition.
Maximum amount which may be treated as compensation.
General rule. Notwithstanding anything to the contrary in this
definition, the "Compensation" of a Participant for any Limitation
Year shall not exceed the amount in effect for such year under Code
§ 401(a)(17), as adjusted for changes in the cost of living.
(For any Limitation Year beginning in 2015, the amount is $265,000.)
Short years. If Compensation is ever required to be determined
for a short Limitation Year which contains fewer than 12 months, the
amount in effect for such Limitation Year under Code § 401(a)(17)
shall be equal to the amount in effect under Code § 401(a)(17)
for the calendar year in which the Limitation Year begins, multiplied
by a fraction whose numerator is equal to the number of months in
the period, and whose denominator is equal to 12.
The Sponsor and all Related Employers, and, to the extent
required under Treas. Regs. § 1.415(f)-1, a predecessor
employer within the meaning of that regulation.
For this Plan, those periods which are coextensive with the
Plan Year after the Effective Date of this Plan. Limitation Years
for other plans shall be as elected for those plans.
B.
ANNUAL ADDITIONS
DEFINED CONTRIBUTION PLAN
MAXIMUM PERMISSIBLE AMOUNT
(1)
(2)
(a)
(b)
Definitions relating to defined contribution limitations. When used
in this section, the words and phrases defined in this subsection
shall have the following meanings, unless the context in which they
are used clearly indicates a different meaning:
The term "Annual Additions," for a Participant in any given
Limitation Year with respect to the Defined Contribution Plans maintained
by the Employer, shall have the meaning given to the term under Treas.
Regs. § 1.415(c)-1(b) (which generally includes all employer
contributions, employee contributions, and forfeitures credited to
the Participant's accounts for the Limitation Year).
Shall have the meaning provided in Treas. Regs. § 1.415(c)-1(a)(2)
(including mandatory employee contributions to a defined benefit plan
maintained by the Employer which are not treated as employer pickup
contributions under Code § 414(h)(2), and employee contributions
to a separate account in a defined benefit plan maintained by the
Employer to the extent that benefits are based on the separate account).
"Maximum Permissible Amount," for any Limitation Year, shall mean the lesser of employee stock ownership plans under Treas. Regs. § 1.415(c)-1(e) and (f), the term "Maximum Permissible Amount," for any Limitation Year, shall mean the lesser of —
Short year.
If a short Limitation Year is created because of an amendment changing the Limitation Year to a different twelve-consecutive-month period, for purposes of the short Limitation Year, the number in Subsection (1)(a) of this definition shall be multiplied by the following fraction:
|
number of months in the short Limitation Year
(including fractional parts of a month)
12
|
If the Plan is terminated as of a date other than the last day
of the Limitation Year, the Plan is deemed to have been amended to
change its Limitation Year, and the Maximum Permissible Amount shall
be determined by prorating for the resulting short Limitation Year.
C.
General rule. The amount of Annual Additions which would otherwise be allocated under this Plan on behalf of any Participant during any Limitation Year (whether of this Plan or any other plan of the Employer) shall be reduced (under the procedures of Subsection D) to the extent necessary and possible so that the total amount of Annual Additions which may be allocated on behalf of any Participant during that Limitation Year (whether of this Plan or any other plan of the Employer) under all of the Defined Contributions Plans maintained by the Employer shall not exceed the Maximum Permissible Amount.
D.
Procedure for reducing contributions.
(1)
Timing of reductions. Reductions pursuant to this section in the
amount of contributions and allocations made on behalf of a Participant
shall be made as soon as is administratively feasible, preferably
before contributions and allocations are made.
(2)
Priority vs. medical plans. Annual Additions under this Plan shall
be reduced in full before Annual Additions are reduced under any individual
medical accounts (as defined in Code § 415(l)(2)) or post-retirement
medical accounts for key employees (as described in Code § 419A(d))
maintained by the Employer.
(3)
Priority vs. earlier defined contribution plan allocations. Annual
Additions under this Plan which are allocated as of later dates shall
be reduced in full before any earlier allocations under this or any
other defined contribution plan of the Employer are reduced.
(4)
Priority vs. contemporaneous allocations under all defined contribution
plans. Annual Additions under this Plan which are allocated on the
same day as other Annual Additions under this Plan or under other
Defined Contribution Plans shall be reduced according to the order
of priority which follows (to the extent necessary). Where a full
reduction is not necessary under any given category, the amount of
Annual Additions to be reduced under this Plan shall be determined
by the following product:
|
The total amount of
Annual Additions to be
reduced in that category
|
X
|
The amount of Annual
Additions allocated under
this Plan in that category
The total amount of Annual
Additions allocated under all
defined contribution plans
in that category
|
(a)
Nondeductible employee contributions. First, nondeductible employee
contributions under this Plan and other Defined Contribution Plans
of the Employer shall be reduced.
(b)
Elective deferrals. Second, elective deferrals under any other
plans of the Employer shall be reduced.
(c)
Profit sharing employer contributions. Third, allocations which would be attributable to nonelective employer contributions under profit sharing plans of the Employer shall be reduced. These reductions shall be used to increase the amount of additions to be allocated to Participants who have not reached their Code § 415 limit (as provided in this § 58-63). After each such allocation, the provisions of this § 58-63 and similar Code § 415 provisions in other plans executed to that point shall be re-executed in accordance with the new allocations. Successive reductions and reallocations under this subsection shall continue until all employer contributions are allocated to Participants consistent with the Code § 415 limitations or all eligible Participants have received the maximum amount permitted under this § 58-63 and similar Code § 415 provisions in other plans. Thereafter, the contributions from the Employer shall be reduced.
(d)
Money purchase employer contributions. Fourth, allocations which
would be attributable to nonelective employer contributions under
this and other money purchase pension plans of the Employer shall
be reduced.
(f)
Forfeitures. Finally, allocations which would be attributable
to withdrawals from forfeiture accounts of all Defined Contribution
Plans of the Employer shall be reduced.
(5)
Matching contributions. Allocations which would be attributable to employer matching contributions made with respect to employee contributions or elective deferrals under Defined Contribution Plans of the Employer that are reduced by virtue of this § 58-63 shall not be made and the Employer shall not be required to make such contributions (since there are no underlying contributions to match).
E.
Conformance to Code § 415. The limitations provided by
this section are intended to comply with Code § 415 and
the regulations promulgated thereunder. To the extent there is any
discrepancy between this section and Code § 415 and related
regulations, or any ambiguity in the terms of this section, the discrepancy
or ambiguity (whether this section is more or less stringent than
Code § 415 and related regulations) shall be resolved in
such a way as to give full effect to the provisions of Code § 415
and regulations promulgated thereunder.
A.
Rollovers. No person may roll over any money or property to the Plan
and Trust Fund which was received from other qualified plans, individual
retirement accounts/annuities, Code § 403(a) or § 403(b)
annuities, Code § 457 eligible deferred compensation plans,
or any other plan, account, annuity, or arrangement (whether received
directly or indirectly through an Individual Retirement Account or
Annuity, and whether as a "Direct Rollover" under Code § 401(a)(31)
or a rollover via the Participant).
B.
Plan-to-plan transfers. The Trustees may not accept transfers of
cash or assets to the Plan and Trust Fund from other qualified plans,
individual retirement accounts/annuities, Code § 403(a)
or § 403(b) annuities, Code § 457 eligible deferred
compensation plans, or any other plan, account, annuity, or arrangement.
A.
Vesting.
(1)
Employer contribution accounts. Except as provided in Subsection A(2) through (4), the vested portion of the Employer Contribution Account of any Participant or Beneficiary shall be a percentage of the account balance determined in accordance with the following schedule (see § 58-59D):
|
Years of Service
|
Vested Portion
| |
|---|---|---|
|
Less than 7
|
0%
| |
|
7 or more
|
100%
|
(2)
Normal retirement age. The balance in all the Plan accounts created
for any Participant who has attained the Normal Retirement Age (age
65) at a time when he is a Qualified Employee (or became a Qualified
Employee after attaining the Normal Retirement Age) shall be 100%
vested.
(3)
Death or disability. The balance in all the Plan accounts of any Participant or Beneficiary shall be 100% vested at all times after the Separation from Service of the Participant for whom the account was created if the Separation from Service occurred due to the death of the Participant or a disabling condition described in § 58-61B(2)(b).
(4)
Plan termination. The balance in all the Plan accounts of any Participant
or Beneficiary shall become 100% vested upon the termination or complete
discontinuance of Employer contributions under this Plan and Trust.
In the event of a partial termination of the Plan, the accounts of
those Participants (and Beneficiaries) included in that part of the
Plan which has terminated shall become 100% vested.
B.
C.
Application of forfeitures. All funds forfeited under Subsection B shall be allocated to the Forfeiture Account. Amounts in the Forfeiture Account under this Plan shall be applied on the last day of each Plan Year under the provisions of § 58-61 to provide allocations to the accounts of other Participants and reduce Employer contributions to the Plan for the given Plan Year.
D.
Restoration in case of reemployment following forfeiture.
(1)
Return of formerly nonvested participant. If a Participant who suffered a forfeiture under Subsection B(1)(b) (relating to forfeitures of a Participant with no vested account balances after a Separation from Service) becomes a Qualified Employee again, before he incurs a Lengthy Break in Service [see § 58-59E(2)], then the Employer shall contribute to the account(s) from which the forfeiture was made an amount equal to the amount which was forfeited from such account (without any adjustment for imputed interest or imputed Plan Income or loss). The contributions specified in this Subsection D(1) shall take place as of the date the person becomes a Qualified Employee again.
A.
Loans. The Trustees shall not make any loans to Participants, Alternate
Payees, or Beneficiaries from the Trust Fund.
A.
Designation of beneficiaries. Each Participant and Alternate Payee
(if permitted by the Qualified Domestic Relations Order) may designate
any person or persons (natural or legal) as his/her Beneficiary or
Beneficiaries to whom his/her Plan benefits are to be paid if he/she
dies before receipt of all such benefits. Beneficiaries may be designated
primarily, contingently, jointly, or successively.
B.
Procedure. Beneficiary designations shall be made on a form prescribed
by the Administrator and will only be effective if filed with the
Administrator during the Participant's or Alternate Payee's
lifetime.
C.
Revocation. Each effective beneficiary designation filed with the
Administrator by a Participant or Alternate Payee will revoke all
previously filed designations by such person. The revocation of a
beneficiary designation shall not require the consent of any designated
beneficiary or the Participant's spouse.
D.
Default beneficiaries. If a Participant (or Alternate Payee whose Beneficiary is entitled to receive Plan benefits) fails to designate a Beneficiary in the manner provided in Subsections A and B, or if all the Beneficiaries designated by a deceased Participant or Alternate Payee die before him/her or before a complete distribution of his/her benefits, the benefits with respect to the Participant or Alternate Payee shall be paid to those of his/her survivor(s) who are highest in the following list:
A.
In general. The Plan benefits of a Participant (or his/her Beneficiary)
shall commence after the Participant has Separated from Service. The
Separation from Service may be for any reason, including normal retirement
(age 65), death, disability, voluntary quit, or involuntary termination.
B.
C.
Reemployment of participant. Notwithstanding anything to the contrary contained in this § 58-68, no benefits shall commence to any Participant under Subsection B if the Participant is reemployed by the Employer or any Related Employer by the time the benefits would otherwise commence. In that case, such benefits shall only commence after the next event under this § 58-68 which permits or requires a distribution of benefits.
D.
