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HomeMy WebLinkAbout47-80 RESOLUTION1„ RESOLUTION NO. 1.7-eio A RESOLUTION APPROVING AND ADOPTING A DEFINED CONTRIBUTION MONEY PURCHASE PENSION PLAN FOR CITY EMPLOYEES, DESIGNATING A PLAN ADMINISTRATOR AND TRUSTEE, AND AUTHORIZING EXECUTION OF A TRUST INDENTURE. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the Board of Directors hereby approves the Defined Contribution Money Purchase Pension Plan for City employees attached hereto, marked Exhibit "A" and made a part hereof. Section 2. The Board of Directors hereby designates King Hall and Associates, Inc. as plan administrator for said pension plan and hereby designates McIlroy Bank & Trust as trustee for said pension plan. Section 3. That the Mayor and City Clerk are hereby authorized and directed to execute a trust agreement with McIlroy Bank & Trust for the City of Fayetteville Money Purchase Pension Plan. A copy of the trust agreement authorized for execution hereby is attached hereto, marked Exhibit "B" and made a part hereof. (0141 - PASSED AND APPROVED this oar day of h 1980. APPROVED: MICROFILMED, CERTIFICATE OF RECORD State a Arkansas City of Fayetteville (( ss lr, Bonnie Goering, City Clerk and Er -Officio recorder for the City of Fayetteville, do here- by certify that the annexed or foregoing is of record in my office and the sarne am nears in Ordirzance es, t pag Reso/ution book Witness tnY hand and s thi e------------ ay of City Clerk and Et- fficio CONTRACT PE? Mi CROF ILMED, THIS CONTRACT, executed this 2 day of 1980, by and between the City of Fayetteville, Arkansas, a municipal corporation, hereinafter called the "City" and King, Hall & Associates, Inc., hereinafter called "Consultant." IN CONSIDERATION OF THE MUTAL COVENANTS CONTAINED HEREIN, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS: 1. Consultant agrees to serve as Plan Administrator of the City of Fayetteville Money Purchase Pension Plan (the Plan) dated June 1, 1980, which plan is incorporated herein by reference thereto, and further agrees that said Plan Administrator's duties shall include the merger of the City's prior defined benefit plan with the new plan; conducting employee meetings; enrolling new Participants; amending the prior plan for compliance with Final Regulations prior to merger; allocating assets of the prior plan among participants; and such other duties as may be necessary to efficiently administer the plan in the interests of the Participants and the Employer, with such additional duties to include the following: Ca) Be responsible for keeping accurate books and records with regpect to Participants, their compensation, and the allocation of contributions, forfeitures and interest to Participants' individual accounts. A(b)_ Determine eligibility of any Participant. (c). Determine the manner in which the funds of the,Plan shall be disbursed in accordance with the provisions of the Plan and Trust, including vested interests. -2- (d) Notify each Participant annually following the annual accounting and after notification by Employer of the current contribution, of the value of each Participant's account including the allocation of his account between investments and insurance, if applicable. (e) Direct the Trustee in writing as to investment policy, includ ing insurance, to retain, sell, exchange, buy specified securities, including, but not limited to, stocks, bonds, notes, debentures, mortgages, certificates Of deposit, warrants and options, and real or personal property. (f) Select insurer and determine type of annuity to provide benefits as directed by Participant upon retirement or termination. (g) Select an Investment Manager if delegated that power by Employer. (h) Direct Trustee to make payments from the Trust Fund to Participants who qualify for such payments. Such payment shall specify the name of the Participant, his Social Security Number, his address,.and the allocation between taxable and non-taxable distributions. (i) Be responsible for the determination of Individual Accounts. Consultant need not segregate accounts among Participants or among Employers for investment purposes except as necessary for distribution. 2. Consultant shall not take action with respect to any of the benefits provided under the Plan or otherwise which would be discriminatory in favor of Participants who are members of the Prohibited Group, or which would result in benefiting one Participant, or group of Participants, at the expense of another or would result in discrimination between Participants similarly situated or would result in the application of different rules to substantially similar sets of facts. M.M -3- 3. Consultant agrees to furnish the City monthly reports of activities and all correspondence dealing with said Plan. 4. The Plan Administrator's fee and any expenses are to be paid from the earnings of the Trust Fund after approval by the City. In consideration for services rendered by Consultant under this Contract, City agrees to pay Consultant from the Trust Fund, an amount equal to 1.39% of contributions, employer and employee. Said compensation shall be paid to Consultant monthly on or before the tenth (10th) day of each month beginning one (1) month after the execution date hereof. 5. The term of this Contract shall be for a period of one (1) year commencing on the date of execution hereof. 6. Either party may terminate this agreement by giving thirty (30) days written notice to the other party at said party's last known mailing address. cpSirizt A04.412a2. Poworms d.k - ATTEST: 2. Ccoadc, Secreta CITY OF FAYETTEVILLE, ARKANSAS • • KING, HALL & ASSOCIATES, INC. By: /r5 /resident • THE CITY OF FAYETTEVILLE DEFINED CONTRIBUTION MONEY PURCHASE PENSION PLAN CITY OF FAYETTEVILLE MONEY PURCHASE PENSION PLAN INDEX OF PLAN AGREU/ENT SECTION CONTENTS . PAGE 1 Name of Plan - Effective Date 1 2 Definitions 1 3 Plan Administrator 6 4 Participant 8 5 Employer and Employee Contributions 9 6 Allocation of Funds 11 7 Investment Account 14 8 Provision for Annuities 15 9 Retirement Benefits and Dates 17 10 Non -Forfeitable Rights -- Vesting 19 11 Death Benefits 22 12 Prohibition Against Diversion 23 13 Amendment of Plan •23 14 Termination of Plan 24 15 Claims Procedure 25 16 • Trust Fund arid Trustee 25 17 Miscellaneous Provisions 26 gi y • THE CITY OF FAYETTEVILLE DEFINED CONTRIBUTION PENSION PLAN AND TRUST WHEREAS, the City of Fayetteville, Arkansas (hereinafter calle,d the Employer), a Governmental Unit with its principal place of business in Fayetteville, Arkansas, created on May 31, 1958, a Defined Benefit Pension Plan and Trust as Restated and Amended 5/30/77, and WHEREAS, the Employer now desires to adopt a Defined Contribution Money Purchase Pension Plan and merge the prior Defined Benefit Plan into the Defined Contribution Pian, with the Participants share of assets of the prior plan representing the opening balances for the Participants in the successor Defined Contribution Plan. NOW THEREFORE, it is the intent of this Plan and Trust that: 1. No Participant in the prior plan shall receive less at normal retirement age than he or she would have received under the prior plan based on the 6/1/79 valuation; 2. To create a Trust to hold, invest, reinvest, and otherwise to manage the assets of the Plan as amended and restated; 3. To accept the assets of the prior plan as the opening balances for the Participants in the successor plan. The Trustee and the Employer, by joining in the execution of this Plan and Trust Agreement, accept the responsibilities imposed on them and agree to perform their duties under this Plan. Section 1 Name of Plan — Effective Date 1.1 Name of Plan: The name of the Plan shall be the City of Fayetteville Money Purchase Pension Plan. 1.2 Effective Date: The Plan shall become effective as of June 1, 1980. Section 2 Definitions 2.1 Plan: The City of Fayetteville Money Purchase Pension Plan set forth 1 1 • herein as amended from time to time. 2.2 Trust Agreement: Trust Agreement shall mean the City of Fayetteville Money Purchase Trust Agreement that is necessary for carrying out the provisions of the Money Purchase Pension Plan with McIlroy Bank & Trust as Trustee. 2.3 Trustee: McIlroy Bank & Trust of Fayetteville, Arkansas, and any successor trustee under the City of Fayetteville Money Purchase Trust Agreement, such trust being necessary to carry out the provisions of the City of Fayetteville Money Purchase Pension Plan and Trust. 2.4 Limitation Year: The Plan Year. 2.5 Particieiant: An employee who is a participant in the Plan. 2.6 Compensation: The amount of base compensation, during a Plan Year, paid or accrued to an a ployee, excluding overtime pay, bonuses, commissions, expense account allowances and excluding Employer contributions to this or any other retirement plan sponsored by Employer. 2.7 Predecessor Plan: The Defined Benefit Plan adopted in 1958 and which is merged into the Defined Contribution Plan, as in 2.11. 2.8 Voluntary Contribution: The participants contributions in excess of the 3% mandatory contribution as provided for, subject to the limitations of Section 5.2(b). 2.9 Investment Account: The account as provided by Section 7. 2.10 Insurer: Any legal reserve life insurance company selected by the Plan Administrator. 2.11 Prior Plan: The defined benefit plan that was adopted 5/31/58 as amended and restated and which is to be terminated and merged with this superseding money purchase plan and trust plan stated herein, as in 2.7. 2.12 Plan Year: The Plan Year shall be June 1 to May 31. 2.13 Plan Anniversary Date- Shall be June 1 of each Calendar Year. 2.14 Accounting Date: The last day of the Plan Year - May 31. 2.15 Service: (a) Eligibility Computation Period: In the computation of service, 2 • • • the eligibility computation period shall be the Plan Year. (b) For purposes of eligibility and vesting, the first computation period shall include the Anniversary of the Employees first anniversary of the Date of Fire. (c) Vesting Computation Period:. The vesting computation period shall be the Plan Year. 2.16 Break in Service: Any Plan Year during which the participant does not complete more than SOO Hours of Service with the Employer. 2.17 Hour of Service: (a) Each hour for which an Employee is paid, or entitled to payment, for the performance of duties for the Employer. These hours shall be credited to the Employee for the computation period in which the duties are performed, and (b) Each hour for which an Employee is paid, or entitled to payment, by the Employer on account of a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence. No more than 501 Hours of Service shall be credited under this paragraph for any Plan Year. Hours under this paragraph shall be calculated and credited pursuant to Section 2530.200b -2(b) and (c) of the - Department of Labor Regulations which are incorporated hereby by. this reference, and (c) Each hour for which back pay, irrespective of mitigation of damages, is either awarded or agreed to by the Em- ployer. The same Hours of Service shall not be credited both under Paragraph (a) or Paragraph (b), as thecasemay be, and under this Paragraph (c). These hours shall be credited to the Employee for the computation period or periods to which the award or agreement pertains rather than the computation period in which the .award, agreement or payment is made. (d) Where the Employer maintains the plan of,a predecessor employer, service for such predecessor employer shall be treated as serVice for the Employer. 2.18 Qualified Joint and Survivor Annuitv Shall mean an annuity for the life of his/her spouse which is one-half the amount of the annuity payable during the joint lives of the participant and his/her spouse and which is the actuarial equivalent of a single life annuity for the life of the participant. 3 2.19 Defined Contribution Plan: The term "Defined Contribution Plan" shall mean a plan which provides for an individual account for each Participant and for benefits based solely on the amount contributed to the Participants account, and any income, expenses, gains and losses. 2.20 Employee: The term Employee shall mean any individual employed by the Employer. 2.21 Fiduciary: The term Fiduciary shall mean and include the Trustee, Plan Administrator, Employer, Investment Manager, and any other person who: (a) Exercises any discretionary authority or discretionary control respecting Management of the Plan or exercising any authority or control respecting management or disposition of its assets; (b) Renders investment advice for a fee or other compen- sation, direct or indirect, with respect to any moneys .or other property of the Plan, or has any authority or responsibility to do so; (c) Has any discretionary authority or discretionary res- ponsibility in the administration of the Plan; or (d) Is described as a "Fiduciary" in Section 3 (14) or (21) of ERISA or is designated to carry out fiduciary,res- ponsibilities pursuant to this Agreement to the extent permitted by Section 405(d)(1)(B) of ERISA. 