1 ST. NORBERT COLLEGE DEFINED CONTRIBUTION RETIREMENT PLAN JANUARY 1, 2009
2 ST. NORBERT COLLEGE DEFINED CONTRIBUTION RETIREMENT PLAN Table of Contents Page ARTICLE I INTRODUCTION...1 Section Purpose...1 Section Definitions...1 Section Incorporation by Reference...2 ARTICLE II PARTICIPATION...2 Section Commencement of Participation...2 Section Transfer to Employee Status...2 Section Rehire After Severance from Employment...2 Section Duration of Participation...2 ARTICLE III ROLLOVERS AND TRANSFERS...3 Section Rollover Contributions...3 Section Plan-to-Plan Transfers to the Plan...4 Section Plan-to-Plan Transfers from the Plan...4 Section Contract Exchanges...5 ARTICLE IV CONTRIBUTIONS...5 Section (b) Plan...5 Section Salary-Reduction Contributions...6 Section Matching Contributions...8 Section Discretionary Employer Contributions...9 Section (m) Test...9 Section Allocation of Gain/Loss...14 Section Catch-Up Contributions...14 ARTICLE V SECTION 415 LIMITS...15 Section Maximum Additions to Participant Accounts...15 Section Excess Annual Additions...16 ARTICLE VI DISTRIBUTIONS AND VESTING...16 Section Normal Retirement Benefits...16 Section Reserved...17 Section Reserved i-
3 Section Other Terminations; Vesting...17 Section Commencement of Benefits...17 Section Forms of Payment...17 Section Minimum Distributions...17 Section Beneficiary Designation...18 Section In-Service Withdrawals...19 Section Eligible Rollover Distributions...20 Section Participant Loans...23 ARTICLE VII ADMINISTRATION...23 Section Plan Administrator s Duties...23 Section Nondiscriminatory Exercise of Authority...24 Section Committee...25 Section Resignation and Removal...25 Section College s Duties...25 Section Delegation of Duties...25 Section Action by College...25 Section Funding Policy and Method...25 ARTICLE VIII FUNDING VEHICLES...25 Section General...25 Section Investment Funds...26 ARTICLE IX AMENDMENT AND TERMINATION...27 Section Right to Amend...27 Section Termination of Plan...27 ARTICLE X CLAIMS PROCEDURE...27 Section Claims...27 Section Claims Review...27 Section Appeal of Claim Denial...28 Section Review on Appeal...28 Section Litigation of Claim...29 ARTICLE XI MERGER OR TRANSFER...29 Section Merger or Transfer...29 ARTICLE XII MISCELLANEOUS...29 Section Exclusive Benefit...29 Section Plan Continued by Successor ii-
4 Section Adoption by Other Employers...30 Section Unclaimed Account Procedure...30 Section Spendthrift Provisions...31 Section Corrective Action...32 Section Plan Binding Upon Heirs, Assigns, Etc Section Interpretation and Governing Law...33 Section Changes in Vesting; Procedures...33 Section Return of Contributions...33 Section Notices...33 Section Word Usage...33 Section Erroneous Payments...33 Section No Contract of Employment...33 Section Minors and Incompetents...34 Section Accrual Limitations...34 Section Compliance with Section Section Indemnification by the College...34 Section Severability Clause...34 Section Titles and Headings...34 Section USERRA...34 Section Fees and Expenses...34 Section Use of Electronic Media...34 APPENDIX A DEFINITIONS iii-
5 W I T N E S S E T H: That; ST. NORBERT COLLEGE DEFINED CONTRIBUTION RETIREMENT PLAN WHEREAS, St. Norbert College, Inc. (the College ) sponsors and maintains the St. Norbert College Defined Contribution Retirement Plan and the St. Norbert College Tax-Deferred Annuity (TDA) Plan as retirement plans for the benefit of eligible individuals and their beneficiaries, which plans are intended to be Code Section 403(b) annuity plans; and WHEREAS, it has become desirable to merge the St. Norbert College Tax-Deferred Annuity (TDA) Plan with and into the St. Norbert College Defined Contribution Retirement Plan; and WHEREAS, it has become necessary and desirable to amend and restate the plan document for the St. Norbert College Defined Contribution Retirement Plan in its entirety; and WHEREAS, the College has duly approved and authorized the adoption of this amended and restated plan document. NOW, THEREFORE, effective December 31, 2008, the St. Norbert College Tax- Deferred Annuity (TDA) Plan is merged with and into the St. Norbert College Defined Contribution Retirement Plan, and effective January 1, 2009, the College does hereby adopt the following as its amended and restated plan document, which plan will continue to be known as the St. Norbert College Defined Contribution Retirement Plan. The rights, privileges, and obligations of any Employee, Participant, Beneficiary, or other person will be governed by the relevant terms of this amended and restated Plan, except that nothing in this restated plan document will be construed as granting any terminated Participant (or Beneficiary thereof) any greater vested benefit than such Participant had at the time of the Participant s severance from employment. ARTICLE I INTRODUCTION Section Purpose. This Plan is intended to be a Code Section 403(b) annuity plan established and maintained by the College for the purpose of providing retirement benefits to eligible Employees of the College. This Plan is intended to satisfy the requirements of Code Section 403(b) and the Treasury Regulations issued thereunder. This Plan also is intended to be a church plan within the meaning of Code Section 414(e) and ERISA Section 3(33). Accordingly, the terms and provisions of ERISA will not apply to this Plan. Section Definitions. Definitions of certain capitalized terms used in this Plan are set forth on Appendix A to this plan document and are incorporated fully herein as terms of this Plan. Additional plan terms are defined within the body of the plan document. -1-7/13/2009
