Whenever used in the plan, each of the following terms has the meaning stated or provided by this section. If a term is not defined by this section and is defined by the Internal Revenue Code or the enabling statute or relevant investment law, the term has the meaning given by the Internal Revenue Code or the enabling statute or relevant investment law.
ACCOUNT.
(1) The bookkeeping account (including each sub-account) maintained for each participant (or beneficiary or alternate payee) which, at all times, shows: the amount of the participant’s deferred compensation (including any income or loss attributable to the investment of the participant’s deferred compensation), any amounts accepted as a transfer under § 32.003, any distributions to the participant and any fees or expenses charged against the participant’s deferred compensation. ACCOUNT also may refer to each of the sub-accounts.
(2) The ACCOUNT BALANCE is the total amount or value of the account (or sub-account, as applicable) reduced by any security interest held by the issuer(s) or by the plan-trustee for an outstanding plan loan and reduced by any applicable investment fees, charges, expenses and taxes and any plan-trust fees, charges, expenses and taxes.
(3) To the extent that the participant’s deferred compensation is held in (and distributions and fees or expenses are charged against) an allocated investment(s), the value of the participant’s ACCOUNT is the value of the applicable sub-account(s) under the investment(s).
(4) To the extent necessary to administer the plan, the Plan Administrator shall keep a separate sub-account to receive each kind of contributions (and attributable interest or investment earnings). However, the Plan Administrator, in his or her sole discretion, may combine any sub-accounts if so doing does not impair the Plan Administrator’s ability to operate this plan according to its provisions.
(5) The participant shall receive (until a retirement distribution begins) periodic account reports in the form prescribed by the Plan Administrator.
(6) If the participant (or beneficiary) elects more than one distribution commencement date, the Plan Administrator shall maintain a separate account with respect to the portion of the ACCOUNT to be applied as of each distribution commencement date.
(7) To the extent required by a plan-approved domestic relations order, the Plan Administrator shall maintain a separate sub-account for the alternate payee.
(8) If the participant designates more than one beneficiary, upon the written request of any beneficiary or upon an approved claim payable to any beneficiary and not all beneficiaries, the Plan Administrator shall maintain a separate account with respect to the interest of each beneficiary, beginning as of the next valuation date that occurs after the beneficiary’s request or claim is received by the Plan Administrator.
(9) If a plan-approved domestic relations order applies with respect to a participant, the Plan Administrator shall maintain a separate ACCOUNT for the interest of the alternate payee, beginning as of the next valuation date available after the court order is determined by the Plan Administrator to be a plan-approved domestic relations order.
(10) A participant’s plan ACCOUNT shall be reduced to the extent that any portion of the participant’s plan ACCOUNT has been paid or set aside for payment to an alternate payee or to the extent that the employer or the plan-trustee or the Plan Administrator or the agent otherwise is subject to a binding judgment, decree or order for the attachment, garnishment or execution of any portion of the participant’s account or of any distribution therefrom. The participant shall be deemed to have released the employer and the plan-trustee and the Plan Administrator and the agent from any claim with respect to such amounts in any case in which any of them was served with legal process or otherwise joined in a proceeding relating to such amounts, and the participant was notified of the pendency of such proceeding, and the participant fails to obtain an order of the court that relieves the employer and the plan-trustee and the Plan Administrator and the agent from any obligation to comply with the judgment, decree or order.
(11) Each ACCOUNT statement or confirmation furnished by (or on behalf of) the Plan Administrator or the plan-trustee is intended as a legally significant statement of the participant’s deferred compensation. As to each account statement or confirmation, if, by the date that is 180 days after the date that the statement or confirmation was mailed or otherwise sent or delivered, the participant (or beneficiary or alternate payee) has not delivered a written objection as to the accuracy of the statement, the accounting reported is then settled and conclusive and an account stated. If an objection to any account statement or confirmation is withdrawn or is adjusted to the objector’s satisfaction, the accounting is then settled and conclusive and an account stated. To the extent that an account statement or confirmation is an account stated, the Plan Administrator and every party acting under the instruction of the Plan Administrator is discharged from any liability that might otherwise arise out of the account statement as fully as if the account had been settled by an appropriate court proceeding. Without limiting the comprehensive effect of the above, if an account statement or confirmation furnished to the alternate payee shows the amount segregated to his or her separate sub-account under a plan-approved domestic relations order or other court order if, by the date that is 180 days after the date that the statement or confirmation was mailed or otherwise sent or delivered, the alternate payee has not delivered a written objection as to the accuracy of the statement or the objection is withdrawn or is adjusted to the alternate payee’s satisfaction, the accounting reported is then settled and conclusive and an account stated, and shall constitute a release of any obligation under the court order to segregate or set aside the appropriate amount for the alternate payee. If a court finds that the application of this subsection (11) or any part of it is void as against public policy, this definition shall apply to the extent not so found.
AGENT.
(1) Copeland Associates, Inc., together with its affiliated and subsidiary corporations, and its successors, and any officers, employees, representatives or agents of it; or any other person or entity authorized by the Plan Administrator to perform services with respect to investments held under this plan or to provide specified recordkeeping and administration services for certain accounts under the plan.