2.22 Investment Manger: The term "Investment Manager" shall mean any Fiduciary (other than the Trustee or named Fiduciary) who: (a) Has the power to manage, acouire or dispose of any asset of the Plan; (b) Is a registered .4nvestment advisor, bank or Insurance company; and (c) Has acknowledged in writing that he is a fiduciary with respect to the Plan. 2.23 Valuation Date: Valuation Date shall mean the same day as the Plan Anniversary Date. 2%24 Year of Service: Eadh Computation Period in which an Employee completes at least 1000 Hours of Service for Employer. For purposes of determining Years of Service and Breaks in Service for purposes of eligibility to participate in the Plan and for purposes of determining a Participant's nonforfeitable interest, the 12 consecutive month period shall commence on the date the Employee first performs an HourofService for D ployer and then be the Plan Year overlapping the anniversary of the employees employment. No service performed as a partner or sole proprietor shall be taken into consideration for any purpose under the Plan. Where Employer maintains the plan of a predecessor employer, Years of Service for such predecessor employer shall be treated as Years . of Service for Employer. Years of Service with other members of the Controlled Group of Cor- porations or trades or businesses under common control are counted for Vesting and Eligibility purposes. Except as specifically stated otherwise in this 'agreement, for purposes of dete?Mining a Participant's nonforfeitable vested interest in his Accrued Benefit, the following shall apply: • All Years of Service shall be counted. 2.25 Computation Date: That date on which eligibility requirements, nonforfeitable rights, retirement, disability, death benefits and allocating of contributions and accrued benefits are computed. 2.26 Participation Date: The term "Participation Date" shall mean each June 1 of each Calendar Year. All employees who meet the Eligibility Requirements specified in Section 4.1 on June 1, 1980, shall participate as of that date as a result of the merger with the super- seded defined benefit plan of said Employer. 2.27 Plan Administrator: The "Plan Administrator" shall be appointed by employer with Plan Administrator as of 7/1/80 being King, Hall & Associates, Inc 2.28 Actuarial Equivalent: Except to the extent expressly provided to the contrary by ERISA, a benefit shall be actuarially equivalent to any other benefit if the amount required to provide the same is equal to the amount required to provide such other benefit to be computed by reference to an annuity contract availabIe'at the time of benefit determination from a life insurance company designated by the Plan Administrator. 2.29 Named Fiduciarz: Employer - The Employer shall be the "Named Fiduciary" with delegative authority, within the meaning of Section 402 of the Employee Retirement Income Security Act of 1974 (hereinafter referred to as ERISA) and shall be in charge of the operation and administration • of the Plan. The Employer shall have the power to delegate specific fiduciary responsibilities (other than those accepted by McIlroy Bank & Trust as Trustee and Sponsor with respect to the control of the assets of the Plan). Such delegations may be to officers or employees. 5 2.30 Accrued Benefit: The balance to the Credit of the Participants Account. 2.31 Participant: An Employee who has satisfied the Eligibility Require- ments specified in Section 4.1. Section 3 Plan Administrator 3.1 Plan shall be administered by a Plan Administrator (or Administrators) appointed by Employer. A Plan Administrator may resign at any time upon a delivery of a written resignation to Employer. 3.2 The Plart'Administrator shall serve with or without compensation as mutually agreed with Employer, and such fees and expenses shall be paid from investment income after approval by employer. 3.3 The Plan Administrator may make rules and regulations for the admin- istration of the Plan and shall have the necessary or appropriate authority to enable it to discharge its duties under the Plan. 3.4 Plan Administrator may employ, subject to approval of employer, such administrative or professional assistance for proper administration of the plan, with fees paid from investment income after approval by Employer. 3.5 Plan Administrator may construe or interpret the Plan whenever necessary to carry out its intention and purpose. 3.6 Plan Administrator shall keep accurate and detailed records of its administration of Plan and shall make available to each Participant its records as pertain to him and such other information and records as prescribed by ERISA and Regulations. 3.7 Plan Administrator shall supervise and control the operation of the Plan as specified herein: . (a) Be responsible for keeping accurate books and records with respect to Participants, their compensation and allocations of contributions, forfeitures and interest to Participants in- dividual account. (b) Determine eligibility of any Participant. (c) Determine the manner in which the funds of the Plan shall be disbursed in accordance with the provisions of the Plan and Trust, including vested interests. (d) Notify each Participant annually following the annual accounting and after notification by Employer of the current contribution, of the value of each Participants account including the allo- cation of his accounts between investments and insurance, if applicable. 6 l• (e) If other than Trustee, direct the Trustee in writing as to invest- ment policy including insurance, to retain, sell, exchange, buy specified securities, including, but not limited to, stocks, bonds, notes, debentures, mortgages, certificates of deposit, warrants and options, real or personal property. (f) Select insurer and determine type of annuity to provide benefits as directed by Participant upon retirement or termination. (g) Select an Investment Manager if delegated that power by Employer. (h) Shall direct trustee to make payments from the Trust Fund to Participants who qualify for such payments hereunder. Such pay - merits shall specify the name of the Participant, his Social Security Number, his address, and the allocation between taxable and non-taxable distributions. (i) Shall not take action with respect to any of the benefits provided hereunder or otherwise in pursuance of the powers conferred herein upon the Plan Administrator which would be discriminatory in favor of Participants who are members of the Prohibited Group, or which would result in benefiting one Participant, or group of Participants, at the expense of another or in discrimination between Participants similarly situated or in the application of different rules to substantially similar sets of facts. The Trustee may request.Employer, in writing, or the Plan Administrator, on any matters affecting the Trust and may rely and act thereon. (3) (k) Shall be responsible for the determination of Individual Accounts, and need not segregate accounts among Participants or among Employers for investment purposes except as necessary for distribution. 3.8 The original Plan Administrator shall be designated on the.Signature Pages. The Plan Administrator shall serve until his resignation or dismissal by the Board of Directors of the Employer and a vacancy shall be filled in the same manner as the original appointment. The Plan Administrator shall keep a permanent record of his actions with respect to the Plan which shall be available for inspection by appropriate parties as provided in the Code and ERISA. 3.9 Subject to the limitations of the Plan, the Plan Administrator shall, from time to time, establish rules for administration of the Plan and transaction of its business. The records of the Employer, as certified to the Plan Administrator, shall be conslusive with respect • to any and all factoral matters dealing with the employment of a Participant. The Plan Administrator shall interpret the Plan and shall determine all questions arising in the administration, 7 • • interpretation and application of the Plan, and all such determinations by the Plan Administrator shall be conclusive and binding on all persons subject, however, to the provisions of the Code and ERISA. Section 4 Participation 4.1 Eligibility Requirements: (a) On the EffectiVe Date of this Plan, all present employees who: (1) Are actively at work; (ii) Agree to make the required contributions of 3% of Compensation; (iii) Have completed two years of service; (iv) Attained at least age 20; shall be eligible to participate in the Plan. (b) Future employees will become eligible upon completion of the above requirements and shall begin participation on the Participation Date following completion of the above requirements. (c) A terminated participant who later returns to the employ of the Employer shall be eligible to participate on the first day of his re-employment. (d) A Participant whose employment is terminated before the end of a Plan Year but after he has 1000 Hours of Service shall not share in Employer Contributions for such Plan Year. • 4.2 Withip a reasonable period prior to the Effective Date or Plan An- niversary Date on which an Employee will become eligible to participate, Plan Administrator shall notify the Employee that he will become eligible to participate if he remains in the employ of Employer until such date. When an D ployee becomes a Participant, Plan Administrator • shall deliver to him written evidence of such Participation and notify Trustee. • 4.3 Leaves of Absence: Leaves of Absence may be granted by Employer on a uniform non-discriminatory manner to Participants for reasons of illness, vacation, vocational training or military service, provided that leaves of absence for military service shall not be for more than two years. The Participant shall be considered to be an Employee during such leave of absence and D ployer shall continue to make contributions on his behalf (based on his compensation, if any) to 8 mmrimi • Trustee. If a Participant fails to return to the employ of the Employer at the expiration of such leave of absence, he shall be deemed to have terminated employment as of such expiration. 4.4 To become a Participant in the Plan, ah eligible Employee will be required to contribute an amount equal to 3% of his compensation, complete an enrollment form, designate a beneficiary and provide such other information that may be required by the Plan Administrator. 4.5 All Participants shall be bound by the terms of the Plan, including all amendments hereto made in the manner authorized herein. Participants shall also be entitled to all the rights and privileges afforded thereby including those• granted specifically by the Code and ERISA which are hereby adopted by references as part of said Plan. 4.6 For purposes of determining Years of Service and -Breaks in Service for purposes of eligibility, the initial 12 month period shall commence on the date the employee first performs an Hour of Service for the employer. The second 12 month period shall be the Plan Year which commences prior t� the end of the initial 12 month period. 4.7 Once the employee elects to participate or not participate, his dollar contribution, mandatory and voluntary, shall remain the same until the next Plan Anniversary Date. 4.8 Withdrawals: A participant who withdraws from Participation in the Plan, shall be precluded from again participating in the Plan until the second Anniversary of the Plan following the withdrawal. However, participants in the predecessor defined benefit plan who have withdrawn from said Plan during the 6/1/79 to 5/31/80 Plan Year, may be eligible to participate on the 6/1/80 Anniversary Date. They may "buy back" and restore their benefits as provided in Section 17.9. Section 5 Employer and Employee Contributions 5.1 Employer Contributions: (a) For each taxable year of Employer, D ployer shall contribute to Trustee, for the purposes of the Plan, an amount equal to 6% of the base compensation of the Participant. (b) A Participant whose employment is terminated before the end of a Plan Year after he has completed 1000 Hours of Service shall not share in employers share of contributions for such Plan Year. 9 4 (c) Forfeitures: Forfeitures, if any, shall be used to reduce employers contributions. The Employers determinations of such contributions shall be binding on all Participants, Plan Administrator, and Employer. Such determination shall be final and conclusive subject to Section 14.5 and shall not be subject to change as a result of any subsequent adjust- ments in Employers records. However, the Employer, at its discretion, may take into consideration all or any part of such adjustments for the succeeding years contribution. 5.2 Employee Contributions: (a) Eligible employees who desire to participate in the Plan shall be required to contribute 37. of the base compensation. A participants mandatory contributions may be made by regular payroll deductions, or any method approved by Employer. Participant contributions shall be remitted to the Trustee monthly. (b) Additional voluntary contributions shall be permitted, in- cluding a qualified Rollover of Assets from another qualified plan and the predecessor Defined Benefit Plan. Voluntary contributions, other than rollover IRA's and transfer of the predecessor plans assets shall be limited to 10% of the Participants base compensation for all qualified plans in which the participant may be participating. 