6 Section Incorporation by Reference. Benefits provided under this Plan are funded through the various Funding Vehicles available as part of this Plan. The terms of those Funding Vehicles and the documents establishing and governing them, including, but not limited to, any annuity contracts, certificates, custodial-account agreements, or trust agreements, are incorporated into this document by reference and will constitute a part of this Plan. However, if there is any conflict between the terms of any Funding Vehicles (or their governing documents) and this document, the terms of this document will control. Further, any term or provision of a Funding Vehicle (or its governing document) that is inconsistent with Code Section 403(b) is not incorporated into this Plan. The foregoing described documents, incorporated into this document by reference, constitute the Plan and together may generally be referred to as the Plan. ARTICLE II PARTICIPATION Section Commencement of Participation. Each Employee who was a Participant in one or more features of this Plan before its amendment and restatement will automatically remain a Participant in such features of this Plan, as restated, after its amendment and restatement. In all other cases, an Employee will become a Participant in the relevant features of this Plan in accordance with the following: A. Elective Contributions. Each Employee will become a Participant in the Plan and will be eligible to make elective contributions (see Section 4.02) on the day the Employee first completes an Hour of Service for the College as an Employee. B. Matching Features. An Employee will become a Participant in the employer matching features of this Plan (see Section 4.03) on the date the Employee first completes an Hour of Service for the College as an Employee; provided, however, that only Employees who work in positions that are.5 or greater FTE or are faculty members participating in a phased retirement policy of the College are eligible for the employer matching features of the Plan. Section Transfer to Employee Status. If an individual is transferred to a position in which such individual becomes an Employee, such individual will become a Participant in the applicable features on the date on which such individual is transferred, so long as such individual has satisfied the eligibility requirements of the applicable features set forth above. Section Rehire After Severance from Employment. If a former Participant is rehired by the College after a Severance from Employment, such individual will become a Participant in the applicable features of the Plan on the date on which the individual first completes an Hour of Service after such reemployment, provided such individual is an Employee and has satisfied the relevant eligibility requirements. Section Duration of Participation. An individual will cease to be an active Participant on the earliest of (i) the date the individual terminates employment with the College, (ii) the date the individual incurs a Severance from Employment, or (iii) the date the individual is no longer an Employee. -2-7/13/2009
7 ARTICLE III ROLLOVERS AND TRANSFERS Section Rollover Contributions. Any Participant may contribute cash to the Plan as a rollover contribution subject to the following provisions: A. General. Before making a rollover contribution, an individual must file a written request with the Plan Administrator requesting that the Plan accept the individual s rollover contribution. The Plan Administrator, in the Plan Administrator s sole discretion, will determine whether that individual will be permitted to make a rollover contribution. Any written request to make a rollover contribution must set forth the amount of the proposed rollover contribution and include a statement, satisfactory to the Plan Administrator, that such contribution constitutes a rollover contribution. B. Separate Rollover Account. A rollover contribution made by an individual will be credited to a separate Rollover Account in the name of such individual as of the date of its receipt by the Plan. The rollover contribution will be commingled with the other assets of the Plan and will be invested in accordance with the terms of the Plan. An individual s Rollover Account will at all times be fully Vested and nonforfeitable for all purposes of the Plan. Distributions and withdrawals from an individual s Rollover Account will be governed by the provisions of Article VI. C. Rollover Contribution Defined. A rollover contribution is cash (including cash proceeds from the sale of property) that is an eligible rollover distribution from an eligible retirement plan and that the individual designates as a rollover contribution to this Plan. This Plan will accept a rollover contribution of an eligible rollover distribution from (i) a qualified plan described in Code Section 401(a) or 403(a), excluding after-tax employee contributions; (ii) an annuity contract described in Code Section 403(b), excluding after-tax employee contributions; (iii) an eligible plan under Code Section 457(b) that is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state; (iv) an individual retirement account described in Code Section 408(a), excluding any amount that would not otherwise be includible in gross income; and (v) an individual retirement annuity described in Code Section 408(b), excluding any amount that would not otherwise be includible in gross income. A rollover contribution must be received by the Plan either in a direct rollover from an eligible retirement plan or in a contribution from the individual that is made within sixty days (or such longer period as may be permitted under the Code) after the date the distribution is received by the individual from an eligible retirement plan. A distribution of nondeductible aftertax or accumulated deductible employee contributions or any other type of rollover contribution will not be considered a rollover contribution. -3-7/13/2009
8 D. Nonqualifying Contribution. If it is later determined that any amount did not constitute a rollover contribution, that amount, plus any earnings attributable thereto, will immediately be segregated from all other Plan assets, treated as a nonqualified plan established by and for the benefit of the individual making the contribution, and distributed to that individual. Any such nonqualified rollover contribution will be deemed never to have been a part of this Plan. Section Plan-to-Plan Transfers to the Plan. The Plan Administrator may permit a transfer of assets to the Plan from another Code Section 403(b) plan. The Plan Administrator may establish such rules, procedures, and conditions to any such transfer as it deems necessary or appropriate, including, but not limited to, (i) requiring that the transfer be in cash or other property acceptable to it, and (ii) requiring such documentation from the other plan as it deems necessary or appropriate. The following conditions also will apply: A. A transfer to this Plan is permitted only if the transferring plan provides for planto-plan transfers of benefits. B. A transfer to this Plan is permitted only if each affected individual is an Employee or former Employee of the College (or the beneficiary of an Employee or former Employee of the College). C. The amount so transferred must be credited to an Account for each affected