(A) If any contribution (or any portion of a contribution) is made by the employer by a good faith mistake of fact, upon receipt in good order (within the meaning of the investment(s) or applicable law) of a proper request approved by the Plan Administrator, the issuer(s) shall, to the extent required or permitted by the investment(s), return the amount of the mistaken contribution(s), except as limited below, to the employer, or to the extent required or permitted by the investment(s) and approved by the Plan Administrator, directly to the participant to the extent of any mistaken employee contribution(s). The participant’s exercise of a “free look” or right-to-return or similar cancellation provision under applicable insurance or securities law is deemed to cause a contribution to be by a good faith mistake of fact. Upon any return of a mistaken contribution, earnings or losses attributable to the mistaken contribution shall be determined according to the provisions of the applicable investment or other applicable law.
(B) If a court or agency having jurisdiction finally determines or if the employer or the Plan Administrator receives written legal advice (other than under a suit or proceeding initiated by the participant) that any participant was not an employee at the relevant time or otherwise was not eligible to become a participant, the Plan Administrator shall treat the mistakenly accepted participant’s contributions and plan account, to the extent that the participant was not eligible to make or receive the contributions, as mistaken contributions.
(Ord. NIRC 97-1, passed 1-15-1997)