(2) AGENT includes, as appropriate in the context, each licensed insurance agency, each licensed third party administrator, each registered securities broker/dealer, each registered transfer agent and each registered investment adviser that the Plan Administrator appoints or selects (or causes or permits to be appointed or selected) to perform services regarding any investment(s) or fund shares held under this plan or otherwise regarding the plan. However, any person is an AGENT regarding the plan solely according to the terms of his, her or its written agreement with the Plan Administrator or with a participant or beneficiary or alternate payee.
(3) The AGENT is responsible only for those duties stated by his, her or its written agreement. The AGENT has all powers necessary to fulfill those duties.
(4) Each employer shall be required to use the AGENT(S) selected by the employer. For the purposes of relations with any AGENT, including, without limitation, the making of any contract, written or otherwise, each employer shall be deemed to have designated the Plan Administrator as his or her AGENT.
(5) (a) Any AGENT (including any officer or representative or employee or agent of it) shall not be a fiduciary. Any AGENT shall not exercise any discretionary authority or discretionary control concerning the management of the plan or the management or disposition of the plan assets. Any AGENT shall not render investment advice with respect to any money or property of the plan.
(b) For the purpose of subsection (5)(a) above, a registered investment adviser that provides investment advice to a participant or beneficiary or alternate payee who has a right of investment direction under the plan is considered to render investment advice to such individual and is not considered to render investment advice as to any money or property of the plan. Any AGENT shall not have any discretionary responsibility in the administration of the plan. Any AGENT (including any officer or representative or employee or agent of it) shall not be a Plan Administrator or a plan representative.
ALLOCATED INVESTMENT. An investment for which the issuer under the terms of the investment (and not as a separately agreed service) records individual accounts with respect to each participant.
ALTERNATE PAYEE. A person who is or was the spouse of the participant or is the child of the participant to the extent that such person has rights under a court order that the Plan Administrator has determined to be a plan-approved domestic relations order.
ANNUITY PAYOUT OPTION. A payout option (as defined below) which includes a provision for payments based, in whole or in part, upon the life of a natural person.
BENEFICIARY.
(1) The person(s), whether natural or non-natural, including, but not limited to, a trustee or other fiduciary, designated by the participant by a valid beneficiary designation in his or her participation agreement to receive any undistributed deferred compensation payable upon or after the participant’s death (the “primary” beneficiary(s)), or upon or after the primary beneficiary’s death (the “contingent” or “alternate” beneficiary(s)).
(2) The participant’s right to designate his or her BENEFICIARY is limited by the definition of “beneficiary designation” and by all of the following provisions.
(a) Notwithstanding any beneficiary designation in the participation agreement or otherwise to the contrary, a person shall not be a BENEFICIARY unless he or she is living or in existence (and, to the extent that the BENEFICIARY is entitled to receive deferred compensation as a trustee or other fiduciary, the person or the entity that the person represents or acts for, is living or in existence) on the distribution commencement date. Any right of a BENEFICIARY is strictly personal to that beneficiary and lapses upon his or her death. Any undistributed deferred compensation that would have been distributable to a BENEFICIARY if he or she had lived is not distributable to the BENEFICIARY’S heirs. Upon a BENEFICIARY’S death, any undistributed deferred compensation with respect to that BENEFICIARY becomes distributable to the remaining primary beneficiary(s) if any or, if none, to the remaining contingent beneficiary(s), in each case to be distributable in equal shares to all living BENEFICIARIES of the applicable primary or contingent beneficiary class.
(b) The participant must designate each BENEFICIARY by name. A BENEFICIARY(S) cannot be designated by relationship or by class, and any such attempted beneficiary designation is absolutely void.
(c) Notwithstanding any law to the contrary, a change in marriage (whether statutory or common-law) or family status, including (but not limited to) a divorce, dissolution, annulment or declaration of non-marriage, separation, separate maintenance, revocation of a domestic partner registration, termination or revocation of any marriage or living-together contract or any other interruption or termination of a spouse or quasi-spouse relationship, has no effect in any way concerning who is the BENEFICIARY under the plan.
(d) If the participant designates as BENEFICIARY more than one person, all persons of the same beneficiary designation (“primary” or “contingent”) have equal shares (per capita and not per stirpes) unless the participant specifies otherwise.
(e) If a participant fails to designate a BENEFICIARY, or if for any reason (including the absence of a surviving designated BENEFICIARY) the participant’s beneficiary designation is invalid or ineffective, the person(s) entitled to the residuary estate of the participant’s estate is (are) the beneficiary(s), to the extent of the failure or invalid or ineffective designation, with the applicable share of the plan account divided among those BENEFICIARIES in the same shares as their shares of the residuary estate. For the purposes of this definition, the Plan Administrator may rely on an appropriate court order or the personal representative’s written statement as to the identity (including name, address and taxpayer identifying number) of and shares allocable to the persons entitled to such residuary estate.
(f) A named BENEFICIARY who feloniously and intentionally kills the participant or BENEFICIARY is not a beneficiary and is not entitled to any distribution or any other right under the plan; and any deferred compensation is payable as though the killer had predeceased the participant or BENEFICIARY.
