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HomeMy WebLinkAboutMINUTES - 02021999 - C89 HOUSING AUTHORITY OF TIME COUNTY OF CONTRA COSTA TO: BOARD OF COMMISSIONERS FROM: Robert McEwan,Acting Executive Director DATE: February 2, 1999 SUBJECT: AMENDMENT TO THE CURRENT 457 ELIGIBLE DEFERRED COMPENSATION PLAN SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION I. RECOMMENDED ACTION: ADOPT Resolution No.4055 approving amendment to the current 457 eligible Deferred Compensation Plan for the Housing Authority of the County of Contra Costa according to the Small Business Job Protection Act of 1996 requiring that all IRS Section 457 deferred amounts must be placed in a trust,custodial account or an annuity contract for the exclusive benefit of plan participants and their beneficiaries. IL FINANCIAL IMPACT: None. III. REASONS FOR RECOMMENDATION/BACKGROUND Currently the Housing Authority of the County of Contra Costa has a Deferred Compensation Plan(457 Plan)available for their employees to participate in should they choose to, and the plan assets are subject to the plan sponsors general creditors in the event of the sponsors bankruptcy. The Small Business Job Protection Act of 1996 requires that all IRS Section 457 deferred amounts trust be placed in a trust, custodial account or an annuity contract for the exclusive benefit of plan participants and their beneficiaries. Following the adoption of Resolution No. 4055,the plan assets will no longer be subject to the plan sponsors general creditors, even in the event of the plan sponsors bankruptcy,thereby ensuring a safer investment for Housing Authority employees, IV. CONSEQUENCES OF NEGATIVE ACTION: Should the Board of Commissioners elect not to adopt Resolution No.4055 we would not be in compliance according to the Small Business Job Protection Act of 1996 which protects the employees deferred assets from the sponsors bankruptcy should that occur. CONTINUED ON ATTACHMENT: YES SIGNATURE ~ RECOMMENDATION OF EXECUTIVE DIRECTOR RECOMMENDATION'OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON February-z 2, 1999 APPROVED AS RECOMMENDED x x OTHER VOTE OF COMMISSIONERS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS (ABSENT - - ® - - - } TRUE ANIS CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND EN'T'ERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF COMMISSIONERS ON THE DATE SHOWN. ATTESTED -h r�y ar y,2, t 9 g q PHIL BATCHELOR,CLERK.OF THE BOARD OF COMMISSIONERS AND COUNTY ADMINISTRATOR :i BY ,DEPUTY defcomp THE BOARD OF COMMISSIONERS HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA RESOLUTION NO.4055 RESOLUTION AMENDING THE 457 DEFERRED COMPENSATION PLAN ASSETS OF THE SECTION 457 GROUP CONTRACTS TO INCLUDE "EXCLUSIVE BENEFIT AND TRUST PROVISIONS"ON PLAN ASSETS WHEREAS, Section 457 places deferred compensation contributions and plan assets in a trust,custodial account or an annuity contract; and WHEREAS, such contributions are not included in the employee's gross income in the year in which such amounts are contributed by the employees, and WHEREAS,the Small Business Job Protection Act of 1996 requires the Housing Authority of the County of Contra Costa to place the plan assets in a trust, NOW,THEREFORE,BE IT RESOLVED BY PHA,as follows: That effective in January, 1999,the 457 Referred Compensation contributions and the plan assets of the employees of the Housing Authority of the County of Contra.Costa be placed in a trust, custodial account or an annuity accounts for the exclusive benefits of the participants and its beneficiaries. PASSED AND ADOPTED ON F e b ru a r y 2 , ,. 1999 by the following vote of the Commissioners. AYES: COMMISSIONERS GIOIA, UILKEMA, GERBER, DeSAULNIER and CANCIAMILLA NOES: NONE ABSENT: NONE ABSTAIN: NONE I HEREBY CERTIFY THAT T141S IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON THE MINUTES OF THE BOARD OF COMMISSIONERS ON THE DATE SHOWN. ATTESTED February 21--1999 PHIL BATCHELOR, CLERK OF THE BOARD OF COMMISSIONERS AND BOUNTY ADMINISTRATOR fife f BY kz tf ddcotrpr DEFERRED COMPENSATION PLAN HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA PREAMBLE This Plan has been adopted pursuant to Resolution No. 4055 and is effective as of such date. The primary purpose of this Plan is to permit Employees of the Employer to enter into an agreement which will provide for deferral of payment of a portion of their current compensation until death, retirement, termination of employment, or other event, in accordance with the provisions of Section 457 of the Internal Revenue Code of 1986, with other applicable provisions of such Code, and in accordance with the General Statutes of the State. It is intended that the Flan shall qualify as an Eligible Deferred Compensation Plan within the meaning of Section 457{b} of the Cone sponsored by an Eligible Governmental Employer. The Employer does not and cannot represent or guarantee that any particular federal or state income, payroll or ether tax consequence will occur by reason of participation in this Flan. A