Production of information. Notwithstanding anything to the contrary contained in this § 58-68, no benefits shall be paid under this Plan to any recipient until an administratively reasonable period of time after the recipient shall file with or make available to the Plan Administrator such information as the Plan Administrator may require to determine that the recipient is entitled to receive such benefits under this Plan at that time, or to administer the payment of such benefits.
A.
Form of distribution.
(1)
Living participant. Except as provided in Subsection B (relating to Direct Rollovers of Distributions) or § 58-70D (relating to Qualified Domestic Relations Orders), if the Participant is living at the time benefits commence with respect to his Plan accounts, then the benefits which commence shall be distributed to the Participant in a lump sum cash distribution.
(2)
Deceased participant. Except as provided in Subsection B (relating to Direct Rollovers of Distributions) or § 58-70D (relating to Qualified Domestic Relations Orders), if the Participant is not living at the time benefits commence with respect to his Plan accounts, then the benefits which commence shall be distributed to the Participant's Beneficiary in a lump sum cash distribution.
B.
Direct rollovers of distributions.
(1)
In general. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a Distributee's election under this
section, a Distributee may elect, at the time and in the manner prescribed
by the Administrator, to have any portion of an Eligible Rollover
Distribution paid directly to an Eligible Retirement Plan specified
by the Distributee in a Direct Rollover.
(2)
DIRECT ROLLOVER
DISTRIBUTEE
ELIGIBLE ROLLOVER DISTRIBUTION
(a)
(b)
(c)
ELIGIBLE RETIREMENT PLAN
(a)
[1]
[2]
[3]
[4]
[5]
[6]
(b)
[1]
[2]
Definitions. When used in this section, the words and phrases defined
in this subsection shall have the following meanings:
A payment by the Plan to the Eligible Retirement Plan specified
by the Distributee.
Includes an employee or former employee. In addition, the
employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse
who is the Alternate Payee under a Qualified Domestic Relations Order,
as defined in Code § 414(q), are "Distributees" with regard
to the interest of the spouse or former spouse. A "Distributee" also
includes the employee's or former employee's nonspouse designated
beneficiary, in which case the distribution can only be transferred
to a traditional IRA [under Code § 408(a) or (b)] or Roth
IRA (under Code § 408A) established on behalf of the nonspouse
designated beneficiary for the purpose of receiving the distribution.
Any distribution of all or any portion of the balance to
the credit of the Distributee, except that an Eligible Rollover Distribution
does not include:
Any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the
life (or life expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the Distributee's
designated beneficiary, or for a specified period of 10 years or more;
Any distribution to the extent such distribution is required
under Code § 401(a)(9); and
Any hardship distribution.
In general. Except as provided in Subsection (b) of this definition, an "Eligible Retirement Plan" is:
An individual retirement account or annuity described in Code
§ 408(a) or (b);
A Roth individual retirement account or annuity described in
Code § 408A;
A qualified trust described in Code § 401(a), including
both defined benefit and defined contribution plans;
An annuity plan described in Code § 403(a);
An annuity contract described in Code § 403(b); or
An eligible deferred compensation plan described in Code § 457(b)
which is maintained by an eligible governmental employer described
in Code § 457(e)(1)(A), and which agrees to separately account
for the amounts transferred into such plan from this Plan, that accepts
the Distributee's Eligible Rollover Distribution.
After-tax employee contributions. In the case of any portion
of a distribution that consists of after-tax employee contributions
which are not includible in gross income, an "Eligible Retirement
Plan" is:
An individual retirement account or annuity described in Code
§ 408(a) or (b) or a Roth individual retirement account
or annuity described in Code § 408A; or
A qualified plan under Code § 401(a), or an annuity
contract described in Code § 403(b), that agrees to separate
accounting for amounts so transferred (and earnings thereon), including
separately accounting for the portion of such distribution which is
includible in gross income and the portion of such distribution which
is not so includible, that accepts the Distributee's Eligible
Rollover Distribution.
(3)
Automatic rollovers. In the event of a mandatory distribution made
from the Plan to a Participant in an amount greater than $1,000, which
is made before the Participant attains age 65 and without the Participant's
consent, if the Participant does not elect to have such distribution
paid directly to an Eligible Retirement Plan specified by the Participant
in a Direct Rollover in accordance with this section, and does not
affirmatively elect to receive the distribution directly from the
Plan at the time and in the manner prescribed by the Administrator,
then the Administrator will pay the distribution in a Direct Rollover
to an individual retirement account or annuity described in Code § 408(a)
or (b) designated by the Administrator. The Administrator shall notify
the Participant of this possibility as required by law, and shall
notify the Participant that the distribution may be transferred to
another individual retirement plan. See IRS Notice 2005-5; 29 CFR
2550.404a-2.
C.
Compliance with Code § 401(a)(9). The provisions of this
Plan are designed to satisfy the latest commencement of benefit and
minimum distribution requirements of Code § 401(a)(9) and
the regulations promulgated thereunder in that all benefits are to
commence no later than 90 days after the Participant's Separation
from Service (which is earlier than the date benefits must commence
from a governmental plan under Code § 401(a)(9)), and are
paid in full in a lump sum as a cash distribution or a direct rollover.
To the extent any provision of this Plan does not provide for the
payment of the minimum distribution required through any given date
under Code § 401(a)(9) and the regulations promulgated thereunder,
this Plan shall be deemed amended in such a way as to comply with
the minimum requirements of Code § 401(a)(9) and the regulations
promulgated thereunder.
A.
Provision of benefits. The Administrator shall direct the Trustees
to provide benefit payments to the appropriate recipients from time
to time in accordance with the provisions of this Plan. The entire
vested portion of all accounts created with respect to a Participant
shall be used to provide benefits for the Participant or his Beneficiaries
or Alternate Payees under this Plan.
B.
Notice requirements. The Administrator shall provide each person
receiving benefits under this Plan with the notice required under
Section 402(f) of the Code (regarding federal income tax treatment
of Plan benefits and rollover rights) within 180 days prior to the
date of distribution. To the extent possible, the notice shall be
based on statements supplied by the U.S. Secretary of the Treasury.
C.
Spendthrift provisions.
(1)
General rule. Except as provided in Subsection C(2), benefits payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, change, garnishment, execution, or levy of any kind, either voluntary or involuntary, including any such liability which is for alimony or other payments for support of a spouse, former spouse, or any other relative or dependent of the Participant before actually being received by the Participant, Former Participant, Beneficiary, or Alternate Payee under the terms of the Plan, except with respect to federal income tax withholding. Any attempt to anticipate, alienate, transfer, assign, pledge, encumber, change, or otherwise dispose of any right to benefits payable under this Plan shall be void. The Trustees and the Employer shall not be liable for or subject to, in any manner, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits under this Plan.
D.
Qualified domestic relations orders.
(1)
Definition. A Qualified Domestic Relations Order is a judgment, decree,
or order (including approval of a property settlement agreement) made
pursuant to a state domestic relations law (including community property
law) that relates to the provision of child support, alimony payments
or marital property rights to a spouse, former spouse, child, or other
dependent of a Participant (hereinafter referred to as an "Alternate
Payee"), which was entered before January 1, 1985, or which:
(a)
Rights recognized: creates or recognizes a right on the part
of the Alternate Payee to receive all or a portion of the benefits
payable on behalf of a Participant under this Plan;
(b)
Required provisions: specifies:
[1]
The name and last known mailing address (if any) of the Participant
and each Alternate Payee covered by the order;
[2]
The amount or percentage of the Participant's Plan benefits
to be paid to any Alternate Payee, or the manner in which such amount
or percentage is to be determined; and
[3]
The number of payments or the period to which the order applies
and each Plan to which the order relates;
(c)
Prohibited provisions: does not require the Plan to do any of
the following:
[1]
Provide any type or form of benefit or any option not otherwise
provided under the Plan;
[2]
Pay any benefit in the form of a Joint and Survivor Annuity
with respect to the Alternate Payee and his or her subsequent spouse;
[3]
Pay any benefits to an Alternate Payee before the earlier of:
[a]
The date on which the Participant is entitled to
a distribution under the Plan; or
[4]
Provide increased benefits; or
[5]
Pay benefits to an Alternate Payee that are required to be paid
to another Alternate Payee under a prior Qualified Domestic Relations
Order; and
(d)
Permitted provision: may or may not provide that an Alternate
Payee who had been married to the Participant for at least one year
will be treated as an Eligible Spouse with respect to the portion
of the Participant's benefit in which such Alternate Payee has
an interest.
(2)
Procedure.
(a)
Notification. Upon receipt of any judgment, decree, or order
(including approval of a property settlement agreement) relating to
the provision of payment by the Plan to an Alternate Payee pursuant
to a state domestic relations law, the Administrator shall promptly
notify the affected Participant and any Alternate Payee of:
(b)
Establishment of procedure. The Administrator shall establish
a procedure to determine the status of a judgment, decree, or order
as a Qualified Domestic Relations Order and to administer Plan distributions
in accordance with them. Such procedure shall:
(3)
Alternate payee accounts.
(a)
Creation. During any period in which the Administrator or a
court (or other tribunal) of competent jurisdiction is determining
whether a judgment, decree, or order is a Qualified Domestic Relations
Order, the Administrator shall create separate accounts under this
Plan ("Alternate Payee accounts") and shall credit such accounts with
the amounts, if any, which would have been payable to each Alternate
Payee during such period (as they would have become due) if the judgment,
decree, or order had already been determined to be a Qualified Domestic
Relations Order. The amounts credited to the Alternate Payee accounts
shall be debited from the accounts of the Participant potentially
subject to the putative Qualified Domestic Relations Order. The Alternate
Payee accounts need not be segregated from the general assets of the
Trust Fund; they only must be accounted for separately.
(b)
Disposition.
[1]
To alternate payee. If a judgment, decree, or order is determined
to be a Qualified Domestic Relations Order within 18 months after
the date on which the first payment would be required to be made under
the judgment, decree, or order, the Administrator shall direct the
Trustees to pay the amounts in Alternate Payee accounts created with
respect to such judgment, decree, or order to the Alternate Payees.
[2]
Return to participant's accounts.
[a]
All amounts in Alternate Payee accounts created
with respect to such judgment, decree, or order shall be returned
to the accounts with respect to the Participant from which they were
derived upon the earliest of the following events:
[i]
The date 18 months after the date on which the
first payment would be required to be made under the judgment, decree,
or order;
[ii]
The conclusive determination that such judgment,
decree, or order is not a Qualified Domestic Relations Order; or
[iii]
The termination, partial termination, or complete
discontinuance of Employer contributions to the Plan and Trust.
[b]
Such returned amounts shall be paid at such time
and in such manner as is otherwise provided in this Plan (except that
any amounts already due for distribution shall be paid to the proper
recipient immediately).
(4)
Compliance with qualified domestic relations order. If a judgment,
decree, or order is conclusively determined to be a Qualified Domestic
Relations Order, the Administrator shall direct the Trustees to provide
benefits under the Plan in accordance with such Qualified Domestic
Relations Order.
E.
Facility of payment. Whenever the Administrator determines that a
person entitled to receive any payment of a benefit or installment
is under a legal disability or is incapacitated in any way so as to
be unable to manage his financial affairs, the Administrator may direct
the Trustees to make payments to such person, to his legal representative,
to a relative, or to a friend of such person for his benefit. Any
payment of a benefit or installment in accordance with the provisions
of this section shall be a complete discharge from any liability for
the making of such payment under the provisions of the Plan.
F.
Unclaimed distribution.
