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Home My WebLink AboutResolution 541 Pension Plan RESOLUTION NO. 541 A RESOLUTION OF THE CITY OF WINTER SPRINGS, FLORIDA, AMENDING THE CITY'S PENSION PLAN; EFFECTIVE DATE. WHEREAS, the City of Winter Springs, Florida, has a pension plan; and WHEREAS, the City of Winter Springs, Florida, has deemed it in the best interest of the citizens of Winter Springs, Florida that the pension plan be amended; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA THAT: SECTION I. The pension plan as amended, restated and effective October 1, 1984, and attached hereto as Exhibit "A" is hereby adopted. Passed and adopted this 9th day of June, 1986. CITY OF WINTER SPRINGS, FLORIDA JOHN V. TORCASO, MAYOR ATTEST: Mary T. Norton City Clerk . CITY OF WINTER SPRINGS, FLORIDA 1126 STATE ROAD 434 WINTER SPRINGS, FLORIDA 32708 Telephone (305) 327-1800 May 19, 1986 MEMO From: Trustees of the City of Winter Springs Pension Plan Mary Norton, City Clerk Amended and Restated Money Purchase Pension Plan To: Re: Attached please find your copy of the Amended and Restated Money Purchase Pension Plan for employees of the City of Winter Springs for your informa- tion and your records. Upon adoption of a resolution by the Commission adopting this amended plan, each employee will be given a copy of the Amended and Restated Money Purchase Plan and Trust Summary Plan description. cc: Mayor John V. Torcaso Deputy Mayor William A. Jacobs City Manager Richard Rozansky Trustee, Jim Conger CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAD 434 WINTER SPRINGS, FLORIDA32708 Telephone (305) 327-1800 CITY MANAGER RICHARD ROZANSKY May 13, 1986 MEMORANDUM TO: CITY ATTORNEY KRUPPENBACH FROM: CITY MANAGER SUBJECT: Winter Springs Amended and Restated money Purchase Pension Plan RESOLUTION OF ADOPTION 1. Attached for your information and file is a copy of the executed " Amended and Restated Money Purchase Pension Plan and Trust for employees of the City of Winter Springs: Please prepare the necessary resolution for the adoption of the amended and restated plan. I'll place the resolution on the next City Commission agenda for adoption. We must then provide each employee with a copy of the amended and restated Money Purchase Plan & Trust summary plan description. Attachments: RECEIVED MAY 9 l986 CITY OF WINTER SPRINGS CITY MANAGER ERISA COMPLIANCE SYSTEMS, INC. May 5, 1986 Ms. Mary T. Norton City Clerk City of Winter Springs 1126 State Road 434 Winter Springs, FL 32708 RE: Amended and Restated Money Purchase Pension Plan Document Dear Ms. Norton: Enclosed, pursuant to your letter of May 1, is an executed copy of the referenced. We are forwarding a copy to Bob Mead. Yours very truly, Dale F. Smith, PHR Vice President - Operations Senior Consultant DFS/cml Enclosure cc: Robert Mead, Esquire (w/Enclosure) Ms. Ginger Livingston, FLC AMENDED AND RESTATED MONEY PURCHASE PENSION PLAN AND TRUST FOR EMPLOYEES OF CITY OF WINTER SPRINGS INDEX ARTICLE I SECTION DEFINITIONS PAGE 1.01 1.02 l.03 1.04 1.05 1.06 1.07 1.08 1.09 1.10 1.11 1.12 1.13 1.14 1.15 1.16 1.17 1.18 1.19 1.20 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 1.31 1.32 1.33 1.34 1.35 1.36 1.37 1.38 2.01 2.02 2.03 2.04 2.05 Anniversary Date ................................. Annual Addition .................................. Beneficiary...................................... Break in Service ................................. Cash Out ......................................... Code............................................. Compensation ... .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defined Benefit Plan Fraction .................... Defined Contribution Plan Fraction ............... Determination Date ............................... Earned Income .................................... Employee ......................................... Employer ......................................... Employer Contribution Account .................... Fiduciary........................................ Fiscal Year ........................................ Forfeiture ....................................... Former Participant ............................... Hour of Service .................................. Investment Manager .............................. Limitation Year .................................. Participant ...................................... Plan ............................................. Professional Administrator or Administrator ...... Plan Year ........................................ Qualified Joint and Survivor Annuity.............. Qualifled Pre-Retirement Survivor Annuity........ Qualifying Employer Real Property................ Retirement Date .................................. Self-Employed Individual......................... Suspense Account ................................. Terminated Participant ........................... Total and Permanent Disability................... Trustee .......................................... Trust Fund ........................................ Valuation Date ................................... Vested Interest .................................. Year of Service .................................. ARTICLE II ELIGIBILITY Qualification as Participant .................... Notice of Participation .......................... Leave of Absence ................................. Termination of Participation ..................... Reparticipation .................................. 2 2 2 2 3 4 4 4 4 5 5 5 5 5 6 6 6 6 6 7 7 8 8 8 8 8 8 9 9 9 9 9 9 10 10 10 10 10 11 11 12 12 12 i SECTION ARTICLE III PAGE EMPLOYER COMTRIBUTIONS 3.01 3.02 ARTICLE IV ALLOCATIONS 4.01 4.02 4.03 4.04 ARTICLE V VALUATIONS 5.01 5.02 ARTICLE VI DETERMINATION AND DISTRIBUTION OF BENEFITS 6.01 6.02 6.03 6.04 6.05 6.06 6.07 6.08 6.09 ARTICLE VII FIDUCIARY RESPONSIBILITY AND INVESTMENT OF PLAN FUNDS 7.01 7.02 7.03 7.04 7.05 7.06 7.07 7.08 7.09 7.10 7.11 7.12 Amount of Employer Contributions13 Time of Payment of Contributions13 Allocation of Contributions, Earnings and Forfeitures .................................... 13 Overall Limitation of Benefits ................... 14 Adjustment for Excess Contributions .............. 15 Segregated Accounts for Former Participants ...... 16 Valuation of the Trust Fund ...................... 16 Method of Valuation .............................. 17 Determination of Benefits Upon Retirement ........ 17 Determination and Distribution of Benefits upon Death ..................................... 18 Determination of Benefits Upon Disability........ 22 Determination of Benefits upon Other Termination of Employment ...................... 23 Distribution of Benefits Upon Nondeath Termination of Employment ...................... 26 Termination of participation ..................... 31 Distributions to Minors and Incompetents ......... 31 Location of Participant or Beneficiary Unknown ........................................ 32 Qualified Domestic Relations Orders .............. 32 Basic Responsibilities of Trustee ................32 Assets Held as Single Fund .......................33 Investment Authority.............................33 Selection of General Areas of Investment .........35 Directed Investment by Investment Manager ........36 Powers and Duties of Professional Administrator ..37 Records and Reports ..............................38 Compensation and Expenses .........................39 Communication by Employer to be in writin.g .......39 Taxes ............................................39 Fiduciary Responsibility.........................39 Removal and Resignation of Trustee ...............40 - ii - SECTION PAGE ARTICLE VIII INSURANCE 8.01 8.02 9.01 9.02 9.03 10.01 10.02 10.03 10.04 10.05 10.06 10.07 10.08 10.09 10.10 10.11 10.12 10.13 ARTICLE VIII INSURANCE Purchase of Insurance Contracts and Limitations Thereon ............................41 Provisions Relating to Insurance Company.........43 ARlTICLE IX AMENDMENT AND TERMINATION Right to Amend Plan and Trust ....................44 Right to Terminate Plan and/or Trust .............44 Assumption of Plan by Successor ..................45 ARTICLE X MISCELLANEOUS Exclusive Benefit of Participants ................ 46 Plan Does Not Restrict Employer's Employment and Business Policies .......................... 46 Rights Against Employer .......................... 46 Intention to Continue Plan ....................... 46 Predecessor Employer ............................. 47 Leased Employees ................. ... . . . . . . . . . .. . . . 47 Interest in Trust not Subject to Creditors' Claims ........................................ 47 Mistake of Fact .................................. 48 Restrictions on Return of Contributions .......... 48 Claims ........................................... 48 Transfer of Interest ............................. 49 Agent for Service of Process ..................... 49 Applicable Law................................... 49 - iii - AMENDED AND RESTATED MONEY PURCHASE PENSION PLAN AND TRUST FOR EMPLOYEES OF CITY OF WINTER SPRINGS THIS AGREEMENT is made and entered into this 30th day of April, 1986, by and between the CITY OF WINTER SPRINGS, a municipality incorporated under the laws of the State of Florida (hereinafter referred to as the "Employer"), THE BOARD OF TRUSTEES OF THE CITY OF WINTER SPRINGS, as duly appointed by the City Commission (hereinafter referred to as the "Trustee"), and ECS, INC., a Florida corporation engaged in the business of administering retirement plans (hereinafter called the "Professional Administrator" or "Administrator"). WHEREAS, Article VIII, Section 2(b) of the Florida Constitution and Florida Statute 166.021 provide, in part, that municipalities shall have all powers necessary to conduct munici- pal government and to take all action related thereto unless expressly prohibited by law; and WHEREAS, Chapter 112 (Part VII), Florida Statutes, establishes standards to be followed by municipalities in the operation of retirement plans for their employees, and WHEREAS, the Employer previously established a Pension Plan and Trust for its qualified employees in order to provide benefits upon their retirement, disability, death or termination of employment; and WHEREAS, the Employer now desires to amend and restate the Plan and Trust in its entirety in order to comply with the requirements of the Tax Equity and Fiscal Responsibility Act of 1982, the Tax Reform Act of 1984 and the Retirement Equity Act of 19841 and WHEREAS, the Plan is intended to remain qualified under Section 401(a) of the Internal Revenue Code of 1954, amended, and the Trust is intended to remain exempt from taxation under section 501(a) thereof. NOW, THEREFORE, except as otherwise specified herein, effective October 1, 1984 (hereinafter called the "Effective Date"), the Employer hereby amends and restates the Pension Plan and Trust (which Plan and Trust are sometimes hereinafter collec- tively called the "Plan"), in the form of this document, and the Trustee hereby accepts the amended and restated Plan on the terms and conditions set forth herein. ARTICLE I DEFINITIONS 1.01 "Anniversary Date" means the last day of the Plan Year. 1.02 "Annual Addition" means the sum of the following amounts credited to a Participants accounts for a Limitation Year. (a) Employer contributions, and (b) Amounts allocated to an.individual medical account (as defined in Code Section 415(1) (2)) that is part of a defined benefit plan maintained by the Employer. 1.03 "Beneficiary" means the person or persons to whom a deceased Participant's Employer Contribution Account is payable, as hereinafter provided, subject to the provisions of Section 6.02(a). 