Participant should consult with his or her own attorney or other representative regarding all tax or other consequences of participation in this Plan. 2 ARTICLE I DEFINITIONS 1.1 plan Definitions For purposes of this Plan, the following words and phrases shall have the meaning set forth below, unless a different meaning is plainly required by the context: "Administrator" means the Employer or his or her duty authorized designee for that purpose who shall exercise the discretion or other functions given to the Employer under the terms of the Flan. "Adjusted" means adjusted for the cost of living at the time and in the manner as prescribed under section 457(e)(15)of the Code. "Annuity Contracts" means an annuity contract(fixed and/or variable) issued by Dartford Life Insurance Company. "Beneficiary" means any person designated by the Participant to receive an annuity, death benefit, or other benefit under the provisions of this Flan, by reason of such Participant's death. "Code" means the Internal Revenue Code of 1956, as amended. "Compensation" means the total of all wages or salaries which are paid by the Employer to, or for the benefit of, an Employee for services rendered, calculated without deduction for any portion thereof deferred under the provisions of this Placa or for any amounts contributed to any program established pursuant to Code Sections 403(b), 401(k), 406(k)(6), or 501(c)(18). "Deferred Compensation" means that portion of an Employee's compensation which said Employee has elected to defer an accordance with the provisions of this Placa. "Deferred Retirement Date" means the date beyond the Normal Retirement bate designated by the Participant. Such date shall not exceed the earlier of(i)the Employer's mandatory retirement age, or(it) the date on which the Participant incurs a Termination of Employment. "Eligible Deferred Compensation plan" has the meaning given it by the Internal Revenue Code Section 457(b) and the regulations thereunder. "Eligible Governmental Employer" means a State, political subdivision of a State, and any agency or instrumentality of a State or political subdivision of a State. "Employee, means the Executive Director of the Dousing Authority of the County of Contra Costa. 3 "Employee" mems any individual defined as eligible by standards set forth by the Employer. A copy of such standards is attached as Exhibit A and incorporated as if fully set forth. "Includible Compensation" means compensation from the Employer that is currently includible in gross income for federal income tax purposes (i. e., taxable income). "Normal Retirement Gate" means the date a participant retires pursuant to the Employer's retirement Plan without reduced benefits. (Retirement program administration can answer specific questions). "Participant" means any individual who performs services for the Employer either as an Employee or as an independent contractor, who elects to participate in this Flan or who has unpaid benefits due under the Plan, as well as any separatedemployee or beneficiary who has unpaid benefits due under the Plan. "Participation Agreement" means an agreement filed by an Employee to elect or modify participation in the Flan. "Participation Account" means the bookkeeping account to which there is credited the Participant's Deferred Compensation, together with any interest, dividends, gains, losses or the like thereon. "Flan" means Housing Authority of the County of Contra Costa Eligible Deferred Compensation Plan. "Plan Year" means the calendar year during which the Flan becomes effective, and each succeeding year during the existence of this Plan. "State" means the Mate or Commonwealth that is the Employer or the State or Commonwealth of which the Employer is a political subdivision or an agency or instrumentality. "Termination of Employment" means in the case of an Employee, separation from service within the meaning of Section 402(e)(4)(D) of the Code or on account of the Participant's death or retirement, or in the case of an independent contractor, the expiration of the contract (or, in the case of more than one contract, all contracts) under which services are performed for the Employer. 4 ARTICLE li OPERATION OF PLAN 201 Participation The Employer shall defer payment of Participant compensation in the amount specified in each Participation Agreement filed with the Employer. Notwithstanding any provision of this Pian to the contrary, contributions, benefits, and service credit with respect to qualified military service will be provided in accordance with Code Section 414(u). 