individual, so that each such individual has an accumulated benefit immediately after the transfer that is at least equal to the individual s accumulated benefit immediately before the transfer. D. The amounts transferred will, from and after the transfer, be held and administered subject to the terms of this Plan, except that, to the extent any amount transferred is subject to distribution restrictions under the transferor plan that are required under Code Section 403(b), such amounts will be subject to distributions restrictions under this Plan that are not less stringent than those imposed under the transferor plan. E. If a transfer does not constitute a transfer of the entire interest of an affected individual in the transferor plan, the Plan will treat the amount transferred as a continuation of a pro rata portion of such individual s interest in the transferor plan. Section Plan-to-Plan Transfers from the Plan. The Plan Administrator may permit a transfer of assets from the Plan to another Code Section 403(b) plan. The Plan Administrator may establish such rules, procedures, and conditions to any such transfer as it deems necessary or appropriate, including, but not limited to, requiring such documentation from the other plan as it deems necessary or appropriate. The following conditions also will apply: A. A transfer from this Plan is permitted only if the transferee plan provides for planto-plan transfers of benefits. -4-7/13/2009
9 B. A transfer from this Plan is permitted only if each affected individual is an employee or former employee of the employer sponsoring the transferee plan (or the beneficiary of an employee or former employee of such employer). C. A transfer from this Plan is permitted only if the transferee plan provides that each affected individual will have an accumulated benefit immediately after the transfer that is at least equal to the individual s accumulated benefit immediately before the transfer. D. A transfer from this Plan is permitted only if the transferee plan provides that, to the extent any amount transferred is subject to distribution restrictions under the Plan that are required under Code Section 403(b), such amounts will be subject to distributions restrictions under the transferee plan that are not less stringent than those imposed under the Plan. Upon the transfer from the Plan in accordance with this Section, the Plan s liability to pay benefits to the affected individuals will be discharged to the extent of the amount so transferred for such individuals. Section Contract Exchanges. Exchanges between or among the Funding Vehicles offered under the Plan (i.e., changes in investments) may be permitted in accordance with uniform rules and procedures established by the Plan Administrator (see Article VIII). Exchanges involving annuity contracts, custodial accounts, or other permitted 403(b) investment vehicles offered by vendors that are not, at that time, eligible to receive contributions under the Plan (whether or not such vendors have ever been eligible to receive contributions under the Plan) are not permitted. Nothing, however, will prevent a Participant from entering into a contract or account exchange that results in the acquisition of a contract or account with a thencurrent vendor under the Plan (e.g., an exchange from a product of a former vendor into a product of a current vendor). NOTE: To the extent a transfer of funds from a Funding Vehicle is intended to constitute a distribution or withdrawal, including an eligible rollover distribution, see Article VI. WARNING: If a vendor ceases to be eligible to receive contributions under the Plan, it may be necessary for the College to enter into an information-sharing agreement with that vendor, to the extent any contract with the vendor does not otherwise provide for the exchange of information necessary to enable the parties to ensure compliance with the requirements of Code Section 403(b) and other applicable tax requirements. ARTICLE IV CONTRIBUTIONS Section (b) Plan. This Plan will be designated as a Code Section 403(b) taxdeferred-savings plan. For each Plan Year (or portion thereof) while this Plan is being -5-7/13/2009
10 maintained, the College will contribute such amounts as may be permitted or required under the terms hereof. Section Salary-Reduction Contributions. The following provisions will govern Participant salary-reduction contributions. A. Contribution. For each Plan Year the College will contribute, on behalf of each eligible Participant, an amount equal to the total amount by which the Participant s Compensation from the College was reduced during the Plan Year pursuant to the Participant s salary-reduction election. The amount of a Participant s salary-reduction contributions to this Plan will not exceed the amount of the Participant s cash Compensation. Salary-reduction contributions will be made by payroll deduction and will be transmitted to the appropriate Funding Vehicle. B. Election by Participants. For each Plan Year (or portion of the Plan Year after the Participant s entry into the Plan), each Participant in this Plan may elect (i) not to enter into a salary-reduction election (i.e., 0% deferral election), or (ii) to enter into a salary-reduction election with the College, which election will be applicable to all payroll periods within such Plan Year (or the remaining portion thereof). The terms of any salary-reduction election will provide that the Participant agrees to accept a reduction in Compensation from the College equal to any specified dollar amount or any percentage of Compensation, with a maximum rate of 75%. The Plan Administrator may establish a minimum annual salary-reduction amount of not more than $200, which amount may be changed from time to time (but not to exceed $200 per year). A Participant who fails to make a salary-reduction election will be deemed to have elected not to participate (and such Participant s election will be 0%). A Participant s salary-reduction contributions will cease as soon as administratively practicable after the earliest to occur of (i) the date the Participant terminates employment with the College, (ii) the date the Participant incurs a Severance from Employment, or (iii) the date the Participant is no longer an Employee. C. Allocation of Contribution. The amount of a Participant s salary-reduction contribution will be allocated to the Participant s Elective Contribution Account. D. Restrictions on Distribution of Salary-Reduction Contributions. Amounts attributable to a Participant s salary-reduction contributions will not be distributed earlier than upon one of the following events: the Participant s disability, death, Severance from Employment, attainment of age 59½, or hardship. E. Modification of Salary-Reduction Election. A Participant s salary-reduction election may be modified as follows: -6-7/13/2009