1.04 "Break in Service" means a Plan Year during which an Employee has not completed more than 500 Hours of Service with. the Employer. Notwithstanding the preceding sentence, a Break in Service shall not result from an authorized leave of absence, as defined in Section 2.03, and shall not occur in a Plan Year during which the Employee becomes a Participant or in which he retires, dies or suffers Total and Permanent Disability. For Plan Years beginning after December 31, 1984, in determining a Break in Service for a Plan Year in which, or following which, a maternity or paternity absence (as defined below) occurs, the Hours of Service which normally would have been credited but for the maternity or paternity absence (or 8 Hours of Service per day if the Professional Administrator is unable to determine the - 2 - Hours of Service which normally would have been credited) shall be credited to the Plan Year in which such absence begins, if the Employee would incur a Break in Service if the hours were not so credited, in all other cases the Hours of Service shall be cred- ited to the following Plan Year. The total Hours of Service credited under a maternity or paternity absence shall not exceed 501 hours. A "maternity or paternity absence" is one in which an Employee is absent from work because of (i) the pregnancy of the Employee, (ii) the birth of a child of the Employee, (iii) the placement of a child with the Employee in connection with the adoption of such child by the Employee, or (iv) the caring for the child immediately following such birth or placement. As a condition of the receipt by an Employee of credit for Bours of Service pursuant to this Section 1.04, the Administrator may require that the Employee timely furnish such information as is reasonably necessary to establish that the absence from work was for a cause stated in subparagraphs (i) through (iv) above and to verify the number of days attributable to such cause. 1.05 "Cash Out" means an involuntary or voluntary Cash Out, as defined below. (a) An involuntary Cash Out is a distribution to a Former Participant that meets the following requirements: (i) the Former Participant's entire vested Interest (as defined in Section 1.37) is distributed to him, (ii) the Vested Interest so distributed does not exceed $1,750 ($3,500 for Plan Years beginning after December 31, 1984), and (iii) the distribution is made on account of the Employee's termination of participation in the Plan and within five (5) years of such termination. (b) A voluntary Cash Out is a distribution to a Former Participant that meets the following requirements: (i) the Former Participant has voluntarily elected to receive the distribu- tion, and (ii) the distribution is made on account of the Employee's termination of participation in the Plan and within five (5) years of such termination. A Participant's spouse must consent to a voluntary Cash Out in accordance with Section 6.02(a). - 3 - For purposes of this Section 1.05, a distribution shall be deemed to be made on account of the Employee's termination o f participation in the Plan if it is made no later than the close of the second Plan Year following the Plan Year in which such ter- mination occurs. 1.06 "Code" means the Internal Revenue Code of 1954, as amended. 1.07 "Compensation" means the base compensation paid or accrued by the Employer to an Employee during his period of par- ticipation in a Plan Year, including regular salary and wages but excluding overtime pay, bonuses and specialty pay. Amounts contributed by the Employer under this Plan (and any other qualified retirement plan) and any non-taxable fringe benefits paid on behalf of a Participant shall not be considered as Compensation. 1.08 "Defined Benefit Plan Fraction" means, for any Plan Year, the following fraction: (a) the numerator is the projected annual benefit of a Participant under the Plan (determined as of the close of the Plan Year), and (b) the denominator is the lesser of (i) the product of 1.25 multiplied by the maximum dollar limitation in effect under Section 4l5(b) (1) (A) of the Code for such year, or (ii) the product of 1.4 multiplied by the amount which may be taken into account under Section 4l5(b) (1) (B) of the Code for such year. 1.09 "Defined Contribution Plan Fraction" means, for any Plan Year, the following fraction: (a) the numerator is the sum of the Annual Additions to a participant's accounts as of the close of the Plan Year, and (b) the denominator is the sum of the lesser of the following amounts determined for such year and each prior Year of Service wi th the Employer: (i) the product of 1.25 multiplied by - 4 - the dollar limitation in effect under Section 4l5(c) (1) (A) of the Code for such year (determined without regard to Section 4l5(c) (6)), or (ii) the product of 1.4 multiplied by the amount which may be taken into account under Section 4l5(c) (1) (B) of the Code for such year. 1.10 "Determination Date" means: (a) the last day of the preceding Plan Year, or (b) in the case of the first Plan Year, the last day of such Plan Year. 1.11 "Earned Income" means, with respect to a Self- Employed Individual, the net earnings from self-employment (as defined in Code Section 40l(c) (2)), reduced by the Employer's deductible contribution made on behalf of such individual to a qualified retirement plan for the Plan Year. 1.12 "Employee" means any person who is employed by the Employer and any person who is required to be considered an Employee of the Employer under Section 4l4(n) of the Code, but excludes the following: (a) independent contractors; and (b) individuals included in a unit covered by a collective bargaining agreement if retirement benefits were the subject of good faith bargaining and (c) nonresident aliens who receive no income from the Employer which constitutes income from sources within the United States. 1.13 "Employer" means the City designated on the first page of this Plan, any successor that shall maintain this Plan and any predecessor that has maintained this Plan. 1.14 "Employer Contribution Account" means the account established and maintained by the Trustee for each Participant with respect to his total interest in the Plan and Trust attributable to the Employer's contributions made under Section 3:01. - 5 - ~ 1.15 "Fiduciary" means any person who: (a) exercises any discretionary authority or control over the management of the Plan or the disposition of Plan assets, (b) renders investment advice for a fee or other compensation (direct or indirect) with respect to any monies or property of the Plan, or has any authority or responsibility to do so; or (c) has any discretionary authority or respon- sibility in the administration of the Plan. 1.16 "Fiscal Year" means the Employer's accounting period of twelve (12) months, commencing on October 1 of each year and ending on the following September 30. 1.17 "Forfeiture" means, that portion of a Participant' s Employer Contribution Account that is not vested, and occurs on the earlier of: (a) the distribution of the entire vested portion of the Participant's Employer Contribution Account, or (b) the last day of the Plan Year in which the Participant incurs five (5) consecutive one-year Breaks in Service (as defined in Section 1.04). 1.18 "Former Participant" means a person who has been a participant, but who has ceased to be a Participant for any reason, as specified in Section 2.04. 1.19 "Hour of Service" means: (a) each hour for which an Employee is directly or indirectly compensated or entitled to compensation from the Employer for the performance of duties during the applicable com- putation period; (b) each hour for which an Employee is directly or indirectly compensated or entitled to compensation from the Employer (irrespective of whether the employment relationship has terminated) for reasons other than performance of duties (such as vacation, holidays, sickness, disability, lay-off, military duty or leave of absence) during the applicable computation period, and - 6 - (c) each hour for which back pay is awarded or agreed to by the Employer, without regard to mitigation of damages. Notwithstanding subparagraph (b) above, no more than 501 Hours of Service are required to be credited to an Employee on account of any single continuous period during which the Employee performs no duties (whether or not such period occurs in a single computation period), and an hour for which an Employee is directly or indirectly paid, or entitled to payment, on account of a period during which no duties are performed is not required to be credited to the Employee if such payment is made or due under a plan maintained by the Employer solely for the purpose of complying with applicable worker's compensation, unemployment compensation or disability insurance laws. In addition, Hours of Service are not required to be credited hereunder for a payment which solely reimburses an Employee for medical or medically related expenses incurred by the Employee. The provisions of Sections 2530.200b-2(b) and (c) of the Department of Labor Regulations are incorporated herein by reference. For purposes of this Section 1.19, a payment shall be deemed to be made by or due from the Employer regardless of whether such payment is made by or due from the Employer directly or indirectly through a trust, fund or insurer to which the Employer contributes or pays premiums. 1.20 "Investment Manager" means: (a) any person, firm or corporation which is a registered investment adviser under the Investment Advisers Act of 1940, or (b) a bank or insurance company which has the power to manage, acquire or dispose of Plan assets and which acknowledges in writing such responsibility and its status as a Fiduciary under this Plan. 1.21 "Limitation Year" means the calendar year or, if different, the Plan Year specified in Section 1.25 (unless another twelve (12) consecutive month period is selected by the - 7 - Employer). If the Limitation Year is a period other than the calendar year, such period must be the same for all qualified plans of the Employer. If the Limitation Year is changed, the new Limitation Year must begin on a date within the Limitation Year in which the amendment implementing the change is made. 1.22 "Participant" means any Employee who becomes eli- gible to participate in this Plan as provided in Section 2.01. 1.23 "Plan" means this instrument and all amendments thereto, as well as the trust used to fund benefits hereunder. 1.24 "Professional Administrator" or "Administrator" means the Employer, or the individual or entity designated by the Employer to administer this Plan (as initially noted on the first page hereof), whose duties are set forth in Section 7.06. 1.25 "Plan Year" means the Plan's accounting period of twelve (12) months, commencing on October 1 of each year and ending on the following September 30. 1.26 "Qualified Joint and Survivor Annuity" means an annuity for the life of the Participant with a survivor annuity for the life of his spouse that is not less than fifty percent (50%), but not greater than one hundred percent (100%), of the amount payable during the joint lives of the Participant and his spouse, and that is the actuarial equivalent of a single life annuity for the life of the participant. 1.27 "Qualified Pre-Retirement Survivor Annuity" means an annuity for the life of the surviving spouse of the Partici- pant that is the actuarial equivalent of the account balance of the participant as of the date of his death. The earliest time at which payments to a surviving spouse may begin under a Qualified Pre-Retirement Survivor Annuity is not later than the month in which the Participant would have attained his Retirement Date (as defined in Section 1.29). - 8 - 1.28 "Qualifying Employer Real Property" means parcels of real property leased by the Plan to the Employer or its affil- iate, provided that: (a) a substantial number of the parcels are geographically dispersed; and (b) each parcel and its improvements are suitable or readily adaptable to more than one use. 1.29 "Retirement Date" means the first day of the month coinciding with or immediately preceding the Participant's sixty- fifth (65th) birthday. 1.30 "Self-Employed Individual" means an individual described in Code Section 40l(c) (1). A Self-Employed Individual shall be treated as an Employee for purposes of this Plan. 1.31 "Suspense Account" means the total forfeitable portion of all Former Participants' accounts which has not yet become a Forfeiture during any Plan Year. 1.32 "Terminated Participant" means a Participant whose employment with the Employer has been terminated in a manner other than (i) by death or Total and Permanent Disability (as defined in Section 1.33), or (ii) on or subsequent to his Retire- ment Date (as defined in Section 1.29). 1.33 "Total and Permanent Disability" means a physical or mental condition of a Participant resulting from bodily injury, disease or mental disorder which renders him incapable of continuing his usual and customary employment with the Employer. The disability of a Participant shall be determined by a licensed physician chosen by the Employer; provided, however, that if a Participant has been certified as eligible to receive a disabil- ity benefit under Title II of the Federal Social Security Act, such certificate shall be treated as conclusive proof that the Participant is Totally and Permanently disabled. The deter- mination of disability hereunder shall be applied uniformly to all participants. - 9 - 1.34 "Trustee" means the person or entity designated as trustee on the first page of this Plan and any successors sub- sequently named to serve in said capacity. 