2.2 Participation Agreement Any Employee may elect to become a Participant in the Plan and to defer payment of part of his compensation not yet earned by executing a written Participation Agreement and filing it with the Employer in the manner set forth in Article Ill and IV hereof. The dollar amount deferred mast be at least $10.40 per pay period or such larger amount as may be designated by the Employer from time to time. In addition to a Participant's election to participate pursuant to the preceding paragraph, a Partcipant may transfer to this Flan any amounts previously deferred under another Eligible Deferred Compensation Flan maintained by an Employer. Such amounts shall be treated as if they had originally been deferred under this flan and all applicable provisions of this Flan shall apply. The Participation Agreement contains, among other provisions, a provision whereby the Participant specifies: (a) that portion of his/her Compensation which is to be deferred. (b) his/her investment preference; (c) a Beneficiary or Beneficiaries, including one or more contingent Beneficiaries, to receive any benefits which may be payable under this Plan or on the death of the Participant. (d) that his salary, wage or other compensation is as set forth in any salary ordinance or otherwise without deductions for amounts deferred under the provision of this plan. (e) that the participant together with his heirs, successors, and assigns, bold harmless the Employer from any liability hereunder for all acts performed in good faith,including acts relating to the investment of deferred amounts and/or the Employee's investment preference hereunder. 2.3 Agreement Effective tate If the Participation Agreement is received prior to the 15#x` of the month, it will take effect on the first payday of the following month. If received on or after the 15t", it will take 5 effect on the first pay day of the second month following. Thereafter, during each employment year in which the Employee is a Participant in the Plan, that portion of his said Compensation which is specified by the Employee in the Participation Agreement shall be deterred and paid in accordance with the provisions of this Plan. 2.4 Amendment of Participation Agreement The Participant may revoke his election to participate and may change the amount of Compensation to be deferred, or his investment preference, by signing and filing with the Employer a written revocation or amendment, on a form approved by the Administrator. Any such revocation or amendment shall be effective prospectively only, beginning with the first pay period of the subsequent month. 2.5 Regular Contributions The regular contribution is the amount of compensation which may be deferred by a Participant subject to the following limitations: (a) Calendar Year Maximum--the maximum amount a Participant may defer during a calendar year shall not exceed the lesser of (i) $8,000 (as Adjusted), or (ii) 33- 113% of the Participant's Includible Compensation (typically 25% of the Participant's grass taxable income from the Employer). (b) Pay Period Maximum —the maximum amount a Participant may defer during a pay period, when combined with previous deferrals during the calendar year, shallnot exceed the lesser of(i) $8,000 (as Adjusted) or(ii) 33-1/3% of the Participant's year to date Includible Compensation (typically 25% of the Participant's year-to-date gross taxable income from the Employer). (c) Pay Period Minimum —the minimum amount a Participant may defer is $10.00 per[biweekly pay] period. 2.6 Catch-Up Contributions A Participant may defer an additional amount under this "catch-up provision", for one or more of the last three calendar years ending before attaining the Participant's formal or Deferred Retirement mate. The use of"catch-up" is subject to the following restrictions. (a) The maximum amount a Participant may defer each calendar year shall not exceed the lesser of these two amounts: 1. $15,000 minus the regular contribution, or 2. Any Employer provided compensation eligible for deferral'that was not deferred for any prior taxable year which began after December 31, 1978. 6 (b) To use "catch-up", a Participant must declare a retirement age, which may be any age at or after which the Participant qualified for Normal Retirement eligibility, but no later than age 70-112. This declaration does not compel retirement. (c) The "catch-up" provision may not be used during the calendar year that the Participant ceases to be an Employee. (d) The "catch-up" provision may be used only once by any Participant, whether under this Plan or any Cather eligible Deferred Compensation Plan. (e) Participants may continue to make regular contributions after they are no longer eligible to use "catch-up„ 7 ARTICLE III INVESTMENT RESPONSIBILITIES 3.1 Investment of the Deferred Amount Amounts deferred pursuant to Article 11 shall be held for the exclusive benefit of Participants and their Beneficiaries under one or more Annuity Contracts which may provide for guaranteed rates of interest or variable investment options. 3.2 Employer's Investment Rights The Employer may, but is not required to, invest amounts equal to the deferred compensation credited to a Participation Account in accordance with his or her requests. However, the Employer shall be under no obligation to invest the deferred amount in the manner specified and shall retain the right to approve or disapprove investment requests made by the Participant at the time of enrollment or change in enrollment. 