(1)
Segregation. If, after diligent inquiry, the Administrator is unable
to locate a person for the purpose of distribution of benefits under
this Plan by the end of the Plan Year following the Plan Year in which
the distribution was to have been made, the Administrator shall direct
the Trustees to segregate the person's unclaimed Plan benefits
in a separate interest-bearing account under the Plan. Such separate
account shall be entitled to all income it earns and shall bear all
expenses it incurs.
(2)
Payment. If a person entitled to benefits segregated in an account under Subsection F(1) files a claim for benefits under this Plan and the Administrator approves such claim, the Administrator shall direct the Trustees to pay the segregated amounts over to the claimant.
(3)
Escheat. Amounts which remain unclaimed in an account under Subsection F(1) upon the termination and liquidation of this Plan and Trust or, if earlier, at the time when such property shall escheat under applicable state law (or be delivered to the state under applicable abandoned and unclaimed property law), shall be distributed to the state with jurisdiction over the amounts. In the event of a distribution under this subsection, the Plan and Trust shall have no further responsibility for such amounts.
G.
Survivors of participant who dies while performing qualified military
service. Notwithstanding any provision of this Plan to the contrary,
the survivors of any Participant who dies while performing qualified
military service are entitled to any additional benefits (other than
contributions relating to the period of qualified military service,
but including vesting service credit for such period and any ancillary
life insurance or other survivor benefits) that would have been provided
under the Plan had the Participant resumed employment on the day preceding
the Participant's death and then terminated employment on account
of death.
A.
Filing a claim. A Participant, Beneficiary, or Alternate Payee shall
make a claim for benefits under this Plan by filing a written request
with the Administrator on a form supplied by the Administrator.
B.
Notice of denial. If the Administrator denies a request for benefits under Subsection A in whole or in part, it shall notify the claimant of the same in writing within 60 days of the date the request was filed with the Administrator. Any notice of denial shall contain:
C.
Review of denial.
(1)
Petition. Within 60 days of the receipt of a notice of denial under Subsection B, a claimant may petition the Administrator in writing for a review of the denial.
(2)
(3)
Decision. The Administrator shall issue a written decision at the conclusion of a review under this section within 60 days following the hearing, or, if the claimant waives a hearing, within 120 days following the Administrator's receipt of a petition for such review under Subsection C(1). Such decision shall give specific reasons for the decision and provide specific references to the plan provisions on which it is based.
A.
Establishment and acceptance of trust. The Trustees shall receive
all contributions paid to them under this Plan in cash or other property
approved by the Administrator for acceptance by the Trustees. All
property so received, together with income on such property, shall
be held, managed, and administered in trust pursuant to the terms
of this Plan agreement, and shall constitute the Trust Fund under
this Plan. The Trustees shall be responsible only for such sums as
shall actually be received by them as Trustees. They shall have no
duty to collect any sums from the Employer or the Participants, and
shall have no duties and responsibilities other than those set forth
in this Plan and Trust or as imposed by applicable law. The Trustees
may segregate invested assets. However, notwithstanding any other
provision of this Plan, the Trustees may only earmark specific investments
to the accounts of specific persons if the persons consent or if the
investments are purchased ratably.
B.
Trustees.
(1)
Qualification. A Trustee under this Plan may be any individual or corporation not prohibited from serving as a Trustee under § 58-75A.
(2)
Initial trustees. The initial Trustees shall be the members of the Committee described in § 58-74A(2), provided that no person shall be a Trustee unless and until he/she signs a document accepting the Trust and agreeing to perform the duties of a Trustee under this Plan and Trust.
(3)
Joint trustees. If at any time there is more than one Trustee, the
decision of the majority of the Trustees shall determine the actions
of the Trustees. Notwithstanding the foregoing, the Administrator
may allocate responsibilities among the Trustees from time to time
by written notice to the Trustees. In such case, a Trustee (the "first
Trustee") shall not be liable, either individually or as a Trustee,
for any breaches of duty or losses to the Plan and Trust arising out
of the acts or omissions of a co-Trustee in connection with areas
of responsibility allocated to the co-Trustee to the exclusion of
the first Trustee unless:
(a)
The first Trustee participates knowingly in, or knowingly undertakes
to conceal, an act or omission of the co-Trustee, including knowing
such act or omission is a breach of duty;
(b)
By the first Trustee's failure to comply with the standards set forth in § 58-75C with respect to his own areas of responsibility, the first Trustee enables the co-Trustee to commit a breach of duty; or
(c)
The first Trustee has knowledge of a breach of duty by the co-Trustee
and fails to make reasonable efforts under the circumstances to remedy
the breach.
(4)
Resignation. Any Trustee may resign at any time upon 15 days'
notice in writing to the Board of Commissioners of the Sponsor and
the Administrator.
(5)
Removal. The Board of Commissioners of the Sponsor may remove one or more of the Trustees at any time upon 15 days' notice in writing to the Trustees and the Administrator. In addition, unless otherwise provided by Ordinance or Resolution of the Board of Commissioners, a Trustee who is a member of the Committee described in § 58-74A(2) shall automatically be removed from office upon his resignation or removal from the Committee under § 58-74A(2) or upon the expiration of his term of office on that Committee and the appointment of a successor.
(6)
Successor and additional trustees. Upon the removal, resignation, or death of a Trustee, the Board of Commissioners of the Sponsor may appoint a successor Trustee provided that the Board must act to insure that there will be at least one Trustee. In addition, at any time the Board of Commissioners of the Sponsor may appoint one or more additional Trustees. All Trustees appointed under this subsection shall have the same powers and duties as those conferred upon the initial Trustees under this Plan and Trust. Unless otherwise provided by Ordinance or Resolution of the Board of Commissioners and unless the Board of Commissioners has appointed a corporate Trustee, all persons appointed to the Committee under § 58-74A(2) shall automatically be appointed as Trustees of this Trust as well, provided that no person shall be a Trustee unless and until he/she signs a document accepting the Trust and agreeing to perform the duties of a Trustee under this Plan and Trust.
(7)
Transfer of assets to new trustees. Upon the appointment of a successor or additional Trustee under Subsection B(6), the former body of Trustees (or their personal representatives) shall assign, transfer, and pay over to the new or reconstituted body of Trustees the funds and properties then constituting the Trust Fund. However, the former body of Trustees are authorized to reserve such sum of money as may seem to them advisable for payment of their fees and expenses in connection with the settlement of their accounts; any balance of such reserve remaining after the payment of such fees and expenses shall be paid over to the new or reconstituted body of Trustees as soon as possible.
C.
Investment of trust fund.
(1)
In general. Except as provided in this section and Subsections E (relating to Participant-directed investments), F (relating to Investment Managers), and H (relating to limiting directions from the Administrator), the Trustees shall have the power to invest and reinvest at any time all money or other property of any description held by them and constituting part of the Trust Fund. They may make such investments in any manner they deem advisable (subject to the duty of care required under § 58-75C and the other fiduciary requirements of § 58-75) which are permitted by law, and will not be limited to investments which are lawful for trustees. However, in making investments, the Trustees shall keep in mind the need for a certain degree of liquidity in order to provide benefits under this Plan.
(2)
Location. The Trustees may not maintain the indicia of ownership
of any assets of the Plan and Trust outside the jurisdiction of the
United States District Courts.
(3)
Employer securities. The Trustees shall not invest in any securities
of the Employer or any Related Employer.
D.
Life insurance policies and annuity contracts.
(1)
Restrictions on purchase. The Trustees may not invest in insurance
policies on the lives of Participants, and may only invest in annuity
contracts on the lives of Participants which are retirement annuity
policies, retirement income endowment policies, disability income
policies, a combination of such policies, or other annuity contracts
permitted under Pennsylvania law and approved by the Department of
the Auditor General for inclusion in municipal pension plans eligible
for general municipal pension system state aid.
(2)
Requirements for permitted contracts. The Trustee may apply for permitted
annuity contracts on any day of any month, and may continue to hold
contracts on the lives of Inactive Participants which were purchased
earlier. Each contract shall provide that the Trustees shall be the
owner of such contract while it is held under this Trust, and that
it may be cash surrendered or exchanged for another policy before
the annuitant attains the Normal Retirement Age (at least). All rights,
options, and privileges which are available by the terms of such contracts
shall be vested exclusively in or exercised solely by the Trustees.
In the event of any conflict between the terms of this Plan and the
terms of any insurance contract purchased hereunder, the Plan provisions
shall control.
E.
Participant-directed investments. If the Administrator shall so allow, Participants, Beneficiaries, and/or Alternate Payees may direct the Trustees to invest all or a portion of the amounts allocated to their Plan accounts, in particular investments in accordance with the provisions of § 58-73.
F.
Investment by investment managers.
(1)
In general. The Administrator may appoint one or more persons qualified under Subsection F(2) to be Investment Managers under this Plan, with powers to manage, acquire, and/or dispose of specified assets in the Trust. Each such appointment shall specify the powers granted to the Investment Manager, the assets involved, and the duties and responsibilities, if any, of the Trustees with respect to the assets subject to investment by the Investment Manager. The Administrator shall have the authority and responsibility for establishing operational and administrative procedures to coordinate the activities of the Trustees and any Investment Manager. The Trustees shall have no obligation to take any action with respect to those assets of the Trust subject to the direction of an Investment Manager without receipt of written directions acceptable to the Trustees from the Investment Manager, and the Trustees shall be under no duty to review such directions. The Administrator may revoke an appointment under this section or change its terms at any time. Upon receipt of a written notice from the Administrator of the resignation or removal of an Investment Manager, the Trustees shall assume management responsibility for the assets previously appointed to the direction of the Investment Manager. The Investment Manager may not invest in any assets in which the Trustees are precluded from investing under Subsections C (relating to Investment of the Trust Fund) or D (relating to Life Insurance Policies and Annuity Contracts).
(2)
Qualification. An Investment Manager must be either:
(3)
Acceptance and communication. A person appointed under Subsection F(1) shall not exercise the powers of an Investment Manager until he has acknowledged in writing that he is a Fiduciary under this Plan and until the appointment and acknowledgment have been transmitted to the Administrator and the Trustees.
(4)
Security transactions. If an Investment Manager appointed pursuant
to this section elects to place security transactions directly with
a broker or dealer, the Trustees shall not recognize such transactions
unless and until the Trustees have received instructions or confirmations
from the Investment Manager in such manner of communication customary
to the Trustees. Should the Investment Manager direct the Trustees
to utilize the services of any person with regard to the assets under
its management or control, such instructions shall specifically set
forth the actions to be taken by the Trustees as to such services.
In the event that an Investment Manager places security transactions
directly or directs the utilization of services, the Investment Manager
shall be solely responsible for the acts of the persons utilized.
The sole duty of the Trustees as to such transactions shall be incident
to the Trustees' practices as a custodian.
(5)
Release and indemnification of trustee. To the extent that the Trust
is subject to the direction of an Investment Manager:
(a)
The Trustees shall not be responsible nor have any liability
for acting pursuant to any direction of the Investment Manager or
failing to act in the absence of any direction from the Investment
Manager (except as may otherwise be imposed by applicable law), and
shall not be required to consult with or advise the Administrator
or the Employer regarding the investment quality of any investments;
and
(b)
The Employer shall indemnify and hold the Trustees harmless
from any and all losses or claims which arise with respect to the
Trust, unless the Trustees:
[1]
Knowingly participate in or knowingly conceal an act or omission
of the Investment Manager, knowing such act to be a breach of fiduciary
duty;
[2]
Have enabled the Investment Manager to commit a breach by failing to discharge the Trustees' duties in accordance with the fiduciary requirements of § 58-75 and applicable law; or
[3]
Have knowledge of a breach of fiduciary responsibility by the
Investment Manager and fail to make reasonable efforts under the circumstances
to remedy the breach.