1.35 "Trust Fund" means the assets of the Plan and Trust, together with investment gains and losses, as maintained by the Trustee. 1.36 "Valuation Date" means the last day of the Plan Year, as specified in Section 1.25. 1.37 "Vested Interest" means that portion of a Participant's Employer Contribution Account that is nonfor- feitable. 1.38 "Year of Service" means a period of twelve (12) consecutive months during which an Employee completes at least 1000 Hours of Service. For purposes of eligibility for par- ticipation, the initial computation period shall begin with the date on which the Employee first performs an Hour of Service. The participation computation period beginning after a Break in Service shall be measured from the date on which the Employee again performs an Hour of Service. After the initial computation period the participation computation period shall shift to the current Plan Year (which includes the anniversary of the date on which the Employee first performed an Hour of Service). For vesting purposes, a Year of Service shall be a Plan Year in which an Employee completes at least 1000 Hours of Service. The Administrator may, in accordance with a uniform non- discriminatory policy, elect to credit Hours of Service pursuant to this Plan using one of the following methods: (a) count actual Hours of Service for which an Employee is paid or entitled to payment. (b) count 190 Hours of Service for each month in which an Employee is paid or entitled to payment for at least one Hour of Service. - 10 - (c) count 95 Hours of Service for each semi- monthly period in which an Employee is paid or entitled to payment for at least one Hour of Service. (d) count 45 Hours of Service for each week in which an Employee is paid or entitled to payment for at least one Hour of Service. (e) count 10 Hours of Service for each day in which an Employee is paid or entitled to payment for at least one Hour of Service. ARTICLE II ELIGIBILITY 2.01 Qualification as Participant. (a) All Employees who were Participants in this Plan as of the effective date set forth on the first page hereof shall remain eligible under the Plan as hereby amended and restated. Each additional Employee who completes one (1) Year of Service shall become a Participant on the earlier of: (i) the first day of the Plan Year following the satisfaction of the aforesaid service requirement, or (ii) the first day of the sixth (6th) month following the satisfaction of the aforesaid service require- ment. (b) The Professional Administrator shall determine the eligibility of each Employee for participation in this Plan based upon information furnished by the Employer, which deter- mination shall be conclusive and binding upon all persona. 2.02 Notice of Participation. The Professional Administrator shall give each Employee who qualifies as a Participant under Section 2.01 notice of his eligibility to participate and shall furnish the Employee with a written aummary of the Plan as then in effect. Such notice and summary shall be provided within ninety (90) days after the end of the Plan Year in which participation commences. - 11 - 2.03 Leave of Absence. A leave of absence by an Employee for no longer than two (2) years may be authorized by the Employer on a uniform and nondiscriminatory basis. During a leave of absence the Employee shall retain full eligibility under this Plan: provided, however, that if the Employee does not return to active employment with the Employer within ten (10) days follow- ing the expiration of the leave of absence, said Employee shall be considered as having terminated employment at the commencement of the period of absence. 2.04 Termination of Participation. An Employee who ter- minates employment with the Employer by reason of death, Total and Permanent Disability or attainment of his Retirement Date shall cease to be a Participant in this Plan as of the last day of the Plan Year in which such death, Total and Permanent Disability or attainment of Retirement Date occurs. An Employee whose employment with the Employer terminates for any other reason shall cease to be a Participant in this Plan as of the first day of the Plan Year during which such termination occurs. Regardless of the cause of termination, a Participant's (or Former Participant's) Employer Contribution Account shall con- tinue to share in the gains and losses of the Trust Fund, unless segregated pursuant to Section 4.04. 2.05 Reparticipation. (a) A Former Participant shall commence par- ticipation in this Plan immediately upon his return to the Employer's employ. (b) A former Employee who has completed the eligi- bility requirements for participation but who terminates employ- ment before his entry date and who is then re-employed prior to incurring a Break In Service shall participate as of the later of his date of re-employment or the entry date on which he would have commenced participation had he not terminated employment. - 12 - each Fiscal Year thereafter, the Employer shall contribute to this Plan an amount equal to the lesser of: (i) 4% of the aggregate Compensation and Earned Income of all participants for the Fiscal Year, or (ii) the maximum Annual Addition permitted under Section 4.02(a). All contributions by the Employer shall be made in cash or in. such property as is acceptable to the Trustee. 3.02 Time of Payment of Contributions. The Employer shall pay to the Trustee its contribution to the Plan for each Plan Year in quarterly installments, however, the Plan shall be considered to be fully funded for the Plan Year if all required contributions are accrued by the end of that year and paid to the Trustee within ninety (90) days thereafter. ARTICLE IV ALLOCATIONS 4.01 Allocation of Contributions, Earnings and Forfeitures. (a) The Trustee shall establish and maintain an Employer Contribution Account in the name of each Participant, to which shall be credited as of each Anniversary Date all amounts allocated to the Participants as hereinafter set forth. (b) Within one hundred twenty (120) days after the end of each Plan Year, the Employer shall provide the Professional Administrator with all information required by the Administrator for the allocation of the contributions made hereunder for that Plan Year. Within ninety (90) days after the date of receipt by the Administrator of such information, the Administrator shall make the allocations required under this Plan. - 13 - (c) The total contribution made by the Employer for each Plan Year shall be allocated to each Participant's Employer Contribution Account in the same proportion that his total Compensation and Earned Income for the Plan Year bears to the total Compensation and Earned Income of all participants for such year. (d) As of each Valuation Date, before the deter- mination of Forfeitures and the allocation of Employer contribu- tions, any earnings or losses (net appreciation or net deprecia- tion) of the Trust Fund shall be allocated to the accounts of the Participants, Former Participants and Beneficiaries in the same proportion that their non-segregated accounts bear to the total of all non-segregated accounts as of such date. Each segregated account maintained on behalf of a Participant, Former Participant or Beneficiary under Section 4.04 shall be credited or charged with its separate earnings and losses. (e) As of each Valuation Date, any amounts which became Forfeitures since the last Valuation Date shall first be used, to the extent required, to restore amounts forfeited by participants, if any, pursuant to Section 6.04(e). The remaining Forfeitures shall be applied to reduce the Employer's contribu- tion to the Plan and shall not be used to increase the accounts of the remaining Participants. 4.02 Overall Limitation of Benefits. (a) Notwithstanding anything to the contrary con- tained in this Plan, the Annual Addition (as defined in Section 1.02) to a participant's Employer Contribution Account for a Plan Year shall not exceed the lesser of $30,000 (or such greater amount as may be determined by the Secretary of the Treasury) or twenty-five percent (25%) of the participant's Compensation and Earned Income for that year. For purposes of this limitation, all defined contribution plans maintained by the Employer shall be considered one plan. - 14 - (b) If an Employee is a Participant in one or more defined benefit plans and one or more defined contribution plans maintained by the Employer, the sum of the Defined Benefit Plan Fraction (as defined in Section 1.08) and the Defined Contribu- tion Plan Fraction (as defined in Section 1.09) for any Plan Year may not exceed 1.0. (c) At the election of the Professional Administrator, in applying the provisions of subparagraph (b) above with respect to the Defined Contribution Plan Fraction for any Plan Year ending after December 31, 1982, the amount taken into account for the denominator for each Participant for all Plan Years ending before January 1, 1983 shall be an amount equal to the product of (i) the amount of the denominator determined under Section 1.09 for the Plan Year ending in 1982, multiplied by (ii) the "transition fraction". The term "transition frac- tion" means a fraction the numerator of which is the lesser of (i) $51,875, or (ii) 1.4 multiplied by twenty-five percent (251) of the Participant's Compensation and Earned Income for the Plan Year ending in 1981, and the denominator of which is the lesser of (i) $41,500, or (ii) twenty-five percent (25%) of the Participant's Compensation and Earned Income for the Plan Year ending in 1981. (d) If the sum of the Defined Benefit Plan Fraction and the Defined Contribution Plan Fraction shall exceed 1'.0 in a Plan Year for any Participant in this Plan, the Employer shall adjust the numerator of either fraction so that the sum of both fractions shall not exceed 1.0 in such year for that Participant. 4.03 Adjustment for Excess Contributions. If, as the result of a reasonable error in estimating a Participant's Compensation or Earned Income, or other facts and circumstances to which Treasury Regulation Section 1.41S-6(b) (6J applies, the Annual Addition to a Participant's Employer contribution Account shall exceed the maximum limitation specified in Section 4.02, - 15 - the Professional Administrator shall, pursuant to Treasury Regulation Section 1.4l5-6(b) (6) (iii), hold such excess amount unallocated in a suspense account (hereinafter called the "Section 415 Suspense Account") and shall allocate and reallocate such excess in the next Plan Year to all of the Participants in the Plan before the allocation of any contributions. Any excess amount held in the Section 415 Suspense Account shall be used to reduce the Employer's contributions for the next Plan Year (and succeeding Plan Years, as necessary) for all of the Participants in the Plan. In no event shall any excess amount in the Section 415 Suspense Account be distributed to a Participant, Former Participant or Beneficiary, nor shall the Section 415 Suspense Account share in any earnings or losses of the Trust Fund. 4.04 Segregated Accounts for Former Participants. The amounts to which Former Participants are entitled, but which have not been paid out due to the election of the installment form of distribution (or for any other reason) may, at the direction of the Professional Administrator, be severed from the Trust Fund and set aside and held by the Trustee in segregated accounts, in which event such Former Participants shall no longer share in the allocation of the earnings or losses (and appreciation or depreciation) of the Trust under Section 4.01 (d), but shall only be credited or charged with the earnings or losses (and appre- ciation or depreciation) of that portion of the Trust Fund so set aside in the segregated accounts. The segregated accounts may be charged with a prorated portion of the fees and expenses incurred in the administration of the Trust. This provision shall be applied in a nondiscriminatory manner to all Participants simi- larly situated. ARTICLE V VALUATIONS 5.01 Valuation of the Trust Fund. As of each Valuation Date, and at such other times as may be requested by the Professional Administrator, the Trustee shall determine the net - 16 - worth of the assets comprising the Trust Fund. In determining such net worth, the Trustee shall value the assets at their fair market value as of the Valuation Date. 5.02 Method of Valuation. In determining the fair market value of securities