3.3 Amendment of Investment Preference The Participant may amend his statement of investment preference by ding with the Employer a signed amendment on a form approved by the Administrator. Such amendment will, unless specifically stated otherwise, apply only to future amounts deferred under the Plan. 3.4 Investment Disclaimer Any action by the Employer in investing funds, or approving any such investment of funds, shall not be considered to be either an endorsement or a guarantee of any investment; nor shall it be considered to attest to the financial soundness or the suitability of any investment for the purpose of meeting future obligations as provided under the distribution guidelines given below. 3.5 Statements The Employer will cause to be issued statements periodically to reflect the actual earnings, gains, contributions and lasses posted to the Participation Accounts. 8 ARTICLE IV DISTRIBUTIONS 4.1 Eligibility Code Section 457 and the applicable regulations determine the Participant's eligibility for a distribution and payment option available. Distribution may be taken under any of the following circumstances. (a) Retirement; (b) Separation from service within the meaning of Sections 1.457-2(h)(2) and (3) of the Income Tax regulations; (c) Participant's death; (d) Approval of request for emergency withdrawal; (e) Attainment of age 70-112, whether or not still employed. 4.2 Distribution and Deferral Distribution must fallow the minimum distribution requirements of Sections 401(a)(9) and 457(4) of the Code and the regulations thereunder as they may be amended from time to time. Where is a substantial penalty (federal excise tax) for not satisfying the minimum distribution requirements. Upon becoming eligible in accordance with section 4.1 hereof, distribution is subject to the following guidelines; (a) A Participant may elect to commence distribution in accordance with the payment options set forth at Sections 4.3 hereof. Unless the Participant fails to mare any election or if the Participant elects a postponed distribution commencement date pursuant to Section 4.2(b) below, the Participants Participation Account shall be, or shall commence to be, distributed not later than sixty (60) days after the close of the Plan Year in which the Participants Participation Account becomes eligible for distributions If a Participant fails to make any election, distribution shall commence in accordance with Suction 4.5 hereof. (b) A participant may elect to postpone the commencement date specified in the election made pursuant to Section 4.2(a) to a later date if(i) such postponement election is made prior to the original commencement date specified in the election made pursuant to Section 4.2(a), and (ii) no other postponement election has been made pursuant to this Section 4.2(b); provided further, that a Participant may change the payment option elected at any time that is at least sixty (60) days prior to the date on which payments will commence. g (c) A Participant may elect to postpone distribution, even after using the "catch-up" provision. (d) if eligibility for distribution is on account of the Participant's death, distribution shallcommence in accordance with Section 4.8 hereof. (e) Notwithstanding any prevision of the Plan to the contrary, distribution must commence no later than April 1 st following the later of(i) the calendar year in which the Participant attains age 70-112 or (ii) the calendar year in which the Participant separates from service, and shall be made under one of the options provided under Section 4.3 and in accordance with Section 401(a)(9) of the Code and regulations issued thereunder, including the minimum distribution incidental benefit requirements. 4.3 Payment Options Except in the event of the Participant's death, the full amount credited to the Participant's Participation Account (including earnings and net gain or lass), less any federal or state income tax required to be withheld, shall be distributed, as instructed by the Participant, under one of the following payment options (a) A single sura payment; (b) Payments for a specified period where amounts are paid in substantially non- increasing installments over a period of five (5) to thirty (00) years, but not in excess of the Participant's allowable life expectancy; (c) A life annuity payable during the lifetime of the Participant; (d) A life annuity with period certain guaranteed payable during the lifetime of the Participant, or his Beneficiary, with the guarantee that if at the Participant's death payments have not been made for the guaranteed period as elected, payments will continue to the Beneficiary. The guaranteed period to be elected must be either ten (10) or fifteen (15) years if the Beneficiary is not a spousal Beneficiary. For a spousal Beneficiary, the guaranteed period to be elected may be either tent. (10), fifteen (15) or twenty (20) years but may not exceed the life expectancy of the participant and his spousal Beneficiary; or (e) A joint and survivor annuity payable during the lifetime of the Participant and a spousal Beneficiary of the Participant. 