5.3 The Plan Administrator shall provide the employees who become eligible a form on which the employee shall elect to participate or not to participate and if electing to participate, the form will authorize the payroll deduction. The form shall be given to the employee at least 30 days prior to the Plan Anniversary. Date and shall be returned to the Plan Administrator at least 15 days prior to the Plan Anniversary Date. Once the election is made as to whether or not to participate, the provisions of Section 4.7 shall apply. 5.4 The Trustee shall be accountable for all Participant contributions received, but shall have no duty to require that the contributions be delivered nor to determine that the contributions received are for the correct amount or are correctly attributable to the participants who made them. 10 Section 6 Allocation of Funds Employer and Emoloyee Contributions, Forfeitures, if any, and Investment Income: 6.1 As of each Anniversary Date, Employer shall promptly notify the Trustee and Plan Administrator, in writing, the date of and the amount of the Employer and Employee Contributions, including forfeitures for the Plan Year just ended. The Employer Contributions shall be allocated among those Participants who have completed at least one thousand (1000) hours during the Plan Year and who are still employed on the Anniversary Date. 6.2 Forfeitures: Plan Administrator shall determine and record all forfeitures that arise as a result of termination of service of a Participant and shall be accumulated until the Anniversary date following a break in service, and shall reduce the Employers Contributions. 6.3 Forfeitures shall not be used to reduce employers contribution until the terminated Participant has incurred a one-year Break in Service. 6.4 Separate Accounts: Individual accounts shall be established for each participants accrued benefits. Such accounts shall distinguish between Employer and Employee contributions and investment income thereon and any Rollover of assets from another Plan. 6.5 Investment Income: Investment Income, as defined in Section 7 below, shall be allocated on a proportionate basis as determined in Section 7.3 and 7.4. 6.6 Computation Date: The Computation Date for allocation of contributions and investment income shall be the anniversary date of the Plan, with such allocations in proportion to the Participants compensation to all compen- sation during the Plan Year ended. 6.7 Limitation on Allocations: Section A(1) through A(4) - These Sections_ apply to Employers who do not maintain any qualified plan addition to this Plan. A (1) If an Employer does not maintain any other qualified plan, the amount of the Annual Additions which may be allocated under this plan on a participants behalf for a Limitation Year shall not exceed the lesser of the Maximum Permissible Amount oi any other limitation contained in this Plan. A (2) Prior sation may be • annual to the determination of the participants actual compen- for a Limitation Year, the Maximum Permissible Amount determined on the basis of the participants estimated compensation for such Limitation Year. Such estimated 11 annual compensation shall be determined on a reasonable basis and shall be uniformly determined for all participants similarly situated. Any employer contributions (including allocation of forfeitures) based on estimated annual compensation shall be reduced by any Excess Amounts carried over from prior years. A (3) As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for such Limi— tation Year shall be determined on the basis of the participants actual compensation for such Limitation Year. A (4) If, pursuant to Section A(1) there is an Excess Amount with respect to a participant for a Limitation Year, such Excess Amount shall be disposed of as follows: (0 In the event that the participant is (in the service of the employer which is covered by the Plan) at the end of the Limitation Year, then such Excess Amounts must not be distributed to the participant, but shall be reapplied to reduce future employer contributions under this Plan for the next Limitation Year for such participant, so that in each such year the sum of actual employer contributions plus the reapplied amount shall equal the amount of employer contributions. (ii) In the event that the participant is not (in the service of the employer which is covered by the Plan) at the end of the Limitation Year, then such Excess Amounts must not be dis— tributed to the participant but shall be reapplied to reduce future employer contributions for all remaining participants. Sections B(1) through B(6) — These Sections apply to Employers who, in addition to this Plan, maintain one or more Plans, all of which are qualified Master or Prototype defined contribution plans. B (1) If, in addition to this Plan, the Employer maintains any other qualified defined contribution plan (all of which are qualified Master or Prototype Plans), the amount of Annual Additions which may be allocated under this Plan on a participants behalf for a Limitation Year, shall not exceed the lesser of: The Maximum Permissible Amount, reduced by the sum of any Annual Additions allocated to the participants accounts for the same Limitation Year under this Plan and such other defined contribution plans; or (ii) Any other limitation contained in this Plan. B (2) Prior to the determination of the participants actual compensation for the Limitation Year, the amounts referred to in 13(1)0) above, may be determined on the basis of the participants estimated annual compensation for such Limitation Year. Such estimated annual compensation shall be determined on a reasonable basis and shall 12 • 3 be uniformly determined for all participants similarly situated. Any employer contribution (including allocation of forfeitures) based on estimated annual compensation shall be reduced by any Excess Amounts carried over from prior years. B (3) As soon as is administratively feasible after the end of the Limitation Year, the amounts referred to in B(1)(i) shall be determined on the basis of the participants actual compensation Lor such Limitation Year. B (4) If a participants Annual Additions under this Plan and all such other plans result in an Excess Amount, such Excess Amount shall be deemed to consist of the Amounts last allocated. B (5) Ft an Excess Amount was allocated to a participant on an allo- cation date of this Plan which coincides with an allocation date of another plan, the Excess Amount attributed to this Plan will be the product of: (i) The total Excess Amount allocated as of such date (including any amount which would have been allocated but for the limitations of Section 415 of the Code), times (ii) The ratio of (a) the amount allocated to the participant as of such date under this Plan, divided by (b) the total amount allocated as of such date under all qualified defined contri- bution plans (determined without regard to the limitations of Section 415 of the Code). B (7) Any Excess Amounts attributed to this Plan shall be disposed of as provided in Section A(4). Section C - This Section applies only to Employers who, in addition B o this Plan, maintain one or more qualified plans which are qualified defined contribution plans other than a Master or Prototype Plan. If the Employer also maintains another plan which is a qualified defined contribution plan other than a Master or Prototype Plan, annual additions allocated under this Plan on behalf of any participant shall be limited in accordance with the provisions of Sections B(1) through B(6) as though the other plan were a Master or Prototype Plan. Sections D(1) through D(6) (Definitions) - For purposes of this Section, the following terms shall be defined as follows: D (1) Annual Additions: The sum of the following amounts allocated on behalf of a participant for a Limitation Year: (i) All employer contributions; (ii) All forfeitures; and 13 Jr, • (iii) The lesser of (a) one-half of all employee contributions, and (b) the amount of all employee contributions in excess of 6 percent of such participants actual compensation. For the purposes of this Section, amounts reapplied to reduce employer contributions under Section A(4) shall also be included as Annual Additions. D (2) Employer: The Employer that adopts this Plan. In the case of a group of employers which constitutes a controlled group of corporations (as defined in Section 414(b) of the Code as modified by Section 415(h)) or which constitutes trades or businesses (whether or not incorporated) which are under comium control (as defined in Section 414(c) as modified by Section 415(h)), all such employers shall be considered a single employer for purposes of applying the limitations of this article. D (3) Excess Amount: The excess of the participants Annual Additions for the Limitation Year over the Maximum Permissible Amount, less loading and other administrative charges allocable to such excess. D (4) Limitation Year: A calendar year (or any other 12 consecutive month period adopted for all plans of the employer pursuant to a written resolution adopted by the employer). D (5) Master or Prototype Plan. A Plan the form of which is the sub- ject of a favorable opinion letter from the Internal Revenue Service. D (6) Maximum Permissible A: unt: For a Limitation Year, the Maximum Permissible Amount with respect to any participant shall be the lesser of (a). $25,000 (or such larger amount as may be prescribed by the Secretary of the Treasury or his delegate), or (b) 25 percent (25%) of the participants compensation for the Limitation Year. Section 7 Investment Account 7.1 Employer contributions, including any forfeitures, subject to Section 6.3, and IN ployee contributions credited to the Participants Account shall be allocated to the Participants Individual Investment Account and invested by Trustee as directed by the Plan Administrator as provided in Section 3.7(e). The aggregate individual accounts shall be known as the "Investment Account." 7.2 Trustee shall keep separate records of contributions by or on behalf of Participants and shall, in accordance with the provisions of this agreement, value on the basis of fair market value of Individual Investment Account of each Participant at least annually as of each Anniversary Date or at such other times as is necessary in order to determine or pay benefits. If interim valuation adjustments are made, all Participants shall be treated in a like manner. 14 i 7.3 As of each Valuation Date, Trustee shall determine and notify Plan Administrator the sum of: (a) The net investment income (on a consistent cash or accrual basis) earned by the Investment Account since the preceding Valuation Date. (b) The net profit or loss realized on the disposition of assets of the Investment Account since the preceding Valuation Date. (c) The net unrealized profit or loss resulting from changes in the fair market value of assets of the Investment Account since the preceding Valuation Date or since the date of acquisition, if~ later. (d) The Investment Account portion of the Trust Fund shall be reduced by any expenses paid or incurred but not yet paid by the Trustee. 7.4 Plan Administrator shall then calculate the share of the investment account of each Participant in the sum thus determined by multiplying such sum by the ratio, the numerator of which is (i) and the denominator is (ii) as follows: (i) An amount equal to the Participants account as of the preceeding Accounting Date. (ii) The sum of the amounts computed in accordance with (i) for all Participants whose shares are being determined. 7.5 Trustee shall credit the account of each Participant with his share as determined in accordance with Section 7.4. Section 8 Provision for Annuities 8.1 A participant or beneficiary may elect to have the account values distributed in the form of an annuity as provided in Section 9, with insurance company selected by the Plan Administrator and/or Trustee. 8.2 The participant shall direct the Plan Administrator, in writing, as to annuity contracts providing for retirement income, pursuant to the provisions of the Plan, conunencing on the contract anniversary date nearest the Participants Normal Retirement Date or such other date of retirement which may apply under Section 9 of this Plan and • providing for death benefits in the event that the Participant dies before the annuity starting date. 15 S. �.IJ ..Y ...tea.:.• ..t r - - . 8.3 Designation of Beneficiary: Each Participant or former Participant, shall have the right by written notice to the Plan Administrator to designate or to change a beneficiary to receive any benefit to which such Participant or former Participant may be entitled hereunder in the event of his death prior to the complete distribution of such benefits. Plan Administrator shall then instruct Trustee to request the Insurer to furnish the necessary forms for insurance. 8.4 Upon occurrence of an event requiring a distribution of an Annuity Contract to a Participant, on request of a Participant or Beneficiary, Trustee shall arrange that such annuity contract shall, before assignment to a Participant or beneficiary, be made nontransferable by a restrictive endorsement so that the interest of the owner may not be sold', assigned, discounted or pledged as collateral for a loan or as security for the performance of an obligation or for any other purpose, to anyone other than Insurer, except that where a distri- bution is a taxable distribution, then all such insurance contracts shall be endorsed so as to remove the non -transferability restrictions. 