held in the Trust Fund that are listed on a registered stock exchange, the Trustee shall value such securities at the prices they were last traded on the exchange preceding the close of business on the Valuation Date. If such securities were not traded on the Valuation Date, or if the exchange on which they are traded was not open for business on the Valuation Date, then the securities shall be valued at the prices at which they were last traded prior to the Valuation Date. Any unlisted security held in the Trust Fund shall be valued at its bid price, if obtainable, next preceding the close of business on the Valuation Date, which bid price shall be obtained from a registered broker or an investment banker. In determining the fair market value of assets (other than securi- ties for which trading or bid prices can be obtained), the Trustee may appraise the assets or, alternatively; may employ one or more appraisers for that purpose and, in such event, shall be entitled to rely on the values established by the appraiser or appraisers. ARTICLE VI DETERMINATION AND DISTRIBUTION OF BENEFITS 6.01 Determination of Benefits Upon Retirement. If a Participant terminates his employment with the Employer upon or after attaining his Retirement Date (as defined in Section 1.29), all amounts credited to such Participant's Employer Contribution Account as of the next succeeding Anniversary Date shall be distributed to him by the Trustee, on a fully vested basis, in accordance with Section 6.05. A Participant who continues in the employ of the Employer after his Retirement Date shall remain a Participant in this Plan until the last day of the Plan Year in which his termination actually occurs (subject to the distribu- - 17 - tion requirements of Section 6.05(g)), and the Participant's Employer Contribution Account shall be determined as of such date. 6.02 Determination and Distribution of Benefits Upon Death. (a) Upon the death of a Participant or Former Participant prior to the commencement of distribution of his benefit, all amounts credited to the Participant's Employer Contribution Account as of the Anniversary, Date fOllowing the date of death shall be distributed by the Trustee, on a fully vested basis, in accordance with the provisions of this Section 6.02. Unless otherwise elected in the manner prescribed in Section 6.02(b) below, the sole Beneficiary of such death benefit shall be the Participant's spouse, who shall receive the benefit in the form of a Qualified Pre-Retirement Survivor Annuity (as defined in Section 1.27) commencing on or before the date the Participant would have attained his Retirement Age, unless the spouse ~lects a later date. However, a different form of payment of the death benefit may be selected by the Participant upon waiving the Qualified Pre-Retirement Survivor Annuity in writing during the election period specified in subparagraph (c) below (which waiver may be revoked by the Participant without the con- sent of his spouse during the same period). Such waiver shall require the consent of the Participant's spouse, which consent shall be in writing and witnessed by the Trustee or a notary public, unless it is established to the satisfaction of the Professional Administrator that there is no spouse, that the spouse cannot reasonably be located, or that such other cir- cumstances exist as the Treasury Regulations may prescribe. If the spouse of a Participant who originally cannot be found sub- sequently is located, or if a Participant remarries, it shall be the duty of the Participant to bring that fact to the attention of the Administrator. Upon such notification, the Administrator shall then, if applicable, proceed to make available to the spouse the consent procedure described in this subparagraph (a). - 18 - (b) (i) In the event of the death of a Partici- pant or Former Participant, the surviving spouse of such Participant must be the sole Beneficiary unless the Participant has elected a different Beneficiary, the sur- viving spouse has consented in writing to such election and has acknowledged its effect, and the consent and acknowledg- ment 'are witnessed by the Trustee or a notary public. The consent of the spouse shall not be necessary if it is established to the satisfaction of the Professional Administrator that there is no spouse, that the spouse cannot reasonably be located, or that such other circumstances exist as the Treasury Regulations may prescribe. If the spouse of a Participant who originally cannot be found subsequently is located, or if a Participant remarries, it shall be the duty of the Participant to bring that fact to the attention of the Administrator. Upon such notification, the Administrator shall then, if applicable, proceed to make available to the spouse the consent procedure described in this subparagraph (b) . (ii) The alternate designation and consent provided for herein shall be made by the Participant and spouse on a form provided by the Trustee or the Plan Administrator. A Participant may at any time revoke his alternate designation of Beneficiary or again change his Beneficiary, without the consent of his spouse, by filing written notice of such revocation or change with the Trustee. In the case of an unmarried Participant who does not have a valid Beneficiary designation in effect at the time of his death, or in the event a nonspouse designation has been prop- erly made but no valid designation of Beneficiary is in efffect at the time of the Participant's death, the death benefit shall be payable to the Participant's issue, per stirpes, or if none of his issue are living, to the personal representative of his estate. - 19 - (c) The election and notice period for the waiver of the Qualified Pre-Retirement Survivor Annuity under sub- paragraph (a) above shall begin on the first day of the Plan Year in which the Participant attains age thirty-five (35) and shall end on the date of the Participant's death. In the event a Participant with a Vested Interest in the Plan separates from service with the Employer prior to the beginning of the above election period, the election period as to that Participant shall begin on the date of such separation from service. (d) The Professional Administrator shall provide each Participant--no earlier than the period beginning with the first day of the Plan Year in which the Participant attains age thirty-two (32) and no later than the close of the Plan Year pre- ceding the Plan Year in which the Participant attains age thirty- five (35)--a written explanation of the Qualified Pre-Retirement Survivor Annuity containing comparable information to that required under Section 6.05(a) (iii) with regard to the Qualified Joint and Survivor Annuity. If a Participant commences par- ticipation in the Plan after the first day of the. Plan Year in which he attained age thirty-two (32), the Administrator shall provide this explanation to the Participant no later than the close of the second Plan Year following the date of commencement. of his participation. Notwithstanding the foregoing, no explana- tion shall be required if the Plan fully subsidizes the cost of the Qualified Pre-Retirement Survivor Annuity benefit. For this purpose, the Plan will be considered to have fully subsidized the cost of the benefit if the failure to waive such benefit by a Participant would not result in a decrease in Plan benefits with respect to that Participant. (e) (i) In the event the right to payment of the death benefit in the form of a Qualified Pre-Retirement Survivor Annuity is properly waived under subparagraph (a) above, it shall be paid to the Participant's Beneficiary by - 20 - either of the following methods, as directed by the Beneficiary and approved by the Professional Administrator, which shall direct the Trustee accordingly: (A) One lump sum payment in cash or in kind; (B) periodic payments consisting of monthly, quarterly, semiannual or annual installments over a specified period. (ii) The Administrator, if requested by the Beneficiary, may direct the Trustee to accelerate any installment payments to a Participant's Beneficiary hereunder, or may purchase for the benefit of such Beneficiary an annuity with the monies or property held in the Participant's Employer Contribution Account. (f) Regardless of the form of distribution, in no event shall the death benefit payable to a surviving spouse be less than the actuarial equivalent of the death benefit for a married Participant payable in the form of a Qualified Pre- Retirement Survivor Annuity. (g) If the distribution of a Participant's interest has begun in accordance with a method selected under Section 6.05 and the Participant dies before his entire Employer Contribution Account has been paid to him, the remaining portion of his Employer Contribution Account shall be distributed at least as rapidly as under the method of distribution previously established for him, subject to the provisions of subparagraph (b) above. (h) If a Participant dies before he has begun to receive any payments under this Plan, his death benefit shall be distributed to his Beneficiary within five (5) years after his death. Bowever, installment distributions to a Beneficiary designated by the Participant which begin not more than one (1) year after the Participant's death shall be treated as complying with this five (5) year distribution requirement (even though the installment payments are not completed within five (5) years of - 21 - the Participant's death) if the distributions are for the life of such Beneficiary or are made at a rate which is not longer than that calculated (pursuant to regulations prescribed by the Secre- tary of the Treasury) to provide payment of the entire amount of the Participant's Employer Contribution Account during the anti- cipated life expectancy of the designated Beneficiary. However , if the Beneficiary is the spouse of the deceased Participant, the distributions can begin as long after the Participant's death as the date on which the deceased Participant would have attained the age of 70-1/2 had he lived. Furthermore, if the surviving spouse dies before payments to the surviving spouse have begun, distribution shall be made hereunder as though the surviving spouse were the deceased Participant. (i) For purposes of this Section 6.02, the life expectancy of a participant and a participant's spouse (other than in the case of a life annuity) may be redetermined by the Professional Administrator, but not more frequently than annually, in accordance with such rules as may be prescribed by the Treasury Regulations. Further, life expectancy and joint and last survivor expectancy shall be computed using the return multiples of Treasury Regulation 1.72-9. (j) Prior to making distributions under this Section 6.02, the Trustee may request the Professional Administrator to provide proof of death of the Participant and/or evidence of a claimant's status as Beneficiary. In such event, the Administrator's determination of death and of the right of any person to receive benefits hereunder shall be conclusive and binding upon all parties. 6.03 Determination of Benefits Upon Disability. (a) In the event of a Participant's Total and Permanent Disability (as defined in Section 1.33) prior to his termination of employment with the Employer, all amounts credited to such Participant's Employer Contribution Account as of the - 22 - subsequent Anniversary Date shall be distributed to him (or to his guardian, as the case may be) by the Trustee, on a fully vested basis, in accordance with Section 6.05. (b) In the event of the disability of a pormer Participant, the Trustee shall distribute the vested portion of the remainder of such Former Participant's Employer Contribution Account, if any, as of the Anniversary Date following the date of . disability, to the Former Participant (or to his guardian, as tbe case may be) in accordance with Section 6.05. 