HomeMy WebLinkAbout457 (b) Plan update 10-1-13
Florida Municipal Pension Trust Fund
457 (b) Deferred Compensation Plan
As amended and restated October 1, 2013
Amended and Restated as of October 1, 2013
Florida Municipal Pension Trust Fund
457(b) Deferred Compensation Plan
TC
ABLE OF ONTENTS
1. Establishment and purpose of the Plan ........................................................................ 3
2. Participating Employers .............................................................................................. 4
3. Definitions ................................................................................................................... 6
4. Participation in the Plan .............................................................................................. 27
5. Contribution limit ........................................................................................................ 29
6. Investment direction .................................................................................................... 30
7. Allocation methods ...................................................................................................... 34
8. Reemployment after Uniformed Service ..................................................................... 32
9. Plan-approved Domestic Relations Order ................................................................... 37
10. Permitted Distribution ............................................................................................... 39
11. Unforeseeable Emergency Distribution .................................................................... 39
12. Retirement Distribution ............................................................................................. 41
13. Death Distribution ..................................................................................................... 42
14. Direct Rollover .......................................................................................................... 41
15. Administration of Distribution provisions ................................................................ 44
16. Plan Administrator .................................................................................................... 50
17. General provisions ..................................................................................................... 52
18. Amendment ............................................................................................................... 62
19. Termination ............................................................................................................... 61
20. Construction .............................................................................................................. 64
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Florida League of Cities, Inc.
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457(b) Deferred Compensation Plan
1.Establishment and purpose of the Plan
1.1Purpose of the Plan
The purpose of the Plan is to provide Employees with a convenient way to save for retirement.
Under the Plan, Deferred Compensation is held until paid to the Participant or to his or her
Beneficiary(s) according to the provisions of the Plan. With limited exceptions, a Distribution
can become available only after the Participant’s death or Severance.
1.2Establishment of the Plan
This document together with the Participating Employer’s Adoption Agreement states the
provisions of this eligible deferred compensation Plan established and maintained by the
Participating Employer(s).
1.3Previous plan replaced
To the extent of the Participating Employer’s participation in the Florida Municipal Pension Trust
Fund 457(b) Deferred Compensation Plan, this Plan shall amend and restate any similar plan
previously in effect. The restated Plan is effective as of the Restatement Date, except as otherwise
specified by this Plan and the Adoption Agreement. This Provision shall not affect the authority of
the Master Trustees to amend and restate this Plan as provided in Part 2.
1.4Eligible Plan
The Participating Employer intends to (but is not obligated to) maintain the Plan as a plan that is an
eligible deferred compensation plan within the meaning of IRC § 457(b).
1.5Individual account plan
The Plan is an individual account plan that provides for an individual Account for each Participant
and for Deferred Compensation based solely upon the amount of Contributions, income, dividends,
interest, gains (or losses), and Fees and expenses credited to or charged against the Participant’s
Account.
1.6Master Trust
means the trust created and maintained by the Master Trust Agreement.
1.7Exclusive benefit
The Plan is established for the exclusive benefit of Participants and their Beneficiaries. All
assets and income of the Plan shall be held for the exclusive benefit of the Plan’s Participants
and their Beneficiaries.
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2.Participating Employers
2.1Adoption by Participating Employer
A Participating Employer may make the Plan available to its Employees if it takes the following
actions:
a)The Governing Authority of the Participating Employer must pass an ordinance
or resolution formally adopting this Plan for its Employees and approving the
Adoption Agreement.
b)The ordinance or resolution must indicate the date of adoption.
c)The ordinance or resolution must commit to the terms of an Adoption Agreement
as completed by the Participating Employer.
d)The ordinance or resolution must specify that the Participating Employer shall
abide by the terms of the Plan, including all investment, administrative, and
service of the Plan, and all applicable provisions of the Code and other
applicable law.
e)The ordinance or resolution must acknowledge that the Master Trustee is only
responsible for the Plan and have no responsibility for other employee benefit
plans maintained by the Participating Employer.
2.2Participating Employer has same provisions
Except as properly specified by the Adoption Agreement, each Participating Employer adopts
the Plan. The Participating Employer’s adoption of the Plan is stated by the Adoption
Agreement.
2.3Amendment binding upon all Participating Employers
a)Subject to the provision of any applicable law, the Master Trustee may at any time
amend or modify this Plan without the consent of the Participating Employers or of
Participants (or any Beneficiaries thereof). Any modification, alteration, or
amendment of the Plan, made in accordance with this Provision , may be made
retroactively, if deemed necessary or appropriate by the Master Trustee. A copy of
the resolution of the Master Trustee making such amendment shall be delivered to
the Plan Administrator, and the Plan shall be amended in the manner and effective as
of the date set forth in such resolution, and the Participating Employers, Employees,
Participants, Beneficiaries, Master Trustee, and Plan Administrator shall be bound
by the amendment. A Participating Employer may not amend the Plan in any way.
b)Subject to the provisions of applicable law, the Master Trustee and the
Administrator may at any time amended or modify the form of Adoption Agreement
with the consent of the Participating Employers, unless otherwise required under
Provision 2.4.
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2.4Amendment of Adoption Agreement by Participating Employer
The Governing Authority shall have the right at any time to amend, in whole or in part, any or
all of its elections under the Adoption Agreement without the consent of the Participants or any
Beneficiaries. Provided, however, that no such amendment shall:
a)Deprive any Participant or Beneficiary of any of the benefits to which the
Participant or Beneficiary is entitled under this Plan with respect to amounts
credited prior to the effective date of the amendment; or
b)Authorize or permit any part of the Master Trust to be diverted to purposes
other than the exclusive benefit of the Participants or their Beneficiaries; or
c)If an amendment limits or otherwise restricts the deferral and distribution
rights of the Participants, the amendment shall become effective on the first
day of the month following the giving of not less than forty-five (45) days
prior notice of the amendment to Participants. If the amendment was made
by the Master Trustee, notice shall be deemed given when the amendment is
sent to each Participating Employer. If the amendment was made by the
Participating Employer, notice shall be deemed given when the amendment
is sent to the Plan Administrator. No amendment shall deprive any
Participant of any of the benefits to which the Participant is entitled under
this Plan with respects to amounts credited prior to the effective date of the
amendment, and
d)If the Plan is amended or modified, the Plan Administrator shall nonetheless
be responsible for the supervision and the payment of benefits resulting from
amounts contributed prior to the amendment or modifications in accordance
with this Part.
2.5Contributions by Participating Employer
Contributions made by a Participating Employer shall be determined separately by each
Participating Employer and shall be paid to and held by individual Account(s) under the
Investment(s) for the exclusive benefit of the Participants (and their Beneficiaries) who
are Employees of the Participating Employer.
2.6Transfer of Participant among Participating Employers
The transfer of any Participant from or to any Participating Employer shall not affect the
Participant’s Benefit or rights under the Plan other than as provided by the Plan.
2.7Discontinuance of Plan by Participating Employer
Any Participating Employer is permitted to revoke and discontinue it’s participation in
the Plan by giving at least 60 days notice in writing to the Master Trustee. Any
termination shall be governed by the provisions of the Florida Municipal Pension Trust
Fund Master Trust Agreement and the Plan.
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3.Definitions
Whenever used in the Plan, each of the following terms has the meaning stated or provided by this
Part.
If a term is not defined by this Part and is defined by the Internal Revenue Code or the Enabling
Statute or relevant Investment Law, the term has the meaning given by the Internal Revenue Code
or the Enabling Statute or relevant Investment Law.
3.1“Account”
means the bookkeeping Account (including each sub-Account) maintained for each Participant
(or Beneficiary or Alternate Payee) which at all times shows: the amount of the Participant’s
Deferred Compensation (including any income or loss attributable to the investment of the
Participant’s Deferred Compensation); any amounts accepted as a transfer under Provision 5.2
[“Acceptance of transfers”]; any Distributions to the Participant, and any Fees or expenses
charged against the Participant’s Deferred Compensation. “Account” also may refer to each of
the sub-Accounts.
The Account balance is the total amount or value of the Account (or sub-Account as applicable)
reduced by any security interest held by the Issuer(s) or by the Master Trustee for an
outstanding loan and reduced by any applicable Investment fees, charges, expenses, and taxes
and any Master Trust fees, charges, expenses, and taxes.
To the extent that the Participant’s Deferred Compensation is held in (and Distributions and
Fees or expenses are charged against) an Allocated Investment(s), the value of the Participant’s
Account is the value of the applicable sub-Account(s) under the Investment(s).
To the extent necessary to administer the Plan, the Plan Administrator shall keep a separate sub-
Account to receive each kind of Contributions (and attributable interest or investment earnings).
However, the Plan Administrator, in its sole discretion, may combine any sub-Accounts if so
doing does not impair the Plan Administrator’s ability to operate this Plan according to its
provisions.
The Participant shall receive (until a Retirement Distribution begins) periodic Account reports
in the form prescribed by the Plan Administrator.
If the Participant (or Beneficiary) elects more than one Distribution Commencement Date, the
Plan Administrator shall maintain a separate account with respect to the portion of the Account
to be applied as of each Distribution Commencement Date.
To the extent required by a Plan-approved Domestic Relations Order, the Plan Administrator
shall maintain a separate sub-Account for the Alternate Payee.
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If the Participant designates more than one Beneficiary, upon the written request of any Beneficiary
or upon an approved claim payable to any Beneficiary and not all Beneficiaries, the Plan shall
maintain a separate account with respect to the interest of each Beneficiary, beginning as of the next
Valuation Date that occurs after the Beneficiary’s approved request or claim is received and
processed by the Plan Sponsor .
If a Plan-approved Domestic Relations Order applies with respect to a Participant, the Plan shall
maintain a separate account for the interest of the Alternate Payee, beginning as of the next
Valuation Date available after the court order is determined by the Plan Sponsor to be a Plan-
approved Domestic Relations Order.
A Participant’s Plan Account shall be reduced to the extent that any portion of the Participant’s
Plan Account has been paid or set aside for payment to an Alternate Payee or to the extent that
the Participating Employer or the Master Trustee or the Plan Administrator or the Agent
otherwise is subject to a binding judgment, decree, or order for the attachment, garnishment, or
execution of any portion of the Participant’s Account or of any distribution therefrom. The
Participant shall be deemed to have released the Participating Employer and the Master Trustee
and the Plan Administrator and the Agent from any claim with respect to such amounts in any
case in which any of them was served with legal process or otherwise joined in a proceeding
relating to such amounts, and the Participant was notified of the pendency of such proceeding,
and the Participant fails to obtain an order of the court that relieves the Participating Employer
and the Master Trustee and the Plan Administrator and the Agent from any obligation to comply
with the judgment, decree, or order.
Each Account statement or Confirmation furnished by (or on behalf of) the Plan Administrator or
the Master Trustee is intended as a legally significant statement of the Participant’s Deferred
Compensation. As to each Account statement or Confirmation, if, by the date that is 60 days after
the date that the statement or Confirmation was mailed or otherwise sent or delivered, the
Participant (or Beneficiary or Alternate Payee) has not delivered a written objection as to the
accuracy of the statement, the accounting reported is then settled and conclusive and an account
stated. If an objection to any Account statement or Confirmation is withdrawn or is adjusted to the
objector’s satisfaction, the accounting is then settled and conclusive and an account stated. To the
extent that an Account statement or Confirmation is an account stated, the Plan Administrator and
every party acting under the instruction of the Plan Administrator is discharged from any liability
that might otherwise arise out of the Account statement as fully as if the Account had been settled
by an appropriate court proceeding. Without limiting the comprehensive effect of the above, if an
Account statement or Confirmation furnished to the Alternate Payee shows the amount segregated
to his or her separate sub-Account under a Plan-approved Domestic Relations Order or other court
order if, by the date that is 60 days after the date that the statement or Confirmation was mailed or
otherwise sent or delivered, the Alternate Payee has not delivered a written objection as to the
accuracy of the statement or the objection is withdrawn or is adjusted to the Alternate Payee’s
satisfaction, the accounting reported is then settled and conclusive and an account stated, and shall
constitute a release of any obligation under the court order to segregate or set aside the appropriate
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amount for the Alternate Payee. If a court finds that the application of this paragraph or any part of
it is void as against public policy, this provision shall apply to the extent not so found.
3.2“Adoption Agreement”
means the separate but related written agreement executed by the Participating Employer that
states the establishment of the Participating Employer’s Plan and its adoption of this Basic Plan
Document, The Florida Municipal Pension Trust Fund 457(b) Deferred Compensation Plan
Trust, and that states those conforming and elective provisions of this Plan specified by the
Participating Employer.
3.3“Agent”
means a person that the Plan Administrator appoints to perform services regarding the Plan.
3.4“Allocated Investment”
means an Investment for which the Issuer under the terms of the Investment (and not as a
separately agreed service) records individual accounts with respect to each Participant.
3.5“Alternate Payee”
means a person who is or was the spouse of the Participant to the extent that such person has rights
under a court order that the Plan Sponsor has determined to be a Plan-approved Domestic Relations
Order.
3.6“Annuity Payout Option”
means a Payout Option which includes a provision for payments based, in whole or in part,
upon the life of a natural person.
3.6.1“Basic Plan Document”
means this Plan document
3.7“Beneficiary”
means the person(s), whether natural or non-natural, including but not limited to a trustee or
other fiduciary, designated by the Participant by a valid Beneficiary Designation in his or her
Participation Agreement to receive any undistributed Deferred Compensation payable upon or
after the Participant’s death (the “primary” Beneficiary(s)), or upon or after the primary
Beneficiary’s death (the “contingent” or “alternate” Beneficiary(s)).
The Participant’s right to designate his or her Beneficiary is limited by Provision 3.8 and by all
of the following provisions.
Notwithstanding any Beneficiary designation in the Participation Agreement or otherwise to the
contrary, a person shall not be a Beneficiary unless he or she is living or in existence (and, to
the extent that the Beneficiary is entitled to receive Deferred Compensation as a trustee or other
fiduciary, the person or the entity that the person represents or acts for, is living or in existence)
on the Distribution Commencement Date. Any right of a Beneficiary is strictly personal to that
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Beneficiary and lapses upon his or her death. Any undistributed Deferred Compensation that
would have been distributable to a Beneficiary if he or she had lived is not distributable to the
Beneficiary’s heirs. Upon a Beneficiary’s death, any undistributed Deferred Compensation
with respect to that Beneficiary becomes distributable to the remaining primary Beneficiary(s)
if any, or if none, to the remaining contingent Beneficiary(s), in each case to be distributable in
equal shares to all living Beneficiaries of the applicable primary or contingent Beneficiary class.
The Participant must designate each Beneficiary by name. A Beneficiary(s) cannot be
designated by relationship or by class, and any such attempted beneficiary designation is
absolutely void.
As provided by law, including section 732.703, Florida Statutes, a designation made by or on
behalf of the decedent providing for the payment or transfer at death of an interest in an asset to
or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage
was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the
designation was made prior to the dissolution or court order. The decedent’s interest in the asset
shall pass as if the decedent’s former spouse predeceased the decedent. An individual retirement
account described in s. 408 or s. 408A of the Internal Revenue Code of 1986, or an employee
benefit plan, may not be treated as a trust for purposes of the law.
Notwithstanding any law to the contrary, a separation, separate maintenance, revocation of a
domestic partner registration, termination or revocation of any living together contract, or
interruption or termination of any contract not recognized by the State as a marriage, has no
effect in any way concerning who is the Beneficiary under the Plan.
If the Participant designates as Beneficiary more than one person, all persons of the same
Beneficiary Designation (“primary” or “contingent”) have equal shares (per capita and not per
stirpes), unless the Participant specifies otherwise.
If a Participant fails to designate a Beneficiary, or if for any reason (including the absence of a
surviving designated beneficiary) the Participant’s beneficiary designation is invalid or
ineffective, the person(s) entitled to the residuary estate of the Participant’s estate is(are) the
Beneficiary(s), to the extent of the failure or invalid or ineffective designation, with the
applicable share of the Plan Account divided among those Beneficiaries in the same shares as
their shares of the residuary estate. For the purposes of this Provision, the Plan Sponsor and
Plan Administrator may rely on an appropriate court order or the personal representative’s
written statement as to the identity (including name, address, and Taxpayer Identifying
Number) of and shares allocable to the persons entitled to such residuary estate.
A named beneficiary who feloniously and intentionally kills the Participant or Beneficiary is
not a Beneficiary and is not entitled to any Distribution or any other right under the Plan; and
any Deferred Compensation is payable as though the killer had predeceased the Participant or
Beneficiary.
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3.8“Beneficiary Designation”
means the valid and effective Beneficiary Designation made by the Participant, designating the
person(s) (which may be a non-natural person) who shall be his or her Beneficiary(s) entitled to
receive any undistributed Deferred Compensation.
At any time before his or her death, the Participant has the right to designate a Beneficiary(s),
including a contingent Beneficiary(s), subject to the provisions of the Plan. The Participant
shall have the right to change his or her Beneficiary Designation at any time, subject to the
provisions of the Plan.
A Beneficiary Designation must be in writing, on the form(s) prescribed by the Plan
Administrator. A Beneficiary Designation (or change) is not effective until the Plan
Administrator receives it. Each Beneficiary Designation completely revokes and cancels any
and every previous beneficiary designation.