4s4 Distribution For Certain Non-Participating Participants Notwithstanding any provision of the Plan to the contrary, if the total amount of a Participant's Participation Account under the Plan does not exceed the dollar limit under Code Section 411(a)(1 1)(A), the Participant may elect to receive (or the Employer may 10 elect to pay to the Participant without the Participant's consent) the total amount in a single sum payment within 60 days of such election; provided, however, such amount may be distributed pursuant to this Section 4.4 only if: (a) no amount has been deferred under the Plan with respect to such Participant during the two year period ending on the date of the distribution, and (b) there has been no prior distribution under the Plan to such participant to which this Section 4.4 applied. 4.6 Default Distribution Schedule If the participant falls to select a distribution font for any event which causes amounts to become available under the Plan, the Participant shall be deemed to have elected, pursuant to Section 4.2(b) hereof, to postpone distribution of his benefit until the year in which the [participant attains age 70-1/2. Upon such Participant's attainment of age 70-112, payments shall commence for a specified period of ten ('1 d) years under the payment option provided at Section 4.3(b). Notwithstanding the foregoing, Participation Accounts eligible for distribution under Section 4.4 shall be subject to earlier distribution in accordance with Section 4.4 hereof. 4.6 Payment Frequency If the Participant has elected a payment option requiring installment payments, the Participant may also elect to have such payment made either monthly, quarterly, semi- annually or annually. 4.7 Income Tax Reporting Amounts paid to a Participant shall be reported on appropriate tax reporting forms to a Participant as wages subject to withholding for federal income taxes. 4.8 Distribution Schedule In The went of the Participant's 'Death In the event of the P'articipant's death, the full amount credited to the Participant's Participation Account (including earnings and net gain or loss), less any federal or state income tax required to be withheld, shall be distributed according to the following requirements. (a) If distribution has commenced prior to the death of the Participant, the balance of a Participant's Participation,Account shall be paid to the Beneficiary in accordance with the payment option already selected by the Participant so that the remaining distribution will be effected at least as rapidly as under the payment option used before the Participant's death. ( ) If the distribution has not commenced prior to the death of the Participant, a non- spousal beneficiary may take a distribution under the payment option provided at Section 4.3(a) or Section 4.3(b) above over a maximum of 15 years, commencing no later than one year after the date of the Participant's death. '11 A spousal Beneficiary may defer distribution no later than the year the deceased Participant would have reached age 70-1/2 and may take a distribution under the payment option provided at Sections 4.3(a), 4.3(b), 4.3(c), or 4.3(d) for a period not exceeding his/her own life expectancy. (c) if the Beneficiary fails to make such selection, payments shall be made to the Beneficiary in accordance with Section 4.3(b)over a 10 year period. The Employer shall process distribution requests immediately upon receipt of all required forms. 4.9 Emergency Distribution Notwithstanding any other provisions of this Plan, a Participant may apply for a lump sura withdrawal of funds from the Plan under certain emergency conditions. The Employer will evaluate the request for conformity with its interpretation of the applicable regulations. The Participant must satisfy the Employer that some/or any of the following conditions are met before the Employer may authorize the emergency withdrawal; (a) Major unexpected and unreimburseable expenses exist that were not foreseeable and are beyond the Employee's control, (b) The unforeseeable emergency event involves the Participant, or his/her spouse or any dependent who qualifies under Section 152(a)of the Code; (c) The financial burden created must be the legal obligation of the Participant; (d) All other financial sources, such as insurance payments and attempts to obtain loans, have been exhausted; (e) All assets must be liquidated except where liquidation would itself cause severe financial hardship; (f) The amount of the requested withdrawal is limited to the amount necessary to meet the financial emergency; and (g) Great financial hardship will occur if the withdrawal is not permitted. Examples of hardship circumstances include major property loss and catastrophic illness of spouse or dependents. Withdrawals are not authorized for expenses related to the death or illness of any other family member, or for budgetable expenses such as automobile or college costs, a home down payment, or expenses relative to divorce proceedings. 