6.04 Determination of Benefits Upon Other Termination of Employment. (a) The benefits payable under this Plan to a Terminated Participant . (as defined in Section 1.32) shall consist of the vested portion of his Employer Contribution Account (as defined in Section 1.14 and determined as of the preceding Anniversary Date). (b) A Participant's vested Interest (as defined in Section 1.37) sball be a percentage of the total amount credited to his Employer Contribution Account, determined on the basis of the number of the Participant's Years of Service with the Employer (excluding service prior to age eighteen (18)), according to the following schedule: Years of Service Vested Interest 1 Year 0% 2 Years 0% 3 Years 0% 4 Years 40% 5 Years 50% 6 Years 60% 7 Years 70% 8 Years 80% 9 Years 90% 10 Years 100% - 23 - (c) The vested portion of a Terminated Partici- pant's Employer Contribution Account shall be distributed in accordance with Section 6.05, except that a Cash Out (as defined in Section 1.05) may be made to a Terminated participant fro. his vested Interest after such Participant terminates employment with the Employer, notwithstanding the fact that the Participant may not have incurred a Break in Service. However, no Cash Out shall be made after the "annuity starting date" unless the Participant and the Participant's spouse (or, where the participant has died, the surviving spouse) consent in writing to such distribution. The remainder of the Terminated Participant's Employer Contribution Account (consisting of the nonvested portion) shall be credited to a Suspense Account. (as defined in Section 1.31), which shall share in the gains and losses of the Trust until it becomes a Forfeiture (as defined in Section 1.17), at which time it will be applied pursuant to Section 4.0l(e). (d) The Vested Interest of a Terminated Partici- pant who is rehired by the Employer prior to incurring a Break in Service shall remain unchanged and upon his reemployment shall be identical to such interest as it existed on his date of termination, provided, however, that if the Participant received a Cash Out (as defined in Section 1.05), such Participant repays the full amount distributed to him in accordance with Section 6.04(e) below. (e) If a Former Participant is reemployed by the Employer before incurring five (5) consecutive Breaks in Service, and such Former Participant had received a distribution of his entire Vested Interest in a Cash Out prior to his reemployment, the portion of his Employer Contribution Account that was for- feited shall be reinstated if, and only if, he repays the full amount distributed to him prior to the date on whicb he incurs five (5) consecutive Breaks in Service. In the event the Former Participant does repay the full amount distributed to him, the undistributed portion of his Employer Contribution Account must - 24 - be restored in full, unadjusted by any gains or losses occurring subsequent to the Anniversary Date or other Valuation Date pre- ceding his terminati.on. (f) If a Former Participant is reemployed after a Break in Service has occurred, he shall receive credit for Years of Service prior to his Break in Service in accordance with the following rules: (i) If the Former Participant incurs a Break in Service, his pre-break and post-break service shall be used for computing Years of Service for vesting purposes only after he has been employed for one (1) Year of Service following the date of his reemployment by the Employer, (ii) In the case of a Participant who did not have any Vested Interest, Years of Service before bis Break in Service shall not be taken into account if the number of his consecutive Breaks in Service equals or exceed the greater of (A) five (5), or (B) the aggregate number of his pre-break Years of Service, (iii) Years of Service after the Participant has incurred five (5) consecutive Breaks in Service shall not be taken into account for purposes of determining his Vested Interest in contributions attributable to pre-break service. (g) Separate accounts will be maintained for pre- break contributions (if not distributed pursuant to Section 6.04(c)) and post-break contributions made by the Employer on behalf of Former Participants who are rehired before incurring five (5) consecutive Breaks in Service, and both accounts will share in the earnings and losses of the Plan. (h) For purposes of computing a Participant's Vested Interest, Years of Service and Breaks in Service will be measured by the Plan Year. (i) A Participant's Vested Interest shall not be reduced as the result of an amendment to this Plan. In tbe event that this Plan is amended to change the vesting schedule, or is - 25 - amended in a way that directly or indirectly affects the com- putation of a Participant's Vested Interest, then each Partici- pant with at least five (5) Years of Service as of the expiration date of the election period set forth below may elect in writing to have his Vested Interest computed without regard to such amendment. The election period shall commence on the date the amendment is adopted and shall end sixty (60) days after the latest of: (i) the date of adoption of the amendment, or (ii) the effective date of the amendment, or (iii) the date the Participant receive written notice of the amendment from the Employer, Trustee or Professional Administrator. Notwithstanding the above, no election need be provided for a Participant whose Vested Interest under this Plan, as amended, cannot be less at any time than his Vested Interest determined without regard to the amendment. 6.05 Distribution of Benefits Upon Nondeath Termination of Employment. (a) Married Participants. (i) Unless otherwise elected as provided under subparagraph (ii) below, a Participant who is married on the "annuity starting date" and who terminates employment with the Employer with a Vested Interest in the Plan shall receive his benefit in the form of a Qualified Joint and Survivor Annuity (as defined in Section 1.26),which shall be the actuarial equivalent of a single life annuity. In the event of the death of the participant, the payment of tbe Qualified Joint and Survivor Annuity shall continue to the Participant's spouse during the spouse's lifetime at a rate equal to not less than fifty percent (50%,) of the rate at which such benefits were payable to the participant. A Participant may select a different form of payment of bene- fits upon waiving the Qualified Joint and Survivor Annuity in - 26 - writing during the election period specified in subparagraph (a) (iii) below (which waiver may be revoked by the Participant without the consent of his spouse during the same period). Such waiver shall require the consent of the Participant's spouse, which consent shall be in writing and witnessed by the Trustee or a notary public, unless it is established to the satisfaction of the Professional Administrator that there is no spouse, that the spouse cannot reasonably be located; or that such other circumstances exist as the Treasury Regulations may prescribe. If the spouse of a Participant who originally cannot be found subsequently is located, or if a Participant remarries, it shall be the duty of tbe Partici- pant to bring that fact to the attention of the Administra- tor. Upon such notification, the Administrator shall then, if applicable, proceed to make available to the spouse the consent procedure described in this subparagraph (a) (i). If all the requirements of this subparagraph (a) (i) bave been satisfied, the form of the distribution shall be in accord- ance with Section 6.05(b) below. (ii) The election period for waiver of the Joint and Survivor Annuity under subparagraph (a) (i) above shall be the ninety (90) day period ending on the "annuity starting date" (the first day of the first period for which an amount is received as an annuity under this Section 6.05). (iii) The Professional Administrator shall pro- vide the Participant, within a reasonable period of time before the "annuity starting date", a written explanation of: (A) the terms and conditions of the Qualified Joint and Survivor Annuity, (B) the Participant's right to waive the Qualified Joint and Survivor Annuity form of benefit, and tbe effect of such a waiver, ee) the right of the Participant'. spouse to consent to any election to waive tbe Qualified Joint and Survivor Annuity, and - 27 - (D) the right of the Participant to revoke an election to waive the Qualified Joint and Survivor Annuity, and the effect of such a revocation. Notwithstanding the foregoing, no explanation shall be required if the Plan fully subsidizes the cost of the Qualified Joint and Survivor Annuity. For this purpose. the Plan will be considered to have fully subsidized the cost of the benefit if the failure to waive such benefit by a Participant would not result in a decrease in Plan benefits with respect to that Participant. (iv) The Qualified Joint and Survivor Annuity requirements provided for in this Section 6.05 shall apply only to Participants who are credited with an Hour of Service on or after August 23, 1984. Former Participants who are not credited with an Hour of Service on or after August 23, 1984 shall be provided with rights to a Qualified Joint and Survivor Annuity only as required under Section 303(e) of the Retirement Equity Act of 1984. (b) Unmarried Participants. If the Participant is not married, his benefit shall be paid in the form of an annuity for the life of the Participant unless he elects to waive such form of benefit in accordance with the provisions of Section 6.05(a) above (but without the requirement of spousal consent). In the event the right to payment of benefits in the form of a Qualified Joint and Survivor Annuity or single life annuity, as applicable, is properly waived under Section 6.05(a), bene- fits shall be paid to the Participant by either of the following methods, as specified by the Participant and approved by the Pro- fessional Administrator, which shall direct the Trustee accordingly: (i) One lump sum payment in cash or in kind; (ii) Periodic payments consisting of monthly, quarterly, semiannual or annu.l installments. The period over which such payments are to be made shall not extend beyond the Participant's life expectancy. - 28 - The Administrator, at the request of the Partici- pant, may direct the Trustee to accelerate any installment payments to a ~articipant hereunder, or may purchase for the benefit of the Participant an annuity with the monies or property held ,in the Participant's Employer eontribution Account. Any such annuity shall not provide for payments over a period extending beyond either the life of the Participant or tbe life expectancy of the Participant. (c) In the event the amount of benefits to be dis- tributed to a Terminated Participant hereunder equal. or exceeds the cash surrender value of any insurance contracts held in the Plan on his life, then the Trustee, subject to tbe consent of said Participant, may assign and transfer to tbe Participant all such contracts ,as part of his distribution. In the event tbe amount of benefits payable to a Terminated Participant hereunder does not equal the cash value of the insurance contracts on his life, the Trustee shall surrender the contracts and pay the vested portion of the cash value thereof to the Participant as part of his distribution. (d) If the Participant's entire interest is to be distributed in other than a lump sum, then the minimua distrIbu- tion to be made under this Section 6.05 will be an amount equal to the quotient obtained by dividing the balance of the Partici- pant's Employer Contribution Account at the beginning of tbe Plan Year by the life expectancy of the Participant. Life expectancy will be determined when the initial periodic distribution begins, but not later than the date the Participant attains age 70-1/2 or his age on the date he retires, if later. Such age shall be reduced by one (1) for each Plan Year commencing after tbe Participant's attainment of age 70-1/2 or the date he retires, if later. (e) If the Administrator distributes a Participant's benefits to him and his Beneficiary hereunder over a period in excess of the Participant's life expectancy, the then present - 29 - value of the payments to be made over the period of the Partici- pant's life expectancy must be more than fifty percent (50') of the then present value of the total payments to be made to the participant and his Beneficiary, provided, however, that this paragraph shall not apply to a distribution in the form of a Qualified Joint and Survivor Annuity pursuant to Section 6.05(a)(i). (f) Notwithstanding anything to the contrary con- tained herein, the payment of benefits under this Section 6.05 must begin within sixty (60) days after the end of tbe Plan Year following the later of: (i) the Participant's attainment of his Retirement Date, or (ii) the tenth (10th) anniversary of tbe Participant's participation in this Plan, or (iii) the Participant's termination of employment with the Employer. If the amount of the payment required to commence on a date determined under this Section 6.05(f) cannot be ascer- tained by such date, or if it is not possible to make tbe payment on that date because the Administrator has been unable to locate