11 1. A Participant may elect to increase or decrease the amount of the Participant s salary-reduction contributions (subject to the limitations of this Section) by giving notice of the increase or decrease to the Plan Administrator at such time and in such manner as the Plan Administrator may prescribe for such purpose. A Participant will have the opportunity to increase or decrease the Participant s salary-reduction contributions at least once each Plan Year. Any increase or decrease in the Participant s salary-reduction contributions will be effective as soon as administratively practicable after the date the Plan Administrator receives timely and proper notice of the increase or decrease. 2. The Plan Administrator may, at any time and from time to time, unilaterally amend or revoke a Participant s salary-reduction election if the Plan Administrator determines that such revocation or amendment is necessary to ensure (i) that a Participant s annual additions for any Plan Year will not exceed the limitations of Code Section 415; (ii) compliance with the nondiscrimination tests of Code Section 401(m); (iii) compliance with any other rule; or (iv) compliance with Code Section 403(b). 3. A Participant s salary-reduction election will continue in effect until such time as the Participant enters into a new salary-reduction election, terminates employment with the College, incurs a Severance from Employment, or otherwise ceases to be an Employee. 4. Salary-reduction contributions under this Plan (or any other plan of the College) will not exceed the dollar limitation contained in Code Section 402(g), except to the extent permitted under Code Sections 402(g)(7) and 414(v). To the extent that salary-reduction contributions under all plans maintained by the College exceed such dollar limitation, the Participant will be deemed to have notified the Plan Administrator of the excess amount, and the Plan Administrator will distribute such excess amount (including earnings thereon) to such Participant not later than April 15 following the close of the taxable year. The Plan Administrator may also establish such procedures as it deems advisable to assist Participants in limiting deferrals under this Plan to not more than the limitation specified under Code Section 402(g) (and, if applicable, Code Sections 402(g)(7) and 414(v)). Such procedures, if adopted, may include the distribution of amounts in excess of the limitation ( excess elective deferrals ) and may also include, by way of example, a provision for written notice addressed to the Plan Administrator advising that the Participant has made excess elective deferrals and the allocation of such amount to this Plan. Corrective distributions will be made only if the Participant designates the distribution as an excess elective deferral, the corrective distribution is made after the date on which the Plan received the excess elective -7-7/13/2009
12 deferral, and the Plan designates the distribution as a distribution of excess elective deferrals. Upon receipt of such notice, the Plan may return such excess elective deferral (including earnings thereon) to the Participant not later than the next April 15th. Distributions under this paragraph may be made without regard to any provision of law (e.g., Participant consent). If matching contributions are attributable to an excess elective deferral, the Plan Administrator will take such action as is necessary to prevent discrimination under the applicable provisions of the Code. No such matching contribution will be treated as made or attributable to an excess elective deferral. Accordingly, such amounts will not be distributed to the Participant, and the Plan Administrator will, as soon as administratively practicable, use said amounts to reduce subsequent matching contributions. For purposes of this paragraph, unmatched elective deferrals will be treated as distributed before elective deferrals that were matched. Section Matching Contributions. Subject to the remaining provisions of this Section, the College will make a matching contribution for each eligible Participant in accordance with the following: A Participant who makes the following minimum salaryreduction contribution... Will receive the following matching contribution... 2% of Compensation 5% of Compensation 3% of Compensation 6% of Compensation 4% of Compensation 7% of Compensation 5% of Compensation 9% of Compensation Notwithstanding the foregoing, the matching contribution for a Participant who is a faculty member participating in a phased-retirement policy of the College will be based on the salary stated in the Participant s academic year contract or appointment letter immediately prior to changing to Phased Retirement status, plus standard annual increases, if any. The College reserves the right, by action of its governing board, to suspend or modify the matching contribution at any time and from time to time. The College may establish reasonable and uniform procedures to govern the manner in which the foregoing matching contributions will be made (e.g., matching on a payroll-by-payroll basis or matching based on total Plan Year Compensation). The amount of the College matching contribution made for each eligible Participant pursuant to this Section will be allocated to the Participant s Matching Account. Amounts allocated to a Participant s Matching Account will not be distributed earlier than upon one of the following events: the Participant s disability, death, Severance from -8-7/13/2009