The Participant must designate each Beneficiary by name. A Beneficiary(s) cannot be
designated by relationship or by class, and any such attempted beneficiary designation is
absolutely void.
Notwithstanding the rule that a Participant must designate each Beneficiary by name, if the Plan
Sponsor, in its sole discretion, finds that a Beneficiary Designation sufficiently describes a trust,
that Beneficiary Designation will be construed as naming the duly appointed and currently
acting trustee of that trust.
Any beneficiary designation that, in whole or in part, designates the Participant’s estate as
beneficiary shall be construed as designating as Beneficiary(s), to the extent of the share of
Deferred Compensation specified or otherwise provided for the estate, the personal
representative of the Participant’s estate.
Any statement in a Beneficiary Designation referring to the Beneficiary’s relationship to the
Participant is for convenience or information only and has no effect in the construction or
interpretation of the Beneficiary Designation.
Any statement in a Beneficiary designation attempting to state or create a condition or
restriction upon the Beneficiary’s receipt or enjoyment of any Deferred Compensation is invalid
and the Beneficiary is entitled to the Deferred Compensation without regard to any attempted
condition or restriction.
Notwithstanding anything to the contrary in any Beneficiary designation in the Participation
Agreement or any other document or otherwise (including but not limited to any court order),
any designation of a Beneficiary cannot be irrevocable and any such designation shall be
construed as a revocable designation of that Beneficiary.
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If the Participant designates as Beneficiary more than one person, all persons of the same
Beneficiary Designation (“primary” or “contingent”) have equal shares (per capita and not per
stirpes), unless the Participant specifies otherwise.
If a Beneficiary Designation divides a Benefit between or among two or more Beneficiaries, the
“primary” Beneficiary Designation must allocate the share of each such Beneficiary solely by
specifying a percentage of the Participant’s Account and the “contingent” Beneficiary
Designation must allocate the share of each such Beneficiary solely by specifying a percentage
of the Participant’s Account. Without limiting the comprehensive effect of the preceding
sentence, any division of any Benefit under a Beneficiary Designation shall be ineffective to the
extent that it would ask the Plan Sponsor to consider any fact other than the amount of the
Participant’s Account.
A Beneficiary Designation shall be construed to dispose of all of the remaining Plan Account or
Deferred Compensation.
Except as otherwise provided by the Plan, a Beneficiary Designation that uses a term or phrase
that would have significance in construing or interpreting a conveyance or a disposition of a
decedent’s estate shall, except as otherwise specified by the Participant, be construed or
interpreted according to the Uniform Probate Code (without regard to the Participant’s domicile
at the time he or she made the Beneficiary Designation or the Participant’s domicile at the time
of his or her death). Likewise, if a Beneficiary Designation remains ambiguous after applying
all provisions and construction rules stated by this Plan and can be resolved by applying the
rules of construction and interpretation of the Uniform Probate Code for construing a
beneficiary designation or conveyance, such rules shall apply to the Beneficiary Designation,
except as otherwise provided by the Plan. Any provision of the Uniform Probate Code
concerning the effect of divorce or marital separation shall not apply.
After the Participant’s death, no person has any right or power or discretion to change any
Beneficiary (except to disclaim his or her or its Deferred Compensation as permitted by
Provision 15.14 [“Disclaimer by Beneficiary”), and any such purported provision stated in a
Beneficiary Designation or otherwise is ineffective.
3.8.1“Benefit”
refers to the right under this Plan of the Participant (or Beneficiary or other payee) to receive a
Distribution of all or any portion of the Participant’s Deferred Compensation.
Any Benefit under the Plan shall not be paid or payable except as a:
Retirement Distribution
Death Distribution
Unforeseeable Emergency Distribution
Required Minimum Distribution
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Permitted Distribution
Corrective Distribution
Termination Distribution;
or according to the provisions of a Plan-approved Domestic Relations Order [all as defined and
provided below].
All rights and Benefits, including elections, provided by the Plan shall be subject to and limited
by the rights awarded to any Alternate Payee pursuant to a Plan-approved Domestic Relations
Order.
Any Distribution may, to the extent that the Distribution is an Eligible Rollover Distribution, be
paid as a Rollover Distribution.
3.9“Business Day”
means any day on which both the New York Stock Exchange [NYSE] is open for regular
trading and the person that is required or permitted to act or that is entitled to receive notice is
(or was) open for regular business at its home office or National Office or principal place of
business.
A Business Day ends at 4 p.m. New York Time, or, if earlier, the time that regular trading
closes on the NYSE.
As required or permitted by applicable Investment Law, any Agent may make reasonable rules
governing the time of the day after which investment instructions will be treated as received on
the next Business Day. Without limiting the comprehensive effect of the preceding sentence,
any investment direction that includes an instruction to buy or sell registered investment
company shares that is received after the closing of the NYSE shall be treated as received on the
next Business Day.
A day that is not a Business Day ends at 4 p.m. New York Time.
3.10“Compensation”
means the total wages, salaries, fees, and other amounts paid (except as modified below) during
each Plan Year to the Employee by the Participating Employer for personal services actually
rendered in the course of employment with the Participating Employer, including compensation
payable as bonuses or as overtime, and excluding any compensation received in the form of
non-taxable fringe benefits. Compensation shall include any amounts deferred as Employee
Contributions under this Plan, and any amounts of compensation deferred as “elective deferrals”
(within the meaning of IRC § 402(g)(3) or similar provisions) under IRC § 125, IRC § 401(k),
or IRC § 402(a)(8). Compensation does not include any amount paid as Participating
Employer-provided education assistance, notwithstanding that such payment may be taxable
wages to the Participant.
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This definition of “Compensation” is not intended to control or affect the construction of the
definition of “Includible Compensation”. However, for the purposes of computing any
Contributions required or permitted under Part 8 [“Reemployment after Uniformed Service”],
the reemployed Participant’s Compensation shall be as provided by Provision 8.4.
3.11“Confirmation”
has the meaning given by applicable Investment Law.
3.12“Contributions”
means Employee Contributions and Transfer Contributions and (if any) Employer
Contributions, deferred under the Plan according to the provisions of the Plan.
Contributions under the Plan shall not be reduced because of the Participant’s attainment of any
age.
Contributions shall be made according to the payroll methods of and at such times as may be
determined by the Participating Employer, except as otherwise required by the Enabling Statute.
3.13“Corrective Distribution”
means a Distribution required or permitted to remedy a potential violation or correct a violation
of any provision of Part 5 [“Contribution limit” ] or under Provision 17.11 [“Mistaken
contributions”].
The amounts corrected by a Corrective Distribution are disregarded for all purposes of the Plan,
except as otherwise expressly provided by the Plan.
A Corrective Distribution cannot be counted as a required distribution for the purposes of
applying the minimum distribution and incidental benefit requirements of IRC § 401(a)(9).
3.14“Death Distribution”
means any Distribution that does not begin before the death of the Participant.
3.15“Deferred Compensation”
means the amount of compensation that the Participant and the Participating Employer agree to
defer according to the provisions of the Plan.
The amount or value of the Participant’s Deferred Compensation is the amount or value of the
Participant’s Account (including any rights purchased under the Account).
Deferred Compensation may also refer to the right under this Plan of the Participant or
Beneficiary to receive a Distribution of all or any portion of the Account.
Deferred Compensation may include either pre-tax contributions, pre-tax elective deferral
contributions or after-tax Designated Roth Contributions as provided in Provision 4.9.
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Deferred Compensation further means the amount of Compensation otherwise payable to the
Participant that the Participant elects to defer under the Plan (as either pre-tax elective deferral
contributions or after-tax designated Roth contributions, if applicable), any amount credited to a
Participant’s Account by reason of a transfer permitted under the Plan, or any other amount that
the Employer agrees to credit to a Participant’s Account (as an Employer Contribution) and that
does not exceed the Maximum Limitation.
3.15.1“Designated Roth Contributions”
means the amount of a Participant’s Compensation that he or she elects to defer under the Plan
on an after-tax basis, as provided in IRC section 402A.
Designated Roth Contributions under the Plan are allowable only if elected by the Participating
Employer in an Adoption Agreement or otherwise. The Participant may designate that all or
part of his or her elective contributions under the Plan be treated as after-tax Designated Roth
Contributions. Designated Roth Contributions shall be accounted for separately from all other
contributions under the Plan.
3.16“Distributee”
means any person who receives or but for his or her or its instruction to the Plan Sponsor is
entitled to receive a Distribution.
3.17“Distribution”
means, as appropriate in the context, any kind of Distribution or the particular kind of
Distribution provided by the Plan, as follows:
Permitted Distribution
Unforeseeable Emergency Distribution
Retirement Distribution (including a Transfer Distribution)
Death Distribution
Termination Distribution
Any Distribution shall be paid as a cash payment(s) or as a transfer of ownership of the
Investment(s) that is the applicable portion of the Account.
Any Distribution may be made, in whole or in part, in cash, or by delivery of an Investment(s)
(including any annuity or life insurance contract), Fund Shares, other securities, or other assets
or property of any kind. Any Distribution of property other than cash shall be valued at fair
market value as of the date of the Distribution.
If a payee does not as a part of his or her or its written claim specify that a Distribution is to be
made in the form of a specified property(s), any Distribution is payable as a cash payment(s).
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Consistent with Part 14, any Distribution paid after December 31, 2001 may, to the extent that
the Distribution is an eligible rollover distribution, be paid as a direct rollover.
3.18“Distribution Commencement Date”
means the date(s) selected by the Participant under Provision 12.2, or by the Beneficiary under
Provision 13.2; or the “default” date that results by operation of Provision 12.2.1 or
Provision 13.2.1 from the Distributee’s failure to make such an election.
3.19“Effective Date”
means the first date that the Participating Employer accepted a Participation Agreement.
3.20“Eligible Participating Employer”
means any Participating Employer that is a State or a political subdivision of the State or an
agency or instrumentality of a state(s) or a political subdivision(s) and that is an “eligible
Participating Employer” within the meaning of IRC § 457(e)(1)(A).
3.21“Employee”
means the natural person, whether appointed, elected, salaried, or under contract, or otherwise,
who performs services for the Participating Employer on a regular basis as a common-law
employee or as an independent contractor and who has Compensation paid by the Participating
Employer, unless the individual is precluded from participation under the Plan by the Enabling
Statute or other State or local law (including an ordinance or resolution).
The fact that a natural person is or is determined to be an employee for the purpose of another
employee benefit plan (including another pension plan or retirement plan) or for any other legal
purpose shall not be construed as any inference that the natural person is an eligible Employee
under this Plan.
The Plan Sponsor shall decide all questions of eligibility for participation in the Plan, except as
otherwise required by the Enabling Statute.
An Employee shall not be excluded from participation in the Plan on the basis of age.
3.22“Employee Contributions”
means elective deferrals made pursuant to a salary reduction agreement as specified by a
Participation Agreement. Employee Contributions may be either pre-tax elective deferral
contributions or after-tax Designated Roth Contributions, if a Participating Employer authorizes
after-tax Designated Roth Contributions in an Adoption Agreement or otherwise.
3.23“Employer Contributions”
means those Contributions made by the Participating Employer that are not Employee
Contributions, and which the Participant could not have elected to receive as immediate cash
compensation or other taxable benefit.
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The Plan Administrator shall not permit Employer Contributions unless it has received and
reasonably relies upon an acceptable written legal opinion concluding that the Participating
Employer has legal power under the Enabling Statute and all applicable State and local law to
make such Employer Contributions.
3.24“Enabling Statute”
means the State statute or similar law that grants the Participating Employer legal authority to
maintain this Plan.
3.25“Fees”
means any fees required or permitted to be charged against the Participant’s (or Beneficiary’s or
Alternate Payee’s) Plan Account according to (any one or more of the following): the Plan, the
Master Trust Agreement, the Participation Agreement, an Investment, an investment advisory
agreement, any other writing signed by the Participant (or, after the Participant’s death, the
Beneficiary), any written notice given by or behalf of the Plan Administrator or the Master
Trustee that is accepted or deemed accepted by the Participant (or Beneficiary), or any court
order.
3.26“Fund”
means a registered investment company or an insurance company separate account or collective
investment fund or group trust or any similar pooled investment under which the value of the
holder’s interest is calculated according to the number of shares or units held for the holder’s
account.
3.26.1“Governing Authority”
means the entity authorized by law to act for the Employer and adopt this Plan and the Adoption
Agreement.
3.27“Unforeseeable Emergency Distribution”
means a Distribution under Part 11.
3.28“Includible Compensation”
means the amount of the Employee’s Compensation that is “includible compensation” within
the meaning of IRC § 457(e)(5) and that is currently includible in the Employee’s gross income.
Includible Compensation is determined without regard to any community property laws.
For the purposes of computing any Contributions required or permitted under Part 8
[“Reemployment after Uniformed Service”], the reemployed Participant’s Compensation shall
be as provided by Provision 8.4 and Includible Compensation shall be determined consistent
with such provision.
3.29“Internal Revenue Code” or “IRC” or “Code”
means the Internal Revenue Code of 1986, as amended, including any Regulations or rulings (or
other guidance of general applicability) under the IRC. Any reference to Regulations is a
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reference to Treasury department regulations under the Internal Revenue Code, unless
otherwise specified. Any reference to a Section of the Internal Revenue Code shall be
construed to also refer to any successor provision. Any reference to a Section of Treasury
Regulations shall be construed to also refer to any successor provision of such Treasury
Regulations. Any reference to a Revenue Ruling or Revenue Procedure or IRS Notice or IRS
Announcement shall be construed to also refer to any guidance of general applicability that
extends, amplifies, or modifies the Revenue Ruling or Revenue Procedure or IRS Notice or IRS
Announcement.
3.30“Internal Revenue Service” or “IRS”
means and refers to the Internal Revenue Service, a division of the Department of the Treasury
of the United States of America, and thereby an agency of the government of the USA, and any
related departments, divisions, or offices under the supervision of the Secretary of the Treasury
of the USA.
3.31“Investment”
means (any of the following): an annuity contract or custodial account that satisfies the
requirements of IRC § 401(f) and IRC § 457(g)(3); any annuity contract or life insurance
contract that may be held by the Master Trust; any Fund shares that may be held by the Master
Trust; an interest under a group trust (as described in Rev. Rul. 81-100) that may be held by the
Master Trust; or any investment that may be held by the Master Trustee.
The Master Trust shall not hold any Investment that has provisions (whether express or
incorporated by reference or at law) that would preclude the correct application of the Plan or
the Master Trust Agreement.
The Master Trust shall maintain (or cause to be maintained) the indicia of ownership of each
Investment within the USA, except as otherwise permitted by 29 C.F.R. § 2550.404b-1(b)
applied as if this Plan were a plan subject to 29 U.S.C. § 1104(b).
All Investments to be used under the Plan must be specified by the Master Trustee.
The provisions of each Investment (including any provisions stated by each Investment’s and
each Fund’s prospectus and the statement of additional information) are to the extent not
inconsistent with the Plan incorporated in the Plan by reference.
An Investment may also be referred to (in Plan documents, disclosure information, and forms)
by other terms that are not misleading in the context.
3.32“Investment Adviser”
has the meaning given by § 202(a)(11) of the Federal Investment Advisers Act of 1940, as
amended [15 U.S.C. § 80b-2(a)(11)].
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An agreement to provide investment advice (or the giving of investment advice) to a Participant
or Beneficiary or Alternate Payee does not constitute an Investment Adviser as an investment
manager or investment adviser as to the Plan or the Master Trust. An agreement to provide
investment advice (or the giving of investment advice) to any Fund or to the Issuer of any
Investment does not constitute an Investment Adviser as an investment manager or investment
adviser as to the Plan or the Master Trust.
3.33“Investment Law”
means, as applicable or relevant in the context, any United States law or Florida law relating to
banking, insurance, securities, investment companies, investment advice, or commodities
trading, including any self-regulatory organization rules. Investment Law includes the Bylaws,
Rules of Fair Practice, Code of Arbitration Procedure, and other Rules of the National
Association of Securities Dealers, Inc. [NASD] and the rules of each securities exchange or
clearing agency.
3.34“Investor”
means, solely for the purposes of Part 6 [“Investment direction”] and solely for convenience of
reference, the person that has the duty or holds a power to give investment direction according
to Provision 6.2.2.
Any reference using the term or word “Investor” shall not be construed to constitute any person
as an investor regarding any Investment or under any Investment Law.
3.35“Issuer”
means the person who has issued or may issue an Investment held regarding the Plan.
An Issuer may be a bank, or an insurance company, or a registered investment company, or the
issuer of any other instrument or indicia of ownership or beneficial ownership that is held as a
Plan Investment. When appropriate in the context, the term Issuer also includes the definition
of “issuer” provided by 15 U.S.C. § 77b(4).
3.36“Master Trust”
means the trust created and maintained by the Master Trust Agreement.
3.37“Master Trust Agreement”
th
means the Agreement made as of 16 day of December, 1983 as may be amended and restated,
by and between all parties that are now or may hereafter become Participating Employers of the
Florida Municipal Pension Trust Fund and the individuals named as Master Trustees pursuant
to provisions of the Agreement.