G.
Other powers of trustees. Subject to the other provisions of this section and the provisions of § 58-75 (relating to Fiduciaries), the Trustees shall be entitled to exercise, in their own discretion, the following powers regarding the administration of the Trust Fund:
(1)
Purchase of property: to purchase, or subscribe for, any securities
or other property and to retain the same in trust, regardless of whether
such property is specifically authorized as a legal investment for
trust funds under applicable law;
(2)
Disposition of property: to sell, exchange, convey, transfer, mortgage,
pledge, lease, grant options with respect to, or otherwise dispose
of any securities or other property held by the Trustees, by private
contract or at public auction. No person dealing with the Trustees
shall be bound to see to the application of the purchase money or
to inquire into the validity, expediency, or propriety of any such
sale or other disposition;
(3)
Exercise of ownership rights: to vote on any stocks, bonds, or other
securities; to give general or special proxies or powers of attorney,
with or without powers of substitution; to exercise any conversion
privileges, subscriptions rights, or other options, and to make any
payment incidental thereto; to oppose, or to consent to, or otherwise
participate in, corporate reorganizations or other changes affecting
corporate securities, and to delegate discretionary powers, and to
pay any assessments or charges in connection therewith; to manage,
operate, improve, develop, repair, and preserve any real property
or any oil, gas, or mineral properties, royalties, or interests; and
generally to exercise any of the powers of an owner with respect to
stocks, bonds, securities, or other property held as part of the Trust
Fund;
(4)
Registration of and title to investments: to cause any securities
or other property held as part of the Trust Fund to be registered
in the name(s) of the Trustees or in the name(s) of one or more nominees
of the Trustees, or to hold any investments in bearer form, so long
as the books and records of the Trustees shall at all times show that
all such investments are part of the Trust Fund;
(5)
Borrowing: to borrow or raise money for the purposes of the Trust
in such amount and upon such terms and conditions as the Trustees
shall deem advisable. For any sum so borrowed, the Trustees may issue
a promissory note as Trustees and secure repayment by pledging all,
or any part, of the Trust Fund. No person lending money to the Trustees
shall be bound to see to the application of the money lent or to inquire
into the validity, expediency, or propriety of any such borrowing;
(6)
Collection: to collect and receive any and all money and other property
of whatsoever kind or nature due or owing or belonging to the Trust
Fund and to give full discharge and acquittance therefor; and to extend
the time of payment of any obligation at any time owing to the Trust
Fund, as long as such extension is for a reasonable period, and continues
reasonable interest;
(7)
Retention of cash: to keep such portion of the Trust Fund in cash
or cash balance as the Trustees may from time to time deem to be in
the best interests of the Trust, without liability for interest thereon;
(8)
Retention of property acquired: to accept and retain for such time
as the Trustees may deem advisable any securities or other property
received or acquired as Trustees under this Plan, whether or not such
securities or other property would normally be purchased as investments
under this Plan;
(9)
Execution of instruments: to make, execute, acknowledge, and deliver
any and all documents or transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
powers granted under this Plan;
(10)
Settlement of claims and debts: to settle, compromise, or submit
to arbitration any claims, debts, or damages due or owing to or from
the Trust Fund; to commence or defend suits or legal or administrative
proceedings; and to represent the Trust Fund in all suits and legal
and administrative proceedings;
(11)
Employment of agents and counsel: subject to the prohibitions of § 58-75A, to employ suitable agents, counsel, consultants, specialists, and accountants, any one of whom may also be so engaged by the Employer; to pay their reasonable expenses and compensation in the event the Employer has not so paid them; and to rely exclusively upon, and be fully protected in any action taken in good faith in relying upon, any opinions or reports which shall be furnished by any such accountant, counsel, specialist, or other consultant.
(12)
Incorporation: to organize and incorporate under the laws of
any state (or participate in the organization or incorporation of)
a corporation for the purpose of acquiring and holding title to any
property which the Trustees are authorized to acquire for the Trust
Fund and to exercise with respect thereto any of the powers, rights,
and duties they have with respect to other assets of the Trust Fund;
(13)
Pooling of assets: to transfer any of the assets of this Trust
to any pooled investment fund or group trust (including those which
have one or more trustees who are Trustees under this Trust) which
has been ruled by the Internal Revenue Service to be, and which is,
a qualified trust exempt from tax under the Code and which has been
established for the purpose of permitting separate qualified pension
and profit sharing trusts to pool some or all of their funds for investment
purposes and as to which it has been ruled by the Internal Revenue
Service that the pooling of funds by the separate trusts will not
adversely affect the qualified status of the separate trusts. Any
such common trust fund shall constitute an integral part of this Plan
and Trust. The commingling of assets of this Trust with assets of
other qualified participating trusts in such pooled funds is specifically
authorized;
(14)
Legal actions: to prosecute, defend against, or participate
in any legal actions involving the Trust or any Trustee in the manner
and to the extent the Trustees deem advisable. The Trustees need not
participate in any litigation concerning the Trust or the Trustees'
management of the Trust unless first indemnified against expense by
the Employer in a form satisfactory to the Trustee, unless the litigation
is occasioned by the negligence or fault of the Trustee and the Trustee
is found to be negligent or at fault pursuant to such litigation;
and
(15)
Necessary acts. To do all such acts, take all such proceedings,
and exercise all such rights and privileges as the Trustees may deem
necessary to administer the Trust Fund and carry out the purposes
of this Plan and Trust, even though not specifically mentioned in
this document.
H.
Limiting directions from Administrator. The Trustees shall comply with any directions given by the Administrator under § 58-74C (relating to limiting directions from the Administrator) as promptly as possible. The Trustees shall not be responsible for any loss which may result from compliance with the directions of the Administrator or the failure or refusal of the Administrator to approve any actions which require the Administrator's approval, and the Employer shall indemnify and hold the Trustees harmless for any such loss.
I.
Distributions from trust fund. From time to time, the Trustees shall
make payments out of the Trust Fund to such persons, in such manner,
for such purposes, and in such amounts as may be specified in written
directions by the Administrator. Such directions must be accompanied
by a certificate executed by the Administrator or its designate that
the payment is in accordance with this Plan. Once made, the amount
of any such payment shall no longer constitute a part of the Trust
Fund. The Trustees shall not be responsible in any way for the application
of such payments or for the adequacy of the Trust Fund to meet and
discharge any and all liabilities under the Plan.
J.
Administrative payments.
(1)
Compensation of trustees and investment managers. Trustees who are
also officers or employees of the Employer shall receive no compensation
for their services as Trustees under this Plan. All other Trustees
may be paid such reasonable compensation as shall from time to time
be agreed upon in writing by the Board of Commissioners of the Sponsor
and the Trustees. Investment Managers shall be paid such fees as shall
from time to time be agreed upon in writing by the Investment Manager
and the Administrator. Trustee and Investment Manager fees may be
paid by the Employer, but unless or until so paid they shall constitute
a charge upon the Trust Fund.
(2)
Expenses. The Trustees shall be reimbursed for any reasonable expenses,
including reasonable counsel fees, incurred by them in the administration
of the Trust. Such reimbursement may be made by the Employer, but
unless or until so paid it shall constitute a charge upon the Trust
Fund.
(3)
Taxes. All taxes of any and all kinds whatsoever that may be levied
or assessed (under existing or future laws) upon or with respect to
the Trust Fund or the income of the Trust Fund shall be paid from
the Trust Fund.
K.
Accounting.
(1)
Recordkeeping. The Trustees shall keep accurate and detailed accounts
of all investments, receipts, disbursements, and other transactions
under this Trust. All accounts, books, and records relating to such
transactions shall be open to inspection and audit at all reasonable
times by any person designated by the Administrator.
(2)
Reports to administrator. Within 60 days following the close of each
fiscal year of the Trust, within 60 days following the effective date
of the termination of the Plan or Trust, and within 60 days after
the removal or resignation of a Trustee, the Trustees shall file with
the Administrator a written account of all investments, receipts,
disbursements, and other transactions affected by them during such
fiscal year (or during the period from the close of the last fiscal
year to the date on which the Trustee resigned or was removed, or
the effective date of the termination of the Plan or Trust). Such
account shall also set forth the current value of the Trust Fund and
its assets. Neither the Administrator nor any other person shall be
entitled to any further accounting by the Trustees, except as provided
by law.
(3)
Discharge from liability. Thirty-one days after an accounting has been filed under Subsection K(2), the Trustees shall be forever released and discharged from all liability and accountability to anyone with respect to the propriety of their actions and transactions shown in the accounting, except with respect to any actions or transactions as to which the Administrator has objected in a writing filed with the Trustees before such time. If such an objection is filed, the Trustees shall, unless the matter is compromised with the Administrator, file its account in any court of competent jurisdiction for audit and adjudication.
L.
Immunity.
(1)
Persons to whom responsible. No person other than the Employer or
the Administrator may require an accounting or bring an action against
the Trustees with respect to the Trust created under this Plan or
their actions as Trustees.
(2)
Ordinary negligence. The Trustees shall not be liable for the making,
retention, or sale of any investment or reinvestment made by them
as provided under this Plan, nor for any loss to, or diminution of,
the Trust Fund unless caused by their own gross negligence, willful
misconduct, or lack of good faith.
(3)
Permitted reliance. The Trustees shall be fully protected in relying
upon:
(a)
Action by administrator: a certification by the Administrator or by any person designated by the Administrator [under § 58-74B(2)] with respect to any instruction or direction of the Administrator. The Trustees may rely upon any such designation until they have received a revocation of same;
(b)
Other writings: any instrument, certificate, or paper believed
by them to be genuine and be signed or presented by the proper person
or persons; the Trustees shall be under no duty to make any investigation
or inquiry as to any statement contained in any such writing, but
may accept the writing as conclusive evidence of the truth and accuracy
of such statements.
M.
Purpose: exclusive benefit rule. Except as provided in § 58-61D(4) (relating to disposition of contributions made on the basis of a mistake of fact), all assets of the Trust Fund, including investment income, shall be retained for the exclusive benefit of Participants, Alternate Payees, and Beneficiaries, and shall be used to pay benefits to such persons or to pay administrative expenses of the Plan and Trust Fund to the extent not paid by the Employer; they shall not revert to or inure to the benefit of the Employer. The Trustees shall exercise all powers and discharge all duties under this Plan and Trust solely in the general interest of Participants, Alternate Payees, and Beneficiaries.
A.
Program authorized. If the Administrator shall so allow, Active Participants
(or all Participants) may direct the Trustees to invest all or a portion
of the amounts allocated to their Plan accounts in particular investments
in accordance with the provisions of this section. A Participant may
also direct the Trustees to resume responsibility for any portion
of such investments. Participant directions shall expire to the extent
that amounts which have been so directed are forfeited or distributed,
or are invested in investments which are no longer permitted under
the participant-directed investment program. Investment directions
by a Participant under this section shall relieve the Administrator
and the Trustees of all fiduciary responsibilities in the management
of such funds. If the Administrator shall so allow, Beneficiaries
and Alternate Payees may be given the same rights under this section
as Participants.
B.