BENEFICIARY DESIGNATION.
(1) The valid and effective BENEFICIARY DESIGNATION made by the participant, designating the person(s) (which may be a non-natural person) who shall be his or her beneficiary(s) entitled to receive any undistributed deferred compensation.
(2) At any time before his or her death, the participant has the right to designate a beneficiary(s), including a contingent beneficiary(s), subject to the provisions of the plan. The participant shall have the right to change his or her BENEFICIARY DESIGNATION at any time, subject to the provisions of the plan.
(3) A BENEFICIARY DESIGNATION must be in writing, on the form(s) prescribed by the Plan Administrator. A BENEFICIARY DESIGNATION (or change) is not effective until it is received by the Plan Administrator. Each BENEFICIARY DESIGNATION completely revokes and cancels any and every previous BENEFICIARY DESIGNATION.
(4) The participant must designate each beneficiary by name. A beneficiary(s) cannot be designated by relationship or by class, and any such attempted BENEFICIARY DESIGNATION is absolutely void.
(5) Notwithstanding the rule that a participant must designate each beneficiary by name, if the Plan Administrator, in his or her sole discretion, finds that a BENEFICIARY DESIGNATION sufficiently describes a trust, that BENEFICIARY DESIGNATION will be construed as naming the duly appointed and currently acting trustee of that trust.
(6) Any BENEFICIARY DESIGNATION that, in whole or in part, designates the participant’s estate as beneficiary shall be construed as designating as beneficiary(s), to the extent of the share of deferred compensation specified or otherwise provided for the estate, the personal representative of the participant’s estate.
(7) Notwithstanding any law to the contrary, a change in marriage (whether statutory or common-law) or family status, including (but not limited to) a divorce, dissolution, annulment or declaration of non-marriage, separation, separate maintenance, revocation of a domestic partner registration, termination or revocation of any marriage or living-together contract or any other interruption or termination of a spouse or quasi-spouse relationship, has no effect in any way concerning any BENEFICIARY DESIGNATION.
(8) Any statement in a BENEFICIARY DESIGNATION referring to the beneficiary’s relationship to the participant is for convenience or information only and has no effect in the construction or interpretation of the BENEFICIARY DESIGNATION.
(9) Any statement in a BENEFICIARY DESIGNATION attempting to state or create a condition or restriction upon the beneficiary’s receipt or enjoyment of any deferred compensation is invalid and the beneficiary is entitled to the deferred compensation without regard to any attempted condition or restriction.
(10) Notwithstanding anything to the contrary in any BENEFICIARY DESIGNATION in the participation agreement or any other document or otherwise (including, but not limited to, any court order), any designation of a beneficiary cannot be irrevocable and any such designation shall be construed as a revocable designation of that beneficiary.
(11) If the participant designates, as beneficiary, more than one person, all persons of the same BENEFICIARY DESIGNATION (“primary” or “contingent”) have equal shares (per capita and not per stirpes) unless the participant specifies otherwise.
(12) A BENEFICIARY DESIGNATION shall be construed to dispose all the remaining plan account or deferred compensation.
(13) Except as otherwise provided by the plan, a BENEFICIARY DESIGNATION that uses a term or phrase that would have significance in construing or interpreting a conveyance or a disposition of a decedent’s estate shall, except as otherwise specified by the participant, be construed or interpreted according to the Uniform Probate Code (without regard to the participant’s domicile at the time he or she made the BENEFICIARY DESIGNATION or the participant’s domicile at the time of his or her death). Likewise, if a BENEFICIARY DESIGNATION remains ambiguous after applying all provisions and construction rules stated by this plan and can be resolved by applying the rules of construction and interpretation of the Uniform Probate Code for construing a BENEFICIARY DESIGNATION or conveyance, such rules shall apply to the BENEFICIARY DESIGNATION, except as otherwise provided by the plan. Any provision of the Uniform Probate Code concerning the effect of divorce or marital separation shall not apply.
(14) After the participant’s death, no person has any right or power or discretion to change any beneficiary (except to disclaim his, her or its deferred compensation as permitted by § 34.112), and any such purported provision stated in a BENEFICIARY DESIGNATION or otherwise is ineffective.
BUSINESS DAY.
(1) Any day on which both the New York Stock Exchange (“NYSE”) is open for regular trading and the person that is required or permitted to act or that is entitled to receive notice is (or was) open for regular business at his or her home office or national office or principal place of business.
(2) A BUSINESS DAY ends at 4:00 p.m. New York Time, or, if earlier, the time that regular trading closes on the NYSE.
(3) (a) As required or permitted by applicable investment law, any agent may make reasonable rules governing the time of the day after which investment instructions will be treated as received on the next BUSINESS DAY.
(b) Without limiting the comprehensive effect of subsection (3)(a) above, any investment direction that includes an instruction to buy or sell registered investment company shares that is received after the closing of the NYSE shall be treated as received on the next BUSINESS DAY.
(4) A day that is not a BUSINESS DAY ends at 4:00 p.m. New York Time.