3.38“Master Trustee”
means the individuals collectively who serve as trustees pursuant to the Master Trust
Agreement.
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3.38.1 “Maximum Limitation”
means the maximum amount that may be deferred under this Plan (other than rollover amounts
permitted under this Plan) for the taxable year of a Participant. Such amount shall be either the
Normal Limitation or Catch-Up Limitation, whichever is applicable.
(a) Normal Limitation: The maximum amount deferred shall not exceed the lesser of the
Applicable Dollar Amount (as described in (c) below) or 100% of the Participant’s
Includible Compensation, as adjusted by (d) below. Notwithstanding the preceeding
provisions of this paragraph, for calendar years prior to 2002, the maximum amount
deferred shall not exceed such limit or limits in effect for the applicable year pursuant to
Code Section 457.
(b) Catch-Up Limitation: For each one of the last three (3) taxable years of a Participant
ending before the Participant’s attainment of Normal Retirement Age, the maximum
amount deferred for each such year shall be the lesser of:
(1) twice the Applicable Dollar Amount (as described in (c) below): or
(2) the sum of the Normal Limitation, plus that portion of the Normal Limitation not
used in each of the prior taxable years of the Participant commencing after 1978
in which (i) the Participant was eligible to participate in this Plan or another
eligible plan of the Employer, and (ii) compensatioan deferred under this Plan
(or such other plan) was subject to the deferral limitations set forth in this
section.
A Participant may utilize the Catch-Up Limitation only if the Participant has not
previously utilized it with respect to a different Normal Retirement Age under
this Plan or any other plan.
For years prior to 2002, the limit under this provision (b) for any year shall not
exceed $15,000.
(c) Applicable Dollar Amount: For contributions in 2006 and subsequent years, the
Applicable Dollar Amount shall be $15,000 as adjusted for cost-of-living increases in
accordance with Code Section 457(e)(15). The Applicable Dollar Amount for the 2012
calendar year is $17,000 and for the 2013 calendar year is $17,500.
(d) Coordination with Other Plans: For contribution years prior to 2002, the amount
excludible from a Participant’s gross income for any taxable year under this Plan or any
other plan under Code Section 457(b) shall not exceed $7,500 (as adjusted for cost-of-
living increases in accordance with Code Section 457(e)(15)) or such greater amount
allowed under provision (b) above, less any amount excluded from gross income under
Code Section 403(b), 402(e)(3), or 402(h)(1)(B) or (k), or any amount with respect to
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which a deduction is allowable by reason of a contribution to an organization under
Code Section 501(c)(18).
(e) Age-Based Catch-Up Contributions: In addition to any other limit set forth in this
section, a Participant who will attain age 50 in the calendar year may contribute an
additional $5,000 as adjusted for cost-of-living increases in accordance with Code
Section 414(v)(2)(C). The Age-Based Catch-Up limitation for the 2012 and 2013
calendar years is $5,500.
(f) Coordination of Catch-Up Contributions: A Participant may not utilize both the Catch-
Up Limitation and the Age-Based Catch-Up Contribution in the same year. The Age-
Based Catch-Up Contribution shall not apply for any taxable year for which a higher
Catch-Up Limitation applies.
(g) Excess Deferrals: Any amount deferred in excess of the Maximum Limitation or Age-
Based Catch-Up Contribution shall be distributed to the Participant, with allocable net
income, as soon as administratively practicable after the Plan determines that the amount
is an excess deferral. An excess deferral as a result of a failure to comply with the
individual limitation under Treas. Reg. Section 1.457-5 for a taxable year may be
distributed to the Participant, with allocable net income, as soon as administratively
practicable after the Plan determines that the amount is an excess deferral.
3.39“Normal Retirement Age”
means the age elected by the Participant which may not be earlier than the earliest age at which
the Participant has the right to retire without the consent of the Participating Employer and to
immediately receive unreduced retirement benefits under the Participating Employer’s basic
retirement plan and which may not be later than the later of the Participant’s age 70½, or the
date of the Participant’s Severance.
If the Participant will not become eligible to receive a benefit under the Participating
Employer’s basic retirement plan, he or she may elect a Normal Retirement Age that is not
earlier than his or her age 65 and not later than the later of his or her age 70½ or the date of his
or her Severance.
The Participant’s Normal Retirement Age does not control his or her Distribution
Commencement Date.
3.40“Notarial Officer”
means a natural person who is authorized to take oaths under the law of the jurisdiction in
which the relevant document is signed.
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3.41“Participant”
means the Employee (or former Employee) who has Deferred Compensation under the Plan
who has not yet received all of the payments of Deferred Compensation to which he or she is
entitled under the Plan.
3.42“Participating Employer”
means an Employer that has passed the Trust Joinder Agreement to become a party to the
Florida Municipal Pension Trust Fund and has passed an Adoption Agreement to participate in
this Plan.
3.43“Participation Agreement”
means the agreement (in the form prescribed by the Plan Administration), as amended from
time to time, entered into by and between the Participant and Participating Employer under
which the Employee elects to participate in the Plan.
3.44“Payout Option”
means any, except as limited below, of the annuity options or other options for payment that are
available under the applicable Plan Investment(s).
As to an Unallocated Investment, the Payout Options are as specified by the current written
agreement between the Plan Administrator and the Agent.
The Plan Sponsor shall not permit the use of any payout option that is based on gender-distinct
actuarial tables or that otherwise unlawfully discriminates against any person.
The Plan Sponsor shall not permit the Participant (or Beneficiary) to elect any Payout Option
that (at the time the Distribution begins or is scheduled to begin) does not satisfy all applicable
provisions of the Plan, including all applicable requirements of IRC § 457(d)(2) and
IRC § 401(a)(9).
If an Investment permits a payout option to be arranged “as mutually agreed”, any such
unspecified payout option, regardless of whether the payout option is the actuarial equivalent of
any other payout option, shall not be a Payout Option under the Plan unless the Issuer offers this
payout option on a uniform and non-discriminatory basis to all Participants and Beneficiaries in
similar circumstances.
3.45“Permitted Distribution”
means a Distribution under Part 10.
3.46“Plan”
means the Plan specified by this Basic Plan Document together with the Participating
Employer’s Adoption Agreement and, to the extent necessary to comply with IRC § 457(b), the
Master Trust Agreement, and any executed amendments thereof, which together constitute the
Plan of the Participating Employer specified by the Adoption Agreement.
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3.47“Plan-approved Domestic Relations Order”
means a court order that is lawfully directed to this Plan and that is served upon the Plan Sponsor
before the Participant’s Distribution Commencement Date that pursuant to a State domestic
relations law creates or recognizes the existence of the right of an Alternate Payee to receive all or a
portion of any Deferred Compensation of a Participant and that meets all of the following
requirements.
An order shall not be a Plan-approved Domestic Relations Order unless the Plan Sponsor
determines that the court order on its face and without reference to any other document states all of
the following:
The court order expressly states that it relates to the provision of support, alimony, or marital
property rights to a spouse or former spouse of a Participant and is made pursuant to State
domestic relations law.
The court order clearly and unambiguously specifies that it refers to this Plan.
The court order clearly and unambiguously specifies the name of the Participant’s Participating
Employer.
The court order clearly specifies: the name, mailing address, and Taxpayer Identifying
Number of the Participant; and the name, mailing address, and Taxpayer Identifying Number
of each Alternate Payee.
The court order clearly specifies the amount or percentage, or the manner in which the amount
or percentage is to be determined, of the Participant’s Account to be paid to segregated for the
separate sub-Account of the Alternate Payee.
The court order expressly states that the Alternate Payee’s segregated Account shall bear all
Fees and expenses as though the Alternate Payee were a Participant.
The court order if made before January 1, 2002 clearly specifies that any Distribution to the
Alternate Payee becomes payable only after the Participant’s death or Severance.
The court order clearly specifies that any Distribution to the Alternate Payee becomes payable
only upon the Alternate Payee’s written claim made to the Plan Sponsor or the Agent.
The court order clearly specifies that any Distribution to any Alternate Payee shall be payable
only as a lump sum.
The court order expressly states that it does not require this Plan to provide any type or form of
benefit or any option not otherwise provided under this Plan.
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The court order expressly states that the order does not require this Plan to provide increased
Deferred Compensation.
The court order expressly states that any provision of it that would have the effect of requiring
any Distribution to an Alternate Payee of Deferred Compensation that is required to be paid to
another person under any court order is void.
The court order expressly states that nothing in the order shall have any effect concerning any
party’s tax treatment, and that nothing in the order shall direct any person’s tax reporting or
withholding.
An order shall not be a Plan-approved Domestic Relations Order if it includes any provision that
does not relate to this Plan. Without limiting the comprehensive effect of the preceding sentence,
an order shall not be a Plan-approved Domestic Relations Order if the order includes any provision
relating to any pension plan, retirement plan, deferred compensation plan, health plan, welfare
benefit plan, or employee benefit plan other than this Plan.
An order shall not be a Plan-approved Domestic Relations Order unless the order provides for only
one Alternate Payee.
An order shall not be a Plan-approved Domestic Relations Order if the order includes any provision
that would require the Plan Sponsor to calculate the amount to be segregated to the Alternate
Payee’s separate sub-Account in a manner not readily calculable by the Agent according to its
currently available records and without regard to any records for any accounting period that is an
account stated or otherwise settled by the application of the last paragraph of Provision 3.1
[“Account”].
An order shall not be a Plan-approved Domestic Relations Order if the order includes any provision
that would permit the Alternate Payee to designate any beneficiary for any purpose. However, an
order does not fail to qualify as a Plan-approved Domestic Relations Order because it provides
that any rights not paid before the Alternate Payee’s death shall be payable to the duly
appointed and then-currently serving personal representative of the Alternate Payee’s estate.
The Plan Sponsor may assume that the Alternate Payee named by the court order is a proper payee
and need not inquire into whether the person named is a spouse or former spouse of the Participant.
3.48“Plan Administrator” or “Administrator”
means the Florida League of Cities, Inc. or any successor of it.
Except as otherwise indicated, any reference to the Plan Administrator refers also to the Agent
to the extent of any service required or permitted to be performed by the Agent.
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3.49“Plan Sponsor”
means the Participating Employer or any successor to it.
3.50“Qualified Military Service”
has the meaning given by Provision 8.2.1.
3.51“Registered Investment Adviser”
means an investment adviser that is registered with the SEC pursuant to § 203(c) of the federal
Investment Advisers Act of 1940, as amended [15 U.S.C. § 80b-3(c)].
An agreement to provide investment advice (or the giving of investment advice) to a Participant
or Beneficiary or Alternate Payee does not constitute a Registered Investment Adviser as an
investment manager or investment advisor as to the Plan or any Master Trust.
3.52“Required Beginning Date”
has the meaning given by IRC § 401(a)(9)(C).
3.53“Restatement Date”
means January 1, 1997, except as provided below and as otherwise specified by the Plan or the
Adoption Agreement. An amendment or restatement of this Plan by the Master Trustee does
not require execution of a new Adoption Agreement by a Participating Employer.
Provision 1.7 is effective for all Plan Investments and all amounts, property, and rights held on
or after August 20, 1996.
The provisions of Part 8 [“Reemployment after Uniformed Service”] and those provisions that
refer to Part 8 to the extent the provisions so refer are effective as stated by Provision 8.1.1.
[The provisions stated by Part 8 apply to reemployments on or after December 12, 1994, except
that any obligation under Part 8 shall not commence until October 13, 1996.].
Further, any provision that was required for the Plan to have met the requirements for an
eligible deferred compensation plan under IRC § 457(b) at any time before January 1, 1997 that
was not correctly stated by the Plan as then-currently in effect at the relevant time shall be
effective for all such earlier time to the extent necessary for the Plan to have met the
requirements for an eligible deferred compensation plan under IRC § 457(b) for all Years
beginning on or after the Effective Date.
3.54“Retirement Distribution”
means any Distribution other than a Hardship Distribution or a Permitted Distribution or a
Corrective Distribution that begins after the Participant’s Severance and before the Participant’s
death.
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3.55“Severance”
after December 31, 2001
means, consistent with IRC § 457(d)(1)(A)(ii), the time when the Participant has a severance
from employment with the Participating Employer.
before January 1, 2002
means the Participant’s separation-from-service with the Participating Employer that is
consistent with IRC § 457(d)(1)(A)(ii) as in effect before the Economic Growth and Tax Relief
Reconciliation Act of 2001.
The Plan Administrator is entitled to rely upon the date of Severance certified by the
Participating Employer.
Notwithstanding any other information, the Agent shall not be deemed to have any knowledge
of any Severance until it receives the Plan Sponsor’s certificate of the fact and date of the
Participant’s Severance.
3.56“Service in the Uniformed Services”
has the meaning given by Provision 8.2.2.
3.57“Shares”
means shares or similar units of interest in a Fund.
3.58“Signature Guarantee”
means a written guarantee of the signature of the person endorsing a writing that is made by a
corporation that is an “eligible guarantor institution” as defined by 17 C.F.R. § 240.17Ad-
15(a)(2) that is not otherwise excluded under that Rule and that is a member of the Securities
Transfer Agent Medallion Program [“STAMP”].
3.59“Spouse” or “Surviving Spouse”
means, solely for the purposes of minimum distribution provisions, the natural person who is
the surviving spouse of the Participant within the meaning of IRC § 401(a)(9)(B)(iv).
For all purposes under the Plan, the Plan Sponsor may rely on any written statement furnished to
it, and the Plan Sponsor has no duty to inquire concerning the non-existence or identity of a
Participant’s Spouse unless the Plan Sponsor has received a court order or legal process or a
written notice from any office of the IRS concerning the existence or non-existence or identity
of the Participant’s Spouse.
3.60“State”
means the State of Florida and includes the meaning given by IRC § 7701(a)(10).
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3.61“Taxpayer Identifying Number”
has the meaning given by IRC § 6109.
3.62“Transfer Contribution”
means each amount deferred under the Plan pursuant to Provision 5.2.
3.63“Transfer Distribution”
means a Retirement Distribution paid or payable to the Participant or as a transfer to another
eligible deferred compensation plan.
3.64“Uniformed Services”
has the meaning given by Provision 8.2.3.
3.65“USERRA”
has the meaning given by Provision 8.2.4.
3.66“Unallocated Investment”
means any Investment that is not an Allocated Investment.
3.67“USA”
means the United States of America.
To the extent that any provision of the Plan is intended to state a provision that meets a
requirement of or by reference to IRC § 401(a) or IRC § 501(a), USA shall be construed
according to IRC § 7701(a)(9), except as otherwise required or permitted by the Internal
Revenue Code for the applicable requirement.
3.68“Valuation Date”
means each date provided for valuing Plan Accounts as specified by the Plan Administrator
under a written procedure(s).
Each Investment or Master Trust account shall provide that the Allocation Date (or, if for any
Year the Allocation Date is not a regular Business Day, the regular Business Day that
immediately precedes the Allocation Date) is a Valuation Date.
A Valuation Date that is a Business Day ends at the same time that the Business Day ends. A
Valuation Date that is not a Business Day ends at 4 p.m. New York Time.
3.69“Valuation Period”
means the time after the close of regular trading [usually, 4:00 p.m. New York Time] of a
Valuation Date to the close of the next Valuation Date.
3.70“Year”
means the calendar year.
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For all purposes of administering the Plan, the Plan Sponsor shall be entitled to rely on the
assumption that a Participant’s taxable year is the calendar Year, unless the Participant gives
written notice specifying his or her taxable year.
4.Participation in the Plan
4.1Enrollment
An Employee becomes a Participant only by completing and executing and delivering all of the
instruments or forms required by the Plan.
4.2Participation Agreement
If the Employee elects to make Employee Contributions, the Participant shall enroll in the Plan by
executing a Participation Agreement (on the form prescribed by the Plan Administrator) to make
those Employee Contributions. When entering into or amending his or her Participation
Agreement, the Participant must agree to defer the minimum amount that is required under each
Plan Investment indicated by the Participant’s Participation Agreement, and must agree to defer
not more than the maximum amount provided by Part 5 [“Contribution limit”].
4.3Enrollment Date
An Employee who has become eligible to participate in this Plan shall be eligible to enroll as a
Participant as of the date on which the Employee satisfies this Plan’s eligibility requirements;
provided the Employee is still employed as of that date, or, if not employed on that date, as of
the date of rehire (if he or she then satisfies this Plan’s eligibility requirements).
4.4Employee responsible to enroll
If the Employee fails to complete and execute and deliver any enrollment forms required according
to Provision 4.1, he or she shall not be entitled to receive an allocation of any Contributions under
the Plan.
The Participating Employer or the Plan Administrator shall not be responsible to notify any
Employee that he or she has become eligible to participate in the Plan. The Employee shall be
responsible to know when he or she becomes eligible to participate in the Plan, and shall be
responsible to take any action necessary to enroll in the Plan. The Participating Employer or the
Plan Administrator shall not be liable for any missed Contributions.
4.5Time for Contributions to begin
Contributions will be deferred for any calendar month only if a Participation Agreement
providing for the deferral has been entered into before the beginning of the month.
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4.6Amendment of Participation Agreement
Subject to all of the provisions of the Plan, a Participant may at any time amend his or her
Participation Agreement to change: the amount of his or her Contributions, his or her
investment direction; his or her designated Beneficiary(s).