the Participant after making reasonable efforts to do so, a payment retroactive to such date may be made no later than sixty . (60) days after the earliest date on which the amount of the payment can be ascertained or the date on which the Participant is located, whichever is applicable. (g) Notwithstanding anything contained herein to the contrary, the distribution of a Participant's benefits here- under shall commence by the later of (i) the April l1st following the calendar year in which he attains age 70-1/2, or (ii) the end of the calendar year in which he retires. However, the mandatory commencement of distributions pursuant to this subparagraph (g) shall not apply if prior to January 1, 1984, a Participant made a - 30 - written designation providing for the commencement of distribu- tions at a later date, and the method of distribution so designated satisfies the provisions of Code Section 401(a) as in effect prior to the enactment of the Tax Equity and Fiscal Responsibility Act of 1982. (h) Pending distribution, a Participant's Employer Contribution Account (or any part thereof) may, if directed by the Professional Administrator at the request of the Participant, be segregated by the Trustee and invested on its own in accord- ance with Section 4.04 or, alternatively, may be kept as part of the Trust Fund, in which event it shall continue to share in the gains and losses of the Trust pursuant to Section 4.0l(d). (i) For purposes of this Section 6.05, the life expectancy of a Participant and a Participant's spouse (other than in the case of a life annuity) may be redetermined by the Professional Administrator, but not more frequently than annually, in accordance with such rules as may be prescribed by the Treasury Regulations. Further, life expectancy and joint and last survivor expectancy shall be computed using the return multiples of Treasury Regulation 1.72-9. 6.06 Termination of Participation. Subject to tbe re- participation requirements contained in Section 2.05, the termi- nation of active service as an Employee of the Employer shall constitute termination of participation hereunder, except that if the active service of a Participant is suspended on account of an authorized leave of absence (as permitted under Section 2.03) his participation shall not be deemed to have terminated. In the event of an authorized leave of absence, a Participant who does not complete a Year of Service shall not receive an allocation of contributions made by the Employer during such absence, but shall continue to share in the gains and losses of the Plan on a pro rata basis pursuant to Section 4.01(d). 6.07 Distributions to Minors and Incompetents. If the Professional Administrator determines that any person entitled to receive payments hereunder is a minor or is incompetent by reason - 31 - of physical or mental disability, it may direct tbe Trustee to make all payments thereafter becoming due to such person to any other person for the benefit of the minor or incompetent, without responsibility to follow the actual application of amounts 80 paid. Payments properly made pursuant to this direction shall completely discharge the Trustee from all liability connected therewith 6.08 Location of Participant or Beneficiary Unknown. In the event that all or any portion of a distribution payable to a Participant or his Beneficiary hereunder shall, at tbe expiration of five (5) years after it shall become payable, reamin unpaid solely by reason of thelnability of the Administrator, after sending a registered letter, return receipt requested, to the last known address, and after further diligent effort, to ascer- tain the whereabouts of such Participant or Beneficiary, the amount so distributable shall be reallocated as a Forfeiture under Section 4.0l(e). In the event a Participant or Beneficiary is located subsequent to the reallocation of his benefit, such benefit shall be restored by an additional contribution made by the Employer. 6.09 Qualified Domestic Relations Orders. Notwithstand- ing any other provisions of this Article VI, the Trustee may make distributions pursuant to a qualified domestic relations order (as defined in Section 414(p) of the Code), provided that the Professional Administator has properly notified the Participant and any alternate payee of the order and has deter- mined that the order is a qualified domestic relations order. The Administrator shall adopt reasonable procedures to determine the qualified status of such orders and to administer distribu- tions thereunder. ARTICLE VII FIDUCIARY RESPONSIBILITY AND INVESTMENT OF PLAN FUNDS 7.01 Basic Responsibilities of Trustee. The Trustee shall have the following categories of responsibilities: - 32 - (a) Consistent with the funding policy established by the Employer, to invest, manage and maintain custody of the Trust assets; (b) At the direction of the Professional Administrator, to distribute benefits to the Participants or their Beneficiaries as required under the terms of this Plan; and (c) to maintain records of receipts and disburse- ments on behalf of the Trust Fund and to furnish the Employer and/or Administrator with the information required hereunder. If there shall be more than one Trustee, they shall act by a majority of their number, but may authorize one or more of them to act on their behalf. 7.02 Assets Hold as Single Fund. The Trustee shall hold, invest and reinvest the Trust assets, together with the earnings thereon, in its absolute discretion (except to the extent directed by and Investment Manager under Section 7.05). All contributions from time to time paid to the trustee by or on behalf of the Employer and by or on behalf of the Participants, and the income therefrom, may after allocation be held and admi- ministered by the Trustee as a single fund, and the Trustee shall not be required to segregate or invest separately any share of a Participant in the Trust, except as otherwise provided in this Plan. 7.03 Investment Authority. In carrying out the Plan's funding policy, as established by the Employer, and except as directed by an Investment Manager, the Trustee is empowered: (a) To invest and reinvest the monies accumulated in the Trust, without distinction between principal and income, in common or preferred stocks (whether or not listed on any exchange), bonds, notes, debentures, mortgages, equipaent trust certificates, investment trust certificates, limited partnership interests, mutual funds or other securities, master trusts, real estate, personal property, Treasury Bills and other government - 33 - obligations, stock options (including puts and calls) and such other investments as it may deem suitable and which are not pro- hibited under the Code or the Employee Retirement Income Security Act of 1974, (b) To sell, exchange, convey, transfer or other- wise dispose of any property held by it, by private contact or at public auction, and no person dealing with the Trustee shall be required to see to the application of the purchase money or to inquire into the validity, expediency or propriety of any such sale or other disposition, (c) To vote upon any stocks, bonds or other securities and to give general or special proxies or powers of attorney with or without power of'substitution, to exercise any conversion privileges, subscription rights or other options and to make payments incidental thereto, to open and maintain margin accounts in connection with the purchase of securities, to con- sent to or otherwise participate in corporate reorganizations or other changes affecting corporate securities, and to delegate discretionary powers and to pay any assessments or charges in connection therewith, and, generally, to exercise any and all of the powers of owner with respect to stocks, bonds, securities and other property held in the Trust, (d) To negotiate, execute and deliver an option or agreement for the purchase of securities, including bonds, pre- ferred or common stocks and mutual funds, and real or personal property, (e) To make, execute, acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted, (f) To register any investment held in the Trust in its own name or in the name of a nominee and to hold any investment in bearer form, but the books and records of the - 34 - Trustee shall at all times show that such investments are part of the Trust; (g) To employ suitable agents and counsel and to pay their reasonable expenses and compensation, (h) To borrow on behalf of the Plan and to use assets of the Trust as security for such loans, (i) To purchase insurance on the life of any Participant in the Plan in accordance with Section 8.01, (j) To settle, compromise or subait to arbitration any claims or debts due to or owed from the Plan, (k) To ~mence or defend suits or adainistrative proceedings, and to represent the Plan in connection therewith, (1) To keep such portion of the Trust in cash or cash equivalents as it may deem appropriate, and the Trustee shall not be required to pay interest on cash held by it pending investment, (m) To invest funds in Qualifying Employer Real Property (as defined in Section 1.28) in an aggregate amount not to exceed ten percent (lOt) of the fair market value of the assets of the Trust, and (n) To do all acts, whether or not directed by the Employer or Administrator or specifically authorized herein, which it deems necessary or proper for the protection of the Trust assets and the administration of the Trust. 7.04 Selection of General Areas of Investment. Subject to the provisions of Section 7.ll(a), the Employer may designate in writing the proportion or percentage of Trust assets, if any, to be placed in equity investments (including equity funds of any collective, commingled or common trust fund maintained by the Trustee), fixed income investments (including fixed income funds of any collective, commingled or common trust fund maintained by - 35 - the Trustee) or life insurance contracts (if directed by Participants in accordance with Section 8.01). In the event the Employer fails to designate in writing its preference regarding the investment of Trust funds, such funds shall be invested by the Trustee in its sole discretion, except as otherwise directed under Section 7.05. 7.05 Directed Investment by Investment Manager. (a) The Employer may appoint an Investment Manager (as defined in Section 1.20) and, in such event, may give written instructions to the Trustee for the segregation of any portion of the Trust in a separate investment account or accounts for investment and reinvestment by the Investment Manager. If the investment of the Trust is to be directed in whole or in part by an Investment Manager, the Employer shall deliver to to the Trustee a copy of the document appointing the Investment Manager and evi- dencing the Investment Manager's acceptance of such appointment, an acknowledgment in writing by the Investment Manager that it is a fiduciary with respect to the Plan, and, if applicable, a cer- tificate evidencing the Investment Manager's current registration under the Investment Advisors Act of 1940. The Trustee shall be fully protected in relying upon such instruments until otherwise notified in writing by the Employer. (b) The Trustee shall follow the directions of the Investment Manager regarding the investment and reinvestment of the Trust (or such portion thereof as shall be under management by the Investment Manager). The Trustee shall be under no obli- gation to review any investment to be acquired, held or disposed of pursuant to such direction or to make any recommendations with respect to the disposition or continued retention of any such investment. The Trustee shall have no liability or respon- sibility for acting or not acting pursuant to the direction of, or for failing to act in the absence of any direction from the Investment Manager, unless the Trustee knows that by such action or failure to act it would be committing or participating in a - 36 - breach of fiduciary duty by the Investment Manager. The Employer hereby agrees to indemnify and hold the Trustee harmless from and against any and all liability by reason of its acting pursuant to the direction of the Investment Manager or failing to act in the absence of such direction. (c) An Investment Manager may from time to time issue orders for the purchase or sale of securities directly to a broker, and in order to facilitate such transaction tbe Trustee upon request shall execute and deliver the appropriate trading authorizations. Written notification of the issuance of each such order shall be given promptly to the Trustee by the Investment Manager, and the execution of said orders shall be confirmed by written notice to the Trustee by the Investment Manager or the broker. Upon receiving the notification the Trustee shall be authorized to pay for securities purchased against receipt thereof and to deliver securities sold against payment therefor, as the case may be. (d) In the event that an Investment Manager shall resign or be removed by the Employer, the Trustee, after written notification of such removal or resignation, shall manage the investment of the Trust unless and until it shall be notified of the appointment of another Investment Manager. 