COMPENSATION.
(1) The total wages, salaries, fees and other amounts paid (except as modified below)
during each plan year to the employee by the employer for personal services actually rendered in the course of employment with the employer, including compensation payable as bonuses or as overtime, and excluding any compensation received in the form of non-taxable fringe benefits. COMPENSATION shall include any amounts deferred as employee contributions under this plan, and any amounts of compensation deferred as “elective deferrals” (within the meaning of I.R.C. § 402(g)(3) or similar provisions) under I.R.C. § 125, I.R.C. § 401(k) or I.R.C. § 402(a)(8). COMPENSATION does not include any amount paid as employer-provided education assistance, notwithstanding that such payment may be taxable wages to the participant.
(2) This definition of COMPENSATION is not intended to control or affect the construction of the definition of “includible compensation”. However, for the purposes of computing any contributions required or permitted under §§ 33.001 through 33.009, the re-employed participant’s compensation shall be as provided by § 33.005.
CONFIRMATION. Has the meaning given by applicable investment law.
CONTRIBUTIONS.
(1) Employee contributions and transfer contributions and (if any) employer contributions, deferred under the plan according to the provisions of the plan.
(2) CONTRIBUTIONS under the plan shall not be reduced because of the participant’s attainment of any age.
(3) CONTRIBUTIONS shall be made according to the payroll methods of and at such times as may be determined by the employer, except as otherwise required by the enabling statute.
CORRECTIVE DISTRIBUTION.
(2) The amounts corrected by a CORRECTIVE DISTRIBUTION are disregarded for all purposes of the plan, except as otherwise expressly provided by the plan.
DEATH DISTRIBUTION. Any distribution that does not begin before the death of the participant.
DEFERRED COMPENSATION.
(1) The amount of compensation that the participant and the employer agree to defer according to the provisions of the plan.
(2) The amount or value of the participant’s DEFERRED COMPENSATION is the amount or value of the participant’s account (including any rights purchased under the account).
(3) DEFERRED COMPENSATION may also refer to the right under this plan of the participant or beneficiary to receive a distribution of all or any portion of the account.
DISTRIBUTEE. Any person who receives or but for his, her or its instruction to the Plan Administrator is entitled to receive a distribution.
DISTRIBUTION.
(1) As appropriate in the context, any kind of DISTRIBUTION or the particular kind of DISTRIBUTION provided by the plan, as follows:
(a) Permitted distribution;
(b) Hardship distribution;
(c) Retirement distribution (including a transfer distribution); and
(d) Death distribution.
(2) Any DISTRIBUTION shall be paid as a cash payment(s) or/and as a transfer of ownership of the investment(s) that is the applicable portion of the account.
(3) Any DISTRIBUTION may be made, in whole or in part, in cash, or by delivery of an investment(s) (including any annuity or life insurance contract), fund shares, other securities or other assets or property of any kind. Any DISTRIBUTION of property other than cash shall be valued at fair market value as of the date of the DISTRIBUTION.
(4) If a payee does not, as a part of his, her or its written claim, specify that a DISTRIBUTION is to be made in the form of a specified property(s), any DISTRIBUTION is payable as a cash payment(s).
EFFECTIVE DATE. The first date that the employer accepted a participation agreement.
ELIGIBLE EMPLOYER. Any employer that is a state or a political subdivision of the state or an agency or instrumentality of a state(s) or a political subdivision(s) and that is an ELIGIBLE EMPLOYER within the meaning of I.R.C. § 457(e)(1)(A).
EMPLOYEE.
(1) The natural person, whether appointed, elected, salaried or under contract, or otherwise; who performs services for the employer on a regular basis as a common-law employee or as an independent contractor and who has compensation paid by the employer unless the individual is precluded from participation under the plan by the enabling statute or other state or local law (including a resolution).
(2) The fact that a natural person is or is determined to be an EMPLOYEE for the purpose of another employee benefit plan (including another pension plan or retirement plan) or for any other legal purpose shall not be construed as any inference that the natural person is an eligible employee under this plan.
(3) The Plan Administrator (but not any agent) shall decide all question of eligibility for participation in the plan, except as otherwise required by the enabling statute.
(4) An EMPLOYEE shall not be excluded from participation in the plan on the basis of age.
EMPLOYEE CONTRIBUTIONS. Elective deferrals made pursuant to a salary reduction agreement as specified by a participation agreement.
EMPLOYER CONTRIBUTIONS.
(1) Those contributions made by the employer that are not employee contributions, and which the participant could not have elected to receive as immediate cash compensation or other taxable benefit.
(2) The Plan Administrator shall not permit EMPLOYER CONTRIBUTIONS unless it has received and reasonably relies upon an acceptable written legal opinion concluding that the employer has legal power under the enabling statute and all applicable state and local law to make such EMPLOYER CONTRIBUTIONS.
ENABLING STATUTE. The state statute or similar law that grants the employer legal authority to maintain this plan.