Unless the Participation Agreement specifies a later effective date, a change in the amount of
Contributions shall take effect as of the next available pay period in the next calendar month. A
change in the investment direction for Contributions shall take effect after investment direction
is received according to Provision 6.2. A change in the Beneficiary designation shall take effect
when the Participation Agreement is accepted by the Plan Sponsor, Plan Administrator or
Agent.
4.7Leave of absence
Unless his or her Participation Agreement is otherwise amended, if a Participant is absent from
work by a leave of absence, Contributions under the Plan shall continue to the extent that
compensation continues, or the Participation Agreement shall remain in effect and
Contributions shall resume when the Participant returns to work.
4.8Disability
A disabled Participant may make Employee Contributions during any portion of the period of
his or her disability to the extent that he or she has actual Compensation (not imputed
compensation and not disability benefits) from which to make Employee Contributions.
4.9Designated Roth Contributions
If elected by the Participating Employer in the Adoption Agreement or otherwise in a manner
acceptable to the Plan Administrator, the Participant may designate that all or a portion of his or
her elective contributions to the Plan be treated as after-tax Roth contributions (referred to
herein as “Designated Roth Contributions”). Such designations must be made before the date
upon which the amounts designated would otherwise have been payable to the Participant (but
for the election to defer), and such designation must be irrevocable on and after that date.
Designated Roth Contributions, and the earnings, losses or expenses thereon, shall be accounted
for separately from all other contributions to the Plan (including rollovers of Roth contributions
from other plans and in-plan Roth conversions, if permitted) and the earnings, losses or
expenses on those contributions. If a Participant takes a distribution of less than 100% of his or
her Account, the Participant may designate whether such distribution shall be made from the
Participant’s pre-tax elective deferral contributions or after-tax Designated Roth Contributions.
If elected by the Participating Employer in the Adoption Agreement, the Participating Employer
may make contributions (that are not part of the Participant’s Compensation) to the Plan as
additional Deferred Compensation. Participating Employer contributions may, but need not, be
accounted for separately from Participant pre-tax elective deferral contributions, but shall be
accounted for separately from Designated Roth Contributions, amounts converted to Roth
contributions through an in-plan Roth conversion, if permitted, and rollover contributions
(whether from a non-Roth account or a designated Roth account, if permitted).
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5.Contribution limit
5.1Deferral limit
The maximum amount deferred for any Participant for any taxable year of the Participant shall
not exceed the amount specified by IRC § 457(b)(2) and, to the extent applicable,
IRC § 457(b)(3) or IRC § 414(v). For the purpose of the preceding sentence, the amount
deferred does not include a Transfer Contribution to the extent provided by Provision 5.2 and
does not include any qualified excess benefit arrangement to the extent provided by
Provision 5.3.
5.2Acceptance of transfers
The Participating Employer shall credit to a Participant’s Account the amount transferred from
another eligible deferred compensation plan (within the meaning of IRC § 457(b)). Any
transferred amount is not treated as Contributions subject to the limitation of Provision 5.1,
except for the amount of deferred compensation during the Participant’s taxable year in which
the transfer occurred which is treated as Deferred Compensation subject to the limitation of
Provision 5.1.
5.3Qualified governmental excess benefit arrangement
Consistent with IRC § 457(e)(14), Provision 5.1 and IRC § 457(c) shall not apply to any
qualified excess benefit arrangement (as defined by IRC § 415(m)(3)), and benefits provided
under such an arrangement shall not be taken into account in determining whether this Plan is
an eligible deferred compensation plan.
5.4Corrective Distribution for excess deferrals
A Corrective Distribution for excess elective deferrals shall be paid if the Participant designates (or
the Participant is deemed to have notified the Plan Sponsor of) an amount of excess deferrals
according to Provision 5.4.1 and the Distribution satisfies Provision 5.4.3.
5.4.1Designation of excess deferrals
The Participant shall designate excess deferrals by delivering to the Plan Sponsor a written claim in
the form prescribed by the Plan Administrator that certifies and otherwise establishes to the
satisfaction of the Plan Sponsor and the Plan Administrator an amount of excess deferrals.
If the Plan Sponsor finds that the Participant has excess deferrals for the calendar Year calculated
by taking into account only Contributions under this Plan and other plans of the same Participating
Employer, the Participant is deemed to have notified the Plan Sponsor of the excess deferrals so
determined, unless the Participant certifies that he or she has received a corrective distribution
under another plan.
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5.4.2Calculation of allocable income
The income or loss allocable to excess deferrals shall be determined according to a reasonable
method of allocating income or loss. For this purpose, the method described in Treasury
Reg. § 1.402(g)-1(d)(5) is deemed to be a reasonable method.
5.4.3Amount to be distributed
The amount to be distributed as a Corrective Distribution shall be the amount designated (or
deemed designated) under Provision 5.4.1 together with any allocable income determined under
provision 5.4.2.
5.4.4Plan Sponsor and Plan Administrator not responsible to determine “excess
deferrals”
The Plan Sponsor and Plan Administrator shall not be responsible to determine the amount of any
excess deferrals.
6.Investment direction
6.1Participant’s duty of investment direction
Each Participant (and, when applicable, each Beneficiary or Alternate Payee) shall, subject to the
requirements of any applicable Investment Law and of any procedures established by the Plan
Administrator and the Agent, direct the investment of his or her or its Account(s).
6.2Procedure for giving investment direction
The Investor must give his or her or its investment direction according to the provisions of this
Plan, including any procedure or form required by the Plan Administrator or the Agent or the
Issuer.
6.2.1Reasonable frequency
The Plan Administrator, Issuer or each Investment may, but only on a uniform and consistent basis,
impose reasonable restrictions on the frequency with which all Investors may give investment
directions. In addition to (and not by limitation upon) such restrictions, the Investor cannot give
more than one investment direction in any Valuation Period and the latest investment direction in a
Valuation Period cancels all earlier inconsistent investment directions in that Valuation Period.
6.2.2Investor
During the Participant’s life, the Participant shall direct the investment of his or her Account.
During the Participant’s disability or incompetence, the person who has authority to act for the
Participant under a power-of-attorney accepted by the Plan Sponsor or the Agent according to
Provision 17.17 [“Power-of-attorney”] or, if there is no such agent, the person that is the duly
appointed and currently serving conservator or guardian of the estate of the Participant shall direct
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the investment of the Participant’s Account. After the Participant’s death, the Beneficiary shall
direct the investment of his or her or its Account or each Beneficiary shall direct the investment of
his or her or its segregated Account. A Participant or Beneficiary may delegate investment
responsibility for all of his or her or its Account to an agent or attorney-in-fact by giving written
notice acceptable to the Plan Sponsor and furnishing a power-of-attorney that is accepted by the
Plan Sponsor according to Provision 17.17. A Participant or Beneficiary cannot delegate
investment responsibility for only part of his or her or its Account. Solely for the purposes of this
Part and solely for convenience of reference, the person that has the duty or holds a power to give
investment direction is referred to as the “Investor”.
6.2.3Investment direction must be in writing
Each investment direction shall be in writing and shall not be proper unless the writing is signed by
the Investor. Except as otherwise specified by the Agent’s investment direction procedure,
“writing” and “signed” shall be construed according to Provision 17.25 [“Signatures and broad
acceptance of writings”], subject to any security procedures required by the Agent or the Issuer.
Without limiting the comprehensive effect of the above, a signed writing includes, to the extent
permitted by the applicable Investment(s), a proper telephone or Internet-based communication
made in the manner prescribed by the Agent and the Issuer.
6.2.4Proper person to receive investment direction
The Investor shall give his or her or its investment direction only to the Plan Administrator, except
as otherwise permitted by a uniform written procedure adopted by the Plan Administrator.
For any Investment, notwithstanding any service or assistance that may be provided by the
Agent, only the Issuer(s) has authority to accept an investment direction and any direction is
effective only when and as so received. Nothing in this Plan or otherwise shall be construed to
enlarge or augment any legal obligation of the Agent.
6.2.5Investment can’t avoid Distribution Commencement Date
Notwithstanding any provision or privilege for investment direction, if, consistent with
Provision 12.2 [“Election of Distribution Commencement Date”], the Participant or if,
consistent with Provision 13.2 [“Election of Distribution Commencement Date”], the
Beneficiary has selected more than one Distribution Commencement Date, he or she or it is not
permitted to make any investment transfer from any portion or Investment of his or her or its
Account to any other portion or Investment of his or her or its Account that has a different
Distribution Commencement Date.
6.3Plan Administrator not responsible
Except as provided by Provision 6.4, the Plan Administrator must accept every proper investment
direction and the Plan Administrator is obligated to comply with such proper investment direction.
Without limiting the comprehensive effect of the above, the Plan Administrator is not under any
duty to question any investment direction of a Participant or Beneficiary (or his or her or its agent),
or to make any investment recommendations, or to provide to any person any investment advice or
investment education, or to provide any investment information.
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If the Participating Employer or the Plan Administrator or the Master Trust provides any
investment education or investment information or investment advice of any kind, the Participating
Employer and the Plan Administrator and the Master Trust shall not be liable for any loss or
liability arising out of such investment education or investment information or investment advice.
6.4Investment direction refused
The Plan Sponsor, Plan Administrator or any person may decline to implement any investment
direction if:
the person receiving the investment direction knows (or a court order has determined) that the
Investor is legally incompetent
(under a reasonable written procedure uniformly applied to all Investors) the investment
direction could result in a loss in excess of the applicable Account (or sub-Account) balance
the investment direction would be contrary to this Plan
the investment direction would be contrary to a court order, even if the court order is not a
Plan-approved Domestic Relations Order.
the investment direction would jeopardize the Plan’s (or the Master Trust’s) tax qualified status
the investment direction would generate income that would be taxable to the Master Trust
the investment direction would result in a prohibited transaction within the meaning of
IRC § 503, or
the investment direction would cause the Master Trust or any person to maintain the indicia of
ownership of an Investment or any assets of the Plan outside the jurisdiction of the district
courts of the USA or outside the jurisdiction specified by the Master Trust Agreement.
6.5Failure to give investment direction
If at any time a Participant or Beneficiary fails to exercise his or her or its duty of investment
direction (or an investment direction is refused), the Master Trustee shall, to the extent of the failure
of proper investment direction, cause the Account or applicable sub-Account(s) or segregated
Account to be invested as specified under a written procedure adopted by the Master Trustee.
6.6Investment direction during domestic relations or bankruptcy matter
Notwithstanding any notice to the Plan Sponsor (or to any other person dealing with or performing
services regarding the Plan) that a domestic relations order or bankruptcy demand or court order or
similar court order relating to the Plan is or may be presented, the Participant shall continue to
exercise his or her duty of investment direction as required by the Plan unless a final court order
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expressly provides otherwise and the Plan Sponsor or Plan Administrator does not challenge,
contest, or appeal the court order.
If such a court order provides for an Alternate Payee (or any person other than the Participant) to
have a right of investment direction under the Plan, the Plan Sponsor shall give effect to that court
order to the extent permitted by the Plan, and the Plan Sponsor may give effect to that court order
even contrary to the Plan if the Plan Sponsor or Plan Administrator does not challenge, contest, or
appeal the court order.
6.7Expenses of investment direction
The Plan may charge the Participant’s or Beneficiary’s Account for the expenses of executing his
or her or its investment direction. If such expenses are so charged, the Plan Administrator shall
maintain reasonable procedures to inform Investors that such charges are made and to inform each
Investor as to the actual expenses charged to the Participant’s or Beneficiary’s individual Account.
If the execution of an investment direction would incur an unusual charge or any tax under the
Investment or otherwise under applicable law, any person receiving the investment direction may
(but is not required to) require the Investor to acknowledge in writing that he or she or it
understands each charge or tax and how the charge or tax is calculated or determined.
6.8 Relief from fiduciary responsibility
To the extent of the Participant’s or Beneficiary’s investment direction, the Participating Employer
and the Plan Administrator and the Master Trust and the Agent and each Issuer and each person
performing services regarding the Plan is relieved of any fiduciary responsibility and every kind of
liability, and is not responsible for or liable for any damage or loss or expense or other claim which
may arise from that Participant’s or Beneficiary’s investment direction or exercise of control (or
from that Participant’s or Beneficiary’s failure to exercise his or her or its duty of investment
direction and control).
6.9Participating Employer and Plan Administrator not responsible for Plan Investment
selection
Except as otherwise required by the Enabling Statute, each Participating Employer and the Plan
Administrator does not have any responsibility and shall not have any liability relating to the
selection of Plan Investments. Without limiting the comprehensive effect of the above, the
Participating Employer and Plan Administrator are not liable for losses or damages arising out
of: any action in approving or purchasing any Plan Investment(s), any bankruptcy or insolvency
or impairment or liquidation or rehabilitation or supervision of any Issuer(s), any other
impairment of any Issuer’s ability to meet its obligations, or the performance of any Plan
Investments.
6.10Obligation is limited
The Master Trustee’s or the Participating Employer’s obligation to pay Deferred Compensation
shall not exceed the actual amount or value of the Participant’s Account.
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7.Allocation methods
7.1Employee Contributions
Each Employee may elect to defer a portion of his or her Compensation as Employee
Contributions, subject to all limitations of the Plan.
7.2Employer Contributions are discretionary
This Provision applies only if Employer Contributions are permitted by the Enabling Statute. All
Employer Contributions under this Plan are discretionary and the Employer Contributions made (if
any) for any Year shall be as declared by each Participating Employer. All Employer Contributions
shall be allocated as specified by the Participating Employer.
7.3Plan Accounts
The Plan Administrator shall keep (or cause to be kept) the Account for each Participant (or
Beneficiary).
7.4Allocation of investment return
To the extent that an Account is held under an Allocated Investment, all income, gains, losses, other
elements of investment return or contract value, and expenses shall be allocated as provided by the
Investment.
To the extent that an Account is held under an Unallocated Investment, all income, gains, losses,
other elements of investment return or contract value, and expenses shall be allocated as provided
by a written procedure adopted by the Plan Administrator, which may be an agreement between the
Plan Administrator and the Agent.
7.5No rights created by allocation
Any allocation of Contributions or investment earnings to any Account shall not cause the
Participant to have any right, title, or interest in any assets of the Plan, except as expressly provided
by the Plan.
8.Reemployment after Uniformed Service
8.1Protection of persons who serve in a Uniformed Service
To the extent required by 38 U.S.C. § 4318, a person who is a member of, applies to be a member
of, has performed, applies to perform, or has an obligation to perform service in a Uniformed
Service shall not be denied any Deferred Compensation or right under this Plan on the basis of such
membership, performance of service, application for service, or obligation.
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Consistent with all provisions of USERRA, any provision of this Part and any other right under the
Plan arising out of or related to reemployment after Service in the Uniformed Services does not
apply unless and until: the person is eligible for reemployment under 38 U.S.C. § 4304 [honorable
discharge], the person applied for reemployment in compliance with 38 U.S.C. § 4312, and the
Participant or Employee furnishes to the Plan Sponsor satisfactory documentation concerning the
Service in the Uniformed Services 38 U.S.C. § 4312(e)(3)(B),.
The provisions of IRC § 414(u) are incorporated by reference and made a part of the Plan as
required to be in compliance with the IRC.
8.1.1Effective Dates
Consistent with USERRA § 8, the provisions of United States Code Title 38 Chapter 43, as in
effect on the day before the date of enactment of USERRA, apply to reemployments before
December 12, 1994. Consistent with USERRA § 8, the provisions stated in this Part apply to
reemployments on or after December 12, 1994, except that any obligation under this Part shall not
commence until October 13, 1996.
8.2Definitions
Solely for the purposes of this Part (including any Provision or Definition that refers to this Part),
each of the following terms has the meaning stated below.
8.2.1“Qualified Military Service”
means, consistent with IRC § 414(u)(5), any Service in the Uniformed Services (as defined below)
if the individual is entitled to reemployment rights under USERRA with respect to such service.
8.2.2“Service in the Uniformed Services”
means, consistent with 38 U.S.C. § 4303(13), the performance of duty on a voluntary or involuntary
basis in a Uniformed Service under competent authority and includes active duty, active duty for
training, initial active duty for training, inactive duty training, full-time National Guard duty, and a
period for which a person is absent from a position of employment for the purpose of an
examination to determine the fitness of the person to perform any such duty.
8.2.3“Uniformed Service”
means, consistent with 38 U.S.C. § 4303(16), any one or more of the Armed Forces, the Army
National Guard or the Air National Guard when engaged in active duty for training or inactive duty
training or full-time National Guard duty, the commissioned corps of the Public Health Service, or
any other category of persons designated by the President of the USA in time of war or emergency.
8.2.4“USERRA”
means the Uniformed Services Employment and Reemployment Rights Act of 1994 (Public Law
No. 103-353) [October 13, 1994] codified at 38 U.S.C. § 4301 et seq..
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8.3Service crediting
Consistent with 38 U.S.C. § 4318(a)(2)(A) and IRC § 414(u)(8)(A), a person reemployed under
38 U.S.C. § 4301 et seq. shall be treated as not having incurred a break-in-service by reason of such
person’s period(s) of Qualified Military Service.