8.5 Any dividends in addition to guaranteed income payments following distribution of an Annuity Contract shall be paid to the person entitled to the guaranteed payments. 8.6 In the event of any conflict between provisions of the Plan and the terms of any annuity issued hereunder, the provisions of the Plan shall control. Section 9 Retirement Benefits and Dates Normal, Early, Disability, Deferred: 9.1 Normal Retirement: A Participants Normal Retirement Date shall be the first day of the month coincident with or next following his 65th - birthday or, if later, after 10 Years of Service but no longer than age 70. He shall then be entitled to 100% of his Individual Account with • distribution to be made in accordance with Section 10.5. The accrued benefits shall be nonforfeitable. The Normal Retirement Date as so provided in this Section shall not exceed any mandatory retirement age that is imposed by Employer. Such mandatory retirement age, if any, shall be derived from a consistently applied "mandatory retirement age" developed by the employer. 9.2 Early Retirement: When the Participant has completed fifteen (15) Years of Service and has a 100% non -forfeitable interest in the Employers contribution, his/her termination and payment of benefits shall be as provided in Section 10, with approval of Employer. 9.3 Disability Retirement: If, prior to death, retirement, or termination of employment with the Employer, a participant becomes disabled, the t... existence of which disability shall be established by the certificate 16 r y .. :.. . ..lS::h°1`(�':P:r �ti �J4. i:�.. ..1 ... iYL.. • - 1 -.. .. •-'.: ...' of a physician selected by the Plan Administrator and approved by the Trustee, that a Participant is disabled and such disability is determined to be of long and indefinite duration and the Participant is unable to engage in any substantial gainful activity by reason of physical or mental impairment, or Participant has evidence of qualifying for long term disability benefits provided by Employer but administered by an independent third party, such Participant shall qualify for disability benefits. He shall then be entitled to 100% of his insurance and Investment Account with distribution to be made in accordance with Section 9.5. The accrued benefits shall be non -forfeitable. 9.4 Deferred Retirement: With approval of Employer, a Participant may remain in the employ of the Employer after his Normal Retirement Date. In such event, the Participant shall continue to share. in contributions and investment income in -accordance with Section 6. 9.5 Upon the earliest date on which the Participant can elect to receive benefits, including -Terminations, Normal, Early, Disability, or Deferred Retirement, the Participants account will be distributed in the form of a Joint and Survivor Annuity as described in Section 9.6, unless the Participant elects in writing to receive his benefits under the Plan in a form other than that of a Joint and Survivor Annuity. The election period shall be 120 days prior to the commencement of the payment of benefits. The election may be revoked during the election period and one of the options below may be elected. Within 10 days following the receipt of a request for information regarding the options, the Plan Administrator must furnish to the par- ticipant a written explanation in non -technical language of the terms -and conditions of the Joint and Survivor Annuity and the financial effect upon the participants annuity (in terms of dollars per annuity payment) of making an election under this section. -- In the event a participant elects not to receive the benefits in a form of Joint and Survivor Annuity, the Participant may elect to have the benefits distributed in the following manner: (a) Lump sum; or (b) Periodic installments with interest at the current rate earned'by the trust fund, subject to the limitations in Section 10.6; or (c) Have the trust convert the aggregate Individual Account values to an annuity of a form other than a Joint and Survivor Annuity. Any amount not distributed to a Participant under 9.5(b) or (c) shall be paid to the Participant in one sum. 9.6 (a) Qualified Joint and 50% Spouse Survivor Annuity Requirements: On or after a Participant has met one or more of the following requirements, unless the Participant elects otherwise within the Election Period, distribution of his Accrued Benefit shall be under a Qualified Joint and 50% Spouse Survivor Annuity. In event of C 17 n� I . the death of the Participant, the amount of the above survivor annuity shall be that to which the spouse would have been entitled if the Participant had made the election immediately prior to his retire— ment and his retirement had occurred on the day before his death. The survivor annuity shall be in such amount as can be provided by the value of the Participants Accrued Benefit and shall be in lieu of any other death benefit provided by the Plan. There shall be no duplication of benefits by reason of payment under a Qualified Joint and 50% Spouse Survivor Annuity. (1) Eligibility for early retirement as provided in Sections 9.2; or 10.1, but in no event before 10 years prior to Normal Retirement Date. - , - (2)' Eligibility for disability retirement as provided in Section 9.3. (3) Occurrence of his Normal Retirement Date as provided in Section 9.1 The Election Period shall begin on the date the Employee becomes a Participant and end on the date benefits commence. Any election shall be in writing and may be changed at any time before the date benefits commence. - (b) If Payment is made in installments, such installments at their commencement shall be amounts determinable by actuarial formula such that the present value of the payments to be made to the Participant while living exceeds 50% of the present value of the total payments to be made to the Participant and his beneficiaries; if payment -is in the form of a life annuity, it shall not include a period certain longer than the life expectancy cf the Participant unless, at commencement of payment, the present value of payments to be made to the Participant while living exceeds 50% of the: present value of the total payments to the Participant and his beneficiaries; if payment is in the form of a joint life annuity, payments at their commencement shall not extend beyond the joint_ life expectancy or joint lifetimes of the Participant and his spouse unless the present value of the payments to be made to the Par— ticipant while living exceeds 50% of the present value of the total payments to be made to the Participant, his joint annuitant (whether his spouse or another person), and his beneficiaries, if any. 9.7 (a) Paynent_of Benefits: Subject to Section 9.4, the payment of bene— fits, unless the Participant elects otherwise as provided in Para— graph 4)) of this Section, will commence not later than the 60th day after the latest of (1) the close of the plan year in which the participant attains the earlier of age 65 or the normal retirement age as provided in Section 9.1, (2) the close of the plan year in which occurs the 10th anniversary of the year in which Participant commenced participation, or (3) the close of the plan year in which the Participant terminates his service with the employer. z (b) Election of a Later Date: A Participant may elect a later date for commence of benefits than provided in Paragraph A of this Section, provided that such election must be made by submitting to the Plan Administrator a written statement, signed by the Participant, which describes the benefit and the date on which the payment of such benefit shall commence. Section 10 Termination of Employment - Non -Forfeitable Rights 10.1 If a Participants employment terminates during his lifetime and prior to his becoming eligible for early, disability, or normal retirement, Employer shall notify Trustee to take such action as is called for in this Section 10. 10.2 •The non -forfeitable rights, hereinafter called "Vested Interest" of a Participant as of the date of termination of his employment as provided in Section 10.1, shall be: That percentage of the total value of the Contracts on the Participants life, if any, and the Participants In- vestment Account as follows: (a) Employees Contributions: The terminated participant shall, at all times, have a 100% non -forfeitable right in the employee contri- butions and the investment income attributed thereto; (b) Employer Contributions: A terminated participants non -forfeitable right to Individual Account Values attributed to the Employers Contributions and Investment Income as determined under the following schedule: YEARS OF SERVICE % OF (See Section 2.24) EMPLOYER PORTION Less than 5 0% 5 25 6 30 7 35 8 40 9 45 10 50 Then 10% per year to 100% in 15 years 10.3 -The withdrawal of a Participants own contributions and investment income thereon, shall in no way affect the non —forfeitable rights of the Participant 10.4 The terminated Participant, may elect in writing, on a form provided by the Plan Administrators, to receive his vested benefits either: (a) Upon termination with investment income calculated! as of the pre- vious anniversary date; or (b) As of the Anniversary Date following termination in order to participate in the annual allocation of income. 19 10.5 The value of the Participants Investment Account shall be determined as of the last valuation date or as of the date of termination of employment, whichever is consistently used for determination of terminating Partici- pants shares of the Investment Account. - 10.6 Should an employees eligibility computation period for a plan requiring one Year of Service for eligibility (1) overlap the vesting computation periods, and (2) such employee completes 1000 Hours of Service in the eligibility computation period but fails to complete 1000 Hours of Service in either of the overlapped vesting computation periods, and (3) the employee is admitted to participation in the Plan, the Year of Service is completed for eligibility purposes shall also be considered a Year of Service at the time the employee becomes a participant for determining his non -forfeitable percentage of his account balance at- tributable to employer contributions. 10.7 No amendment to the Vesting Schedule shall deprive a Participant of his non -forfeitable rights to benefits accrued to the date of the amendment. Further, if the Vesting Schedule of the Plan is amended, each Participant with at least 5 Years of Service with the employer may elect, within a reasonable period, after the adoption of the amendment, to have his non -forfeitable percentage computed under the Plan without regard to such amendment. The period during which the election may be made shall commence with the date the amendment is. adopted and shall end on the later of: (a) 60 days after the amendment is adopted; (b) 60 days after the amendment becomes effective; or (c) 60 days after the participant is issued written notice of the amendment by the employer or Plan Administrator. 10.8 The vested interest of a Participant shall be obtained first from the Contracts on his life. Any additional amount to which he is entitled shall be obtained from his Investment Account. If the vested, interest of a Participant is less than the cash surrender.value of the Contracts on his life, the Participant may pay to Trustee the difference -or instruct the Trustee to make a loan on the Contracts for the difference so that the Contracts may be transferred to the Participant in satis- faction of his vested interest. 10.9 Method of Distribution and Effect of Rehir • Distribution: If, upon termination of a Participants employment for any reason other than retirement, death, or total and permanent disability, the then value of the Participants vested interests, in accord with the schedule selected in this Adoption Agreement, shall not exceed $1,750 (or any lesser amount as may, by regulations of the Secretary of the Treasury, be established as the maximum amount that may be paid out in such event without the Participants consent), the Plan Administrator shall direct the Trustee to distribute the then value of the vested interests to 20 the Participant. If the then value of a Participants vested interests exceeds the amount specified in the preceding sentence;,.the Participant may file with the EmployerS a written request for the payment of the entire amount of his vested interests, and the Employer shall thereupon direct the Trustee to pay out this amount. Upon payment of such amounts, the Participants account shall be canceled; and the Trustee shall have no further responsibilities with, respect to such accounts. If an employee, upon termination for any reason other than retirement, death or total and permanent disability, does not consent to the payment of all.of his/her vested interest and if the then value of such vested interest exceeds $1,750 (or such lesser amount as may be prescribed by regulations of the Secretary or the Treasury governing such payments), the Plan Administrator shall direct the. Trustee to place the then value of such `vested interests in one or more federally insured bank or savings and loan accounts in the name of the Trustee in trust for the named employee. The vested interests represented thereby shall then be canceled. The account and all accumulated interest shall be paid to the employee at the time he attains his normal retirement age subject to Section 10.5'. In the event the employee dies before reaching re— tirement age, the account balance shall be paid to any, beneficiary the employee has named in a written designation filed with the Plan Ad— ministrator as provided in Section 8.3. The Trustee shall have no other responsibilities with respect to such accounts except that, if the balance of any such account shall exceed the amount of federal insurance, the Trustee shall split the account into two or more accounts. The payment of benefits under this Section shall be paid after the terminated Participant incurs a one-year break in service as provided in Section 10.10. 