FEES. Any fees required or permitted to be charged against the participant’s (or beneficiary’s or alternate payee’s) plan account, according to (any one or more of the following): the plan, the plan-trust, the participation agreement, an investment, an investment advisory agreement, any other writing signed by the participant (or, after the participant’s death, the beneficiary), any written notice given by or behalf of the Plan Administrator or the plan-trustee that is accepted or deemed accepted by the participant (or beneficiary) or any court order.
FUND. A registered investment company or an insurance company separate account or a common trust fund or collective investment fund or group trust or any similar pooled investment under which the value of the holder’s interest is calculated according to the number of shares or units held for the holder’s account.
INCLUDIBLE COMPENSATION.
(1) The amount of the employee’s compensation that is INCLUDIBLE COMPENSATION within the meaning of I.R.C. § 457(e)(5) and that is currently includible in the employee’s gross income. INCLUDIBLE COMPENSATION is determined without regard to any community property laws.
INTERNAL REVENUE CODE or I.R.C. The Internal Revenue Code of 1986, as amended, including any regulations or rulings (or other guidance of general applicability) under the I.R.C. Any reference to regulations is a reference to Treasury Department regulations under the Internal Revenue Code, unless otherwise specified. Any reference to a section of the Internal Revenue Code shall be construed to also refer to any successor provision. Any reference to a section of Treasury Regulations shall be construed to also refer to any successor provision of such Treasury Regulations. Any reference to a revenue ruling or revenue procedure or IRS notice or IRS announcement shall be construed to also refer to any guidance of general applicability that extends, amplifies or modifies the revenue ruling or revenue procedure or IRS notice or IRS announcement.
INTERNAL REVENUE SERVICE or IRS. The Internal Revenue Service, a division of the Department of the Treasury of the United States and thereby an agency of the government of the United States, and any related departments, divisions or offices under the supervision of the Secretary of the Treasury of the United States.
INVESTMENT.
(1) Any of the following: an annuity contract or custodial account that satisfies the requirements of I.R.C. § 401(f) and I.R.C. § 457(g)(3); any annuity contract or life insurance contract that may be held by the plan-trustee; any fund shares that may be held by the plan-trustee; an interest under a group trust (as described in Rev. Rul. 81-100) that may be held by the plan-trustee; or any investment that may be held by the plan-trustee.
(2) The plan-trustee shall not hold any INVESTMENT that has provisions (whether express or incorporated by reference or at law) that would preclude the correct application of the plan or the plan-trust agreement.
(3) Each plan INVESTMENT that is not held under a plan-trust shall meet the requirements of I.R.C. § 401(f) and I.R.C. § 457(g)(3) and shall be for the exclusive benefit of participants and their beneficiaries according to the plan. For any investments not held by a plan-trustee, the Plan Administrator shall hold all investments in his or her name as Plan Administrator and subject to the provisions of the plan.
(4) The plan-trustee or the Plan Administrator shall maintain (or cause to be maintained) the indicia of ownership of each INVESTMENT within the United States, except as otherwise permitted by 29 C.F.R. § 2550.404b-l(b) applied as if this plan were a plan subject to 29 U.S.C. § 1104(b).
(5) All INVESTMENTS to be used under the plan must be specified by the employer.
(6) The provisions of each INVESTMENT (including any provisions stated by each investment’s and each fund’s prospectus and the statement of additional information) are to the extent not inconsistent with the plan incorporated in the plan by reference.
(7) An INVESTMENT may also be referred to (in plan documents, disclosure information and forms) by other terms that are not misleading in the context.
INVESTMENT ADVISER.
(1) Has the meaning given by § 202(a)(11) of the federal Investment Advisers Act of 1940, as amended (15 U.S.C. § 80b-2(a)(11)).
(2) An agreement to provide investment advice (or the giving of investment advice) to a participant or beneficiary or alternate payee does not constitute an INVESTMENT ADVISER as an investment manager or investment adviser as to the plan or any plan-trust. An agreement to provide investment advice (or the giving of investment advice) to any fund or to the issuer of any investment does not constitute an INVESTMENT ADVISER as an investment manager or investment adviser as to the plan or any plan-trust.
INVESTMENT LAW. As applicable or relevant in the context, any United States law or state law relating to banking, insurance, securities, investment companies, investment advice or commodities trading, including any self-regulatory organization rules. INVESTMENT LAW includes the Bylaws, Rules of Fair Practice, Code of Arbitration Procedure and other Rules of the National Association of Securities Dealers, Inc. (“NASD”) and the Bylaws and Rules of the New York Stock Exchange, Inc. (“NYSE”) and each other securities or commodities exchange, to the extent approved or not disapproved by the SEC.
INVESTOR.
(2) Any reference using the term or word INVESTOR shall not be construed to constitute any person as an investor regarding any investment or under any investment law.
INVOLUNTARY DISTRIBUTION.
(2) The Plan Administrator shall prescribe a uniform procedure for the determination and timing of all INVOLUNTARY DISTRIBUTIONS so that all INVOLUNTARY DISTRIBUTIONS shall be made on a uniform and non-discriminatory basis and without the exercise of discretion.
ISSUER.
(1) The person who has issued or may issue an investment held regarding the plan.