13 Employment, or attainment of age 59½. Section Discretionary Employer Contributions. This Plan does not provide for discretionary contributions by the College. Section (m) Test. The following provisions will govern compliance with the nondiscrimination tests of Code Section 401(m). For purposes of this Section, certain additional definitions are set forth in Subsection I. For each Plan Year the Plan Administrator will determine whether the Actual Contribution Percentage for Eligible Participants who are Highly Compensated Employees for the Plan Year compared to the Actual Contribution Percentage for all other Eligible Participants for the prior year satisfies one of the following described ratio tests: A. Ratio Testing. The Actual Contribution Percentage (ACP) for a Plan Year for Participants who are Highly Compensated Employees for each Plan Year and the prior year s ACP for Participants who are Non-Highly Compensated Employees must satisfy one of the following tests: 1. The ACP for a Plan Year for Participants who are Highly Compensated Employees for the Plan Year does not exceed the prior year s ACP for Participants who are Non-Highly Compensated Employees multiplied by 1.25; or 2. The ACP for a Plan Year for Participants who are Highly Compensated Employees for the Plan Year does not exceed the prior year s ACP for Participants who are Non-Highly Compensated Employees multiplied by two, and the ACP for Participants who are Highly Compensated Employees does not exceed the ACP for Participants who are Non-Highly Compensated Employees by more than two percentage points. In the case of the first Plan Year in which a matching contribution is made, for purposes of the foregoing tests, the prior year s Non-Highly Compensated Employees ACP shall be 3 percent. B. Change from Current-Year Testing to Prior-Year Testing. If current-year testing is utilized, the Plan Administrator may elect prior-year testing for a Plan Year only if (i) the Plan (and, if the Plan is the result of the aggregation of two or more plans, each of the aggregated plans) has used current-year testing for each of the preceding five Plan Years (or, if less, the number of Plan Years the Plan has been in existence), or (ii) as a result of a merger or acquisition described in Code Section 410(b)(6)(C)(i), the College maintains both a plan using prior-year testing and a plan using current-year testing and the change is made within the transition period described in Code Section 410(b)(6)(C)(ii). C. Separate Testing for Excludable Employees. If the Plan Administrator elects to apply Code Section 410(b)(4)(B) to the Plan (provision providing that the Code -9-7/13/2009
14 Section 410(b) requirements may be met separately with respect to the excluded group), then in determining whether the foregoing tests are satisfied, the Plan Administrator may elect either to (i) perform the ACP test using the ACP for all eligible Highly Compensated Employees for the Plan Year and the ACP for all eligible Non-Highly Compensated Employees for the Plan Year, disregarding all Non-Highly Compensated Employees who have not met the minimum age and service requirements of Code Section 410(a)(1)(A); or (ii) disaggregate the Plan into separate plans pursuant to Treas. Reg (m)-1(b)(4) of the Regulations and perform the ACP test separately for (a) all Participants who have completed the minimum-age-and-service requirements of Code Section 410(a)(1)(A), and (b) all Participants who have not completed the minimum-age-and-service requirements of Code Section 410(a)(1)(A). D. Special Rules. 1. A Participant is a Highly Compensated Employee for a particular Plan Year if the Participant meets the definition of a Highly Compensated Employee in effect for that Plan Year. Similarly, a Participant is a Non- Highly Compensated Employee for a particular Plan Year if the Participant does not meet the definition of a Highly Compensated Employee in effect for that Plan Year. 2. For purposes of this Section, the Contribution Percentage for any Participant who is a Highly Compensated Employee and who is eligible to have Contribution Percentage Amounts allocated to the Participant s account under two or more plans described in Code Section 401(a) or arrangements described in Code Section 401(m) that are maintained by the College or Affiliated Company, will be determined as if the total of such Contribution Percentage Amounts was made under each plan. If a Highly Compensated Employee participates in two or more cash-or-deferred arrangements of the College or Affiliated Company that have different plan years, all Contribution Percentage Amounts made during the Plan Year under all such arrangements will be aggregated. 3. Certain arrangements will be treated as separate plans if mandatorily disaggregated under regulations under Code Section 401(m). 4. In the event that this plan satisfies the requirements of Code Sections 401(m), 401(a)(4), or 410(b) only if aggregated with one or more other plans or if one or more other plans satisfy the requirements of such Sections of the Code only if aggregated with this plan, then this Section will be applied by determining the ACP of Employees as if all such plans were a single plan. If more than ten percent of the College s Non-Highly Compensated Employees are involved in a plan coverage change as defined in Treas. Reg (m)-2(c)(4) (e.g., amendment of a plan, a plan merger, a plan spin-off, or a change in permissive aggregation of -10-7/13/2009
15 plans), any adjustments to the Non-Highly Compensated Employees ACP will be made in accordance with such Regulations. Plans may be aggregated in order to satisfy Code Section 401(m) only if they have the same Plan Year and use the same ACP testing method. 5. For purposes of the ACP test, Matching Contributions will be considered made for a Plan Year if made no later than the end of the 12-month period beginning on the day after the close of the Plan Year. 6. Contributions made under the Plan during a Plan Year pursuant to Code Section 414(u) by reason of a Participant s qualified military service are not taken into account in determining the ACP test for such Plan Year or any other Plan Year. 7. The Plan Administrator will maintain records sufficient to demonstrate satisfaction of the ACP test. E. Review of ACP Tests. Throughout the Plan Year, the Plan Administrator will be authorized to review the operation of the Plan for compliance with the rules of this Section and determine if, based upon information then available, the Plan will comply with the ratio tests. Following such review, the Plan Administrator is authorized to unilaterally reduce the amount of matching contributions made on behalf of Highly Compensated Employees until, on a projected basis, the Plan will satisfy the ratio tests. The Plan Administrator is also authorized to reduce the matching contributions of Highly Compensated Employees by a safety percentage and to take such other action, if the Plan Administrator believes such reduction or other action is otherwise necessary or desirable. F. Corrective Action. If, after the end