10.10 Upon termination of a Participant, and after a Participant incurs a break in service, the Plan Administrator shall direct he Trustee to distribute the Participants non -forfeitable interest in (a) lump sum,, (b) the form of a deferred annuity of the type which could have been elected under Section 9 as of the Participants Normal Retirement Date; or (c) take such other action the Plan Administrator deems appropriate; provided however, that all terminating Participants in similar circum- stances shall be treated in a uniform manner consistent with the purposes of the Plan; provided however, that if under the Plan there is. an early retirement provision requiring both a minimum service and a minimum age and at termination of employment the Participant has met the service requirement and any requirement for participation in the Plan but not the age requirement, he shall be eligible for early re- tirement benefits when he subsequently fulfills the age requirement with, benefits to be paid in accordance with Section 9. 10.11 For purposes of determining vesting of benefits, the following rules shall apply regarding Year of Service in the event, there has been a one-year Break in Service. A former participant who had a non -forfeitable right to all or a portion of this account balance derived from employer contribution at the time of his termination shall receive credit for all Years of Service prior 21 to his Break in Service upon completing a Year of Service after his return to the employ of the employer. A former Participant who did not have anon -forfeitable right to any. portion of his account balance derived from. employer contribution at the time of his termination shall receive credit for Year of Service prior to his Break in Service if (1) he completes a Year of Service after his return to the employ of the employer, and (2) the number of consecutive one year breaks in service is less thantheaggregate number of Years of Service before such break. All Years of Service after a Break in Service shall be disregarded for purposes of determining the Participants: non -forfeitable percentage. in. his account balance attributable to employer contributions that accrued before such break. 10.12 If a Participant should be re-employed, his Years of Service after a one-year break in service following his resignation or discharge shall be disregarded for purposes of determining his non -forfeitable percentage in connection with such resignation or discharge. 10.13 Employer may grant a Participant a leave of absence for reason of illness, vacation, vocational training ox? military service. Except where the leave of absence is for military service, it shall be limited to a period of not more than two years. The Participant shall be considered to be an Employee during such leave of absence and Employer shall continue to make contributions on his behalf (based on his Compensation, if any) to Trustee. If'a Participant fails to return to employ of Employer at the expiration of such leave of absence, he shall be deemed to have terminated employment as of such expiration. Employees in similar circumstances shall be treated in the same manner. 10.14 Amounts remaining after applying the provisions of Section 10.2 and 10.5 in which the Participant does not have a vested interest shall be held by Trustee and used to reduce Employers Contributions as of the next succeeding Anniversary Date following the terminated Participant_ incurring a one year Break in Service as provided in Section 6.2. 10.15 For purposes of determining non -forfeitable benefits and Breaks in Service, Section 2.2t; (Year of Service) and 2.16 (Break in Service) shall apply with the Computation Period being the Plan Year. Section 11 Death Benefits 11.1 Upon the death of a Participant prior to retirement, the proceeds of the Participants share of the Investment Fund as determined in Section 7 of this Plan, become one -hundred percent (100%) vested and, 22 a as provided in Section 8, shall be paid to the beneficiary named in a written designation filed by the Participant with Administrator. If no beneficiary has been designated, or the designated beneficiary has predeceased the Participant, then the Participant will be deemed to have designated the following persons as primary beneficiaries and contingent beneficiaries in the following order of priority: (a) Spouse; (b) Children, per stirpes, equally; (c) Parents of Participant; (d) Brothers and sisters of Participant, equally; (e) Estate of Participant. 11.2 Death proceeds under this Section will be payable as provided under the Beneficiary Designation and subject :to the provisions of Sections 9.5 and 9.6. Section 12 Prohibition Against Diversion Subject to the provisions of Section 14.5, nothing in this agreement or any - amendment thereto shall be construed so as to permit any part of the contri— butions to the Plan or the principal of income thereunder to be used for, or diverted to, any purpose other than for the exclusive benefit of Participants hereunder and their beneficiaries. Section 13 - Amendment of Plan 13.1 •City of Fayetteville maytamend the Plan to any extent it deems ap- propriate'. including amendment of the ?tan to the -extent necessary to preserve its qualified status as a Plan. 13.2 No such amendment shall deprive any Participant or his beneficiary of any vested interest he may have under the Plan except to the extent that the amendment is necessary in order that the Plan, as it applies to the Employer, may qualify within the terms and conditions of the Internal Revenue Code or any amendment thereof so that contributions of the Employer under the Plan may be deductible under the Code of any amendment thereof. 23 Section 14 Termination of Plan 14.1 Employer establishes its Plan voluntarily and, although it intends to continue the Plan, it shall be under no obligation to do so. Employer reserves the right to terminate the Plan at any time when business necessity or expediency requires by giving written notice to the Trustee,- as provided in Section 6 of the Trust. 14.2 Employers Plan shall terminate in the event Employer at any time is judicially declared bankrupt or insolvent or in the event of dissolution, merger or consolidation of Employer without any provision being made for continuance of Plan as hereinafter provided in Section 17.2. 14.3 In the event of a complete discontinuance of Employer contributions or in the event of a suspension of contributions other than on a temp- orary basis, the interest of each Participant shall be fully vested and the provisions of Section 14.4 shall apply. 14.4 Upon complete or partial termination of Employers Plan, Participants accounts shall be non -forfeitable and Trustee shall, subject to the provision of Section 14.5 and to any requirements of the Internal Revenue Service and the Department of Labor, transfer and deliver to each Participant as to whom shall termination applies the Contracts issued upon the life of the Participant and his share of the Invest- ment Account and any other assets of the Trust determined in the manner provided in Section 7. 14.5 In the event the Employers Plan does not initially meet the qualification requirements of Section 401(a) of the Internal Revenue Code and as a - result thereof the Internal Revenue Service makes an adverse determination, and if the Employer is unable or unwilling to amend his Plan in such manner as to qualify his Plan, it shall terminate. Upon such termination, Trustee shall return to Employer contributions made by Employer less any charge made by Insurer in connection with issuances of a contract and less any charge made by Insurer in connection with' contract which has matured as a death claim or under which other benefits have accrued and less any Trustee charges. Such termination of Employers Plan under this Section shall be without further liability to any party thereto. The operation of this Section is conditioned upon Employer having re- quested a favorable Internal Revenue Service determination letter within a reasonable period after establishment of its Plan. 14.6 If the Employer fails to retain qualification of. its Plan, such Plan shall be terminated and the Participants shall have a non -forfeitable right to their Individual Accounts. M Section 15 Claims Procedure 15.1 A Plan Participant or Beneficiary shall make a claim for Plan Benefits by filing a written request with the Plan Administrator upon a form to be furnished to him for such purpose. 15.2 If a claim is wholly or partially denied, the Plan Administrator shall furnish the Participant or Beneficiary with written notice of the denial within sixty (60) days of the date the original claim was filed. This notice of denial shall provide (1) the reason for denial, (2) specific reference to pertinent plan provisions on which the denial is based, (3) a description of any additional information needed to review the claim and an explanation of why such information is necessary, and (4) an explanation of the Plan's Claim Procedure. 15.3 The Participant or Beneficiary shall have sixty (60) days from receipt of denial notice in which to make written application for review by the Plan Administrator. The Participant or Beneficiary may request that the review be in the nature of a hearing. The Participant or Beneficiary shall have the rights (1) to representation, (2) to review pertinent documents, and (3) to submit comments in writing. 15.4 The Plan Administrator shall issue a decision on such review within sixty (60) days after receipt of an application for review as provided in Section 15.3. Section 16 The Trust Fund and Trustee 16.1 The Employer has entered into a Trust Agreement with the Trustee to hold the funds necessary to provide the benefits set forth in this Plan. 16..2 •The Trust Fund shall be received, held in Trust, and disbursed by the Trustee in accordance with the provisions of the Trust' Agreement and this Plan. No part of the Trust Fund shall be used for or diverted to purposes other than for the exclusive benefit of Participants, retired Participants, disabled Participants, their Beneficiaries or Contingent Beneficiaries under this Plan. No person shall have any interest in, or right to, the Trust Fund or any part thereof, except as specifically provided for in this Plan and/or the Trust Agreement. 16.3 The Employer may adopt another individually designed plan or a Master or Prototype Plan and appointasuccessor Trustee or Trustee may resign according to terms of the Trust Agreement. 16.4 The Trustee shall have such powers to hold, invest, reinvest, or purchase annuities on the lives of Particiapnts, or to control and disburse the funds as at that time shall be set forth in the Trust Agreement or this Plan. 25 ;. ., 16.5 The Trust Agreement shall be deemed to be part of this Plan and all rights of Participants or others under this Plan shall be subject to the provisions of the Trust Agreement. Sect -inn 17 Miscellaneous Provisions 17.1 No Employee shall have the right under this agreement to be retained in • the employ of Employer, and all Employees shall remain subject to discharge to the same extent as if this agreement;had'not been executed. 17.2 In the event of a dissolution, merger, or consolidation of Employer, its successors may adopt and continue Plan under the provisions of this agreement. If the successor elects to adopt -and continue Plan, it shall furnish Trustee with an instrument duly authorized and executed acknow— ledging such election. Each Participant must receive a benefit under the successors Plan upon its termination equal to or greater than the benefit he would have been entitled to if the Plan of the predecessor had been terminated rather than adopted and continuedby the successor. The Plan. Administrator must secure and file with the Secretary of the Treasury, at least 30 days before the merger or consolidation of the Plan, a certification by a government enrolled actuary that the benefits will not be reduced as provided in the preceeding sentence. 17.3 Where so applicable in this agreement, words in the masculine shall include the feminine, words in the neuter shall include the masculine and feminine and words in the singular shall include the plural. 17.4 If any provision of this agreement is held to be invalid or unenforceable, such determination shall not affect the other provisions of this agree- ment. In such event, this agreement shall be construed and enforced as if such provision had not been included herein. 