(2) An ISSUER may be a bank, or an insurance company, or a registered investment company, or the issuer of any other instrument or indicia of ownership or beneficial ownership that is held as a plan investment. When appropriate in the context, the term ISSUER also includes the definition of ISSUER provided by 15 U.S.C. § 77b(4).
NORMAL RETIREMENT AGE.
(1) The age elected by the participant which may not be earlier than the earliest age at which the participant has the right to retire without the consent of the employer and to immediately receive unreduced retirement benefits under the employer’s basic retirement plan and which may not be later than the later of the participant’s age 70 and one-half, or the date of the participant’s separation-from-service.
(2) If the participant will not become eligible to receive a benefit under the employer’s basic retirement plan, he or she may elect a NORMAL RETIREMENT AGE that is not earlier than his or her age 65 and not later than the later of his or her age 70 and one-half or the date of his or her separation-from-service.
(3) A participant’s election of a NORMAL RETIREMENT AGE is irrevocable once contributions have been made utilizing the additional limitation under § 32.002.
(4) The participant’s NORMAL RETIREMENT AGE does not control his or her distribution commencement date.
NOTARIAL OFFICER. A natural person who is authorized to take oaths under the law of the jurisdiction in which the relevant document is signed.
PARTICIPANT. The employee (or former employee) who has deferred compensation under the plan who has not yet received all of the payments of deferred compensation to which he or she is entitled under the plan.
PARTICIPATION AGREEMENT.
(1) The agreement (in the form prescribed by the Plan Administrator), as amended from time to time, entered into by and between the participant and the employer under which the employee elects to participate in the plan, and, if the participant so elects, agrees to make employee contributions.
(2) The PARTICIPATION AGREEMENT shall indicate the amount or percentage of any employee contributions and the investment(s) elected by the participant, may designate the participant’s beneficiary(s) and shall refer to the provisions of the plan.
PAYOUT OPTION.
(1) Any, except as limited below, of the annuity options or other options for payment that is available under the applicable plan investment(s) or that is otherwise provided by the Plan Administrator.
(2) As to an unallocated investment, the PAYOUT OPTIONS are as specified by the current written agreement between the Plan Administrator and the agent.
(3) Examples of typical PAYOUT OPTIONS are as follows:
(a) A lump-sum payment of cash;
(b) A payment (or a series of payments) in cash in the amount specified by the distributee;
(c) A payment(s) in cash of the amount obtained by redeeming the number of fund shares specified by the distributee;
(d) Substantially equal monthly, quarterly, semi-annual or annual installment payments in cash, over a period certain not to exceed the participant’s life expectancy or the joint and last survivor life expectancy of the participant and his or her designated beneficiary;
(e) The application of the participant’s account to the purchase of a non-transferable immediate or deferred annuity contract;
(f) A lump-sum distribution in kind of an annuity contract; and
(g) A lump-sum distribution in kind of a life insurance contract.
(4) The Plan Administrator shall not permit the use of any payout option that is based on gender-distinct actuarial tables or that otherwise unlawfully discriminates against any person.
(5) The Plan Administrator shall not permit the participant (or beneficiary) to elect any payout option that (at the time the distribution begins or is scheduled to begin) does not satisfy all applicable provisions of the plan, including (but not limited to) §§ 34.080 through 34.086 and any applicable minimum distribution and incidental benefit requirements. The Plan Administrator shall not permit the participant or beneficiary to elect any payout option that (at the time the distribution begins) does not satisfy the provisions of the plan, including all applicable requirements of I.R.C. § 457(d)(2) and I.R.C. § 401(a)(9).
(6) If an investment permits a payout option to be arranged “as mutually agreed”, any such unspecified payout option, regardless of whether the payout option is the actuarial equivalent of any other payout option, shall not be a payout option under the plan unless the issuer offers this payout option on a uniform and non-discriminatory basis to all participants and beneficiaries in similar circumstances.
PERSONAL REPRESENTATIVE.
(1) The person duly appointed by an order of the court (or of a registrar or administrator under the court’s supervision) having jurisdiction over the estate of the participant that grants the person the authority to receive the property of the deceased participant and to act as the personal representative of the participant’s probate estate.
(2) However, notwithstanding any small estate procedure or any law that may provide for or permit the succession of an estate by means other than according to a court order, no distribution is payable (and no deferred compensation is available) at the instruction of a person who cannot demonstrate to the satisfaction of the Plan Administrator that he, she or it is the personal representative duly appointed by and under the supervision of the court.
(3) To the extent that there can be no personal representative because the participant’s probate estate was closed, no distribution is payable (and no deferred compensation is available) until a claimant obtains an appropriate court order.
PLAN.
(1) This plan, adopted by or pursuant to a resolution of the employer.
(2) The plan includes the plan-trust agreement and, to the extent not inconsistent with the plan, the prospectus and statement of operation and statement of additional information of each investment and each fund and the declaration or other governing instrument of each group trust, each as amended from time to time, which together with this document constitute the plan of the employer(s).