12 Any remaining benefits shall be paid upon retirement, termination of employment, or death in accordance with this Article IV. The decision of the Employer concerning Emergency Withdrawals shall be final as to all Participants. 13 ARTICLE V BENEFICIARY 5.1 Designation f Each Participant has the right, by written notice filed with the Employer, to designate one or more beneficiaries to receive any benefits payable under this Plan in the event of the Participant's death prier to the complete distribution of benefits. The Participant accepts and acknowledges that he/she has the burden for executing and filing, with the Employer, a proper beneficiary designation form. The form for this purpose shall be provided by the Employer. It is not binding on the Employer until it is signed, filed with the Employer by the Participant, and accepted by the Employer. If no such designation is in effect upon the Participant's death, or if no designated beneficiary survives the Participant, the beneficiary shall be the estate of the Participant. If no estate executor or administrator is appointed and qualified within one hundred twenty (120) days after the p'articipant's death, the payment may be made first, to a surviving spouse, second, to a surviving child or children; and third, to a surviving parent or parents. 14 ARTICLE vl NOWASSIGNAEIt,ITY 6.1 Non Assignabilllty Neither the Participant nor the Participant's beneficiary, nor any other designee, shall have any right to commute, sell, assign, pledge, hypothecate, transfer or otherwise convey the right to receive any payments hereunder, which payments and right thereto are expressly declared to be non-assignable and nontransferable. Except to the extent otherwise provided by law, no payments shall be subject to attachment, garnishment or execution, or be transferable in the event of bankruptcy or insolvency. 1� ARTICLE x'11 PLAN TRANSFERS 7.1 Plan Transfers Code Section 457 and the applicable regulations permit transfers of plan interests when the Participant changes employers. 7.2 Transfers In The full value of a Participation Account may be accepted from another Eligible Deferred Compensation Plan maintained by another employer and credited to the Participant's Participation Account under this plan, if: (a) The Participant has separated from service with that employer and has become an Employee; (b) The other employer's plan provides that such transfer can be made. As it deems necessary, the Employer may require such documentation from the predecessor plan to effect the transfer, to confirm that such plan is an Eligible Deferred Compensation Plan within the meaning of Code Section 457 and to assure that transfers are provided for under such plan. The Employer may refuse to accept a transfer in the form of assets other than cash, unless the Employer agrees to held such other assets under the Plan. Any amounts transferred that had been deferred during prior calendar years will not be subject to current calendar year deferral limitations. 7.3 Transfers Out The full value of a Participation Account may be transferred to another Eligible Deferred Compensation Plan maintained by another employer, if; (a) The Participant has separated from service with the Employer and become an employee of the other employer; ( ) The other employer's plan provides that such transfer will be accepted; and (c) The Participant and the employer have signed such agreements as are necessary to assure that the Employer's liability to pay benefits to the Participant has been discharged and assumed by the other employer. 16 As it deems necessary, the Employer may require such documentation from the other Mars to effect the transfer, to confirm that such plan is an Eligible referred Compensation Plan within the meaning of rode Section 457 and to assure that transfers are provided for under such plan. Such transfers shall be made only under such circumstances as are permitted under Code Section 457 and the applicable regulations. 17 ARTICLE Vill ADMINISTRATION AND ACCOUNTING 8.1 Administration by Employer This Plan shall be administered by the Employer, which shall prescribe such forms, and adopt such rules and regulations as are necessary to carry out the purposes of the Plan. The Employer may employ investment counsel to provide advice concerning categories of investment, investment guidelines and investment policy, provided, however, that the advice or recommendations of any such investment counsel shall not be binding on the Employer, which shall make the final determination concerning investment categories, investment guidelines and policies. The Employer may contract with a financially responsible independent contractor to administer and coordinate the Plan under the direction of the Employer. The Administrator shall have the right to designate a Flan Coordinator or other party of its choice to perform such services under this agreement as may be mutually agreed to between the Administrator and the Plan Coordinator or other party. Notwithstanding any other provisions to the contrary, the Administrator agrees that it shall be solely responsible to the Employer for any and all services performed by a subcontractor, assignee, or designee under this Agreement. 