Consistent with 38 U.S.C. § 4318(a)(2)(B) and IRC § 414(u)(8)(B), upon reemployment under
38 U.S.C. § 4301 et seq., each period of Qualified Military Service shall constitute service under
this Plan for the purpose of determining the nonforfeitability of the Participant’s accrued benefits
under this Plan and for the purpose of determining the accrual of benefits under this Plan.
Consistent with the Heroes Earning Assistance and Relief Tax (HEART) Act, a deceased person’s
period of qualified military service will be credited service under this Plan.
8.4Compensation
Consistent with 38 U.S.C. § 4318(b)(3) and IRC § 414(u)(7) and IRC § 457(e)(5), for the purposes
of computing any Contributions required or permitted under this Part, the reemployed Participant’s
Compensation during the period of Qualified Military Service shall be either 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
Participating Employer but for absence during the period of Qualified Military Service, or, if the
Compensation the Participant would have received during the period of absence for Qualified
Military Service was not reasonably certain, the Participant’s average Compensation from the
Participating Employer during the 12-month period (or, if shorter, the entire period of employment)
immediately preceding the Qualified Military Service.
8.5Non-elective Employer Contributions
Consistent with 38 U.S.C. § 4318(b)(1) and IRC § 414(u), if a person is reemployed under
38 U.S.C. § 4301 et seq., with respect to the period(s) of Service in the Uniformed Services, the
Participating Employer shall pay (if it has not already done so) and direct the Plan Administrator to
allocate to the reemployed Participant’s Account any Participating Employer Non-elective
Contribution for the Participant in the amount (without investment income or earnings of any kind)
that would have been allocated to the Participant’s Account if the Participant had been actively at
work for the Participating Employer.
8.6Matching Employer Contributions
Consistent with 38 U.S.C. § 4318(b)(2), if a person is reemployed under 38 U.S.C. § 4301 et seq.
and makes Employee Contributions as permitted by Provision 8.7, and if permitted under the plan,
with respect to the period(s) of Service in the Uniformed Services, the Participating Employer shall
pay (if it has not already done so) and direct the Plan Administrator to allocate to the reemployed
Participant’s Account any Participating Employer Contribution for the Participant in the amount
(without investment income or earnings of any kind) that would have been allocated to the
Participant’s Account if the Participant had been actively at work for the Participating Employer to
the extent that the reemployed Participant makes payment to the Plan for Employee Contributions.
Consistent with IRC § 414(u)(2)(A)(ii), the Participating Employer has no obligation to pay the
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Matching Contribution until and its obligation is only to the extent that the reemployed Participant
pays his or her Employee Contribution, if permitted under the Plan.
8.7Employee Contributions
Consistent with 38 U.S.C. § 4318(b)(2) and IRC § 414(u)(2), if a person is reemployed under
38 U.S.C. § 4301 et seq., with respect to the period(s) of Service in the Uniformed Services, the
Participant may pay, if permitted under the Plans (if he or she has not already done so) and the
Participating Employer shall direct the Plan Administrator to allocate to the reemployed
Participant’s Account any Employee Contributions in the amount required or any amount permitted
that would have been required or permitted to be made and then allocated to the Participant’s
Account if the Participant had been actively at work for the Participating Employer. No such
payment shall exceed the amount the reemployed person would have been permitted to contribute
had the person remained continuously employed by the Participating Employer throughout his or
her Service in the Uniformed Services. Consistent with IRC § 414(u)(2)(A)(i), any such payment
to the Plan may be made during the period beginning with the date of reemployment and whose
duration is the lesser of five years or three times the period of the reemployed person’s Service in
the Uniformed Services.
8.8HEART Act
If a Participant dies while engaged in Qualified Military Service, the Participant’s beneficiaries
shall be entitled to any benefits the Participant would have been entitled to as if the Participant
had resumed employment immediately prior to his or her death in accordance with the Heroes
Earning Assitance and Relief Tax (HEART) Act and any regulations promulgated thereunder.
9.Plan-approved Domestic Relations Order
9.1Domestic relations order procedures
The Plan Sponsor may (but is not required to) establish written procedures for determining whether
an order directed to the Plan is a Plan-approved Domestic Relations Order.
9.2Determination as to order’s status
The Plan Sponsor may make a determination on whether a final court order directed to the Plan is a
Plan-approved Domestic Relations Order. The Plan Sponsor may delay the commencement of its
consideration of any order until the later of the date that is 30 days after the date of the order or the
date that the Plan Sponsor is satisfied that all rehearing and appeal rights with respect to the order
have expired.
9.3Investment direction during domestic relations matter
Notwithstanding any notice to the Plan Sponsor (or to any other person dealing with or performing
services regarding the Plan) that a domestic relations order is or may be presented to be determined
as a Plan-approved Domestic Relations Order, the Participant shall continue to exercise his or her
duty of investment direction as required by the Plan unless a court order expressly provides
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otherwise and the Plan Sponsor determines that the court order is a Plan-approved Domestic
Relations Order. If a Plan-approved Domestic Relations Order provides for an Alternate Payee (or
any person other than the Participant) to have a right of investment direction under the Plan, the
Plan Sponsor shall give effect to that court order to the extent permitted by the Plan.
9.4Giving effect to a Plan-approved Domestic Relations Order
If the Plan Sponsor determines that an order is a Plan-approved Domestic Relations Order, the Plan
Sponsor shall instruct the Plan Administrator to instruct the Issuer to cause the payment of amounts
pursuant to or segregate a separate sub-Account as provided by (and to prevent any payment or act
which might be inconsistent with) the Plan-approved Domestic Relations Order.
9.5Domestic relations proceeding
Each of the Participating Employer and the Master Trustee and the Plan Administrator and the
Agent and each Issuer and any person serving under contract or otherwise with respect to the
Plan shall not be obligated to incur any cost to defend against or set aside any judgment, decree,
or order relating to the division, attachment, garnishment, or execution of or levy upon the
Participant’s Plan Account or any Distribution, including (but not limited to) any domestic
relations proceeding. Notwithstanding the foregoing, if any such person is joined in any
proceeding, the party may take such action as it considers necessary or appropriate to protect
any and all of its legal rights, and the Participant (or Beneficiary) shall reimburse all actual fees
of lawyers and legal assistants and expenses reasonably incurred by such party.
9.6Notice of determination
The Plan Sponsor, Plan Administrator or Agent may notify the Participant and any Alternate
Payee, or their attorneys, of its determination on any order.
9.7Plan-approved Domestic Relations Order procedures
Unless the Plan Sponsor adopts a different written procedure, the procedure for administering
Plan-approved Domestic Relations Orders shall be as follows:
The Plan Sponsor shall promptly notify the Participant and each Alternate Payee of receipt of
such order and the Plan’s procedures for determining the qualified status of domestic relations
orders.
The Plan Sponsor will then determine if the order meets the requirements of the Plan.
If the Plan Sponsor determines the order to be a Plan-approved Domestic Relations Order, it
will send a written determination to the named Issuer(s) of the Investment(s), and give notice to
the Plan Administrator, Plan Participant, the Alternate Payee(s), and their attorneys, so that they
may act according to the provisions of the order.
If the Plan Sponsor determines that the order is not a Plan-approved Domestic Relations Order,
it must ensure that the Plan does not make any distribution from the Participant’s Account for a
period of 18 months, unless the Alternate Payee either releases a claim to the Benefits or the
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parties obtain an amended order which is determined by the Plan Sponsor to be a Plan-approved
Domestic Relations Order.
10.Permitted Distribution
10.1Permitted Distribution for inactive Participant
Consistent with IRC § 457(e)(9)(A), a Participant (but not a Beneficiary or Alternate Payee)
may elect to receive a Permitted Distribution if the Participant’s Account does not exceed the
amount described in IRC § 457(e)(9)(A) and the Participant has not made and the Participant’s
Account has not received any Contributions during the two-year period that ends on the date of
the Permitted Distribution and the Participant has not previously received any Permitted
Distribution under this Plan.
10.2Permitted Distribution paid as a lump sum
A Permitted Distribution shall be payable only as a lump sum.
11.Unforeseeable Emergency Distribution
11.1Unforeseeable Emergency Distribution
If, before his or her Severance, or after his or her Severance and after he or she has made an
irrevocable election of his or her Distribution Commencement Date but before his or her
Distribution Commencement Date, the Participant has an unforeseeable emergency that is
approved by the Plan Sponsor as satisfying Provision 11.2, the Participant (but not a Beneficiary
or Alternate Payee) is entitled to receive an Unforeseeable Emergency Distribution (as a cash
lump sum) of the amount determined by the Plan Sponsor to be the amount that is reasonably
needed to satisfy the emergency need.
11.2Definition of unforeseeable emergency
An unforeseeable emergency means a severe financial hardship to the Participant resulting from
a sudden and unexpected illness or accident of the Participant, or
a sudden and unexpected illness or accident of a dependent (as defined by IRC § 152(a)) of
the Participant, or
loss of the Participant’s property due to casualty, or
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other similar and extraordinary unforeseeable circumstances arising as a result of events
beyond the control of the Participant.
A need to send the Participant’s child to college or a desire to purchase a home is not an
unforeseeable emergency.
A Participant’s (or his or her dependent’s) circumstances is not an unforeseeable emergency and
an Unforeseeable Emergency Distribution shall not be paid to the extent that the financial
hardship is or may be relieved
through reimbursement or compensation by insurance or otherwise,
by borrowing from commercial sources on reasonable commercial terms to the extent that
this borrowing would not itself cause a severe financial hardship,
by cessation of deferrals under the Plan, or
by liquidation of the Participant’s other assets (including assets of the Participant’s Spouse
and minor children that are reasonably available to the Participant) to the extent that this
liquidation would not itself cause severe financial hardship.
For the purposes of the preceding sentence, the Participant’s resources shall be deemed to include
those assets of his or her spouse and minor children that are reasonably available to the Participant;
however, property held for the Participant’s child under an irrevocable trust or under a Uniform
Gifts to Minors Act Master Trusteeship or Uniform Transfers to Minors Act Master Trusteeship
shall not be treated as a resource of the Participant.
The Participant must provide documentation acceptable to the Plan Sponsor or approver of the
unforeseeable emergency that indicates the reason for the hardship and the dollar amount necessary
to satisfy the unforeseeable emergency.
11.3Plan Sponsor must determine unforeseeable emergency
The Plan Sponsor or their agent must determine whether the circumstances of the Participant
constitute an unforeseeable emergency within the meaning of Provision 11.2.
Following a uniform procedure, the Plan Sponsor’s or agent’s determination shall consider any
facts or conditions deemed necessary or advisable by the Plan Sponsor or agent, and the
Participant shall be required to submit any evidence of his or her circumstances that the Plan
Sponsor or agent requires. The determination as to whether the Participant’s circumstances are
a case of unforeseeable emergency shall be based on the facts of each case; provided however,
that all determinations as to unforeseeable emergency shall be uniformly and consistently made
according to the provisions of the Plan for all Participants in similar circumstances.
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The Plan Sponsor or agent may require that any statement made as part of a claim for an
Unforeseeable Emergency Distribution be made under penalties of perjury. The Plan Sponsor
or agent may require that any statement made as part of a claim for an Unforseeable Emergency
Distribution be signed in the presence of a Notarial Officer.
12.Retirement Distribution
12.1Retirement Distribution
Upon his or her Severance, the Participant is entitled to receive his or her Account (not earlier
than the applicable Distribution Commencement Date) under any Payout Option that satisfies
the provisions of the Plan.
12.1.1Transfer of Deferred Compensation to another eligible Participating Employer
Consistent with IRC § 457(e)(10), upon his or her Severance, a Participant may elect (in the
form prescribed by the Plan Administrator) to transfer his or her Account and his or her rights in
and to the Plan to another eligible deferred compensation plan (within the meaning of
IRC § 457(b)), provided that the Plan Sponsor and Plan Administrator are satisfied that the
other plan will accept the transferred amount and obligation.
12.1.2Deemed Distribution
Upon his or her Severance, if the Participant’s Account is not more than $0 (as of the date of or the
Valuation Date next following his or her Severance), the Participant shall be deemed to have
received a full Retirement Distribution.
12.2Election of Distribution Commencement Date
If the Participant’s Severance occurred before October 15, 2001, not later than 60 days after the
date of his or her Severance (and not earlier than the date of the Severance), the Participant shall
irrevocably, except as provided by Provision 12.2.2, elect, with respect to all of his or her
Account or to each portion of his or her Account that is attributable to each Investment, to defer
payment of his or her Deferred Compensation until a fixed future time [the “Distribution
Commencement Date”] that is consistent with the provisions of the elected Payout Option and
that is at least 75 days after the date that the election is made and that is consistent with the
requirements of provision 12.4 [“Minimum distribution”].
12.2.1Default Distribution Commencement Date
If the Participant’s Severance occurred before October 15, 2001 and the Participant does not
make an election required by Provision 12.2, the Participant shall receive payment (according to
the “default” Payout Option provided by Provision 12.3.1) on the first business day of the
calendar month that commences not earlier than 90 days and not later than 120 days after the
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date of the Participant’s Severance, or the earlier date that is necessary to satisfy the
requirements of Provision 12.4.
12.2.2Election to defer Distribution Commencement Date
Consistent with IRC § 457(e)(9)(B), if the Participant has elected (or is deemed to have elected)
a Distribution Commencement Date, the Participant may elect a later Distribution
Commencement Date if the Participant has not made any previous election under this sentence.
12.3Election of Payout Option
If the Participant’s Severance occurred before October 15, 2001, not later than 60 days before
the Distribution Commencement Date, the Participant shall irrevocably elect a Payout Option
that satisfies the requirements of Provision 12.4.
12.3.1Default Payout Option
If the Participant’s Severance occurred before October 15, 2001 and the Participant does not
make an election required by Provision 12.3, the Distribution shall be paid as a cash lump sum
of the amount or cash value of all Investments held for the Participant’s Account.
12.4Minimum distribution
Any Retirement Distribution shall be made according to a Payout Option that begins not later
than the Required Beginning Date and that meets the requirements of IRC § 401(a)(9) and
IRC § 457(d)(2).
12.5Involuntary Distribution
On his or her Severance, a Participant (or Beneficiary) at the discretion of the Plan Sponsor, may
receive an Involuntary Distribution if as of a Valuation Day on or after the date of his or her
Severance from employment his or her Account is no more than $5,000. If the Involuntary
Distribution is more than $1,000, the Involuntary Distribution will be paid as a direct rollover to an
IRA designated by the Plan Sponsor. If the Involuntary Distribution is $1,000 or less, it will be
paid in money as a single sum.
13.Death Distribution
13.1Death Distribution
Upon the Participant’s death before a Retirement Distribution has begun, each Beneficiary is
entitled (not earlier than the applicable Distribution Commencement Date) to receive his or her
or its separate account under the Participant’s Account under any Payout Option that satisfies
the provisions of the Plan.
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13.1.1Deemed Distribution
Upon the Participant’s death, if the Account is not more than $0 (as of the date of or the Valuation
Date next following the Participant’s death), each Beneficiary shall be deemed to have received a
full Death Distribution.
13.2Election of Distribution Commencement Date
If the Participant’s death occurred before October 15, 2001, not later than 60 days after the date
of the death (and not earlier than the date of the death), each Beneficiary may irrevocably elect
to defer payment, with respect to all of his or her or its interest or to each portion of his or her or
its interest that is attributable to each Investment, until a fixed future time [the “Distribution
Commencement Date”] that is consistent with the provisions of the elected Payout Option and
that is at least 75 days after the date that the election is made and that is consistent with the
requirements of Provision 13.4.
13.2.1Default Distribution Commencement Date
If the Participant’s death occurred before October 15, 2001 and a Beneficiary does not make an
election required by Provision 13.2, the Beneficiary shall receive payment (according to the
“default” Payout Option provided by Provision 13.3.1) on the first business day of the calendar
month that commences not earlier than 90 days and not later than 120 days after the date of the
death.
13.3Election of Payout Option
If the Participant’s death occurred before October 15, 2001, not later than 60 days before the
Distribution Commencement Date, the Beneficiary shall irrevocably elect a Payout Option that
satisfies the requirements of Provision 13.4.
13.3.1Default Payout Option
If the Participant’s death occurred before October 15, 2001 and a Beneficiary does not make an
election required by Provision 13.3, the Distribution shall be paid as a cash lump sum.
13.4Minimum distribution
Any Death Distribution shall begin no later than the Required Beginning Date, and the Account
shall be distributed in compliance with IRC § 401(a)(9).
13.5 Death While Engaged in Qualified Uniform Service
The benefits described in this Part will be payable to the designated beneficiary (or
beneficiaries) of a Participant who dies while engaged in Qualified Military Service and will be
determined as if the Participant had returned to employment immediately prior to his death in
accordance with the Heroes Earnings Assistance and Relief Tax (HEART) Act and any
regulations promulgated thereunder.
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14.Direct Rollover
14.1Direct Rollover
Consistent with IRC § 401(a)(31) and IRC § 457(d)(1)(C), for any Distribution paid after
December 31, 2001 that is an eligible rollover distribution, the Distributee may elect, at the time
and in the manner prescribed by the Plan Sponsor, to instruct the Plan Sponsor (and the Issuer)
to have any portion of an eligible rollover distribution (within the meaning of
IRC § 402(f)(2)(A)) paid directly to an eligible retirement plan (within the meaning of
IRC § 402(c)(8)(B)) specified by the Distributee.