PLAN-APPROVED DOMESTIC RELATIONS ORDER. A court order that is lawfully directed to this plan and that is served upon the Plan Administrator before the participant’s distribution commencement date that pursuant to a state domestic relations law creates or recognizes the existence of the right of an alternate payee to receive all or a portion of any deferred compensation of a participant and that meets all of the following requirements.
(1) An order shall not be a PLAN-APPROVED DOMESTIC RELATIONS ORDER unless the Plan Administrator determines that the court order on its face and without reference to any other document states all of the following.
(a) The court order expressly states that it relates to the provision of child support, alimony or marital property rights to a spouse, former spouse or child of a participant and is made pursuant to state domestic relations law.
(b) The court order clearly and unambiguously specifies that it refers to this plan.
(c) The court order clearly and unambiguously specifies the name of the participant’s employer.
(d) The court order clearly specifies: the name, mailing address and taxpayer identifying number of the participant; and the name, mailing address and taxpayer identifying number of each alternate payee.
(e) The court order clearly specifies the amount or percentage, or the manner in which the amount or percentage is to be determined, of the participant’s account to be paid to segregated for the separate sub-account of the alternate payee.
(f) The court order expressly states that the alternate payee’s segregated account shall bear all fees and expenses as though the alternate payee were a participant.
(g) The court order clearly specifies that any distribution to the alternate payee becomes payable only after the participant’s death or separation-from-service and only upon the alternate payee’s written claim made to the Plan Administrator or the agent.
(h) The court order clearly specifies that any distribution to any alternate payee shall be payable only as a lump sum.
(i) The court order expressly states that it does not require this plan to provide any type or form of benefit or any option not otherwise provided under this plan.
(j) The court order expressly states that the order does not require this plan to provide increased deferred compensation.
(k) The court order expressly states that any provision of it that would have the effect of requiring any distribution to an alternate payee of deferred compensation that is required to be paid to another person under any court order is void.
(l) The court order expressly states that nothing in the order shall have any effect concerning any party’s tax treatment, and that nothing in the order shall direct any person’s tax reporting or withholding.
(2) (a) An order shall not be a PLAN-APPROVED DOMESTIC RELATIONS ORDER if it includes any provision that does not relate to this plan.
(b) Without limiting the comprehensive effect of subsection (2)(a) above, an order shall not be a PLAN-APPROVED DOMESTIC RELATIONS ORDER if the order includes any provision relating to any pension plan, retirement plan, deferred compensation plan, health plan, welfare benefit plan or employee benefit plan other than this plan.
(3) An order shall not be a PLAN-APPROVED DOMESTIC RELATIONS ORDER unless the order provides for only one alternate payee.
(4) An order shall not be a PLAN-APPROVED DOMESTIC RELATIONS ORDER if the order includes any provision that would require the Plan Administrator to calculate the amount to be segregated to the alternate payee’s separate sub-account in a manner not readily calculable by the agent according to his, her or its currently available records and without regard to any records for any accounting period that is an account stated or otherwise settled by the application of the subsection (6) below.
(5) An order shall not be a PLAN-APPROVED DOMESTIC RELATIONS ORDER if the order includes any provision that would permit the alternate payee to designate any beneficiary for any purpose. However, an order does not fail to qualify as a PLAN-APPROVED DOMESTIC RELATIONS ORDER because it provides that any rights not paid before the alternate payee’s death shall be payable to the duly appointed and then-currently serving personal representative of the alternate payee’s estate.
(6) The Plan Administrator may assume that the alternate payee named by the court order is a proper payee and need not inquire into whether the person named is a spouse or former spouse or child of the participant.
PLAN-TRUST.
(1) The legal entity and the legal relationship created by a plan-trust agreement.
(2) Consistent with § 30.021, each trust must be for the exclusive benefit of participants and their beneficiaries.
PLAN-TRUST AGREEMENT. The written agreement (or declaration) made by the employer and the Plan Administrator and the plan-trustee that established a plan-trust for the purposes of the plan, as amended from time to time.
PLAN-TRUSTEE.
(1) The plan-trustee duly appointed and currently serving under the plan-trust agreement.
(2) (a) At all times, every PLAN-TRUSTEE shall be a directed trustee and (except as provided by division (2)(b) below) shall be completely subject to the direction of the Plan Administrator, or the participant or beneficiary or alternate payee.
(b) The PLAN-TRUSTEE’S only duty is to ensure that all investments, amounts, property and rights held under the plan-trust are held for the exclusive benefit of participants and their beneficiaries.
PLAN ADMINISTRATOR.
(1) The employer, including its governing body and the person or group of officials, officers and employees appointed by or pursuant to a resolution.
(2) The PLAN ADMINISTRATOR is responsible for the administration of the plan.
(3) Except as otherwise indicated, any reference to the PLAN ADMINISTRATOR refers also to the agent to the extent of any service required or permitted to be performed by the agent.
PLAN SPONSOR. The employer that signs this document.
REGISTERED INVESTMENT ADVISER. An investment adviser that is registered with the SEC pursuant to § 203(c) of the federal Investment Advisers Act of 1940, as amended (15 U.S.C. § 80b-3(c)).