AFFILIATE
(1)
(2)
(3)
AVERAGE ANNUAL TOTAL RETURN
(1)
(2)
DESIGNATED INVESTMENT ALTERNATIVE
TOTAL ANNUAL OPERATING EXPENSES
(1)
(2)
(a)
(b)
(c)
Definitions. For purposes of this section:
Shall include:
Any person directly or indirectly controlling, controlled by, or under common control with the person. For purposes of this Subsection (1), the term "control" means, with respect to a person other than an individual, the power to exercise a controlling influence over the management or policies of such person;
Any officer, director, partner, employee, an employee of an
affiliated employer, relative [as defined in ERISA § 3(15)],
brother, sister, or spouse of a brother or sister, of the person;
and
Any corporation or partnership of which the person is an officer,
director, or partner.
In general. The term "Average Annual Total Return" shall mean
the average annual compounded rate of return that would equate an
initial investment in a designated investment alternative to the ending
redeemable value of that investment calculated with the before-tax
methods of computation prescribed in Securities and Exchange Commission
Form N-1A, N-3, or N-4, as appropriate, except that such method of
computation may exclude any front-end, deferred, or other sales loads
that are waived for the Participants of the covered individual account
plan. Nothing in this section requires disclosure of returns for periods
before the inception of a Designated Investment Alternative.
Transitional rule. For Plan Years beginning before October 1, 2021, if the Administrator reasonably and in good faith determines that it does not have the information on expenses attributable to the Plan that is necessary to calculate, in accordance with Subsection (1) of this definition, the five-year and ten-year Average Annual Total Returns for a Designated Investment Alternative that is not registered under the Investment Company Act of 1940, the Administrator may use a reasonable estimate of such expenses or the most recently reported Total Annual Operating Expenses of the Designated Investment Alternative as a substitute for such expenses, and shall inform Participants of the basis on which the returns were determined.
A specific investment identified by a Plan Fiduciary as an
available investment alternative under the participant-directed investment
program. An investment alternative permitted under the participant-directed
investment program which is not specifically identified by a Plan
Fiduciary, such as an investment alternative covered by a general
rule that allows Participants to invest in any asset administratively
feasible for the Plan to hold and not otherwise prohibited under the
program, is not a "Designated Investment Alternative," and the information
production and other requirements applicable to Designated Investment
Alternatives shall not apply to such a nonspecified investment alternative.
In the case of a Designated Investment Alternative that is registered
under the Investment Company Act of 1940, the annual operating expenses
and other asset-based charges before waivers and reimbursements (e.g.,
investment management fees, distribution fees, service fees, administrative
expenses, separate account expenses, mortality and expense risk fees)
that reduce the Designated Investment Alternative's rate of return,
expressed as a percentage, calculated in accordance with the required
Securities and Exchange Commission form, e.g., Form N-1A (open-end
management investment companies) or Form N-3 or N-4 (separate accounts
offering variable annuity contracts); or
In the case of a Designated Investment Alternative that is not
registered under the Investment Company Act of 1940, the sum of the
fees and expenses described in the following subsections before waivers
and reimbursements, for the Designated Investment Alternative's
most recently completed fiscal year, expressed as a percentage of
the Designated Investment Alternative's average net asset value
for that year:
Management fees as described in the Securities and Exchange
Commission Form N-1A that reduce the Designated Investment Alternative's
rate of return;
Distribution and/or servicing fees as described in the Securities
and Exchange Commission Form N-1A that reduce the Designated Investment
Alternative's rate of return; and
Any other fees or expenses not included in Subsection (1) or (2) of this definition that reduce the Designated Investment Alternative's rate of return (e.g., externally negotiated fees, custodial expenses, legal expenses, accounting expenses, transfer agent expenses, recordkeeping fees, administrative fees, separate account expenses, mortality and expense risk fees), excluding brokerage costs described in Item 21 of Securities and Exchange Commission Form N-1A.
C.
Investment instructions.
(1)
In general. The Trustees shall identify a specific fiduciary or agent
to receive investment instructions, and all investment instructions
must be made through such fiduciary or agent. All Participant investment
instructions shall be made on such written forms (or in accordance
with such online procedures) as may be prescribed by the Trustees
or the identified fiduciary or agent. Instructions may relate to amounts
allocated to the Participant's accounts to date and/or to amounts
as they are so allocated in the future. Each Participant who is qualified
to participate in the participant-directed investment program shall
have an opportunity to obtain written confirmation of such instructions.
(2)
Restrictions and procedures.
(a)
In general. The Trustees may promulgate nondiscriminatory rules restricting Participant directions to such times, investments, amounts, and features as may be necessary or desirable to avoid undue administrative expenses or complexity in the overall operation of the Participant-directed investment program, provided that such rules comply with requirements of this Subsection C(2) and of Subsection D. For example, without limiting the foregoing, the Trustees may restrict investment to identified specific investment alternatives.
(b)
Range of risk and return characteristics. The Trustees shall
permit a sufficient number and variety of investment alternatives
to provide Participants with a reasonable opportunity to materially
affect the potential return on amounts in their accounts and the degree
of risk to which such amounts are subject.
(c)
General frequency standard. The rules applicable to any given
investment alternative made available under the participant-directed
investment program must permit Participants to give investment instructions
with a frequency which is appropriate in light of the market volatility
to which the investment alternative may reasonably be expected to
be subject.
(d)
Core investment funds. The rules applicable to each of the investment alternatives included in the group of "core funds" described in Subsection D must permit a Participant to give instructions no less frequently than once within any three-month period.
(e)
Investment alternative available to receive transfers. Under
the rules established by the Trustees, either:
[1]
At least one of the "core funds" described in Subsection D must permit a Participant to transfer into that fund as frequently as Participants are permitted to give investment instructions with respect to any investment alternative included in the participant-directed investment program which permits Participants to give investment instructions more frequently than once within any three-month period; or
[2]
With respect to each investment alternative which permits Participants to give investment instructions more frequently than once within any three-month period, Participants are permitted to direct their investments from such investment alternative to a Liquid Investment as frequently as they are permitted to give investment instructions with respect to such investment alternative, and, with respect to the Liquid Investment, Participants are permitted to direct investments from the Liquid Investment to at least one of the "core funds" described in § 58-72D as frequently as they are permitted to give investment instructions with respect to that core fund. For purposes of this Subsection C(2)(e)[2], a "Liquid Investment" is an income-producing, low-risk, liquid fund, subfund, or account.
(f)
Employer securities. The participant-directed investment program
shall not permit a Participant to directly or indirectly acquire any
securities of the Employer or any Related Employer or Affiliate.
(g)
Annuity contracts. If the Trustees permit investment in annuity
contracts under the participant-directed investment program, an Active
Participant may only direct investment in annuity contracts which
are on his/her own life.
(3)
Compliance with instructions. The fiduciary or agent receiving the
instructions shall be obligated to comply with such instructions,
unless an instruction, if implemented:
(a)
Would not be permitted under this section or would otherwise
not be in accordance with the provisions of this Plan;
(b)
Would not comply with the procedures, limitations, or restrictions
established by the Trustees for the participant-directed investment
program;
(c)
Would cause a Fiduciary to maintain the indicia of ownership
of any assets of the Plan outside the jurisdiction of the district
courts of the United States other than as permitted under the standards
of ERISA § 404(b) and 29 CFR § 2550.404b-1;
(d)
Would jeopardize the Plan's tax qualified status under
the Code;
(e)
Could result in a loss in excess of a Participant's account
balance;
(g)
Would result in the acquisition of a "collectible," as that
term is defined in Code § 408(m) and the regulations thereunder;
(h)
Would generate income that would be taxable to the Plan;
(i)
Would result in a direct or indirect:
[1]
Sale, exchange, or lease of property between the Employer or
any Affiliate of the Employer and the Plan except for the acquisition
or disposition of any interest in a fund, subfund, or portfolio managed
by the Employer or any Affiliate of the Employer;
[2]
Loan to the Employer or any Affiliate of the Employer;
[3]
Acquisition or sale of any employer real property [as defined
in ERISA § 407(d)(2)]; or
[4]
Acquisition or sale of any employer security; or
(j)
Would violate any applicable law, statute, regulation, rule,
order, or decree.
(4)
Unavailable investments. In the event the Trustees find that an investment
meeting the requirements of this Trust cannot be procured for a Participant
under this section, or a given investment is or becomes unavailable,
the Trustees shall report the same to the Participant as soon as practicable
and request further instructions.
D.
Core investment funds.
(1)
Throughout the time that a Participant-directed investment program
is in effect under this section, the permitted investment alternatives
under the program shall include a group of at least three investment
funds:
(a)
Each of whose underlying assets are diversified so as to minimize
the risk of large losses;
(b)
Each of which has materially different risk and return characteristics;
(c)
Which in the aggregate enable the Participant by choosing among
them to achieve a portfolio with aggregate risk and return characteristics
at any point within the range normally appropriate for the Participant;
(d)
Each of which, when combined with investments in the other funds
in the group, tends to minimize through diversification the overall
risk of a Participant's portfolio; and
(e)
Each of which is either:
[1]
An investment company described in § 3(a) of the Investment
Company Act of 1940, or a series investment company described in § 18(f)
of the Investment Company Act of 1940, or any of the segregated portfolios
of such company;
[2]
A common or collective trust fund or a pooled investment fund
maintained by a bank or similar institution, a deposit in a bank or
similar institution, or a fixed-rate investment contract of a bank
or similar institution;
[3]
A pooled separate account or a fixed-rate investment contract
of an insurance company qualified to do business in a state; or
[4]
Any entity whose assets include plan assets by reason of a plan's
investment in the entity (such as a "group trust" as defined in Rev.
Rul. 81-100).
(2)
These investment funds may be Designated Investment Alternatives,
or they may merely be permitted without specific identification under
a general rule allowing investment in broad categories of assets or
in all assets which are administratively feasible for the Plan to
hold.
E.
Notice of limited liability. The Administrator (or person designated
by the Administrator to act on its behalf) shall provide each Participant
who is qualified to participate in the participant-directed investment
program with an explanation that the Plan is intended to constitute
the kind of plan described in ERISA § 404(c) and 29 CFR
§ 2550.404c-1, and that the Fiduciaries of the Plan may
be relieved of liability for any losses which are the direct and necessary
result of investment instructions given by such Participant.
F.
Disclosure of plan-related information. The Administrator (or person
designated by the Administrator to act on its behalf) shall provide
to each Participant the following Plan-related information, based
on the latest information available to the Plan:
(1)
General information. On or before the date on which a Participant
can first direct his investments, and at least annually thereafter:
(a)
An explanation of the circumstances under which Participants
may give investment instructions (including the persons to whom instructions
may be given, the times when instructions may be given, and the manner
in which instructions may be given);
(b)
An explanation of any specified limitations on such instructions
under the terms of the Plan, including any restrictions on transfers
to or from a Designated Investment Alternative (such as absolute restrictions,
minimum investment periods, penalties, or valuation adjustments);
(c)
A description of or reference to plan provisions or provisions
of the participant-directed investment program relating to the exercise
of voting, tender, and similar rights appurtenant to a Participant's
investment in an investment alternative, as well as any restrictions
on such rights;
(d)
An identification of any Designated Investment Alternatives
offered under the Plan;
(e)
An identification of any designated Investment Managers; and
(f)
A description of any "brokerage windows," "self-directed brokerage
accounts," or similar Plan arrangements that enable Participants to
select investments beyond those designated by the Plan. If the participant-directed
investment program does not limit the investment alternatives to Designated
Investment Alternatives, a general statement of the types of nonidentified
investments that are permitted and the types which are prohibited,
as provided under the rules established for the participant-directed
investment program, shall be a sufficient description of such investments,
provided that Participants are encouraged to obtain and review materials
relating to any such nonidentified investments prior to actually making
an investment.