of the Plan Year, the Plan Administrator determines that neither of the ratio tests were satisfied for the year, then the Plan Administrator will determine the amount of Excess Aggregate Contributions, within the meaning of Code Section 401(m)(6). The Plan Administrator will distribute to (or, if forfeitable, forfeit from) each Highly Compensated Employee such individual s respective share of the Excess Aggregate Contributions within the meaning of Code Section 401(m) that must be distributed to secure compliance with one of the ratio tests, plus earnings thereon, not later than the last day of the following Plan Year. Distribution of the excess amounts will be made in accordance with the following provisions. The actual contribution ratio of the Highly Compensated Employee with the largest contribution ratio will be reduced by an amount necessary to satisfy the Actual Contribution Percentage test, or if less, to the actual contribution ratio of the Highly Compensated Employee with the next largest actual contribution ratio. The process will be repeated until the Actual Contribution Percentage test is satisfied. The amount of the Excess Aggregate Contributions will be equal to the -11-7/13/2009
16 sum of these hypothetical reductions multiplied, in each case, by the Highly Compensated Employee s Compensation, as defined in Appendix A. Distribution (or forfeiture, if applicable) of the Excess Aggregate Contributions will be made on the basis of the respective amounts attributable to Highly Compensated Employees using the dollar leveling method beginning with the Highly Compensated Employee with the largest dollar amount and continuing in this manner until the total Excess Aggregate Contributions have been accounted for. The determination and correction of Excess Aggregate Contributions will be made in accordance with Code Section 401(m) and Regulations issued thereunder. Distributions may be made without regard to any other provision of law (e.g., Participant consent). WARNING: Unless Excess Aggregate Contributions and income attributable thereto are distributed or forfeited within two-and-one-half months after the close of the Plan Year in which the Excess Aggregate Contributions were made, the College will be subject to a ten percent penalty tax. G. Distribution or Forfeiture of Excess Aggregate Contributions. Excess Aggregate Contributions (and income allocable thereto) will be deemed corrected only if such Excess Aggregate Contributions and their allocable income are designated as a distribution of Excess Aggregate Contributions (and allocable income) and are distributed to the appropriate Highly Compensated Employees (or if forfeitable, forfeited) after the close of the Plan Year in which the Excess Aggregate Contributions arose but before the close of the immediately following Plan Year. However, correction will be deemed to have occurred if the entire Vested Account balance of a Highly Compensated Employee is distributed during the Plan Year in which an Excess Aggregate Contribution arose to the extent that a corrective distribution would have otherwise been required. In the event of the complete termination of the Plan during the Plan Year in which an Excess Aggregate Contribution arises, such distributions will be made after the termination of the Plan and before the close of the twelve-month period immediately following such termination. Forfeitures of Excess Aggregate Contributions will be utilized to offset future matching contributions or to defray Plan expenses. The term Excess Aggregate Contributions will mean, with respect to any Plan Year, the excess of: 1. The Aggregate Contribution Percentage Amounts taken into account in computing the numerator of the Contribution Percentage actually made on behalf of Highly Compensated Employees for such Plan Year, over -12-7/13/2009
17 2. The maximum Contribution Percentage Amounts permitted by the ACP test (determined by hypothetically reducing contributions made on behalf of Highly Compensated Employees in order of their Contribution Percentages beginning with the highest of such percentages). Such determination will be made after first determining excess elective deferrals (if any). H. Allocation of Earnings to Excess Aggregate Contributions. Excess Aggregate Contributions will be adjusted for any income or loss through the end of the Plan Year. Income or loss allocable to Excess Aggregate Contributions may be determined using any reasonable method, so long as such method is used consistently for all Participants and for all corrective distributions under the Plan for the Plan Year and is used by the Plan for allocating income or loss to Participants accounts. If the safe-harbor method of allocating income or loss is elected, such income or loss allocable to Excess Aggregate Contributions will be equal to the income or loss allocable to the Participant s Matching Contribution Account (and, if applicable, qualified nonelective contribution account and before-tax contribution account) for the Plan Year multiplied by a fraction, the numerator of which is such Participant s Excess Aggregate Contributions for the year and the denominator is the Participant s account balance(s) attributable to Contribution Percentage Amounts without regard to any income or loss occurring during such Plan Year. I. Definitions. For purposes of this Section, the following terms will have the following meanings: 1. Actual Contribution Percentage or ACP will mean, for a specified group of Participants (either Highly Compensated Employees or Non-Highly Compensated Employees) for a Plan Year, the average of the Contribution Percentages of the Eligible Participants in the group. 2. Compensation means the remuneration described in Code Section 414(s) and Regulations issued thereunder paid to a Participant by the College, subject to Code Section 401(a)(17). The Plan Administrator may, from time to time, limit the period taken into account under the Plan to that portion of the Plan Year in which the Employee was a Participant, provided that this limitation is uniformly applied to all Employees. 3. Contribution Percentage will mean the ratio (expressed as a percentage) of the Participant s Contribution Percentage Amounts to the Participant s Compensation for the Plan Year. 4. Contribution Percentage Amounts will mean the sum of the Matching Contributions made under the Plan on behalf of the Participant for the Plan Year. Such Contribution Percentage Amounts will not include Matching -13-7/13/2009