REQUIRED BEGINNING DATE. Has the meaning given by I.R.C. § 401(a)(9)(C) and is further described by § 34.081.
RESOLUTION. Any local law, ordinance, resolution or consent (including a unanimous written consent) or other action or direction of any kind that is the act of the governing body of or otherwise the act of the employer or an employer under the state and local law that applies to it.
RESTATEMENT DATE.
(1) Means January 1, 1997, except as provided below.
(2) Section 30.021 is effective for all plan investments and all amounts, property and rights held on or after August 20, 1996.
(3) The provisions of §§ 33.001 through 33.009 and those provisions that refer to §§ 33.001 through 33.009 to the extent the provisions so refer are effective as stated by § 33.002. (The provisions stated by §§ 33.001 through 33.009 apply to re-employments on or after December 12, 1994, except that any obligation under §§ 33.001 through 33.009 shall not commence until October 13, 1996.)
(4) Further, any provision that was required for the plan to have met the requirements for an eligible deferred compensation plan under I.R.C. § 457(b) at any time before January 1, 1997 that was not correctly stated by the plan as then-currently in effect at the relevant time shall be effective for all such earlier time to the extent necessary for the plan to have met the requirements for an eligible deferred compensation plan under I.R.C. § 457(b) for all years beginning on or after the effective date.
RETIREMENT DISTRIBUTION. Any distribution other than a hardship distribution or a permitted distribution or a corrective distribution that begins after the participant’s separation-from-service and before the participant’s death.
SEPARATION-FROM-SERVICE.
(1) The permanent and complete termination of the participant’s employment with the employer for any reason that is a SEPARATION-FROM-SERVICE within the meaning of I.R.C. § 402(e)(4)(A)(iii).
(2) For a participant who is an independent contractor of the employer, SEPARATION-FROM- SERVICE is deemed to occur when the participant’s contract under which services are performed has completely expired and terminated, there is no foreseeable possibility that the employer will renew the contract or enter into a new contract for the participant’s services, and it is not anticipated that the participant will otherwise become an employee of the employer. An expiration or termination of a contractual relationship that is not a good faith and complete termination of the contractual relationship within the meaning of Treasury Reg. § 1.457-2(h)(3) is not a SEPARATION-FROM-SERVICE.
(3) The Plan Administrator is entitled to rely upon the date of SEPARATION- FROM-SERVICE certified by the employer.
(4) Notwithstanding any other information, the agent shall not be deemed to have any knowledge of any SEPARATION-FROM-SERVICE until it receives the Plan Administrator’s certificate of the fact and date of the participant’s SEPARATION-FROM-SERVICE.
SHARES. Shares or similar units of interest in a fund.
SIGNATURE GUARANTEE. A written guarantee of the signature of the person endorsing a writing that is made by a corporation that is an “eligible guarantor institution”, as defined by 17 C.F.R § 240.17Ad-15(a)(2), that is not otherwise excluded under that rule and that is a member of the Securities Transfer Agent Medallion Program (“STAMP”).
SPOUSE or SURVIVING SPOUSE.
(1) Solely for the purposes of minimum distribution provisions, the natural person who is the surviving spouse of the participant within the meaning of I.R.C. § 401(a)(9)(B)(iv).
(2) For all purposes under the plan, the Plan Administrator may rely on any written statement furnished to it, and the Plan Administrator has no duty to inquire concerning the non-existence or identity of a participant’s SPOUSE unless the Plan Administrator has received a court order or legal process or a written notice from any office of the IRS concerning the existence or non-existence or identity of the participant’s SPOUSE.
STATE.
(1) Includes the meaning given by I.R.C. § 7701(a)(10).
(2) For most purposes of the plan, STATE refers to the state or commonwealth or jurisdiction that is the employer or the state or commonwealth or jurisdiction of which the employer is a political subdivision or an agency or instrumentality.
TAXPAYER IDENTIFYING NUMBER. Has the meaning given by I.R.C. § 6109.
TRANSFER DISTRIBUTION. A retirement distribution paid or payable to the participant or as a transfer to another eligible deferred compensation plan.
UNALLOCATED INVESTMENT. Any investment that is not an allocated investment.
USA. The United States of America. To the extent that any provision of the plan is intended to state a provision that meets a requirement of I.R.C. § 401(a) or I.R.C. § 501(a), USA shall be construed according to I.R.C. § 7701(a)(9), except as otherwise required or permitted by the Internal Revenue Code for the applicable requirement.
VALUATION DATE.
(1) Each date provided for valuing plan accounts as specified by the Plan Administrator under a written procedure(s).
(2) A VALUATION DATE that is a business day ends at the same time that the business day ends. A VALUATION DATE that is not a business day ends at 4:00 p.m. New York Time.
VALUATION PERIOD. The time after the close of regular trading (usually 4:00 p.m. New York Time) of a valuation date to the close of the next valuation date.
YEAR.
(1) The calendar year.
(2) For all purposes of administering the plan, the Plan Administrator shall be entitled to rely on the assumption that a participant’s taxable year is the calendar year unless the participant gives written notice specifying his or her taxable year.
(Ord. NIRC 97-1, passed 1-15-1997)