(2)
Administrative expenses.
(a)
Initial and annual disclosure: on or before the date on which
a Participant can first direct his investments, and at least annually
thereafter, an explanation of any fees and expenses for general plan
administrative services (e.g., legal, accounting, recordkeeping),
which may be charged against the individual accounts of Participants
and are not reflected in the Total Annual Operating Expenses of any
Designated Investment Alternative, as well as the basis on which such
charges will be allocated (e.g., pro rata, per capita) to, or affect
the balance of, each individual account.
(b)
Quarterly disclosure: at least quarterly, a statement that includes:
[1]
The dollar amount of the fees and expenses described in Subsection F(2)(a) that are actually charged (whether by liquidating shares or deducting dollars) during the preceding quarter to the Participant's account for individual services;
[2]
A description of the services to which the charges relate (e.g.,
plan administration, including recordkeeping, legal, accounting services);
and
[3]
If applicable, an explanation that, in addition to the fees and expenses disclosed pursuant this Subsection F(2)(b), some of the Plan's administrative expenses for the preceding quarter were paid from the Total Annual Operating Expenses of one or more of the Plan's Designated Investment Alternatives (e.g., through revenue sharing arrangements, Rule 12b-1 fees, subtransfer agent fees).
(3)
Individual expenses.
(a)
Initial and annual disclosure: on or before the date on which
a Participant can first direct his investments, and at least annually
thereafter, an explanation of any fees and expenses that may be charged
against the individual account of a Participant on an individual,
rather than on a plan-wide, basis (e.g., fees attendant to processing
Plan loans or Qualified Domestic Relations Orders, fees for investment
advice, fees for brokerage windows, commissions, front- or back-end
loads or sales charges, redemption fees, transfer fees, and similar
expenses, and optional rider charges in annuity contracts) and which
are not reflected in the Total Annual Operating Expenses of any Designated
Investment Alternative.
(b)
Quarterly disclosure: at least quarterly, a statement that includes:
[1]
The dollar amount of the fees and expenses described in Subsection F(3)(a) that are actually charged (whether by liquidating shares or deducting dollars) during the preceding quarter to the Participant's account for individual services; and
[2]
A description of the services to which the charges relate (e.g.,
loan processing fee).
(4)
Changes to disclosed information. If there is a change to the information described in Subsection F(1), (2)(a), or (3)(a), each Participant must be furnished a description of such change at least 30 days, but not more than 90 days, in advance of the effective date of such change, unless the inability to provide such advance notice is due to events that were unforeseeable or circumstances beyond the control of the Administrator, in which case notice of such change must be furnished as soon as reasonably practicable.
G.
Automatic and periodic disclosure of investment-related information. Except as provided in Subsection H, the Administrator (or person designated by the Administrator to act on its behalf) shall provide to each Participant the following investment-related information on or before the date on which a Participant can first direct his investments, and at least annually thereafter, based on the latest information available to the Plan and in the format described in Subsection I:
(2)
Performance data.
(a)
Return not fixed: for Designated Investment Alternatives with
respect to which the return is not fixed, the Average Annual Total
Return of the investment for one-, five-, and ten-calendar-year periods
(or for the life of the alternative, if shorter) ending on the date
of the most recently completed calendar year; as well as a statement
indicating that an investment's past performance is not necessarily
an indication of how the investment will perform in the future.
(b)
Fixed return: for Designated Investment Alternatives with respect
to which the return is fixed or stated for the term of the investment,
both the fixed or stated annual rate of return and the term of the
investment; if, with respect to such a Designated Investment Alternative,
the issuer reserves the right to adjust the fixed or stated rate of
return prospectively during the term of the contract or agreement,
the current rate of return, the minimum rate guaranteed under the
contract, if any, and a statement advising Participants that the issuer
may adjust the rate of return prospectively and how to obtain (e.g.,
telephone or website) the most recent rate of return required under
this section.
(3)
Benchmarks: for Designated Investment Alternatives with respect to which the return is not fixed, the name and returns of an appropriate broad-based securities market index over the one-, five-, and ten-calendar-year periods (or for the life of the alternative, if shorter) comparable to the performance data periods provided under Subsection G(2)(a), and which is not administered by an Affiliate of the investment issuer, its investment adviser, or a principal underwriter, unless the index is widely recognized and used.
(4)
Fee and expense information.
(a)
Return not fixed: for Designated Investment Alternatives with
respect to which the return is not fixed:
[1]
The amount and a description of each shareholder-type fee (fees
charged directly against a Participant's investment, such as
commissions, sales loads, sales charges, deferred sales charges, redemption
fees, surrender charges, exchange fees, account fees, and purchase
fees, which are not included in the Total Annual Operating Expenses
of any Designated Investment Alternative) and a description of any
restriction or limitation that may be applicable to a purchase, transfer,
or withdrawal of the investment in whole or in part (such as round
trip, equity wash, or other restrictions);
[2]
The Total Annual Operating Expenses of the investment expressed as a percentage (i.e., expense ratio), calculated in accordance with the definition of "Total Annual Operating Expenses" in Subsection B;
[3]
The Total Annual Operating Expenses of the investment for a one-year period expressed as a dollar amount for a $1,000 investment (assuming no returns and based on the percentage described in Subsection G(4)(a)[2];
[4]
A statement indicating that fees and expenses are only one of
several factors that Participants should consider when making investment
decisions; and
[5]
A statement that the cumulative effect of fees and expenses
can substantially reduce the growth of a Participant's retirement
account and that Participants can visit the Employee Benefit Security
Administration's Web site for an example demonstrating the long-term
effect of fees and expenses.
(b)
Fixed return: for Designated Investment Alternatives with respect
to which the return is fixed for the term of the investment, the amount
and a description of any shareholder-type fees and a description of
any restriction or limitation that may be applicable to a purchase,
transfer, or withdrawal of the investment in whole or in part.
(5)
Internet website address: an Internet website address that is sufficiently
specific to provide Participants access to the following information
regarding the Designated Investment Alternative:
(a)
The name of the Designated Investment Alternative's issuer;
(b)
The Designated Investment Alternative's objectives or goals
in a manner consistent with Securities and Exchange Commission Form
N-1A or N-3, as appropriate;
(c)
The Designated Investment Alternative's principal strategies
(including a general description of the types of assets held by the
investment) and principal risks in a manner consistent with Securities
and Exchange Commission Form N-1A or N-3, as appropriate;
(d)
The Designated Investment Alternative's portfolio turnover
rate in a manner consistent with Securities and Exchange Commission
Form N-1A or N-3, as appropriate;
(6)
Glossary: a general glossary of terms to assist Participants in understanding
the Designated Investment Alternatives, or an Internet website address
that is sufficiently specific to provide access to such a glossary,
along with a general explanation of the purpose of the address.
(7)
Annuity options: if a Designated Investment Alternative is part of a contract, fund, or product that permits Participants to allocate contributions towards the future purchase of a stream of retirement income payments guaranteed by an insurance company, the information set forth in Subsection H(1)(a) through (g) with respect to the annuity option, to the extent such information is not otherwise included in investment-related fees and expenses described in Subsection G(4).
H.
Special rules relating to automatic disclosure of investment-related
information.
(1)
Annuity options. In the case of a Designated Investment Alternative that is a contract, fund, or product that permits Participants to allocate contributions towards the current purchase of a stream of retirement income payments guaranteed by an insurance company, the Administrator (or person designated by the Administrator to act on its behalf) shall provide the following information with respect to each such option in lieu of the information required by Subsection G(1) through (5).
(a)
The name of the contract, fund, or product;
(b)
The option's objectives or goals (e.g., to provide a stream
of fixed retirement income payments for life);
(c)
The benefits and factors that determine the price (e.g., age,
interest rates, form of distribution) of the guaranteed income payments;
(d)
Any limitations on the ability of a Participant to withdraw
or transfer amounts allocated to the option (e.g., lock-ups) and any
fees or charges applicable to such withdrawals or transfers;
(e)
Any fees that will reduce the value of amounts allocated by
Participants to the option, such as surrender charges, market value
adjustments, and administrative fees;
(f)
A statement that guarantees of an insurance company are subject
to its long-term financial strength and claims-paying ability; and
(g)
An Internet website address that is sufficiently specific to
provide Participants access to the following information:
[1]
The name of the option's issuer and of the contract, fund,
or product;
[2]
Description of the option's objectives or goals;
[3]
Description of the option's distribution alternatives/guaranteed
income payments (e.g., payments for life, payments for a specified
term, joint and survivor payments, optional rider payments), including
any limitations on the right of a Participant to receive such payments;
[4]
Description of costs and/or factors taken into account in determining
the price of benefits under an option's distribution alternatives/guaranteed
income payments (e.g., age, interest rates, other annuitization assumptions);
[5]
Description of any limitations on the right of a Participant
to withdraw or transfer amounts allocated to the option and any fees
or charges applicable to a withdrawal or transfer; and
[6]
Description of any fees that will reduce the value of amounts
allocated by Participants to the option (e.g., surrender charges,
market value adjustments, and administrative fees).
(2)
Fixed return investments. In the case of a Designated Investment Alternative with respect to which the return is fixed for the term of the investment, the Administrator (or person designated by the Administrator to act on its behalf) shall, in lieu of complying with the requirement of Subsection G(5), provide an Internet website address that is sufficiently specific to provide Participants access to the following information regarding the Designated Investment Alternative:
(a)
The name of the Designated Investment Alternative's issuer;
(b)
The Designated Investment Alternative's objectives or goals
(e.g., to provide stability of principal and guarantee a minimum rate
of return);
I.
Comparative format for furnishing investment-related information.
(1)
In general. The Administrator (or person designated by the Administrator to act on its behalf) shall provide the information required under Subsection G or H in a chart or similar format that is designed to facilitate a comparison of such information for each Designated Investment Alternative available under the Plan, that prominently displays the date, and that includes:
(a)
A statement indicating the name, address, and telephone number of the Administrator [or person(s) designed by the Administrator to act on its behalf] to contact for the provision of the information required by Subsection K (relating to Investment-Related Information to be Provided Upon Request);
(2)
Additional information. Nothing in this section shall preclude the
Administrator (or person designated by the Administrator) from including
additional information that the Administrator (or designee) determines
appropriate for such comparisons, provided such information is not
inaccurate or misleading.
(3)
Use of model comparative chart. The Administrator (or person designated
by the Administrator) shall be deemed to have satisfied the requirements
of this section if it uses and accurately completes the model comparative
chart in the Appendix to 29 CFR § 2550.404a-5.
J.
Investment-related information to be provided subsequent to investment.
The Administrator (or person designated by the Administrator to act
on its behalf) shall furnish to each investing Participant, subsequent
to an investment in a Designated Investment Alternative, any materials
provided to the Plan relating to the exercise of voting, tender, and
similar rights appurtenant to the investment, to the extent such rights
are passed through to such Participant under the terms of the Plan.
K.