7.06 Powers and Duties of Professional Administrator. The primary responsibility of the Professional Administrator is to administer this Plan in accordance with its terms for the exclusive benefit of the participants and their Beneficiaries. In this regard, the Administrator shall determine all questions arising in connection with the administration, interpretation and application of the Plan. Specifically, the Administrator is empowered: (a) To determine the eligibility of. Employees to participate hereunder; (b) To direct the Trustee with respect to the form and timing of the distribution of benefits to Participants and Beneficiaries; - 37 - . (c) To interpret the provisions of the Plan and to formulate rules and regulations for its operation, (d) To communicate with the Participants as necessary and to assist any Participant regarding his rights, benefits or options available under the Plan, and (e) To perform all other functions required here- under and to take any further action, whether specified herein or directed by the Employer, as may be necessary for the proper administration of this Plan. If there shall be more than one Professional Administrator, they shall act by a majority of their number, but may authorize one or more of them to act on their behalf. 7.07 Records and Reports. (a) The Trustee shall maintain records of the disposition of the assets of the Trust, which shall be open to inspection at all reasonable times to any person designated in writing by the Employer. Within ninety (90) days following the close of each Plan Year (or such later date as may be agreed upon between the Trustee and the Employer), the Trustee shall file with the Employer a written statement setting forth all invest- ments, receipts and disbursements and other transactions effected during such year, and containing an exact description of all securities purchased and sold, and the cost or net proceeds of sale, and showing the securities and other Plan assets held at the end of the year, and the cost of each item as carried on the books of the Trustee. (b) The Professional Administrator shall maintain records of the administration of the Plan, which shall be open to inspection at all reasonable times to any person designated in writing by the Employer. The Administrator shall be responsible for preparing and filing all reports, tax returns and other materials pertaining to the Plan and required by tbe Department of the Treasury and the Department of Labor, and for supplying the participants and Beneficiaries with all information regarding the operation of this Plan and Trust as required by law. - 38 - 7.08 Compensation and Expenses. Unless they receive remuneration from the Employer for services rendered, the Trustee and/or Professional Administrator shall be paid by the Employer such compensation for duties performed hereunder as may be agreed by them from time to time. Such compensation shall be in addi- tion to all reasonable expenses incurred by the Trustee ,or Administrator in the execution of their duties hereunder, including taxes and fees for legal, accounting and investment services. Pursuant to the written request of the Employer, or if not paid within ninety (90) days of the rendering of its invoice, such compensation and expenses may be charged against and paid out of the Trust. 7.09 Communication by Employer to be in Any determination or action of the Employer pursuant to tbe provi- sions of this Plan shall be communicated in writing to the Trustee or Professional Administrator, which shall be entitled to rely on all information received from the Employer, and shall be under no duty to make a determination as to its validity. 7.10 Taxes. The Trustee shall have the right to payout of the Trust all taxes imposed or levied with respect to Trust assets, and in its discretion may contest the validity or amount of any tax, assessment, claim or demand with respect to the Trust or any part thereof. 7.11 Fiduciary Responsibility. (a) The Trustee is designated as a Fiduciary of this Plan and Trust and (except to the extent directed br an Investment Manager under Section 7.05) is charged with tbe making of Trust investments pursuant to Section 7.03 and the maintenance of the necessary records as specified in Section 7.07(a). In this regard, all investments under this plan shall be made by tbe Trustee in'a prudent manner, and in making investments all Participants shall be treated equally on a nondiscriminatory basis. In addition, the Trustee shall maintain diversity in - 39 - selecting investments unless under the circumstances it is clearly prudent not to do so. Although the Employer has the right to recommend general areas of investment under Section 7.04, its powers in this regard are advisory only and its recom- mendations shall be reviewed by the Trustee and implmented only when determined by the Trustee to be prudent and proper in light of the current assets of the Trust, the probable benefit to the Participants and Beneficiaries of the Plan, and whatever other factors the Trustee shall in its discretion deem important. (b) The Professional Administrator is designated as a Fiduciary of this Plan and Trust and, as such, is charged with responsibility for the administration and operation of the Plan pursuant to Section 7.06 and the maintenance of the necessary records as specified in Section 7.07(b). The Administrator may be removed by the Employer or may voluntarily resign from said capacity. Such removal or resignation shall be in writing and shall be effective upon the appointment of a suc- cessor and the written acceptance by the new Administrator of the responsibility and liability attaching to that position as set forth herein. In the event of removal or resignation, the Administrator shall transfer to its successor such records as may be reasonably required for the proper administration of the Plan- hereunder. 7.12 Removal and Resignation of Trustee. (a) The Trustee may be removed by the Employer by the delivery to the Trustee of a written directive to that effect, and the Trustee may resign by the delivery to the Employer of a written resignation. Such removal or resignation shall become effective ninety (90) days from the date of said delivery, unless an earlier or later date is agreed upon by the Employer and the Trustee. In the event of such removal or resignation, the successor Trustee, upon acceptance of the appointment by an instrument in writing delivered to the Employer, shall become vested with all the rights and shall assume all the duties of Trustee under this Plan and Trust. - 40 - (b) In the event of the death, incapacity, removal or resignation of the Trustee and the appointment of (and accept- ance by) a successor, the Trustee (or his personal representative) shall endorse, transfer, assign, convey and deliver to said suc- cessor all of the funds, securities and other property then held by it in the Trust and such records as may be reasonably required for the proper administration of the Trust hereunder. In addi- tion, the Trustee (or his personal representative) shall, within thirty (30) days from the date of the appointment of (and accept- ance by) a successor, file with the Employer a statement and report of the operation of this Plan and Trust to the effective date of such death, incapacity, removal or resignation. ARTICLE VIII INSURANCE 8.01 Purchase of Insurance Contracts and Limitations Thereon. (a) The Employer may instruct the Trustee to apply to a legal reserve life insurance company qualified to do busi- ness in the State of Florida for a life insurance contract or contracts on the life of a Participant when requested to do so by that Participant. The participant shall execute sucb documents, take any physical examinations and furnish all information required in order to procure the said contract or contracts of insurance. The Trustee shall be the owner and beneficiary of each contract, shall have possession thereof and shall have the exclusive authority to exercise all rights set forth therein. If a Participant dies, any death benefit payable under tbe contract on his life shall be payable as provided by its terms. (b) All insurance purchased hereunder shall con- stItute an investment allocable to the account of the Participant whose life is insured thereby, and any proceeds received by the Trustee shall be added to such Participant's account. Any divi- dends or credits earned on insurance contracts purchased hereunder - 41 - shall be allocated to the Participant's account for whose benefit the contract is held. All such policies and the cash values thereof shall remain subject to the vesting and forfeiture provi- sions of this Plan. (c) The aggregate premiums paid during past Plan Years and to be paid during the current Plan Year for ordinary life insurance (or insurance providing no greater pure insurance. protection than ordinary life insurance) for each Participant shall be less than one-half (1/2) of the aggregate of the Employer's contributions and Forfeitures allocated to the credit of the Participant during such years. The aggregate premiums paid during past Plan Years and to be paid during the current Plan Year for insurance other than ordinary life insurance (or insurance providing greater pure insurance protection than ordi- nary life insurance) for each Participant shall be less than one- fourth (1/4) of the aggregate of the Employer's contributions and Forfeitures allocated to the credit of the participant during such years. (d) The Employer shall instruct the Trustee to pay out of the Trust and charge to the Participant's Employer Contri- bution Account the premiums, less dividends, required by the terms of the contracts issued hereunder, but only so long as the person on whose life the contract is issued continues to be a Participant. (e) Prior to or concurrently with the retirement of a participant on whose life an insurance contract has been purchased hereunder, the Trustee, at the direction of the Employer, shall do one of the following: (i) surrender the contract for cash, or (ii) distribute such contract to the Participant in kind, in which case the modes of settlement contained in the contract shall be limited to those provided herein. - 42 - In no event shall the Trustee maintain any such contract in force after a Participant's attainment of his Retirement Date in order to provide him with continued life insurance protection. (f) In the event of any conflict between the terms of this Plan and the terms of any insurance contracts issued hereunder, the Plan shall control. 