15.Administration of Distribution provisions
15.1Claim for Distribution
Any Distribution shall be paid only upon a completed and properly executed written claim made in
a form acceptable to the Plan Sponsor that states under penalties of perjury all facts and
authorizations necessary or appropriate to the Distribution, including but not limited to:
if the Distribution is a Retirement Distribution, appropriate evidence that the Participant
has a Severance;
if the Distribution is a Transfer Distribution, the Distributee’s instruction as to the name and
address of the trustee of the transferee eligible deferred compensation plan together with any
other information that the Plan Sponsor, Plan Administrator or Master Trustee or Issuer
reasonably requests;
if the Distribution is a Death Distribution, appropriate evidence of the Participant’s death;
if the Distribution is an Unforeseeable Emergency Distribution, an appropriate certificate or
evidence of the facts constituting the Participant’s unforeseeable emergency;
if the Participant has a designated Beneficiary, the date-of-birth of the Designated Beneficiary;
if the Distribution is in the form of an Annuity Payout Option, the date-of-birth of any
annuitant designated under the Annuity Payout Option; and
whenever required by the Plan Sponsor, the date-of-birth of any person as relevant to the
Distribution; and
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if the Account consists of more than one Investment, the order in which any Investments are to
be charged or liquidated to pay the Distribution; and
if the amount of the Distribution is greater than a uniform amount established by the Plan
Sponsor, appropriate assurance (including a Signature Guarantee) that the Participant’s or
Beneficiary’s signature is genuine; and
any other evidence or information that the Plan Sponsor finds is relevant to administer a
provision of the Plan in the Participant’s or Beneficiary’s and the Distributee’s circumstances.
Absent contrary evidence actually known to the Plan Sponsor, an appropriate death certificate or
a court order stating that the Participant is found to be absent and presumed dead shall
constitute appropriate evidence of the Participant’s death.
If the Distributee fails to submit proper instructions, the Plan Sponsor may, at its discretion,
deny the claim; or may determine which Plan Investment(s) and investment options are to
be charged.
15.2Time for Distribution
The Plan Sponsor may require for payment of any Distribution a minimum advance notice,
uniformly determined and consistently applied. In addition to the above, no payment can be
made before the Distribution Commencement Date.
15.3Plan Sponsor to approve
Payments shall not begin until the Plan Sponsor has approved: the Distribution, and the claim
for payment, and the Payout Option as satisfying the provisions of the Plan.
15.4Payout Option
The election of a Payout Option by a Participant or a Beneficiary must be made no later than
thirty (30) days before the commencement of such benefits. Subject to restrictions established
by the Plan Sponsor, the Plan shall permit payout options in the form of lump sums, periodic
payments of a fixed amount or fixed duration, or life contingent annuities. Absent such
election, the Account will be paid in a lump sum.
15.5Payor may rely on apparent entitlement
The Participating Employer and the Plan Administrator and the Master Trustee and the Issuer
and the Agent [a “payor”] are not liable for having made a payment under an unclear
Beneficiary designation or Participation Agreement to a person not entitled to the payment, or
for having taken or omitted any other action in good faith reliance on a person’s apparent
entitlement under the Plan, before the payor actually received written notice of a claimed lack
of entitlement under this Plan.
Any payor of any Distribution is not liable for having made a payment or having transferred an item
of property to a beneficiary designated in a beneficiary designation (or in a similar writing
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reasonably believed to constitute a beneficiary designation) who is not entitled to the Distribution,
or for having taken any other action in good faith reliance on the beneficiary’s apparent entitlement
under the terms of the beneficiary designation before the payor received written actual notice
alleging that the beneficiary was not entitled to the Distribution.
15.6Instruction to Issuer
Any Distribution is payable by or on behalf of the Master Trustee or Issuer only upon the Master
Trustee’s or Issuer’s receipt in good order of the Plan Sponsor’s approval of the Distributee’s claim.
Except to the extent otherwise expressly provided by the Investment(s), any payment or Payout
Option shall be determined as of the Valuation Date requested by the Participant or Beneficiary, or
if later, as of the Valuation Date that next follows the Issuer’s or Master Trustee’s receipt in good
order (within the meaning of the Investment(s) or applicable law) the approved claim.
15.7Delay of payment
The Plan Sponsor, in its sole discretion, may delay payment of an approved Distribution:
to receive any necessary information,
to permit a valuation of the Account,
to permit any necessary or appropriate liquidation of assets,
if a dispute arises as to the proper payee (refer to Provision 15.8 below),
if the Plan Sponsor has notice of a domestic relations case or petition that may involve the
applicable Account,
if the Plan Sponsor has notice of a bankruptcy case or petition that may involve the applicable
Account,
if the Plan Sponsor has notice of any legal proceeding or petition that may involve the
applicable Account, or
for any reason described elsewhere in this Plan, or
for any other lawful purpose.
Without limiting the comprehensive effect of the above, to the extent that any Distribution requires
a redemption or transfer of Fund shares, the Plan Sponsor shall delay the Distribution during any
period: when the NYSE is closed other than for a weekend or a holiday, or when trading on the
NYSE is restricted (as determined by the SEC), or when an emergency exists making disposal of a
Fund’s securities or valuation of a Fund’s net assets not reasonably practicable, or when the SEC
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has required or permitted the suspension of redemptions or transfers by order, or during any period
otherwise described by § 22(e)(1)-(3) of the Investment Company Act of 1940, as amended
[15 U.S.C. § 80a-22(e)(1)-(3)].
If the Participant received an allocation of Employer Contributions for a period that included his or
her absence under a federal or state Family and Medical Leave Act, the Plan Sponsor shall delay
payment of any Distribution until the Plan Sponsor is satisfied that the Participant has returned to
work from such absence or that the Participant will not or did not return to work from such absence.
15.8Dispute as to proper recipient
If a dispute arises as to the proper recipient of any payment(s) under the Plan, the Plan Sponsor,
in its sole discretion, may instruct the Issuer(s) to withhold payment until the dispute is
determined by a court of competent jurisdiction or is settled by the parties concerned.
15.9Doubt as to proper payee
If the Plan Sponsor determines that there is doubt as to the proper construction of the Plan with
respect to determining the Beneficiary(s) or other proper payee(s) under the Plan, the Plan
Sponsor shall construe the Plan to state provisions consistent with the Uniform Probate Code
applied as though the interest under the Plan were an interest to a commercial annuity contract,
to the extent that any such construction is not inconsistent with any requirement of
IRC § 457(b).
15.10Distribution to minor Beneficiary
If a Distribution is to be made to a minor Beneficiary, any payment(s) may, except to the extent
prohibited by applicable law, be paid to a responsible person according to the following order:
as instructed by an appropriate court,
to the duly appointed and currently acting guardian or conservator of the Beneficiary,
to the custodial parent of the Beneficiary,
to a responsible adult with whom the Beneficiary maintains his or her residence,
to a responsible adult who is a relative of the Beneficiary,
to a Master Trustee for the Beneficiary under the Uniform Transfers to Minors Act or
Uniform Gifts to Minors Act,
to the court having jurisdiction over the estate of the Beneficiary,
to any person determined by the Plan Sponsor to be a proper recipient for the Beneficiary.
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This payment shall be in full satisfaction of all claims. The Plan Sponsor has no duty to
supervise or inquire into the application of any amount(s) so paid.
If at the time a Distribution begins the Beneficiary is a minor and the Plan Sponsor begins payments
to another person under this Provision, the Plan Sponsor may continue all payments under the
Distribution to the other person notwithstanding that the Beneficiary may have attained full age,
unless the Beneficiary files a written claim according to all of the requirements of the Plan,
including furnishing satisfactory evidence that he or she is of full age.
15.11Distribution to incompetent Participant or Beneficiary
If a Distribution is to be made to a Participant or Beneficiary that the Plan Sponsor finds to be
unable to manage property effectively for any reason including (but not limited to) mental illness,
mental deficiency, physical illness, physical disability, chronic use of drugs, chronic intoxication,
confinement, detention by a foreign power, or disappearance, any payment may be paid according
to the terms of the applicable Investment(s) (if any) or according to applicable Investment Law (if
any), or the Plan Sponsor may direct payment(s) according to the following order:
as instructed by an appropriate court,
to the duly appointed and currently acting legal guardian of the estate of the Participant or
Beneficiary,
to the duly appointed and currently acting conservator of the Participant or Beneficiary,
to the duly appointed and currently acting attorney-in-fact under a durable power-of-
attorney if the Plan Sponsor finds that the power-of-attorney provides sufficient power to
authorize the attorney-in-fact to receive the Deferred Compensation,
to a responsible adult with whom the Participant or Beneficiary maintains his or her residence,
to a responsible adult who is a relative of the Participant or Beneficiary,
to any person determined by the Plan Sponsor to be a proper recipient for the Participant or
Beneficiary,
to the court having jurisdiction over the estate of the Participant or Beneficiary.
This payment shall be in full satisfaction of all claims. The Plan Sponsor has no duty to supervise
or inquire into the application of any amount(s) so paid.
If at the time a Distribution begins the Participant or Beneficiary is an incompetent or incapacitated
(as described above) and the Plan Sponsor begins payments to another person under this Provision,
the Plan Sponsor may continue all payments under the Distribution to the other person
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notwithstanding that the Participant or Beneficiary may have become competent or may have been
adjudicated as competent, unless the Participant or Beneficiary files a written claim according to all
of the requirements of the Plan, including furnishing a satisfactory court order that he or she is
competent to manage his or her Deferred Compensation.
15.12Inability to locate payee
If, at a time when a Distribution is required to be paid, any Distribution cannot be paid because the
payee cannot be located upon reasonable efforts [including services available from the IRS under
Rev. Proc. 94-22 and services available from the Social Security Administration], the Plan Sponsor
may (but is not required to) direct each Issuer or the Agent to pay the Deferred Compensation into
an interest-bearing FDIC-insured bank account opened in the payee’s name, Taxpayer Identifying
Number, and then-current address of record according to the Plan; and such deposit shall
discharge the Participating Employer’s obligation to pay Deferred Compensation.
15.13Payment to Personal Representative
Any payment (or delivery of property) to the duly appointed personal representative of the
Participant shall, to the extent of the payment (or delivery of property), bar recovery by any
other person or entity, including every Beneficiary, and shall, to the extent of the payment (or
delivery of property), discharge any obligation under the Plan.
15.14Disclaimer by Beneficiary
Any Beneficiary may renounce or disclaim all or any part of any Deferred Compensation by filing a
written irrevocable disclaimer not later than 31 days before the Distribution begins or any payment
is otherwise to be made and before acceptance of any Deferred Compensation. An acceptance may
be express or may be inferred from actions or facts and circumstances, including (but not limited to)
those actions described in the Uniform Probate Code as establishing an inference of acceptance. In
addition to any requirements under State law, the disclaimer is not effective unless the disclaimer
describes the Deferred Compensation renounced, expressly declares the renunciation and the extent
of it, expressly states the Beneficiary’s belief upon reasonably diligent examination that no creditor
of the Beneficiary (or, if the Beneficiary is an executor or trustee or guardian or other fiduciary, of
any current or reasonably anticipated beneficiary of the estate or trustee or guardianship or other
fiduciary relationship or entity) would be adversely affected by the disclaimer, expressly states that
the disclaimer is irrevocable, is signed by the Beneficiary, meets all requirements of IRC § 2518
such that the disclaimer would be treated as effective for federal gift and estate tax purposes, and
otherwise is made in a form that is acceptable to the Plan Sponsor. Notwithstanding any State law
that would permit otherwise, if the Beneficiary is a minor or an incapacitated person, any disclaimer
cannot have any effect regarding the Plan until the court having jurisdiction of the minor’s or
incapacitated person’s estate authorizes the disclaimer after finding that it is advisable and will not
materially prejudice the rights of any interested person. Any Deferred Compensation disclaimed
shall be payable as if the Beneficiary who submitted the disclaimer died before the Participant.
15.15Receipt and release
Any Distribution or payment or any agreement to make a payment(s), or any transfer of
Deferred Compensation to another eligible deferred compensation plan, shall, to the extent of
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the Distribution or payment(s) or the agreement, be in full satisfaction of all claims. The Plan
Sponsor, in its sole discretion, may require any Distributee or payee, as a condition precedent to
making or causing to be made any payment(s) or agreement, to execute a receipt and release.
15.16Direct Rollover of Distribution
Consistent with IRC § 457(d)(1)(C) and IRC § 457(e)(16), a Participant may elect (in the form
prescribed by the Plan Administrator) a direct rollover of an eligible rollover distribution.
16.Plan Sponsor and Plan Administrator
16.1Plan Sponsor has full authority
The Plan Sponsor has full and complete authority and discretion to control and manage the
operation of and shall decide all matters under the Plan. The Plan Sponsor has any and all powers
as may be necessary or advisable to discharge its duties under the Plan, and has complete
discretionary authority to decide all matters and questions under the Plan.
The Plan Sponsor and Plan Administrator do not have any duties concerning the selection of
Investments.
16.2Plan Sponsor must decide all matters
The Plan Sponsor must decide all matters under the Plan. The discretionary decisions of the Plan
Sponsor are final, binding, and conclusive on all interested persons for all purposes.
Without limiting the comprehensive effect of the above, the Plan Sponsor’s discretionary decisions
may include, but shall not be limited to, any decision as to: whether a natural person is an
Employee, whether an Employee belongs to a particular employment classification, whether an
Employee is an eligible Employee, the amount of a Participant’s Compensation, the amount of
Contributions to be made, whether an amount of Contributions exceeds the limits prescribed by the
Plan, whether a court order shall be recognized, whether a Participant (or any other person) has
established the presence or absence of a Spouse, whether a Payout Option is an Annuity Payout
Option, whether a Participant has incurred an unforeseeable emergency, whether a Participant has a
Severance, whether a Beneficiary Designation is valid or effective, who is the proper Beneficiary,
whether a Participant or Beneficiary is a minor or is of full age, whether a Participant or Beneficiary
is an incompetent, the person who is a proper recipient for a Participant or Beneficiary who is a
minor or an incompetent, whether any power-of-attorney is effective and acceptable to act with
respect to the Plan, whether a Signature Guarantee is required, whether a Signature Guarantee is
acceptable for any purpose under the Plan.
16.3Determinations to be uniformly made
To the extent necessary to avoid discrimination prohibited by any employment law, any
determination or decision required or permitted to be made for the purposes of the Plan by the Plan
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Sponsor shall be uniformly and consistently made according to reasonable procedures established
and maintained by the Plan Sponsor.
16.4Plan Administrator is responsible
The Plan Administrator is responsible for performing all duties agreed to regarding the operation of
the Plan, and is responsible for supervising the performance of any other persons who may assist in
the performance of the Plan Administrator’s responsibilities. The Plan Administrator does not have
the authority or discretion to perform activities or decide any matter or question not provided for
under the Plan, such as, but not limited to, forefieture of retirement benefits determinations under
Section 112.3173, Florida Statutes, and any such activities or decisions shall be the sole
responsibility of the Plan Sponsor.
16.5Information from Participating Employer
To enable the Plan Administrator to perform its responsibilities, the Participating Employer(s) shall
promptly provide to the Plan Administrator complete and accurate information on any matter under
the Plan. The Plan Administrator shall rely upon this information as supplied by the Participating
Employer, and shall have no duty or responsibility to verify this information.
16.6Plan Administrator may delegate or contract
Except as prohibited by the Enabling Statute or other State law, the Plan Administrator may,
except when expressly prohibited by this Plan, delegate any of its duties to any Participating
Employer, or to any officers, employees, or agents of any kind. Except as prohibited by the
Enabling Statute or other State law, the Plan Administrator may, except when expressly
prohibited by this Plan, contract any of its duties to the Agent or otherwise.
16.7Plan services
The Plan Administrator may contract with any person or entity to provide services to assist in the
administration of the Plan. The Plan Administrator must make such contracts in compliance with
the Enabling Statute and other applicable State law.
Any person other than the Plan Administrator who performs services regarding the Plan
(including but not limited to the Agent) is subject to the supervision and direction of the Plan
Administrator, and does not have authority to control the operation of the Plan.
Any person other than the Plan Administrator who performs services regarding the Plan
(including but not limited to the Agent) is entitled to rely upon any direction, instruction,
information, or action (or failure to act) of the Plan Sponsor or Plan Administrator as being
proper under this Plan, and is not required to inquire into the propriety or correctness of any
such direction, instruction, information, or action.
16.8Plan Sponsor official may not decide personal benefit
An individual shall recuse himself or herself from and shall take no part in any Plan Sponsor
determination or decision specifically relating to his or her own participation or Deferred
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Compensation, unless his or her abstention would render the Plan Sponsor, committee or
organization incapable of acting on the matter.