8.2 Administrative Cosh The Employer shall determine, in a manner deemed fair and equitable, the administrative coasts associated with the withholding of Deferred Compensation amounts pursuant to this Plan or in making investments or otherwise administering or implementing the Plan. The Employer may withhold or collect, or have withheld or collected, such costs, in such manner as he deems equitable either (1)from the compensation deferred pursuant to the flan, the income produced from the compensation deferred pursuant to the Plan, the income produced from any investment, whether or not augmented, or (2) from the organization receiving such investment where required by law to collect therefrom, or if not so required, where mutually satisfactoryto such organization and the Administrator. The Administrator may remit or direct the remission of appropriate amounts so withheld or collected to the Employer. 18 ARTICLE IX AMENDMENTS 9,1 Right to Amend, Modify and Terminate The Employer may at any time modify or terminate the Pian by notifying Participants of such action. The Employer shall not have the right to reduce or affect the vane of any Participant's account or any rights accrued under the Plan prior to modification or termination. 9.2 Conformation The Employer shall amend and interpret the Plan to the extent necessary to conform to the requirements of Code Section 457 and any other applicable law, regulation or ruling, including amendments that are retroactive. In the event the Plan is deemed by the Internal Revenue Service to be administered in a manner inconsistent with Code Section 457, the Employer shall correct such inconsistency within the period provided in Code Section 457(b). 9.3 Plan Termination In the event of the termination of the Plan, distribution of benefits shall be made to Participants and beneficiaries pursuant to the distribution guidelines in Section 4 or the transfer provisions of Section 7. 19 ARTICLE X EXCLUSIVE BENEFIT 10.1 Exclusive Benefit All amounts of compensation deferred under the Plan, all property and :rights purchased with such amounts, and all income attributable to such amounts, property or rights shall be held in trust or under one or more annuity contracts described in Section 401{f} of the code. Except as may otherwise be permitted or required by law, no assets or income of the Pian shall be used for, or diverted to, purposes other than for the exclusive purpose of providing benefits for Participants and their Beneficiaries or defraying reasonable expenses of administration of the Plan. 20 ARTICLE XI MISCELLANEOUS 11>1 Retirement System Integration Benefits parable by, and deductions for Employee contributions to, any retirement system of the Employer shall be computed without reference to amounts deferred pursuant to this Plan. 11.2 Employment Neither the establishment of the Plan nor any modification thereof, nor the establishment of any account, nor the payment of any benefits, shall be construed as giving to any Participant or other person any legal or equitable right against the Employer except as herein provided; and, in no event, shall the terms of employment of any Employee be modified or in any way affected hereby. 11.3 Successors and Assigns The Plan shall be binding upon and shall inure to the benefit of the Employer, its successors and assigns, all Participants and Beneficiaries and their heirs and legal representatives. 11.4 Written Notice Any notice or other communication required or permitted under the Plan shall be in writing, and if directed to the Employer shall be sent to the designated office of the Employer, and, if directed to a participant or to a Beneficiary, shall be sent to such Participant or Beneficiary at his last known address as it appears can the Employer's record. 11.6 Total Agreement This Plan and the Participation Agreement, and any subsequently adopted amendment thereof, shall constitute the total agreement or contract between the Employer and the Participant regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant. 11.6 Gender As used herein, the masculine shall include the neuter and the feminine where appropriate. 21 11.7 Controlling Law This Plan is created and shall be construed, administered and interpreted in accordance with Section 457 of the Code and the regulations thereunder the under the laws of the Mate of domicile of the Employer as the same shall be at the time any dispute or issue is raised. If any portion of this Plan is held illegal, invalid or unenforceable, the legality, validity and enforceability of the remainder shall be unaffected, IN 'FITNESS WHEREOF,the Employer has executed this Plan document this day of , (Name of Employer) SEAL By Its (Title) Attests Game Title Witness Title G:1usrshr/dsframp 2