18 Contributions that are forfeited either to correct Excess Aggregate Contributions or because the contributions to which they relate are excess salary reduction contributions or Excess Aggregate Contributions. 5. Eligible Participant will mean any Employee who is eligible to make a salary-reduction contribution (if such contributions are taken into account in the calculation of the Contribution Percentage) or to receive a Matching Contribution (including forfeitures). 6. Matching Contribution will mean the College contribution made to this or any other defined contribution plan on behalf of a Participant on account of a Participant s elective deferral under a plan maintained by the College or Affiliated Company. Section Allocation of Gain/Loss. The allocation of the net income, loss, appreciation, or depreciation of the Plan will be determined in accordance with the terms of the Funding Vehicles. Section Catch-Up Contributions. In addition to the elective contributions permitted by a Participant in accordance with the foregoing provisions of this Article, a qualifying Participant may make catch-up contributions in accordance with the following. A. Special Section 403(b) Catch-up Limitation for Employees With 15 Years of Service. A Participant who is a qualified employee for the Plan Year may make an additional elective contribution for the Plan Year equal to the least of: 1. $3,000; 2. The excess of (i) $15,000, over (ii) the total special 403(b) catch-up elective deferrals made by the qualified employee for prior years; or 3. The excess of (i) $5,000 multiplied by the number of Years of Service of the qualified employee with the College, over (ii) the total elective deferrals made by the qualified employee for prior years. For purposes of this paragraph, a qualified employee means an Employee who has completed at least 15 Years of Service, taking into account only employment with the College or an Affiliated Company. B. Code Section 414(v) Age 50 Catch-Up. All Participants who are eligible to make elective contributions under the Plan and who have attained age 50 before the close of the taxable year will be eligible to make catch-up contributions in accordance with, and subject to the limitations of, Code Section 414(v). C. Coordination. Amounts contributed to the Plan by a Participant pursuant to this Section will be allocated first to the special 403(b) catch-up under paragraph A /13/2009
19 and next to the age 50 catch-up contribution under paragraph B. D. Catch-Up Amounts Not Subject to Certain Other Limitations. Catch-up contributions made pursuant to this Section will not be taken into account for purposes of the Plan implementing the required limitations of Code Sections 402(g) and 415. ARTICLE V SECTION 415 LIMITS Section Maximum Additions to Participant Accounts. A. Limit on Annual Additions. Notwithstanding any other provision of the Plan to the contrary, except to the extent permitted under Code Section 414(v) (if applicable), the Annual Addition that may be contributed or allocated to a Participant s Account under the Plan for any Limitation Year will not exceed the lesser of $40,000 or 100% of the Participant s Section 415 Compensation (as defined below) actually paid during the Limitation Year. Application of the foregoing rules will be made in accordance with the provisions of Code Section 415 and the related Treasury Regulations. B. Cost of Living Adjustments. The limits set forth in Subsection A. above will be adjusted for increases in the cost of living pursuant to Code Section 415(d). C. Multiple Plans. In the event Annual Additions have been made to two or more defined contribution plans during the Limitation Year and further reduction is needed to come within the limitations of this Article V, the Annual Additions of such Participant under all plans will be adjusted in accordance with uniform rules established by the Plan Administrator so that the Annual Additions do not exceed the maximum permissible amount. D. Definitions. For purposes of this Section, the following terms will have the following meanings: 1. Annual Additions means, for any Limitation Year, the sum of: a. The contributions made directly or indirectly by the College or an Affiliated Company to a defined contribution plan; b. Any forfeitures (as well as income attributable thereto); c. All Employee contributions; and d. Amounts allocated, after March 31, 1984, to an individual medical account, as defined in Code Section 415(1)(2), that is part of a defined-benefit plan maintained by the College or an Affiliated -15-7/13/2009
20 Company and amounts derived from contributions paid or accrued after December 31, 1985, in taxable years ending after such date, that are attributable to post-retirement medical benefits allocated to the separate account of a key employee, as defined in Code Section 419A(d)(3), under a welfare-benefit fund, as defined in Code Section 419(e), maintained by the College or an Affiliated Company. The term Annual Additions does not include deductible employee contributions, catch-up contributions, rollover contributions, a transfer of assets made directly to the Plan, recontributed amounts pursuant to buyback rights under cash-out rules, or repayments of loans. In addition, if in a particular Limitation Year the College contributes an amount to a Participant s Account with respect to a prior Limitation Year and such contribution is required by reason of such Participant s rights under chapter 43 of title 38, United States Code, resulting from qualified military service, as specified in Code Section 414(u)(1), then such contribution is not considered an Annual Addition with respect to the Participant for that particular Limitation Year in which the contribution is made, but, in accordance with Code Section 414(u)(1)(B), will be considered an Annual Addition for the Limitation Year to which the contribution relates. Salary-reduction contributions will be treated as contributions within the meaning of Paragraph 1.a. above, and contributions will not fail to be Annual Additions under the foregoing provisions merely because such amounts are excess elective deferrals or excess aggregate contributions, or merely because such excess amounts are corrected through distribution. 2. Limitation Year means the calendar year. 3. Section 415 Compensation means an Employee s Includible Compensation. Section Excess Annual Additions. If the Annual Additions to a Participant s Account for a Limitation Year exceed the limitation of this Article, such excess will be allocated to a separate account for the Participant, and the amounts allocated to that account will not constitute Code Section 403(b) benefits. Allocation of amounts to the separate account described in this Section, and maintenance and distribution of those amounts, will be handled in accordance with uniform rules established by the Plan Administrator. ARTICLE VI DISTRIBUTIONS AND VESTING Section Normal Retirement Benefits. A Participant who is employed by the College on or after the date the Participant attains Normal Retirement Age will be fully (100%) Vested in all amounts credited to the Participant s Account under the Plan. A Participant who -16-7/13/2009