17.General provisions
17.1Anti-alienation
In addition to (and not by limitation upon) the provisions of the Plan and any provision of
applicable law, any benefit or interest available under the Plan, or any right to receive or
instruct payments under the Plan, or any Distribution or payment made under the Plan shall not
be subject to assignment (except under a disclaimer permitted by Provision 15.14 [“Disclaimer
by Beneficiary”), alienation, garnishment, attachment, transfer, anticipation, sale, mortgage,
pledge, hypothecation, commutation, transfer by operation of law, execution, or levy (except
according to Provision 17.9 [“IRS levy”), or other encumbrance of any kind, whether by the
voluntary or involuntary act of any interested person, for any reason (including but not limited
to, divorce, marital separation, alimony, child support, bankruptcy, insolvency), or any other
order of any court at law or equity.
The Participant or Beneficiary has no right to commute, sell, assign, pledge, transfer, or
otherwise convey, use, or encumber any right or future interest to receive any payments under
the Plan, and each such right or interest is expressly declared to be non-assignable and non-
transferable. Any attempted alienation or encumbrance is void.
Any right of the Participant or Beneficiary is personal and, except as provided below, cannot be
exercised by any personal representative, attorney, trustee, guardian, conservator, trustee in
bankruptcy, court of law or equity, or other person or entity seeking to act in the name of or by
the right of the Participant or Beneficiary. However, the Plan Sponsor may accept instructions
given by a personal representative if the Participant or Beneficiary is determined to be
incompetent or incapacitated by a court of competent jurisdiction or by written expert opinion
acceptable to the Plan Sponsor.
This Provision shall not be construed to preclude the payment of any Fees or any expenses
(including taxes) of the Master Trustee. Deferred Compensation (and any right or future
interest of the Participant or Beneficiary) is not subject to the rights of creditors of the
Participant or Beneficiary.
17.2Litigation
Each of the Participating Employer and the Master Trustee and the Plan Administrator and the
Agent and each Issuer and any person serving under contract or otherwise with respect to the
Plan shall not be obligated to incur any cost to defend against or set aside any judgment, decree,
or order relating to the division, attachment, garnishment, or execution of or levy upon the
Participant’s Plan Account or any Distribution, including (but not limited to) any order in any
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bankruptcy proceeding of any kind. Notwithstanding the foregoing, if any such person is joined
in any proceeding, the party may take such action as it considers necessary or appropriate to
protect any and all of its legal rights, and the Participant (or Beneficiary) shall reimburse all
actual fees of lawyers and legal assistants and expenses reasonably incurred by such party.
17.3Claims procedure
By the terms of the Plan, the claimant (or other aggrieved person) shall not be entitled to take
any legal action (including but not limited to instituting any arbitration procedure) or otherwise
seek to enforce a claim to benefits or rights under the Plan until he or she or it has exhausted all
claims and appeals procedures provided by the Plan.
In considering claims under the Plan, the Plan Sponsor has full power and discretionary
authority to construe and interpret the provisions of the Plan, and of any law governing or
applying to or relating to the Plan.
Notwithstanding any statement to the contrary in any collective bargaining agreement, any
determination under or arising out of the Plan is not subject to any arbitration procedure of any
kind.
17.4Construction
The Plan shall be construed and interpreted according to Part 20.
17.5Expenses
Unless the Participating Employer specifically provides otherwise, the Participating Employer
shall not incur any expense in the operation and administration of the Plan other than for its
obligations to make deferrals of compensation and to pay the Deferred Compensation as
provided by the Plan. The Plan shall make reasonable charges against and from the Accounts of
Participants for any expenses for the administration of the Plan. Upon the Plan Sponsor’s
written instruction, the Plan Sponsor (or any party acting for it or under contract to the Plan)
shall be reimbursed from the Plan assets, except to the extent inconsistent with the Enabling
Statute, for any expense (including actual fees of lawyers and legal assistants) reasonably
incurred in performing services with respect to the Plan. Except as otherwise provided or
permitted by the Plan, the reimbursement shall be effected by deducting a charge against all
Accounts according to an equitable method determined by the Plan Sponsor.
If any kind of legal action or other proceeding regarding the Plan to which the Participating
Employer or the Plan Administrator or the Master Trustee or any Issuer or any Agent (or any
other person acting for or at the request of any of them) [each an “indemnified party”] may be a
party is brought by a Participant or Beneficiary (or by a person or entity claiming through a
Participant or Beneficiary), and the legal action is resolved in favor of the indemnified party,
each indemnified party participating in or contributing to the defense of the legal action shall be
entitled to be reimbursed from the Participant’s Account for any and all actual fees of lawyers
and legal assistants and other expenses reasonably incurred in the defense of the legal action or
proceeding.
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If the IRS determines, and the determination is not contested, or if contested, is finally upheld
(or otherwise finally determined), or if a final court order (that is not appealed) decides that any
payment of expenses is a violation of IRC § 457(g), each person who received a payment that
was determined to be a violation of IRC § 457(g) shall pay full restoration into the Plan to the
extent of the improperly paid expense (including fair interest from the date the expense was
improperly paid to the date that restoration is made).
17.6Forfeiture
To the extent required by applicable State law and not precluded by Provision 1.7, if the
Participant pleads guilty or is convicted of a crime or offense relating to his or her government
office or government employment and a court order provides for restitution relating to such
crime or offense, the Participant (or, after the Participant’s death, each Beneficiary) shall forfeit
his or her or its Deferred Compensation to the extent that the Participant has not timely paid the
restitution required by the court order.
17.7Governing law
This Plan shall be governed by and construed and enforced according to the internal laws
(without regard to the law of conflicts) of the State of Florida.
17.8Insurance
The Plan Sponsor may purchase, with Plan assets or with other amounts, insurance protecting
the Plan and the Plan Sponsor and the Plan Administrator and the Master Trustee and any
person who is or may be an indemnified party and any other person acting or providing services
regarding this Plan (whether or not the Plan has or may have the power to indemnify such
persons) from liability or loss occurring by reason of the act or omission of the insured person
or entity.
17.9IRS levy
Notwithstanding any other provision of the Plan, the Plan Sponsor may pay to the IRS from a
Participant’s (or Beneficiary’s) Account the amount that the Plan Sponsor finds is lawfully
demanded under a levy issued by the IRS with respect to that Participant (or Beneficiary) or is
sought to be collected by the United States Government under a judgment resulting from an
unpaid tax assessment against the Participant (or Beneficiary).
17.10Medicare or Medicaid reimbursement
Solely to avoid an overpayment under Medicare or Medicaid or a similar healthcare program, if
a Participant’s services during any time that Contributions were made were an expense
reimbursed by the Social Security Administration [SSA] or the Health Care Financing
Administration [HCFA] or a similar government healthcare payer, and any Deferred
Compensation attributable to such services is not to be paid to the Participant or his or her
Beneficiary, the Participating Employer shall pay the attributable portion of the Participant’s
Deferred Compensation to the applicable government healthcare payer as of the first date that
the Deferred Compensation is not to be paid to the Participant or his or her Beneficiary.
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17.11Mistaken contributions
If any Contribution (or any portion of a Contribution) is made by the Participating Employer by
a good faith mistake of fact, upon receipt in good order (within the meaning of the
Investment(s) or applicable law) of a proper request approved by the Plan Sponsor, the Issuer(s)
shall, to the extent required or permitted by the Investment(s), return the amount of the mistaken
contribution(s), except as limited below, to the Participating Employer, or to the extent required
or permitted by the Investment(s) and approved by the Plan Sponsor, directly to the Participant
to the extent of any mistaken Employee Contribution(s). The Participant’s exercise of a “free
look” or right-to-return or similar cancellation provision under applicable insurance or
securities law is deemed to cause a Contribution to be by a good faith mistake of fact. Upon
any return of a mistaken contribution, earnings or losses attributable to the mistaken
contribution shall be determined according to the provisions of the applicable Investment or
other applicable law.
If a court or agency having jurisdiction finally determines or if the Participating Employer or
the Plan Administrator receives written legal advice (other than under a suit or proceeding
initiated by the Participant) that any Participant was not an Employee at the relevant time or
otherwise was not eligible to become a Participant, the Plan Administrator shall treat the
mistakenly accepted Participant’s Contributions and Plan Account, to the extent that the
Participant was not eligible to make or receive the Contributions, as mistaken contributions.
17.12Necessary information
The Participant (or Beneficiary or Alternate Payee) shall provide upon any request of the Plan
Sponsor or the Agent any information that may be needed for the proper and lawful operation
and administration of the Plan; including (but not limited to) the Participant’s legal name, the
Participant’s Social Security Number [SSN] or other Taxpayer Identifying Number [TIN], the
Participant’s date of birth, each Beneficiary’s legal name, each Beneficiary’s Social Security
Number [SSN] or other Taxpayer Identifying Number [TIN], each Beneficiary’s date of birth .
The Participant (or Beneficiary or Alternate Payee) shall promptly respond to and fully answer
any reasonable inquiry related to these purposes. A failure to provide any information
described above or which otherwise may be necessary or appropriate for the lawful operation of
the Plan may result in a delay of eligibility for participation, in a delay of the payment of
Contributions, or in a delay or refusal by the Plan Sponsor, in its discretion, to authorize or
permit any Distribution or payment. The Plan Sponsor or Plan Administrator (and any party
acting for it) has the right to rely on any information or representation given by any Participant
or Beneficiary or other party interested in the Plan. The Plan Sponsor or Plan Administrator has
no duty to inquire into the accuracy or adequacy or truth of any such information or
representation. Any such representation is binding upon any party seeking to claim through the
Participant.
The Plan Sponsor may provide that any statement to be made or any information to be furnished
must be made or furnished under penalties of perjury. Any notice to that effect may include a
statement of the penalties for a violation of 18 U.S.C. § 1027, IRC § 7206, or other law. The
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absence of any such provision or notice shall not be construed to create or suggest any inference
concerning the application of any law.
17.13No contract of employment
Under no circumstances shall this Plan constitute or modify a contract of employment or in any
way obligate the Participating Employer to continue the services of any Employee.
17.14No right other than provided by the Plan
The existence of the Plan and the Participating Employer’s or Master Trustee’s purchase of any
Investment(s) for the purposes of the Plan shall not be construed as giving to any Participant or
Beneficiary or any other person any legal or equitable right against the Participating Employer
or any Issuer or any other person or organization, except as expressly provided by the Plan.
17.15Notices
Each Participant or Beneficiary shall be responsible for furnishing the Plan Sponsor (and the
Agent and the applicable Issuer(s)) with his or her or its current address at all times. Any notice
to a Participant or Beneficiary or Alternate Payee required or permitted to be given under this
Plan shall be deemed given if directed to the proper person at the current address in any Plan (or
Investment) record and mailed or otherwise delivered to that address. This Provision shall not
be construed to require the mailing or delivery of any notice otherwise permitted to be given by
posting or by publication.
17.16Plan is binding
This Plan, and all acts and decisions taken under it, is binding and conclusive, for all purposes,
upon all interested persons, and upon the heirs, executors, administrators, successors and
assigns of any and all such persons.
The Plan shall not affect contracts or other dealings with a person who is not an interested
person, unless a written agreement executed by that person expressly so provides.
17.17Power-of-attorney
A power-of-attorney cannot be effective for any purpose with respect to the Plan unless the Plan
Sponsor determines that the power-of-attorney is acceptable
The Plan Sponsor shall not accept a power-of-attorney until the Plan Sponsor determines that the
power-of-attorney appears on its face to meet all of the following requirements:
The power-of-attorney was made in a form and manner that is legally enforceable under
applicable law.
The power-of-attorney indemnifies the Plan Sponsor and the Agent and every person who
may rely on the power-of-attorney against any liability that may arise out of the Plan
Sponsor’s acceptance of the power-of-attorney or any person’s acts or omissions in reliance
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upon the power-of-attorney, even if revoked (including revocation by reason of the maker’s
death).
The power-of-attorney expressly refers to this Plan with sufficient clarity so that the Plan
Sponsor, in its sole discretion, believes that there is no confusion or ambiguity concerning
whether an express power to act regarding this Plan was intended.
The power-of-attorney unambiguously provides one or more powers to act regarding this
Plan.
The power-of-attorney meets any further requirements stated below in this Provision or
otherwise under the Plan, and meets any other requirements reasonably requested by the
Plan Sponsor.
Without limiting the comprehensive effect of the above, any power-of-attorney, including even
a general power-of-attorney, cannot be effective to make or change the Participant’s Beneficiary
designation under the Plan unless the document, in the Plan Sponsor’s sole opinion, expressly
grants power to make or change Beneficiary designations under this Plan and refers to this Plan
with sufficient clarity so that the Plan Sponsor, in its sole discretion, believes that there is no
confusion or ambiguity concerning whether an express power to act regarding Beneficiary
designations under this Plan was intended.
Without limiting the comprehensive effect of the above, any power-of-attorney, including even
a general power-of-attorney, cannot be effective to exercise any right or privilege of investment
direction under the Plan unless the document, in the sole opinion of the person that is requested
to give effect to an investment instruction, expressly grants power to act regarding investment
direction under this Plan and expresses the principal’s (Participant’s or Beneficiary’s or
Alternate Payee’s) knowledge as to whether the attorney-in-fact is or is not a Registered
Investment Adviser and refers to this Plan with sufficient clarity so that the Issuer determines
that there is no confusion or ambiguity concerning whether an express power to act regarding
investment direction under this Plan was intended. For the purpose of the preceding sentence,
an investment advisory agreement that conforms to the disclosure and investment advisory
contract requirements of § 204 and § 205 of the federal Investment Advisers Act of 1940, as
amended [15 U.S.C. § 80b-4, 15 U.S.C. § 80b-5] is deemed to constitute an acceptable power-
of-attorney if it refers to the Plan or to the Investment held for the Participant’s Plan Account.
17.18Privacy
The Participating Employer may (but is not required to) take reasonable steps to protect
Participants’ privacy concerning participation under the Plan.
However, the Participating Employer and the Plan Administrator and any Agent and any
Service Provider (and any other person acting for or at the request of any of them) may disclose
information concerning the Participant’s (or Beneficiary’s) Account:
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when requested by the attorney-in-fact who is currently acting under a power-of-attorney
that was accepted by the Plan Sponsor under Provision 17.17 [“Power-of-attorney”].
when required by any court order or legal process.
without a court order or legal process when reasonably requested by the IRS or the SEC or
the NASD.
when reasonably requested by a public accountant engaged by the Plan Administrator or by
the Participating Employer or by the Master Trustee or by an Agent or by an Issuer.
when, in the course of any proceeding relating to divorce, separation, or child support, an
attorney-at-law states in writing that he or she represents the Participant’s (or, after the
Participant’s death, the Beneficiary’s) spouse or former spouse or child and that the
information is reasonably related to such proceeding.
when, in the course of the administration of any estate or succession, the Personal
Representative (or an attorney-at-law who represents the Personal Representative) states in
writing that he or she or it needs the requested information for the purpose of preparing a
return of any estate tax, transfer tax, gift tax, inheritance tax, death tax, or similar tax,
whether of the United States or any State or any foreign nation.
If a person presents himself or herself as an attorney-at-law and states that he or she has
authority to act for a person or entity, the Plan Sponsor, Plan Administrator and the Agent shall
be entitled without inquiry to assume, unless it has actual knowledge to the contrary, that the
person so presenting himself or herself has the authority stated.
17.19Protection of Issuers
Any Issuer shall not be liable in acting according to any instruction, if in writing or otherwise
reasonably believed to be genuine, of its contract owner or other person that has the right to
give instructions under the terms of the Investment, and shall not be required to question (unless
otherwise provided by the applicable Investment) any action or inaction so instructed. The
Issuer shall not be required to take or permit any action or allow any benefit or privilege
contrary to the terms of any Investment which it may issue regarding the Plan.
17.20Relationship to other plans
This Plan is in addition to any other retirement, pension, or benefit plan presently in existence
or later established (if any), and participation under the Plan shall not affect benefits or
obligations of any person under any other plan, unless the plan is a deferred compensation plan
subject to IRC § 457.
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17.21Restitution and restoration
In addition to (and not by limitation upon) any other remedy, including (but not limited to) any
legal, equitable, remedial, or other relief, to the extent that any person breaches Provision 1.7
[“Exclusive benefit”], such person shall be personally liable to make good to the Plan (or, in an
appropriate case, to the applicable Participant or Beneficiary or Alternate Payee) any losses to
the Plan resulting from or arising out of each such breach, and to restore to the Plan any profits
of such person which have been made through the breaching person’s improper use of Plan
assets.
17.22Service of legal process
Requests for information, claims or demands, legal process, and court orders are properly
delivered when delivered to the Plan Sponsor at the principal place of business listed on the
Adoption Agreement.
17.23Severability
If a court finds that any provision of the Plan is invalid, the Plan shall be construed and
enforced as if the invalid provision was not a provision of the Plan, unless the court finds that
such a construction of the Plan would be clearly contrary to the intent of the Plan or would be
contrary to IRC § 457(b) or would violate the Enabling Statute.
17.24Signature
If a Participant or Beneficiary or Alternate Payee (or other person claiming through a
Participant or Beneficiary or Alternate Payee) must submit any writing of any kind required or
permitted under the Plan, the maker’s signature must be complete and formal, except as
expressly provided by Provision 17.25. However, if the maker has a disability that precludes
him or her from making a complete and formal signature and the Plan Sponsor finds that an
accommodation may be required by the Americans with Disabilities Act, a writing is signed if it
bears or includes or incorporates any symbol executed or adopted by or on behalf of the maker
with a present intention to authenticate the writing, or it is otherwise demonstrated to the
satisfaction of the Plan Sponsor that the maker had (at the relevant time) a present intention to
adopt the writing.