17.5 This agreement shall be binding upon all Participants and their bene— ficiaries and upon the heirs, executors, administrators, successors and assigns of all persons having an interest herein. 17.6 Prior to distribution of the interest of a Participant under. the Plan he may not encumber, assign, hypothecate or transfer any benefits provided hereunder and to the extent permitted by law, such interest shall not be subject to levy, attachment or judicial process for the payment of the Participants debts or obligations. 17.7 If a Participant has so directed in writing in his beneficiary desig— nation, Trustee shall arrange that any amounts payable to the Partici— pants beneficiary may not be assigned or encumbered and, to the extent permitted by law, shall not be subject to levy, attachment or other jud— icial process for the payment of the beneficiary's debts or obligations. 17.8 Cash —Out Procedure: If, at the time of a Participants termination of employment, his Individual Account attributable to non -forfeitable 26 Employer Contributions, shall be in an amount to be prescribed in re- gulations by the Secretary of the Treasury (and in any event, not in excess of $1,750), the Plan Administrator may, in his sole discretion, direct the Trustee to pay such amount to the Participant within sixty (60) days following his termination of employment. Such cash -out of benefits shall satisfy all obligations of the Trust to such Participant. 17.9 Buy -Back Procedure: A Participant who (a) was a participant in the predecessor defined benefit plan and, withdrew during the 6/1/79 - 5/31/80 Plan Year; or (b) is rehired prior to incurring a Break in Service, shall be permitted to repay his vested distribution to the Trustee and restore his Account. Values to the value preceding with- drawal or termination. 17.10 Prudent Elan Rule: For purposes of Part 4 of Title 1 of. ERISA, the Employer, the Trustee, and the Plan Administrator, shall each be Fiduciaries and shall each discharge their respective duties hereunder with care, skill, and prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims. Without limiting the generality of the above, it is specifically provided that the appointment and retention of any parties pursuant to Section 3 of the Plan are "duties" of the Employer, for purposes of this Section. 17.11 Responsibilities of the Parties: The Employer shall be 'responsible for the administration and management of the Plan except for those duties specifically allocated to the Trustee or Plan Administrator. The Trustee shall have, subject to any directions of Plan Administrator or Employer, exclusive responsibility for the management and control of the assets of the Plan. The Plan Administrator shall have exclusive responsibility for all matters specifically delegated to him by the Employer in the Plan. 17.12 Reports Furnished Participants: The Plan Administrator shall furnish to each Plan Participant, and to each Beneficiary receiving benefits under the Plan, within the time limits specified in the;Cdde and ERISA, each of the following: 4 (a) A Summary Plan Description and periodic revisions; (b) Notification of Amendments to the Plan; (c) An annual status report of his Individual Account:" 17.13 Reports Available to Participants: The Plan Administrator shall make copies of the following documents available at the principal office of the Employer for examination by any Plan Participant or Beneficiary: (a) The Money Purchase Pension Plan and Trust Agreements; 27 rr . I. (b) The Plan Description; (c) The latest annual report; (d) Other reports designated by the Department of Labor. 17.14 Reports upon Request: The Plan Administrator shall furnish to any Plan Participant or Beneficiary who so requests in writing, once during any 12 month period, a statement indicating, on the basis of the latest' available information: (a) The total benefits accrued; and (b) The non -forfeitable benefits, if any, which have been accrued, or the earliest date on which benefits will become non -forfeitable. The Plan Administrator shall also furnish to any Plan Participant or Beneficiary who so requests in writing, at a reasonable charge to be prescribed by regulation of the Secretary of Labor, any document referred to in Section 17.13. 17.15 Rollover Contributions: Notwithstanding any provisions contained herein to the contrary, a Participant shall be entitled to deliver to the Trust to be held in his Participant Contribution Account, any amount held by him in an Individual Retirement Account or Individual.Retirement Annuity (as defined in Code, Section 408) if the entire amount delivered rep- resents all the money and property in the Account or the entire value of the Annuity and is delivered within 60 days following the distribution to the individual from the Account or Annuity. This Section shall apply only to Accounts or Annuities of which the amount of value is attributable entirely to a rollover contribution from a trust qualified under Sections 401(a) and 501(b) of the Code or from an annuity plan described in Code Section 402(a), and only if such individual was not an employee within the meaning of Code Section 401(c)(1) (relating to self-employment) at the time contributions were made on his behalf under the Plan. The amount so transferred to this Trust is herein called a "Rollover, Contribution". Any Rollover Contribution to the Trust, together with the earnings from the superseded City of Fayetteville Defined Benefit Plan shall be subject to the vesting schedule of Section 10, but need not be segregated from the remainder of the Participants account unless the Trustee other- wise elects or the Plan Administrator otherwise directs. 17.16 Notification of Interested Parties: The Employer agrees to notify all interested parties of the filing of aforementioned Plan and any amendments for qualification as to how the Plan and/or amendment will affect -the parties interests and other information as prescribed by the Secretary of Labor. 17.17 Governing Law: This Plan shall be administered in the United States of America, and its validity, construction and all rights hereunder shall be governed by the laws of the United States under ERISA. To the extent that ERISA shall not be held to have prempted local law, the Plan shall ,. I. be administered under the laws of the State of Arkansas. If any provisions of the Plan shall be held invalid or unenforceable, the remaining pro- visions hereof shall continue to be fully effective. 17.18 Indemnification: The Employer hereby agrees to indemnify the Mcllroy Bank & Trust as Trustee and agrees to indemnify the Plan Administrator, to the full extent of any expenses, penalties, damages or other percuniary loss which Mcllroy Bank or the Plan Administrator suffer as a result of the performance of responsibilities, obligations or duties in connection with the Plan or fiduciary activities actually performed in connection with the Plan. Such indemnification shall be paid by the Employer to the Party to the extent that fiduciary liability insurance is not available to cover the payment of such items, but in no event shall such items be paid out of Plan assets. Notwithstanding the foregoing, this indemnification agreement shall not relieve Mcllroy Bank or the Plan Administrator from: (a) Serving in a fiduciary capacity for the carrying out the fiduciary responsibilities; and (b) liabilities to the Plan for breaches of fidicuary obligations, nor shall this agreement violate any provision of Part 4?of Title I of ERISA as it may be interpreted from time to time by the U.S. Department of Labor and any courts of competent jurisdiction. 17.19 Effect of Social Security Increases: No benefit payable to any participant or beneficiary, or which will be payable to any former participant who has separated from service with a non -forfeitable right to an accrued benefit derived from employer contributions under Section 5 shall be decreased because of any increase in the Social Security wage base under Title 2 of the Social Security Act. IN WITNESS WHEREOF, the City of Fayetteville has caused this Agreement to be executed in its name and behalf this 1st day of June, 1980. CITY OF FAYETTEVILLE ATTEST: Plan Administrator TITLE: C i2 %t!l n f, WITNESS: I TRUSTEE: McILROY BANK & TRUST BY: TITLE: Yrca•Pre&dant and Trust Officer 29 SECTION 1 2 3 4 5 6 7 8 9 10 h CITY OF FAYETTEVILLE MONEY PURCHASE PENSION TRUST INDEX OF TRUST AGREEMENT CONTENTS General Duties of the Parties . . . . . . . . Investment and Administration . . . . . . Indemnification Expenses and Compensation of Trustee . . Resignation and Removal of Trustee . . . . .'. . Amendment and Termination Prohibited Transactions . Prohibition. Against Reversion . . . . . . Settlement of Accounts Miscellaneous Provisions PAGE 1 3 8 8 9 9 10 10 11 11 J CITY OF FAYETTEVILLE TRUST AGREEMENT For The City.of Fayetteville Money Purchase Pension Plan STATE OF ARKANSAS County of Washington. The City of Fayetteville, a Governmental Unit, with its principal place of business located in Fayetteville, Arkansas, does hereby establish the following Trust to be used in connection with the City of Fayetteville Money Purchase Pension Plan (hereinafter called "Plan"), which is incorporated herein, and made part hereof, a copy of which is annexed thereto with the Mcllroy Bank & Trust, as Trustee and Plan Administrator, being the Named Fiduciary of said Plan. The Employer adopts this Plan and Trust by Employer and Trustee executing the Plan and Trust Agreement. The Employer, Plan Administrator and Trustee accept the delegation of fiduciary responsibilities by the execution of said Agreement. Section 1 ral Duties -of the Parties 1.1 •General Duties of Employer: Employer shall make contributions to the Trust Fund in cash or property acceptable to the Trustee. Such contributions shall be valued at fair market value at the time of contribution. The Trustee shall notify Employer in writing of the unacceptability of a con— tribution within three (3) days after receipt by the Trustee. Employer shall keep accurate books and records with respect to its Employees, their service with the Employer and their Basic Compensation. The Employer shall be responsible for delegating fiduciary responsibilities. 1.2 Duties of Trustee: The Trustee shall hold all acceptable property re— ceived by it. Such property, together with the income therefrom, shall constitute the Trust Fund. The Trustee shall manage and administer the Trust pursuant to the terms of this Trust Agreement without distinction between principal and income and without liability for the payment of interest thereon. The Trustee shall have no duty or authority to compute any amount to be paid to it by the Employer. The Trustee shall not be responsible for the collection of any contributions to the Trust Fund. Trustee shall provide separate administration of each Employers fund. Trustee shall discharge its duties solely in the interest of all Participants and beneficiaries under the Plan and except as required by law shall not be 11 liable for any loss to the Trust under the Plan, or for any act or omission, unless due to its own negligence or willful misconduct. Plan Administrator shall have the right to direct the Trustee as to the investments to be made pursuant to Section 2. Such direction shall be in writing and may be of a continuing nature or charged by the Plan Administrator by written notification to Trustee. Trustee shall not be liable for in— vestments made or actions taken under the provisions of this Section in accordance with the written direction of the Plan Administrator or Employer, 1.3 Named Fiduciaries: The Employer identifies the Employer and the Plan Administrator as "Named Fiduciaries". The Employer delegates to the Plan Administrator sole and exclusive responsibility (other than that herein specifically conferred upon the Trustee) for establishing and carrying out the funding policy and the methods of funding as set forth in the Plan, this Trust Agreement, and the rules and regulations, if any, adopted by the Plan Administrator, all of which shall be consistent with ERISA and all regulations promulgated thereunder. The Employer delegates to the Plan Administrator sole discretion to allocate and to delegate, by written communications directed to the Employer, the Trustee, and each Participant and Beneficiary of the Plan, any or all of his fiduciary responsibilities, to persons designated by him. An Investment Manager may be named by the Plan Administrator as provided in ERISA Section 401(c)(3) other than the Trustee without necessity of an amendment to the Trust Agreement and after prior written notice to the Employer; Trustee, to the Participants and Beneficiaries of the Plan, and to all Named Fiduciaries of the Plan. By executing this Trust Agreement each Named Fiduciary specifically consents to be a Named Fiduciary within the meaning of ERISA. Any person desig— nated as a Fiduciary herein may serve in more than one fiduciary capacity with respect to the Plan and may employ persons to render advice with regard to any responsibility such Named Fiduciary has under the Plan. 1.4 Foreign Assets:. Except as otherwise authorized by regulations promulgated by the Secretary of Labor, the Trustee may not maintain any indicia of ownership of any asset outside the jurisdiction of the District Courts of the United States. 