8.02 Provisions Relating to Insurance Company. (a) In the event that any amounts in the Trust are used to purchase insurance contracts pursuant to Section 8.01, it is understood that the insurance company shall not be deemed to be a party to this Plan and its obligations shall be deter- mined solely by the terms of the contracts which it may issue for the purposes hereof and the terms of any auxiliary agreement which it may enter into with the Employer or the Trustee. An insurance company providing insurance hereunder shall incur no liability if the contracts, in accordance with their terms, do not produce the anticipated benefits due to the actions of the Participant or his statements made in procuring the contracts. (b) On the application for any contracts issued under this Plan, the insurance company may accept tbe signature of the Trustee, and such signature shall be conclusive proof that the person on whose life the application is made ia a Participant entitled to the benefits to be provided under this Plan and any contracts issued pursuant thereto. The insurance company may deal with the Trustee as the absolute and sole owner of any contracts issued on its application, and shall be under no obli- gation to inquire or determine whether any action or failure to act is in accordance with the terms of this Plan. Tbe insurance company shall have no liability for any action taken or any amounts paid in accordance with the directions of the Trustee, and shall have no obligation to see to the application of any amounts so paid. In the event of a change in Trustee, the insurance company shall be entitled to continue dealing with the - 43 - present Trustee as indicated on its records, until such time as it receives at its home office written evidence of the appoint- ment of a successor Trustee. ARTICLE IX AMENDMENT AND TERMINATION 9.01 Right to Amend Plan and Trust. (a) To the extent consistent with the requirements of qualification for income tax purposes, the Employer reserves the right to amend this Plan and Trust, either retroactively or prospectively, by delivering to the Trustee and Professional Administrator a written amendment. Any such amendment shall be effective only upon its execution by the Employer, the Trustee and the Administrator. An amendment which materially affects the rights of Participants hereunder shall be communicated to the Participants in writing. (b) Notwithstanding subparagraph (a) above, the Employer shall have no power to amend this plan and Trust in such a manner as would cause or permit any assets of the Trust to be diverted to purposes other than for the exclusive benefit of the participants or their Beneficiaries or estates, or to take such action as would cause or permit any portion of the assets of the Trust to revert to or become the property of the Employer (excep~ as permitted under Section 10.08), and provided, further, that no amendment shall cause or permit retroactive diminution of any rights which the Participants have acquired with respect to contributions made prior to the date of any such amendllent, unless said amendment is required to obtain approval from the Internal Revenue Service for the continued qualification of this Plan and Trust for tax purposes. 9.02 Right to Terminate Plan and/or Trust. The Employer shall have the right to terminate this Plan (with or without the termination of the Trust) by delivering to the Trustee and Professional Administrator a written notice of termination. A complete discontinuance of contributions by the Employer shall - 44 - constitute termination of the Plan (although a complete discon- tinuance will not be deemed to result from a temporary suspension of contributions, as long as the Employer incurs an obligation to make up missed contributions in subsequent years). In the event of the termination or partial termination of this Plan, the accounts of all Participants shall become fully vested. The Employer shall then have the option of continuing the Trust in effect, in which case benefits shall be paid to the Participants in accordance with the terms of Section 6.05. The Employer may elect instead to terminate the Trust, in which event the Trustee shall distribute all the Trust assets to the Participants within six (6) months after the end of the Plan Year in which such ter- mination occurs. 9.03 Assumption of Plan by Successor. (a) If the Employer is merged or consolidated with any other employer, or if any other employer acquires substan- tially all the assets of the Employer, such surviving or purchasing employer may elect within thirty (30) days, thereafter to continue this Plan and Trust. In this event, the Participants employed by the Employer who continue their employment with such successor employer shall remain as Participants of this Plan without a Break in Service. Those Participants employed by the . Employer who are not retained by the successor employer (or if the successor employer does not continue this Plan and Trust, all Participants) shall be fully vested in their Plan benefits, which shall be paid in accordance with the provisions of Section 9.02. (b) upon any merger or consolidation with another employer, or upon the transfer of assets or liabilities to another plan, each Participant shall be entitled to receive imme- diately thereafter a benefit which is at least equal in value to the benefit he would have been entitled to receive immediately before the merger, consolidation or transfer if the Plan had then terminated. - 45 - ARTICLE X MISCELLANEOUS 10.01 Exclusive Benefit of Participants. Except under the circumstances set forth in Section 10.08 of this Plan, at no time shall any part of the Trust revert to the Employer or be used or diverted to any purpose other than for the exclusive benefit of the Participants or their Beneficiaries or estates. 10.02 Plan Does Not Restrict Employer's Employment and Business Policies. Nothing in this Plan shall be construed as a contract of employment or as modifying or limiting in any way the right of the Employer to terminate the employment of any Partici- pant, to establish policy, or otherwise to conduct business in the same manner as though this Plan and Trust had not been entered into. 10.03 Rights Against Employer. Neither the establish- ment of this Plan, nor any allocation made hereunder, nor the accumulation of benefits in the Trust, shall be construed as giving any Participant or any other person a legal or equitable right against the Trustee, the Professional Administrator or the Employer, or any member, officer, director, employee, agent, partner or stockholder thereof, except as expressly provided herein or as required by law. 10.04 Intention to Continue Plan. The Trustee and the Employer expect to continue this Plan and the payment of contri- butions hereunder indefinitely: however, the permanence of the Plan is not assumed as a contractual obligation of either party, and in the event of the termination of the Plan for any reason, the disposition of the funds in the Trust shall be made in accordance with the applicable provisions hereof, whereupon the Trustee, Professional Administrator and Employer shall be discharged from all further liability in connection with the Plan and Trust. - 46 - lO.05 Predecessor Employer. If the Employer by adopting this Plan is maintaining the plan of a predecessor employer, then service for such predecessor shall be treated as service for the Employer. 10.06 Leased Employees. (a) For purposes of this Section 10.06, the term "leased employee" means any person who, pursuant to an agreement between the recipient and any other person or entity (the "leasing organization"), has performed services for the recipient (or for the employer and related persons, determined in accordance with Section 4l4(n) (6) of the Code) on a substantially full-time basis for a period of at least one (1) year and such services are of a type historically performed by employees in the business field of the recipient employer. (b) Any leased employee shall be treated as an employee of the recipient employer, provided, however, that contributions or benefits furnished by the leasing organisation which are attributable to services performed for the recipient employer shall be treated as provided by the recipient employer. (c) Subparagraph (b) shall not apply to any leased employee if such employee is covered by a money purchase pension plan providing (i) a nonintegrated employer contribution rate of at least seven and one-half percent (7-1/2') of Compensation, (ii) immediate participation, and (iii) full and immediate vesting of benefits. 10.07 Interest in Trust not Subject to Creditors' Claims. Except to the extent required by law, none of the benefits, payments, proceeds or rights of any Participant hereunder shall be subject to the claims of creditors, or to attachment or gar- nishment or other legal process, or to alienation, sale, transfer, pledge, encumbrance or assignment, and any attempt by a Participant to alienate, sell, transfer, pledge, encumber or assign any of the benefits, payments or proceeds which he may expect to receive hereunder shall be void. It is understood, - 47 - however, that the Trustee shall be entitled, without liability on its part, to comply with qualified domestic relations orders under the terms of Section 6.09. 10.08 Mistake of Fact. In the event the Employer shall make a contribution to the Trust under a mistake of fact, the Employer may make written demand to the Trustee for the repayment of the amount so contributed at any time within one (1) year following the time of payment, and the Trustee shall then return such amount to the Employer within said one (1) year period. 10.09 Restrictions on Return of Contributions. (a) For the purposes of Section 10.08 above, tbe amount that may be returned to the Employer shall be limited to the excess of the amount contributed by the Employer to the Plan over the amount that would have been contributed had the mistake of fact not occurred. (b) Earnings attributable to the contributions returned under Section 10.08 shall not revert to tbe Employer, but any losses attributable thereto shall reduce the amount so returned. Notwithstanding anything to the contrary contained in Section 10.08, no amounts shall be returned to the Employer to the extent that such return would cause the balance of the account of any Participant to be reduced to less than the balance that existed prior to the mistake of fact. 10.10 Claims. A Participant, former Participant or Bene- ficiary may file with the Professional Administrator a written claim for benefits upon the occurrence of any event which in tbe claimant's opinion gives rise to the payment of benefits hereunder. In the event the Administrator shall determine that the claimant is not entitled to the claimed benefits, it shall so notify the claimant in writing within ninety (90) day of receipt of the claim and shall set forth the reasons for such deter- mination, with specific reference to the terms of this plan upon which the denial is based. The claimant may request that an adverse determination be reviewed by the Employer and shall be - 48 - given the opportunity within ninety (90) days of said request to present any additional information which may establish his right to the benefit so claimed. The decision of the Employer with respect to any such appeal shall be rendered in writing and shall be delivered to the claimant within sixty (60) days following receipt of the appeal. The Employer's decision shall be final and binding on all parties. The Administrator and the Employer shall keep the Trustee fully advised in writing of the filing and disposition of all claims hereunder. 10.11 Transfer of Interest. At the request of a Participant who has terminated his employment, if approved by the Employer, the Trustee shall transfer the vested Interest of such Participant to another trust forming part of a pension or profit sharing plan maintained by such Participant's new employer and meeting the requirements of Section .40l(a) of the Code (provided that the Employer determines that the trust to whicb such transfer is to be made specifically permits the transfer), or to the Participant for the "roll-over" of such distribution within sixty (60) days into an Individual Retirement Account, as defined in Section 408 of the Code. 10.12 Agent for Service of Process. For all purposes under this Plan and Trust, including the filing of claims pur- suant to Section 10.10, the Trustee shall be the agent for ser- vice of process. 10.13 Applicable Law. The provisions of this Plan and Trust shall be construed, administered and enforced according to the laws of the State of Florida, except to the extent that such laws are inconsistent with or are superseded by the Internal Revenue Code, the Employee Retirement Income Security Act of 1974, the Tax Equity and Fiscal Responsibility Act of 1982, the Tax Reform Act of 1984, the Retirement Equity Act of 1984 or regulations promulgated thereunder. - 49 - IN WITNESS WHEREOF, this Plan and Trust has been exe- cuted on the date set forth on the first page. Signed, sealed and delivered in the presence of: EMPLOYER: CITY OF WINTER SPRINGS By: Richard Rozansky, City Manager Witnesses as to Employer (CORPORATE SEAL) TRUSTEE: BOARD OF TRUSTEES OF THE CITY OF WINTER SPRINGS Witnesses as to Trustee John V.Torcaso, Mayor PROFESSIONAL ADMINISTRATOR: ECS, INC. By: Dale F. Smith, Vice President As to Professional Administrator - 5O - IN WITNESS WHEREOF, this Plan and Trust has been exe- cuted on the date set forth on the first page. Signed, sealed and delivered in the presence of: EMPLOYER: CITY OF WINTER SPRINGS By: Richard Rozansky, City Manager Mary . Norton City Clerk Joyce D. Suber Witnesses as to Employer (CORPORATE SEAL) PROFESSIONAL ADMINISTRATOR: ECS, INC. By: Dale F. Smith, Vice President As to Professional Administrator TRUSTEE: BOARD OF TRUSTEES OF THE CITY OF WINTER SPRINGS By: John V. Torcaso, Mayor - 50 -