In addition to and not by limitation upon Provision 17.25, any writing of any kind required or
permitted as to an Investment may be signed in any manner provided by the Investment,
including, to the extent consistent with the Investment, applicable Investment Law.
17.25Signatures and broad acceptance of writings
An instruction (but not a claim for any kind of Distribution) is considered to be written or in
writing and signed according to the following broad provisions, except as otherwise specified
by a uniform written procedure adopted by the Plan Sponsor.
“Written” or “writing” or “in writing” includes any intentional reduction to tangible form.
Without limiting the comprehensive effect of the first sentence of this paragraph, any of the
following is a writing and all of the following rules of construction apply in determining what is
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a writing and who made the writing. “Written” or “writing” or “in writing” includes
handwriting, typewriting, printing. “Writing” includes any copy or reproduction, including (but
not limited to) a photocopy, of an original writing. “Writing” includes a telefacsimile
transmission. “Writing” includes a videotape or audiotape recording, including a recording of a
telephone conversation; and a person’s commencement or continuation of a conversation after
the person is informed that the conversation is or may be recorded shall be deemed such
person’s intent to reduce the conversation to writing. Anything that is the subject of a written
confirmation is deemed to be in writing. “Writing” or “written” includes anything that is
recognized as such by the Restatement of Contracts or the Uniform Commercial Code as then-
currently published or adopted by the American Law Institute or the National Conference of
Commissioners on Uniform State Laws. “Writing” or “written” includes anything that is
recognized as such under § 2(9) of the federal Securities Act of 1933, as amended
[15 U.S.C. § 77b(9)] or any rule or regulation thereunder. A writing made by a person who
appears to be an agent or attorney-in-fact is the writing of the apparent principal, unless the Plan
Sponsor has actual knowledge that no agency exists. The Plan Sponsor in its sole discretion
may construe any writing(s), and may combine separate writings, including writings that are not
contemporaneous, so as to establish one integrated writing or instruction.
“Signed” or “signature” includes any symbol executed or adopted by a person with present
intention to authenticate a writing. Without limiting the comprehensive effect of the first
sentence of this paragraph, any of the following is a signature and all of the following rules of
construction apply in determining what is a signature and who signed. Authentication may be
handwritten, typed, printed, stamped, or otherwise written. A signature need not consist of the
person’s legal name. A signature need not consist of the person’s entire name. A signature may
be on any part of a writing (except as expressly limited below). A person who fills-out a form
in his or her own handwriting or typewriting has signed that form or writing. Anything that is
the subject of a written confirmation is deemed to be signed if the recipient of the confirmation
does not promptly object to the confirmation. For a conversation, a person’s use of his or her
voice is a signature. For a conversation, a person’s compliance with the authentication
procedure specified by the Plan Sponsor or its agent is a signature. “Signed” or “signature”
includes anything that is recognized as such for any purposes by the Restatement of Contracts
or the Uniform Commercial Code as then-currently published or adopted by the American Law
Institute or the National Conference of Commissioners on Uniform State Laws. A signature
need not be contemporaneous to the writing that it authenticates. A signature made by a person
who appears to be an agent or attorney-in-fact is the signature of the apparent principal, unless
the Plan Sponsor has actual knowledge that no agency exists. A writing that includes a forgery
at the place where a signature customarily would be made is not signed by any person other
than the forger.
Upon receiving anything that appears to be a writing, or anything that appears to be a signature
or signed, the Plan Sponsor or Plan Administrator shall not be liable or responsible to anyone to
the extent that it acted without actual knowledge that the writing was false or that the signature
was a forgery.
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17.26Signature Guarantee
In addition to (and not by limitation of) any other provision of the Plan, for any claim or
instruction of any kind the Plan Sponsor may require the person submitting the claim or
instruction to include on the written claim or instruction a Signature Guarantee when required
under a uniform written procedure of the Plan Sponsor.
17.27Statute of limitations
As to any action at law or in equity under or with respect to this Plan (other than as described by
the other sentence of this paragraph), the action shall be governed by (or precluded by) the
relevant statute of limitations or statute of repose for actions upon a written contract according
to the internal laws (without regard to the law of conflicts) of the State in which the
Participating Employer is incorporated or organized. For any dispute that was resolved by
arbitration, to the extent that the statute of limitations or statute of repose relating to any
arbitration proceeding or arbitration award is not governed by the federal Arbitration Act, any
arbitration proceeding or arbitration award or any other matter relating to arbitration shall be
governed by the internal laws (without regard to the law of conflicts) of the State in which the
arbitration was conducted.
17.28Translations
This Plan or any part of it may be translated (at the sole discretion of the Plan Sponsor) into or
summarized in another language(s) for the convenience of certain Employees. However, the
original English language text of the Plan shall control, and the translation of the Plan has no
effect in the construction of the Plan.
17.29Unclaimed property
For the purposes of any unclaimed property statute, if a Distribution has not commenced, any
Deferred Compensation does not become distributable until such time as a Distribution is
mandatory under the terms of the Plan.
17.30Unemployment compensation
For the purposes of any unemployment compensation law, a Distribution in one sum or as
installments for a period of not more than one year, to the extent attributable to Employer
Contributions, is deemed a severance payment and shall be so allocated (for the purposes of the
applicable unemployment compensation law) over a period of weeks equal to the amount of the
Distribution divided by the Participant’s regular weekly pay before the Severance with this
period beginning on the first week that begins after the date of the Severance.
17.31Venue
If any person, including, without limitation, any Participant or Beneficiary or Alternate Payee or
Distributee (or any person claiming through a Participant or Beneficiary or Alternate Payee or
Distributee) brings or maintains any suit or action (other than as described by the other sentence
of this paragraph) against the Plan Administrator or the Master Trustee or to which the Plan
Administrator or the Master Trustee is or becomes a party, each such person hereby submits to
exclusive jurisdiction and exclusive venue in the courts sitting in Leon County, Florida or in
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which the Plan Administrator has its principal place of business. However, any suit or action
upon an arbitration award or relating to an arbitration shall be governed by the internal laws
(without regard to the law of conflicts) of the State in which the arbitration was conducted, and
each such person who is or was a party to an arbitration hereby submits to exclusive jurisdiction
and exclusive venue in the courts sitting in and for the district in which the city or place of the
arbitration is located.
17.32Uniformity
To the extent required by applicable State law, provisions of the Plan shall be construed and
applied in a uniform or non-discriminatory manner.
18.Amendment
18.1Master Trustee’s right to amend the Plan
The Master Trustee has the right to amend the Plan at any time. The Participating Employer has the
right to discontinue the Plan at any time, subject to the limitations set forth in the Trust Joinder
Agreement and Master Trust Agreement. Any amendment of the Plan has no effect on the Master
Trust Agreement. The Plan Sponsor may not amend the Plan in any way.
18.2Amendment can’t change exclusive benefit
To the extent required by Provision 1.7 [“Exclusive benefit”], any amendment of the Plan shall not
be effective to the extent that the amendment has the effect of causing any Plan assets to be diverted
to or inure to the benefit of the Participating Employer, or to be used for any purpose other than
providing Deferred Compensations to Participants and Beneficiaries and defraying reasonable
expenses of administering the Plan.
18.3Amendment can’t provide any cutback
Any amendment shall not reduce the amount of Deferred Compensation credited to any
Account before the date of the amendment, and shall not impair the rights of any person to the
Deferred Compensation so credited.
18.4Retroactive effect
Any amendment of the Plan may be given immediate or retroactive effect; provided that such
immediate or retroactive effect does not cause the Plan to fail to meet the requirements of an
eligible deferred compensation plan within the meaning of IRC § 457(b).
18.5Merger or consolidation
To the extent that Accounts that are funded by a Master Trustee or other exclusive benefit
arrangement in compliance with IRC § 457(g), this Plan may be merged or consolidated with, and
such assets and liabilities may be transferred to, another eligible deferred compensation plan under
IRC § 457(b) but only if the transferee plan meets the requirements of IRC § 457(g) and under the
successor plan the Deferred Compensation with respect to each Participant is at least equal to the
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Deferred Compensation the Participant would have received if he or she had received a lump-sum
distribution under the transfer or Plan immediately before the transfer, merger, or consolidation.
19.TERMINATION
19.1Plan Termination by Participating Employer
A Participating Employer may terminate its participation in the Plan, including but not limited
to, its contribution requirements, if it takes the following actions:
a)The Governing Authority of the Participating Employer must adopt an ordinance
or resolution terminating its participation in the Plan.
b)The ordinance or resolution must specify when the Plan will be closed to any
additional participation by Eligible Employees, which must be a date at least
sixty (60) days after the adoption of the ordinance or resolution.
c)The ordinance or resolution must be submitted to the Master Trustee, or it’s
designee.
The Master Trustee, or it’s designee, shall determine whether the ordinance or resolution
complies with this provision, and all applicable federal and state laws, and shall determine an
appropriate effective date for the termination of Employer participation, which shall be no later
than twelve (12) months from the Master Trustee’s receipt of the ordinance or resolution. The
Plan Administrator shall provide appropriate forms to the Participating Employer to terminate
ongoing participation. Distributions under the Plan of existing accounts to the Participants and
Beneficiaries affected by the termination are subject to the distribution provisions in this
document. However, if the Participating Employer requests a plan-to-plan transfer of Plan
assets with respect to the Participating Employer’s Employees who are Participants, the Master
Trustee may in it’s discretion make the transfer.
19.2Effect of Termination by Participating Employer
In the case of the complete or partial termination of the Plan as to one (1) or more Participating
Employers, including a termination arising from the discontinuance and/or delinquency of
contributions, the affected portion of the Master Trust shall continue to be held pursuant to the
direction of the Master Trustee, for the benefit of affected Participants pursuant to the benefit
provisions of this Plan. The Plan shall remain in full effect with respect to each Participating
Employer that does not terminate its participation in the Plan on behalf of its Employees, or
whose participation is not terminated by the Master Trustee.
19.3Termination of Entire Plan
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This Plan in its entirety may be terminated at any time by official action of the Master Trustee,
with notice to all Participating Employers and Participants. The last date for contributions and
earnings to be credited to Participants Accounts must be specified in the Master Trustee’s
official action and must be no sooner than ninety (90) days after the adoption of the official
action. All actions associated with the termination of the Plan, including a final accounting,
must be completed within twelve (12) months after the adoption of official action. In the event
of a complete Plan termination, the Master Trustee must take all steps reasonable to avoid a
distribution to the Participants and Beneficiaries, except pursuant to benefit options under the
provisions of this Plan, including identifying successor plan(s). However, if distributions must
be made, the Plan Administrator shall be responsible for directing distribution of all assets of
the Master Trust to Participants and Beneficiaries.
20.Construction
20.1Construction
The provisions of this Part govern the construction or interpretation of this Plan. These rules of
construction and interpretation shall apply for all provisions, and shall supersede any other
construction or interpretation rules.
20.2Construction as an eligible deferred compensation plan
The Plan is established and maintained with the intent that the Plan always be an “eligible
deferred compensation plan” within the meaning of IRC § 457(b) and conform to the Internal
Revenue Code’s requirements for treatment or recognition as such a plan. Therefore, the
provisions of the Plan shall be interpreted whenever possible to state provisions that conform to
the applicable requirements of the Internal Revenue Code. When the Internal Revenue Code is
amended or interpreted through subsequent legislation or regulations or other guidance of
general applicability, the Plan should be construed as stating provisions consistent with such
amendment or interpretation of the applicable law.
20.3Construction with Enabling Statute
The Plan is established and maintained with the intent that the Plan conform to the applicable
requirements of the Enabling Statute. The provisions of the Plan shall be interpreted whenever
possible to state provisions that conform to the applicable requirements of the Enabling Statute.
When the Enabling Statute is amended or interpreted through subsequent legislation or
regulations, the Plan should be construed as stating provisions consistent with such amendment
or interpretation of the applicable law.
20.4Construction of statutes and regulations
Any reference to a Section of the Internal Revenue Code shall be construed to also refer to any
successor provision. Any reference to a Section of Treasury Regulations shall be construed to
also refer to any successor provision of such regulations. Any reference to a Revenue Ruling or
Revenue Procedure or IRS Notice or IRS Announcement shall be construed to also refer to any
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guidance of general applicability that extends, amplifies, or modifies the Revenue Ruling or
Revenue Procedure or IRS Notice or IRS Announcement.
The Plan refers to relevant regulations, including (but not limited to) Treasury regulations under
the Internal Revenue Code, without regard to whether the regulations are substantive or
interpretive and without regard to whether the regulations are proposed or temporary or final;
but it is intended that any provision that refers to a regulation shall be construed to refer to the
regulation in the sense of the appropriate legal effect (under administrative procedure law and
otherwise) that the regulation currently has at the time the construction is made.
To the extent that a provision states a duty owed to any government (rather than a duty to a
Participant or Beneficiary or other person or entity having an interest under the Plan), the
provision shall be construed as directory and shall be enforced only by the government.
However, a provision that is necessary for the Plan to meet the requirements of an eligible
deferred compensation plan within the meaning of IRC § 457(b) includes a duty owed to
Participants and Beneficiaries and is not directory.
To the extent that a construction or interpretation of the Plan involves a construction of a statute
or regulation, the Plan Sponsor may (but is not required to) construe the statute or regulation
according to the Uniform Statutory Construction Act.
20.5Construction of words and phrases
The headings and numbering of provisions in the Plan and text that is stated within brackets,
excluding text in parenthesis, are included solely for convenience of reference and are not
intended to limit or amplify or control the meaning or interpretation or construction of any
provision of this Plan.
The phrase “under the Plan” or “under this Plan” refers to the entire Plan (and the Master Trust
Agreement) as a whole and not merely to any part of any document or Provision in which the
phrase appears. Any reference to a Part of the Plan refers to the whole Part. Any reference to a
Definition or Provision of the Plan refers to the whole Definition or Provision, unless the
reference specifies a particular portion or paragraph of the Provision.
The singular shall be construed to include the plural, unless the context clearly indicates
otherwise.
The words “as” or “if” shall be construed to mean the phrase, “to the extent that”, as appropriate
in the context.
Any reference to the Plan Administrator shall be construed to refer also to the Agent and the
Issuer(s) and any other party acting for or at the instruction of the Plan Administrator.
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Unless the provision states otherwise, any reference to a person or party shall be construed to
refer also to any non-natural person or any entity (including but not limited to, any trust or
estate).
To the extent that a provision states a duty owed to any government (rather than a duty to a
Participant or Beneficiary or other person or entity having an interest under the Plan), the
provision shall be construed as directory and shall be enforced only by the government.
Any reference to a corporation or similar organization shall be construed to include any
successor to the corporation or similar organization.
All provisions of the Master Trust Agreement that do not conflict with the Plan are incorporated
by reference and are a part of the Plan as if fully set forth by this document.
All provisions of a prospectus and statement of additional information or statement of operation
of a Fund that do not conflict with the Plan are incorporated by reference and are a part of the
Plan as if fully set forth by this document.
If any provision concerning a benefit under the Plan is ambiguous, a construction or
interpretation of the provision that would provide that such benefit is available in a non-
discriminatory manner shall take precedence over a construction or interpretation that would not
so provide.
20.6Construction by reference to model laws
To the extent that any construction beyond the written provisions of the Plan is necessary, the
Plan shall be construed (except as otherwise provided by the Plan) according to any then-
current Restatement of law published or promulgated by the American Law Institute or any
then-current Uniform Act or Model Act published or recommended by the National Conference
of Commissioners on Uniform State Laws. For this purpose, the Plan Sponsor may rely on the
text of any Uniform Act or Model Act as published in the current edition of Martindale-Hubbell
Law Digest. The Plan Sponsor may consider a withdrawn Uniform Act or Model Act if no
successor has been promulgated. Among these sources, the Plan Sponsor in its sole discretion
may select any order of reference and if more than one source is relevant may decide which
source it considers controlling or appropriate.
20.7Investment Law
Whenever, after applying the specific construction rules of any Definition or Provision or Part
and the general construction rules stated in this Part, the Plan may be susceptible to more than
one construction or interpretation, a construction or interpretation that is consistent with or that
is not inconsistent with applicable Investment Law is preferred over a construction or
interpretation that is inconsistent with applicable Investment Law.
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20.8USA Constitution and Florida Constitution
When applying any of the preceding construction rules relating to the Internal Revenue Code or
the Enabling Statute or Employment Laws or Government Contracts Laws, the Plan Sponsor or
Plan Administrator need not consider any statute or regulation or order to the extent that its
application is contrary to the Constitution of the USA or is contrary to the Constitution of
Florida; however, the Plan Sponsor or Plan Administrator may presume that any statute or
regulation or order is not unconstitutional until a published controlling court decision expressly
holds that such law is contrary to a Constitution.
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The Plan Document is not signed here.
This Plan is not complete without the Participating Employer’s Adoption Agreement, by which
the Participating Employer must specify the conforming and elective provisions of the Plan.
The Participating Employer will sign the Adoption Agreement to indicate adoption of the Plan.
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