1.5 Records and Reports: Trustee shall maintain such records as may be ne— cessary for the proper administration of the Plan, including accounts for each Participant reflecting contributions for the Participant, the contracts purchased on the Participants life and the value of the. Participants Investment Account. Plan Administrator and Employer shall furnish the Trustee such information as is necessary for completion of such records and reports. Trustee shall file an account with Employer after the close of each taxable year of employer and shall file such information as shall be required by the Secretary of the Treasury and the Department of Labor. Trustee shall not be required to file any other or further account with any court or otherwise. 2 1 ✓ T Section 2 Investment and Administration 2.1 Investment Powers of Trustee: The Trustee shall have no duty or obligation to identify or otherwise mark the particular funds or investments and re— investments thereof as the contribution of any. particular Participant, it being intended that all contributions shall be pooled for the purpose of investment or reinvestment, but the Trustee shall keep separate records for the. individual account of each Participant and, in addition, for each Special Trust Account. The Plan Administrator shall direct the Trustee in writing, from time to time, to retain any investment at any time held by it hereunder or to direct the sale or exchange of any such investment and to designate the stocks, bonds or other property, real or personal, in which the Trust Funds or any reinvestment thereof shall be invested, or to direct the issuance of voting proxies under any stock held hereunder, provided however, that the Trustee shall be under no liability for any loss arising from any action taken by the Trustee at the direction of the Plan Administrator. Subject to the above directions, or if the Plan Ad— ministrator fails or refuses to deliver in writing investment instructions within ten (10) days after.a request to do so by the Trustee, the Trustee shall have the power to invest and reinvest the Trust Fund and shall serve as "Investment Manager" of the Plan as provided in ERISA, but subject to the appointment and direction of the Plan Administrator in writing and pursuant to Section 1.3. Such investments and reinvestments may include, but not necessarily limited to, common stocks or preferred stocks; open-end or closed -end mutual funds; corporate bonds, debentures, convertible debentures; commercial paper; bankers' acceptances and certificates of deposit; U.S. Treasury bills, notes and bonds; improved or unimproved real estate located in the United States; participants in any common trust fund or commingled fund for the investment of Qualified Pension and Profit Sharing Plan Assets which may be established and maintained from time to time by the McIlroy Bank & Trust; to lend the funds of the Trust to others, except as prohibited by ERISA or the provisions of the Plan, upon receipt of adequate security, including chattel mortgages, first and second loan deeds, at a reasonable rate of interest. r . - Trustee shall have full power to do all such acts, take all such proceedings and exercise all such rights and privileges, whether herein specifically referred to or not, as could be done, taken or exercised by the absolute owner thereof, including, but without in any way limiting or impairing the generality of the foregoing, the following powers and authority unless revoked in writing by Plan Administrator: (a) To retain the same for such period of time as the Trustee in its sole discretion shall'. deem prudent; (b) To sell the same, at either public or private sale, at such time or times and on such terms and conditions as the Trustee shall deem prudent; (c) To consent to or participate in any Plan for the reorganization, consolidation or merger of any corporation, the security of which is 3 if V held in the Trust, and to pay any and all calls and assessments imposed upon the owners of such securities as a condition of their participating therein. In connection therewith, to consent to any contract, lease, mortgage, purchase or sale of property, by or between such corporation and any other corporation or person; (d) To exercise or dispose of any right the.Trustee may have as the holder of any security to convert the same into another or other securities, or to acquire any additional security or securities, to make any pay— ments, to exchange any security or to do any other act with reference thereto which the Trustee may deem prudent; (e) To deposit any security with any protective or reorganization committee, and to delegate to such committee such power and authority with relation thereto as the Trustee may deem prudent, and to agree to pay and to pay out of the Trust such portion of the expenses.and compensation of such committee as the Trustee may deem proper; (f) To renew or extend the time of payment of any obligation due or becoming due; (g) To invest in any common or pooled investment fund maintained by the Trustee for qualified pension or profit sharing plans for the exclusive benefits of Plan Participants, provided such investment is limited to common trust funds exempted under Section 584 of the Internal Revenue Code; (h) To grant options to purchase any property; (i) To compromise, arbitrate or otherwise adjust or settle claims in favor of or against the Trust, and to deliver or accept in either total or partial satisfaction of any indebtedness or other obligation any property, and to continue to held same for such period of time as the Trustee may deem appropriate; , (j) To exchange any property for other property upon such terms and conditions as the Trustee may deem proper, and to give and receive - money to effect quality in price; (k) To execute and deliver any proxies or powers of attorney to such person or persons as the Trustee may deem proper, granting to such person such power and authority with relation to any property or securities at any time held for the Trust as the Trustee may deem proper; (1) To foreclose any obligation by judicial proceeding or otherwise; (m) To sue or defend in connection with any -and all securities or property at any time received or held for Trust, all costs and attorney's fees in connection therewith to be charged against the Trust; (n) To manage any real property in the same manner as if the Trustee were the absolute owner thereof; (o) To borrow money or raise money for purposes of the Trust with or without giving security; 4 (p) To cause any securities or other property held for the Trust to be registered in its own name or in the name of a nominee or nominees, and to hold any investments in bearer form, but the books and records of the Trustee shall at all times show such investments as part of. the ,Trust Fund; (q) To hold such portion of the Trust as the Trustee may deem necessary for the ordinary administration of the Trust and disbursemenL of funds as directed in Section 2.2 in cash, without liability for interest, by depositing the same in any bank including the Trustee bank, subject to the rules and regulations governing such deposits, and without regard to the amount of any such deposits; (r) To invest in life insurance contracts on the lives of key employees of the Employer, payable on death to the Trustee as beneficiary. Such insurance contracts. shall be owned exclusively by the trustee for the benefit of the Trust as a whole and shall not be distributed in kind to a Participant in satisfaction of any interest he may have in the Trust Fund. 2.2 Dealings with Plan Administrator: The Trustee shall, from time to time, on the written directions of the Plan Administrator, make distribution from the Trust to such persons, in such manner, in such amounts and for such purposes as may be specified in such directions. The Trustee shall be under no liability for any distribution made by it pursuant to the directions of the Plan Administrator and shall be under no duty to make inquiry as to whether any distribution directed by the Plan Administrator is made pursuant to the provisions of the related Plan and this Section, except to the extent required of a prudent Co -Fiduciary under ERISA. The Trustee shall not be liable for the proper application of any part of the Trust if distributions are made in accordance with the written directions of the Plan Administrator as herein provided, nor shall the Trustee be responsible for the adequacy of the Trust to meet and discharge any and all payments and liabilities under the related Plan. 2.3 Claims, Employment of Agents and Counsel: The Employer or the Plan Ad- ministrator, or both, at any time may employ any person or entity as an agent to perform any act, keep any records or accounts, or make computations which are required of them under the Code or ERISA. Such employment shall not be deemed to be contrary to or inconsistent with the provisions of r this Trust Agreement. Nothing done by such person or corporation as agent for the Employer or the Plan Administrator shall change or increase in any manner the responsibility or liability of the Trustee hereunder, unless such agent shall be deemed to be a Fiduciary with respect to the Plan, and the Trustee shall have failed to meet the standards imposed by this Agreement and ERISA. Trustee may settle or prosecute claims relating to the Administration of the Plan and Trust and. employ agents and counsel in carrying out its duties. 2.4 (a) Payments from Trust Fund: The Trustee shall make such payments (and shall stop such payments) from the respective Participants accounts in the Trust Fund at such time or times and in such amounts and to such L persons as the Plan Administrator shall direct in writing. In no event 5 shall any such payment exceed the amount then credited to the respective account. In directing the Trustee to make such payments (or stop pay— ments) such Plan Administrator shall follow the provisions of the Employers Plan, and shall not direct that any payment be made, either during the existence or upon the discontinuance on such Plan, which would cause any part of the Trust Fund to be used for or diverted to purposes other than for the exclusive benefit of the. Participants of such Employers Plan or their Beneficiaries, pursuant to the provisions of such Plan. The Trustee shall'be fully protected in acting upon any such written direction of such Plan Administrator without investigation and shall have no duty to determine the right or benefits or any person in the Trust Fund or under such Plan or to inquire into the right or power of such Plan Administrator to direct such payments. The Trustee shall make any payment required to be made by it provided that there are sufficient assets for such payments and subject further to the ability of the Trustee to liquidate the account from which such distribution is to be made hereunder by mailing its check for the amount thereof to the person to whom such payment is to be made at such address as shall have been last furnished to the Trustee. If no such address shall have been so furnished, such check shall be mailed to such person in care of the Employer. (b) Trustee as Plan Administrator: In the event the Trustee is designated as Plan Administrator, the Plan Administrator shall look to the Employer for directions specified in this Plan and Trust. 2.5 Restriction on Exercise of Powers: Prudent Plan Rule: The Trustee, the Plan Administrator, and all other Fiduciaries with respect to the Plan, are re— quired to discharge their duties solely in the interests of Participants and Beneficiaries and for the exclusive purpose of providing benefits to Participants and Beneficiaries and defraying reasonable expenses of adminis— tration; with the care skill, prudence, and diligence, under the circumstances then prevailing, that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims; by diversifying the investments so as to minimize the risk of large losses unless under circumstances it is clearly prudent not to do so; and in accordance with the Plan, this Trust Agreement, the rules and directions of the Plan Administrator and the provisions of Title 1 of. ERISA. 2.6 Life Insurance: As directed in writing by the Plan Administrator, the Trustee shall have the following powers and duties with respect to any life insurance policy held in the Trust for the benefit of a Participant: (a) To apply in writing for insurance to be issued on the life of any in— surable Participant in the Plan in an amount to be determined by the Plan Administrator, subject to the limitation of Section 8.1 of the Plan. Upon occurrence of an event requiring distribution of a contract to a Participant, Trustee shall arrange that any insurance contract which is to be converted into an annuity without life insurance protection, shall, before assignment to a Participant, be made nontransferable by a res- trictive endorsement so that the interest of the owner may not be sold, I J }� assigned,. discontinued or pledged as collateral for a loan or as security for the performance of an obligation or for any other purpose, to anyone other than insurer. (b) To exercise all rights, options and benefits provided by any policy or permitted by any insurer with respect to any policy issued by it, in- cluding the right to change any provision which shall become inoperative upon the retirement of any Participant. (c) To pay premiums on any policy held in the Trust; accumulate dividends. and apply dividends in reduction of premiums. Any dividends payable with respect to any policy as to which there shall be no further premiums due shall be paid in cash to the Trustee and added to the insured Participants Individual Account in the Trust Fund. (d) To name the beneficiary of any such policy and change such beneficiary from time to time and to select the method of settlement to be effective upon the maturity of any such policy and change any such method of settlement. No Participant shall have the right to direct the Trustee with respect to any of such matters without the consent of the Plan Administrator. No insurance company which shall issue any policy, as hereinabove provided, shall be a party to this Trust Agreement. The liability of any such insurance company shall be only as provided in any policy which it may issue and such company shall not be considered a Named Fiduciary hereunder, provided, however, that if such insurance company shall undertake to invest Plan assets in an unallocated in- vestment medium, such insurance company shall also be considered a Named Fiduciary hereunder. 