21 has a Severance from Employment on or after the attainment of Normal Retirement Age will be entitled to receive the full value of the Participant s Account. The normal retirement benefits of a Participant who dies before completion of payment of those benefits (including before the commencement of payment of those benefits) will be paid to the Participant s Beneficiary. Section Reserved. Section Reserved. Section Other Terminations; Vesting. A Participant who has a Severance from Employment for a reason other than described in Section 6.01 will be entitled to receive the Vested value of each of the Participant s Accounts. The Vested benefits of a Participant described in this Section who dies before completion of payment of those benefits (including before the commencement of payment of those benefits) will be paid to the Participant s Beneficiary. Each Participant is fully (100%) Vested in all of the Participant s Accounts under the Plan. Section Commencement of Benefits. The commencement of benefits is initiated by contacting the sponsor of the Funding Vehicle(s). Benefits will be payable by the Fund Sponsor(s) upon receipt of a satisfactorily completed application for benefits and supporting documents, including the waiver of spousal rights, if necessary. Section Forms of Payment. Subject to Section 6.07, benefits may be paid in any manner set forth in the relevant Funding Vehicle. Section Minimum Distributions. The provisions of this Section will supersede and override any conflicting or inconsistent provision of the Plan, including, without limitation, any distribution option inconsistent with the provisions of Code Section 401(a)(9). All distributions from the Plan will be made in accordance with Code Section 401(a)(9) and Treas. Reg (a)(9)-1 through 1.401(a)(9)-9. A. Distributions Commencing During Lifetime. The entire interest of each Participant will be distributed not later than the Participant s Required Beginning Date. Distributions commencing during a Participant s lifetime also will satisfy the incidental-death-benefit requirements of Code Section 401(a). If a Participant dies after the Participant s Required Beginning Date, payments to the Participant s Beneficiary will continue to be made at least as rapidly as under the method of distribution used at the time of the Participant s death. B. Distributions Commencing After Death. If a Participant dies before the Participant s Required Beginning Date, the period over which payments may be made to the Participant s Beneficiary will not exceed five years, measured from the Participant s date of death, and the Participant s entire interest must be distributed not later than December 31 of the calendar year containing the fifth anniversary of the date of the Participant s death, except that the following exceptions will apply: -17-7/13/2009
22 1. If any portion of the Participant s interest is payable to, or for the benefit of, a Designated Beneficiary, such portion may be distributed over a period not longer than the life expectancy of such Designated Beneficiary as of the date payments commence. Such distributions must commence on or before December 31 of the calendar year following the date of the Participant s death. 2. If the Designated Beneficiary is the Participant s surviving Spouse, distributions are not required to begin before the date on which the Participant would have attained age seventy-and-one-half. If the Designated Beneficiary is the Participant s surviving Spouse and the surviving Spouse dies before distributions to such Spouse begin, the provisions of this Subsection will be applied as if the surviving Spouse were the Participant. C. Required Beginning Date. The term Required Beginning Date means April 1 of the calendar year following the later of (i) the calendar year in which the Participant attains age seventy-and-one-half, or (ii) the calendar year in which the Participant retires. The preceding clause (ii) will not apply to any Participant who is a 5% owner during the Plan Year in which the Participant attains age seventyand-one-half. D. Designated Beneficiary. The term Designated Beneficiary means a beneficiary determined in accordance with Treas. Reg (a)(9)-4. E. Life Expectancy. For purposes of this Subsection, life expectancy will be determined in accordance with tables issued pursuant to Treas. Reg (a)(9)-9, including the Uniform Life Table (for purposes of determining required minimum distributions during a Participant s lifetime) and the Single Life Table and Joint and Last Survivor Table (for purposes of determining required minimum distributions after a Participant s death). If a period of payments elected exceeds the maximum permitted period, such period will be reduced automatically to fall within the maximum permitted period. Section Beneficiary Designation. The Beneficiary of a Participant (or presentinterest Beneficiary) will be the person or persons, or entity or entities, designated in a written instrument filed with the Plan Administrator or sponsor of the Funding Vehicle to the extent applicable. The Plan Administrator or sponsor of the Funding Vehicle to the extent applicable will prescribe all forms for the written designation of a Beneficiary. If a Participant (or Beneficiary) fails to name a Beneficiary or if the Beneficiary named by such person predeceases him or her or dies before complete distribution of the Participant s Vested Accounts and such person has not provided for payment of his or her remaining Vested Account balance, the default provisions of the Funding Vehicle will apply to the extent applicable. If no such provisions exist, the Participant s Account will be paid to the Participant s -18-7/13/2009
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