Investment-related information to be provided upon request. The Administrator (or person designated by the Administrator to act on its behalf) shall furnish to each investing Participant, either at the times specified in Subsection G or upon request, the following information related to Designated Investment Alternatives:
(1)
Copies of prospectuses (or, alternatively, any short-form or summary
prospectus, the form of which has been approved by the Securities
and Exchange Commission) for the disclosure of information to investors
by entities registered under either the Securities Act of 1933 or
the Investment Company Act of 1940, or similar documents relating
to Designated Investment Alternatives that are provided by entities
that are not registered under either of these Acts;
(2)
Copies of any financial statements or reports, such as statements
of additional information and shareholder reports, and of any other
similar materials relating to the Plan's Designated Investment
Alternatives, to the extent such information is provided to the Plan;
(3)
A statement of the value of a share or unit of each Designated Investment
Alternative as well as the date of the valuation; and
(4)
A list of the assets comprising the portfolio of each Designated
Investment Alternative which constitute "plan assets" within the meaning
of 29 CFR § 2510.3-101, and the value of each such asset
(or the proportion of the investment alternative which it comprises).
L.
Miscellaneous rules relating to disclosures.
(1)
Fees and expenses. Except as otherwise explicitly required under
this section, in any disclosure of information by the Administrator
to Participants under this section, fees and expenses may be expressed
in terms of a monetary amount, formula, percentage of assets, or per
capita charge.
(2)
Understandable disclosures. The information required to be prepared
by the Administrator for disclosure under this section shall be written
in a manner calculated to be understood by the average Plan Participant.
M.
Independent control by participants.
(1)
In general. The Trustees shall not interfere with the exercise of
independent control by Participants regarding transactions related
to the participant-directed investment program (including, without
limitation, the acquisition or disposition of investments, and the
exercise of any voting, tender, and similar rights appurtenant to
a Participant's ownership interest in an investment alternative).
(2)
Improper influence. No Plan Fiduciary or Plan sponsor shall subject
any Participant to improper influence with regard to any transaction
related to the participant-directed investment program.
(3)
Concealment of material nonpublic facts. No Plan Fiduciary shall
conceal any material nonpublic facts regarding an investment from
a Participant, unless the disclosure of such information by the Plan
Fiduciary to the Participant would violate any provision of federal
law or any provision of state law which is not preempted by ERISA.
(4)
Incompetent participant. No Plan Fiduciary shall accept the instructions
of any person whom the Plan Fiduciary knows is legally incompetent.
(5)
Transactions involving fiduciary. In the case of any transaction
permitted under the participant-directed investment program and this
section which involves the sale, exchange, or leasing of property
between the Plan and a Plan Fiduciary or an Affiliate of a Plan Fiduciary,
or a loan to a Plan Fiduciary or an Affiliate of a Plan Fiduciary,
the Participant shall not be required to pay more than, or shall not
receive less than, "adequate consideration" [as defined in ERISA § 3(18)
and the regulations thereunder] in connection with the transaction.
(In general terms, "adequate consideration" for a security traded
on a registered national securities exchange is the prevailing price
on such market; for a security not so traded for which there is a
generally recognized market, the current offering price for the security;
and for an asset other than a security for which there is a generally
recognized market, the fair market value of the asset as determined
in good faith by the Plan Fiduciary.)
(6)
Investment advice. Neither the Employer nor any Plan Fiduciary should
provide any investment advice to a Participant related to the participant-directed
investment program.
N.
Incidents of ownership appurtenant to participant investments. The
Trustees may provide each Participant who has a Plan account invested
in whole or in part in any investment directed by the Participant
under this section with a reasonable opportunity to give instruction
with respect to voting, tender, or similar rights appurtenant to the
Participant's ownership interest in that investment. To the extent
that the Trustees do not pass through such rights to Participants,
they shall not be protected from fiduciary liability with respect
to the exercise or nonexercise of those rights.
O.
Segregation; expenses. The portion of any Participant's Plan
accounts which are invested according to Participant instructions
under this section shall be segregated from the rest of the Trust
Fund. Such portion shall not share in any gains or losses of the general
Trust Fund, but shall instead reap the benefits and bear the expenses
of the segregated investments. Where more than one Participant is
investing in the same investment, it is not necessary that the assets
allocable to each Participant be physically segregated from those
of other Participants, so long as they are segregated from other investments
and the Trustees maintain adequate records to disclose the portions
of the investment associated with each Participant. The Plan and Trust
may charge a Participant's account for the reasonable expenses
of carrying out investment instructions, provided that procedures
are established to periodically inform the Participant of the actual
expenses incurred with respect to his/her individual account.
P.
ERISA § 404(c) requirements. Although this Plan is not subject to ERISA Title I, Part 4, fiduciary requirements, the Participant-directed investment program established under this section is generally intended to satisfy the requirements established by the U.S. Department of Labor for "ERISA § 404(c) plans," and this Plan shall be deemed to incorporate by reference all requirements for ERISA § 404(c) plans not otherwise stated, except to the extent the Plan's language clearly evidences an intent not to follow a particular requirement. (Cf. 29 CFR §§ 2550.404c-1 and § 2550.404a-5.) Nonetheless, any failure by a Plan Fiduciary to satisfy any of the provisions of this section that are designed to comply with requirements for ERISA § 404(c) plans shall not subject the Plan, any Fiduciary, or the Employer to any liability to any Participant, Alternate Payee, or Beneficiary except to the extent such liability would exist under Pennsylvania law for a municipal government retirement plan even if the ERISA § 404(c) plan requirements had not been included in this section, and for those purposes it shall be deemed that such provisions are not included in this Plan.
A.
In general.
(1)
In general. The Plan Administrator and named fiduciary of this Plan
shall be the Committee described in this section.
(2)
Committee. The Committee shall consist of at least three individuals,
who shall be appointed by the Board of Commissioners of the Sponsor,
and shall serve at the pleasure of the Board of Commissioners of the
Sponsor. The initial members of the Committee shall be the same individuals
who serve as the administrative committee of the South Whitehall Township
Police Pension Plan, the South Whitehall Township Public Works Union
Employees' Pension Plan, and the South Whitehall Township Office
Personnel Pension Plan on the Effective Date. Subsequent appointments
to this Committee shall be made by resolution. Any member may resign
upon written notice to the Board of Commissioners and the Committee.
The Committee shall meet no less than annually. The Committee may
adopt procedures, bylaws, and regulations as it deems necessary for
the conduct of its affairs. A majority of the members of the Committee
shall constitute a quorum, and any action of the Committee shall require
the affirmative vote of a majority of those present at a meeting or,
if action without a meeting is permitted by the Committee's procedures,
bylaws, and regulations, the affirmative vote in writing of a majority
of the members of the Committee.
B.
Powers and duties.
(1)
In general. The Administrator shall administer the Plan in accordance with its terms and applicable law, shall direct the Trustees to make payments in accordance with the Plan from the Trust under § 58-72I, and shall have all powers necessary to carry out the provisions of the Plan. The Administrator shall have absolute and exclusive discretion to decide all issues arising in the administration, interpretation, and application of the Plan, including eligibility for benefits. The Administrator may from time to time set forth rules of interpretation and administration, subject to modification as appropriate in the light of experience. No such rule will be ineffective by reason of the fact that such rule may amend the purely administrative provisions of the Plan or conform to any changes in the Plan or applicable law relating to qualified retirement plans. Decisions and rules established by the Administrator shall be conclusive and binding on all persons. The Administrator shall act without discrimination among persons similarly situated at any given time, although it may change its policies from time to time.
(2)
Delegation. Subject to the prohibitions of § 58-75A, the Administrator may delegate to any person or group of persons its authority to perform any act under this Plan and Trust, including those matters involving the exercise of discretion, provided that such delegation shall be subject to revocation at any time at the Administrator's discretion.
(3)
Designation of Chief Administrative Officer. The Township Manager
shall be the Chief Administrative Officer of the Plan for purposes
of the Municipal Pension Plan Funding Standard and Recovery Act, 53
P.S. § 895.101 et seq., subject to the control of the Administrator.
(4)
Employment of professionals and others. Subject to the prohibitions of § 58-75A, the Administrator may appoint such accountants, counsel, specialists, consultants, and other persons as it may deem necessary or desirable in connection with the administration of this Plan, including persons who may also be engaged by the Employer or who may be Trustees. The Administrator shall be entitled to rely exclusively upon, and shall be fully protected in any action taken in good faith by it in relying upon, any opinions or reports which shall be furnished to it by any such accountant, counsel, specialist, or other consultant.
(5)
Records. The Administrator shall keep a record of all its proceedings
and acts, and shall keep all such books of account, records, and other
data as may be necessary for the proper administration of the Plan.
(6)
Notifications. The Administrator shall notify the Trustees of all
its actions, and, when required by law, it shall also notify any other
interested persons of its actions.
(7)
Reports, documents, and communications. The Administrator (or Chief
Administrative Officer, as applicable) shall prepare and file all
reports and documents required to be filed with a governmental agency,
shall prepare and provide or make available all reports and documents
required to be provided or made available to persons with an interest
under the Plan, and shall communicate with employees and other persons
with respect to all matters relating to the Plan and Trust, including
rights and benefits under this Plan.
C.
Direction of trustees.
(1)
Direction to request approval. The Administrator may at any time
direct the Trustees in writing to obtain the written approval of the
Administrator before exercising certain of the powers granted the
Trustees under this Plan and Trust. Any such direction may be of a
continuing nature or otherwise, and may be revoked in writing by the
Administrator at any time.
(2)
Funding policy and method. The Administrator shall, from time to
time, establish a funding policy and investment objectives and guidelines
for the Trust consistent with the purposes of the Plan and state and
federal law, and shall direct the Trustees to comply with such policy,
objectives, and guidelines. The Administrator shall periodically review
the operation of the Trust and all financial reports, investment reviews,
and other reports prepared for the Plan or Trust.
(3)
Duty to question direction by Administrator. Neither the Trustees
nor any other person shall be under any duty to question a direction
by the Administrator under this section.
D.
Compensation and expenses. Members of the Committee shall serve without
compensation for their services. All expenses incident to the administration
of the Plan by the Administrator, including but not limited to fees
of accountants, counsel, consultants, and other specialists, and other
costs of administering the Plan, may be paid by the Employer, but
until and unless they are paid by the Employer they shall constitute
a charge upon the Trust Fund.
A.
Prohibition against certain persons holding positions under this
plan. No person may serve under this Plan and Trust as a Fiduciary
if he has been convicted of any of the crimes enumerated in ERISA
§ 411 until after the expiration of 13 years from the later
of conviction or release from imprisonment (or such earlier period
as allowed under ERISA § 411).
B.
Bonding. Every Fiduciary and every other person who handles funds
or other property under this Plan (except properly capitalized corporate
fiduciaries organized, doing business, and authorized to exercise
trust powers under the laws of the Commonwealth of Pennsylvania or
the United States, and their directors, officers, and employees) should
be bonded in the same manner as if this Plan and Trust were subject
to ERISA § 412 (which generally requires a bond not less
than 10% of the amount of funds handled, though not less than $1,000
nor more than $500,000), and the Plan may pay the costs and expenses
of such bonds.
C.
Duty of care. To the extent of their powers, the Fiduciaries shall
discharge their duties with respect to the Plan and Trust:
(1)
With the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent person acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise
of a like character;
(2)
By diversifying the investments of the Plan and Trust so as to minimize
the risk of large losses unless under the circumstances it is clearly
prudent not to do so; and
(3)
In accordance with the documents and instruments governing the Plan
and Trust to the extent they are consistent with the applicable provisions
of ERISA, the Code, and other laws.
D.
Duty of loyalty.
(1)
Self-dealing. Fiduciaries shall not deal with the income or assets
of the Plan in their own interests or for their own accounts, nor
shall they receive any consideration for their own personal accounts
from any party dealing with the Plan in connection with a transaction
involving the income or assets of the Plan.
(2)
Adverse interests. A Fiduciary shall not act in any transaction involving
the Plan on behalf of a party (or represent a party) whose interests
are adverse to the interests of the Plan or the interests of the Participants,
Alternate Payees, or Beneficiaries, whether in his individual capacity
or any other.
E.
Prohibited transactions.
(1)
General rule. Fiduciaries shall not engage on behalf of the Plan
or Trust, either directly or indirectly, in any Prohibited Transaction
or in any other transaction which is prohibited under Code § 503.
(2)
Prohibited transactions. For purposes of this section, the term "Prohibited
Transaction" means any transaction in which the Plan or Trust:
(a)
Lends any part of its income or corpus, without receipt of adequate
security and a reasonable rate of interest, to a Disqualified Person;
(b)
Pays any compensation, in excess of a reasonable allowance for
salaries or other compensation for personal services actually rendered,
to a Disqualified Person;
(c)
Makes any part of its services available on a preferential basis
to a Disqualified Person;
(d)
Makes any substantial purchase of securities or any other property,
for more than adequate consideration in money or money's worth,
from a Disqualified Person;
(e)
Sells any substantial part of its securities or other property,
for less than an adequate consideration in money or money's worth,
to a Disqualified Person; or
(f)
Engages in any other transaction which results in a substantial
diversion of its income or corpus to a Disqualified Person.
(3)
Disqualified persons. For purposes of this section, the term "Disqualified
Person" means:
(a)
The Employer;
(b)
A person who has made a substantial contribution to the Plan
or Trust;
(c)
A member of the family (as defined in Code § 267(c)(4)) of an individual described in Subsection E(3)(b); and
(d)
A corporation controlled by a person described in Subsection E(3)(a) or (b) through the ownership, directly or indirectly, of 50% or more of the total combined voting power of all classes of stock entitled to vote or 50% or more of the total value of shares of all classes of stock of the corporation.
(4)
Definitions. The terms used in this section shall be interpreted
in the same manner as corresponding terms utilized in Code § 503.
F.
Indemnification. The Employer hereby agrees to indemnify any officer,
director, elected official, or employee of the Employer for any expenses,
penalties, damages, or other pecuniary losses which such person may
suffer as a result of his responsibilities, obligations, or duties
in connection with the Plan or fiduciary activities actually performed
in connection with the Plan, but only to the extent that:
A.
Amendment.
(1)
In general. Subject to the provisions of Subsection A(2) and applicable collective bargaining obligations, the Board of Commissioners of the Sponsor shall have the right at any time, and from time to time, to amend in whole or in part any or all of the provisions of this Plan and Trust, by Ordinance.
(2)
Prohibited amendments. No amendment under this section shall be effective
to the extent that it shall:
(a)
Exclusive benefit: authorize or permit any part of the Trust
Fund to revert to or become the property of the Employer or any Related
Employer, or to be used or diverted to purposes other than the exclusive
benefit of the Participants, Beneficiaries, and Alternate Payees,
except as permitted under ERISA and the Code for qualified retirement
plans which are government plans;
(b)
Accrued rights: cause any reduction in the accrued benefit of
any Participant, Alternate Payee, or Beneficiary except as permitted
under applicable law;
(c)
Trustees: affect the rights, duties, or responsibilities of
the Trustees without the written consent of the Trustees.
B.
Termination.
(1)
Right to terminate plan. The Sponsor shall have the right to discontinue
its contributions to the Plan and Trust and terminate its participation
under this Plan at any time by Ordinance, subject to any applicable
collective bargaining responsibilities.
(2)
Plan accounts. Following a termination of the Plan or complete discontinuance of Employer contributions to the Plan, the amounts in the Forfeiture Account and Early Employer Contributions Account shall be allocated on the day of termination or discontinuance as if they were end-of-Plan-Year Employer contributions under § 58-61.
(3)
Termination and liquidation of trust. Following a termination of the Plan, the Sponsor shall terminate the Trust. In that event, the Trustees shall distribute the accounts of all Plan Participants, Alternate Payees, and Beneficiaries to such persons as quickly as possible under the provisions of §§ 58-68, 58-69, and 58-70 as if the Plan and Trust termination were an event described in § 58-68A.
(4)
Termination of trust without termination of plan. The Sponsor may also elect to terminate the Trust without terminating the Plan so long as the Sponsor directs the Trustees to transfer the assets of the Trust Fund to another funding medium for the Plan consistent with applicable law concerning qualified retirement plans and plans of Pennsylvania first-class townships, and § 58-72M (relating to Exclusive Benefit Rule).
(5)
Termination or spin-off by related employer. Any Related Employer (or former Related Employer) which has adopted this Plan and Trust may at any time elect to terminate its participation in this Plan and Trust by written notice to the Administrator and the Trustees, to the extent permitted by state and federal law. In such event, the Trustee shall segregate assets attributable to employer and employee contributions (and liabilities allocable to investments thereof) made by or with respect to employees of the Related Employer from the Trust Fund and distribute such assets in accordance with the written directions of the (former) Related Employer [consistent with applicable law concerning qualified retirement plans and § 58-72M (relating to Exclusive Benefit Rule)]. Any election by a Related Employer under this Subsection B(5) shall be deemed an amendment and separation of the Related Employer's plan and trust from the provisions of this Plan and Trust Agreement, and not a termination of the Related Employer's plan, unless the Related Employer specifically terminates its plan.
C.
Merger of plans; transfer of assets.
(1)
Definition. For purposes of this section, the term "merger" shall
mean any merger or consolidation of this Plan and/or the Trust Fund
with any other plan, or any transfer of the assets or liabilities
of the Plan and/or the Trust Fund to any other plan.
(2)
Accrued rights. The terms of any merger must specify that if this
Plan or its successor were to terminate immediately after the merger,
each Participant shall receive a benefit which is not less than he/she
would have received in the event this Plan terminated immediately
before such merger.
A.
Acquittance. This Plan and Trust is purely voluntary on the part
of the Employer. Except as provided in this Plan and Trust document,
neither the establishment of the Trust, any modification thereof,
the creation of any fund or account, nor the payment of any benefits
shall be construed as giving to any Participant or any other person
any legal or equitable right against the Employer, any officer or
Employee of the Employer, the Trustees, or the Administrator. Neither
the Trustees, the Administrator, nor the Employer in any way guarantees
the Trust Fund from loss or depreciation; nor do they guarantee any
payment to any person. The liability of such persons to make any payments
hereunder is limited to the available assets of the Trust Fund.
B.
Limitation of liability. Each Employee who becomes a Participant
under this Plan expressly agrees and understands that neither the
Employer, the members of the Administrator, the Trustees in their
individual capacity, nor any of their officers and agents shall be
subject in any way to any suit or litigation, or to any personal liability
for any reason whatsoever in connection with this Plan and Trust or
its operation, except for their willful neglect or fraud.
C.
Legal actions. In any action or proceeding involving the Trust Fund,
its administration, or any of its constituent property:
(1)
Necessary parties: The only necessary parties shall be the Employer,
the Administrator, and the Trustees;
(2)
Notice: No Employees or former Employees of the Employer, Alternate
Payees, Beneficiaries, or any other person having or claiming to have
an interest in the Trust Fund or under the Plan shall be entitled
to any notice or process; and
(3)
Final judgment: Any final judgment which is either not appealed or
appealable shall be binding and conclusive on all parties, the Administrator,
and all persons having or claiming to have any interest in the Trust
Fund or under the Plan.
D.
Delegation of authority by employer. Whenever any Employer is permitted
or required to do or perform any act, matter, or thing under this
Plan, it shall be done or performed by any officer duly authorized
to perform same by the Employer.
E.
Clerical errors.
(1)
If the Administrator discovers that a person who should have received
any contribution or allocation under this Plan for any Plan Year did
not receive it, or did not receive as large a contribution or allocation
as he should have, the Employer shall make a contribution for such
person in the amount erroneously omitted, plus the amount of Income
which would have been earned by such contribution had it been timely
made.
(2)
Conversely, if the Administrator discovers that a person received
a contribution or allocation under this Plan for any Plan Year to
which he was not entitled, the amount of such erroneous contribution
or allocation shall be deducted from the person's account and
transferred to the Early Employer Contributions Account (where it
shall be treated as being a contribution derived from state aid).
F.
Construction. This Plan and Trust Agreement shall be construed and
administered according to the laws of the United States of America
and the Commonwealth of Pennsylvania. Further, this Plan and Trust
Agreement shall be construed and administered so as to conform to
the applicable requirements for qualification under Code §§ 401(a)
and 501(a) and shall be deemed amended automatically to conform to
such legal requirements as in effect from time to time to the extent
necessary.
G.
Gender and number. Whenever any words are used in this Plan and Trust
in the masculine gender, they shall be construed as though they were
also used in the feminine gender in all appropriate cases. Whenever
any words are used in either the singular or plural form, they shall
be construed as though they were also used in the other form in all
appropriate cases.
H.
Headings. Section, subsection, paragraph, subparagraph, clause, subclause,
and other headings are included in this article for convenience only
and shall in no manner be construed as a part of this Plan and Trust
Agreement.
I.
Severability. Any provision of this Plan which is prohibited or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating or rendering unenforceable the remaining provisions
of this Plan. To the extent permitted by applicable law, the Employer
and Trustees hereby waive any provision of law which renders any provision
of this Plan prohibited or unenforceable in any respect.
J.
Employment rights. Nothing contained in this Plan and Trust shall
be construed or interpreted as giving any employee of the Employer
the right to be retained in the service of any Employer or shall affect
or impair any terms of employment with any Employer, the right of
any Employer to control its employees, and the right of any Employer
to terminate the service of any employee at any time.
K.
Communications.
(1)
To administrator or trustees. All elections, designations, requests,
notices, instructions, or other communications made to the Administrator
or the Trustees shall be in such form as may be prescribed by the
Administrator or the Trustees and shall be mailed by first-class mail
or delivered to such location as shall be specified by the Administrator
or the Trustees, or transmitted to them in some other manner approved
by the Administrator or Trustee (e.g., fax, e-mail, action on an Internet
web page, etc.). The communication shall be deemed to have been given
and delivered only upon actual receipt thereof at such location.
(2)
By administrator, trustees, or employer. All notices, statements,
reports, or other communications from the Administrator, the Trustees,
or the Employer to any person with an interest under this Plan shall
be deemed to have been duly given when delivered to, or when mailed
by first-class mail, postage prepaid and addressed to, such person
at his address last appearing on the records of the Administrator,
the Trustees, or the Employer.
L.
Public Employee Pension Forfeiture Act. Notwithstanding anything
to the contrary contained in this article, all benefits with respect
to a Participant under this Plan are subject to partial or complete
forfeiture in accordance with the provisions of the Public Employee
Pension Forfeiture Act, 43 P.S. § 1311 et seq. Any amounts
so forfeited which are subject to restitution to the Employer or another
person or entity under the Act shall be so paid in accordance with
the restitution order. Any amounts so forfeited which are not subject
to restitution to the Employer or other person or entity under that
Act shall, at such time as the Administrator reasonably determines
that all proceedings related to the forfeiture and/or restitution
under the Act have commenced and have concluded, be allocated among
the accounts of persons who were Active Participants in this Plan
as of the date of the forfeiture in proportion to their Compensation
for the last Plan Year which ended before the date of the forfeiture.
M.
Type of plan. This Plan is a money purchase, defined contribution
pension plan.