2.7 Co -Fiduciaries: Anything in the Trust Agreement or the Plan to the contrary notwithstanding, each Fiduciary with respect to the Plan acknowledges, by participating in the execution of this Trust Agreement or. by consenting directly or indirectly, orally, or in writing, to act as a Fiduciary with respect to the Plan, that he is responsible for carrying out his own duties in accordance with the standards set forth under ERISA and all regulations promulgated thereunder. Each Fiduciary shall be responsible for the actions or failure to act of all other Fiduciaries with respect to the Plan if he participates, approves, acquiesces in or conceals a breach committed by another such Fiduciary; or if his failure to exercise reasonable care in the adminis— tration of his own duties enables the breach to be committed. Each Fiduciary is required to act prudently in the delegation or allocation of responsibilities to other persons. In the event that there are Co -Fiduciaries acting hereunder, each Fiduciary will be responsible for participating in the administration of. the Plan and for exercising reasonable care to prevent the other from com- mitting a breach. If the Plan or the Trust Agreement or any written rule or direction of the Plan Administrator shall by agreement allocate responsibilities among Co —Fiduciaries only the Fiduciary to whom the responsibilities are • delegated will be responsible for the breach unless the other Fiduciary or. `Fiduciaries knowingly participate therein. Nothing herein shall relieve any Fiduciary from his duty to conduct a periodic review to assure that delegated duties and responsibilities are being properly carried out by all persons acting as Fiduciaries with respect to the Plan and by all persons to whom any such duties and responsibilities have been delegated. In the 7 .. event that an Investment Manager other than the Trustee is appointed, pursuant to this Trust, Trustee shall not be liable for the acts or omissions of such Investment Manager, or be under aby obligation to investor manage the assets of the Plan which are subject to management by an Investment Manager as such term is defined in ERISA Section 3(38). Nothing in the Plan or the Trust Agreement shall be deemed to enlarge the responsibilities or liabilities or any Trustee or Co —Fiduciary, or any other Fiduciary with respect to the Plan beyond, those imposed by ERISA and all regulations promulgated thereunder. 2.8 Liabilities of Trustee: The Trustee shall not be liable for any losses in— curred by the Trust by reason of any lawful direction to invest communicated .to the Trustee by the Plan Administrator or by any Participant in exercise of his power to earmark investments for his own account, except with respect to any transaction entered into by the Trustee which is.prohibited by'ERISA and as to which the Trustee is a Fiduciary, party —in -.interest or disqualified person as defined by ERISA. Nothing herein shall exculpate or relieve the Trustee from liability for any losses to the Trust, incurred by its negligence, bad faith or knowing participation in a breach of trust. The Trustee warrants and represents that it is not prohibited from serving as Trustee hereof because of certain disabilities provided in ERISA Section 411. Section 3 Indemnification The Employer hereby agrees to indemnify the Trust Department of Mcllroy Bank & Trust as Trustee -and agrees to indemnify the Plan Administrator, to the full extent of any expenses, penalties, damages or other pecuniary loss which Mcllroy Bank & Trust or the Plan Administrator suffer as a result of the performance of respon— sibilities, obligations or duties in connection with the Plan or fiduciary activities actually performed in connection with the Plan. Such indemnification shall be paid by the Employer to the Party to the extent that difuciary liability insurance is not available to cover the payment of such items, but in no event shall such items be paid out of Plan assets. Notwithstanding the foregoing, this indemnification agreement -shall not relieve the Trust Department of Mcllroy Bank & Trust or the Plan Administrator from: (a) Serving in a fiduciary capacity for the carrying out the fiduciary respon— sibilities; and (b) liabilities to the Plan for breaches of fiduciary obligations, nor shall this agreement violate any provision of Part 4 of Title 1 of ERISA. as it may be interpreted from time to time by the U.S. Department of Labor and any courts of competent jurisdiction. - Section. 4 Expenses and Compensation of Trustee 4.1 Expenses and Compensation of Trustee: All -professional expenses pursuant to Section 2.3 and such compensationas'from time to time may be agreed upon between Employer and the Trustee andall other expenses incurred by the Trustee in the performance of its duties hereunder, and all real and personal property taxes, income taxes, transfer taxes and other taxes of any and all kinds whatsoever that -" . ir • .•:• may be levied or assessed under existing or future laws or any jurisdiction upon or in respect of the Trust hereby created or upon or in respect of any money, property or securities forming part thereof shall be paid from the Trust Fund. Section 5 Resignation and. Removal of Trustee 5.1 The Trustee may resign at any time upon 60 days notice in writing to the Employer. The Trustee may be removed at any time by the Employer. upon 60 days noticc.in writing to the Trustee. 5.2. Upon the resignation or removal of the Trustee, the Employer shall appoint a successor and shall file written notice thereof with the Trustee. Upon re- ceipt by the`Trustee of written acceptance of such appointment by the suc- cessor, the Trustee shall transfer and pay to such successor the assets of the Trust and records pertaining thereto; provided, however, the Trustee is authorized to reserve such sum of money as it may deem advisable for payment of all its fees, compensation, costs and expenses, or for payment of any other liabilities constituting a charge on or against the assets of the Trust or on or against the Trustee, with any balance of such reserve remaining after the payment of all such items to be paid over to the successor. The receipt of the successor Trustee for such records and accounts shall be full and complete acquittance and discharge all responsibilities and liability therefore of retiring Trustee. All rights, title and interest of the Trustee in the assets of the Trust, and all powers, rights and duties under this Master Trust heretofore vested in the Trustee shall vest in such successor Trustee immediately upon its appointment. and. acceptance and thereupon all further duties and liabilities of the Trustee which has been succeeded shall terminate. All of the provisions set forth herein shall relate to each successor Trustee with the same force and effect as if such successor had been originally named as Trustee hereunder. 5.3 The Trustee may elect to terminate this Agreement and the, Trust created hereby if within 60 days after its resignation or removal pursuant to Section 5 . hereof the Employer has not appointed a successor trustee which has accepted such appointment. In such event the Trustee shall distribute the assets of the Trust as provided for in Section 6.4 hereof. Section 6 Amendment and Termination 6.1 City of Fayetteville as the Employer, may amend this Trust to any extent it deems appropriate including amendment and retroactive amendments of the Trust to the extent necessary to preserve its qualified status, with all Interested parties including. Participants and Beneficiaries notified in writing of such amendments. Provided, however, such amendment shall not operate to cause any E part of the Trust Fund, other than such part as is required to pay taxes and administration expenses to be used for or diverted to purposes other than for the exclusive benefit of the Participants or their beneficiaries or cause or permit any portion of the Trust Fund to revert to or become the property of the Employer. 6.2 This Agreement and the Trust created hereby.may be terminated at any time by the Employer, and upon such termination or upon the dissolution or liquidation of the Employer or in the event that a successor to the Employer by operation of law or by acquisition of its business interests shall not elect to continue the Plan and this Trust, the assets of the Trust shall be distributed as provided in Section 6.4. 6.3 If the Employer fails to retain qualification of. its Plan, the Plan and Trust shall be terminated. 6.4 Upon such termination of the Trust, as provided above, Trustee shall distribute the assets as provided in Section 2.4 hereof and Section 14.4 of the Plan. Upon the completion of such distribution, the Trustee shall be relieved from all further liability. 6.5 No such amendment shall deprive any Participant or his beneficiary of any vested interest he has under the Plan except to the extent that the amendment is necessary in order that the Plan, as it applies to the Employer, may qualify within the terms and conditions of the Internal Revenue Code or any amendment thereof so that contributions of the Employer under the Plan may be deductible under the Code or any amendment thereof. Sprtinn 7 - Prohibited Transactions The Trustee shall not accept or act upon direction from the Plan Administrator or any other person to engage in a transaction known by the Trustee to be a "Prohibited Transaction" under ERISA. In the event of any uncertainty or dispute respecting any such proposed transaction, the Trustee shall not be - required to act or be liable to any person for failing so to act on such direction unless and until'a final administrative or judicial determination shall be obtained by any person interested in such transaction and duly served upon the Trustee and the Trustee shall thereafter have had a reasonable op— portunity to comply with such direction if it is determined to be lawful under the terms of the Plan and ERISA in the opinion of legal counsel. The Trustee is hereby expressly authorized to engage in any transactions not expressly prohibited by ERISA or the terms of this Trust Agreement or the Plan, and properly directed by a Fiduciary with respect to the Plan or a Participant in writing and communicated to the Trustee as. provided in Section 2.2 hereof. Section 8 Prohibition Against Reversion Subject to Section 10.8, nothing in this agreement or any amendment thereto shall be construed so as to permit any part of the contributions to the Plan 10 n IV or the principal or income thereunder to revert to Employer or to be used from or diverted to, any purpose other than for the exclusive benefit of Participants hereunder and their beneficiaries. Section 9 Settlement of Accounts 9.1 General Records: The Trustee shall maintain accurate records and detailed accounts of all investments, receipts, disbursements, and other trans— actions hereunder. Such records shall be available at all reasonable times for inspection by the Plan Administrator, the Employer, or any Fiduciary, Participant or Beneficiary or authorized representative of such persons. The Trustee shall submit, or cause to be submitted, in a timely manner to the Plan Administrator such information as the Plan Administrator may reasonably require in connection with the preparation of the various reports required to be made by ERISA to various regulatory agencies and to Plan Participants and Beneficiaries. In the absence of fraud or bad faith, the valuation of -the Trust by the Trustee shall be conclusive on all parties affected by this Trust. 9.2 Annual Accounting: The later of: (a) 120 days following the close of each Plan Year; or (b) 60 days after receipt of Employer Contribution for the Plan Year ended, the Trustee shall file with the Plan Administrator a written accounting setting forth a description of -all property purchased and sold and all receipts, disbursements, and other transactions effected by it during such period, with valuation as provided in Section 7.3 of the Plan. Further, the Trustee shall list property held by it at the end of such period and such list shall include a valuation of each asset at its fair market value as determined at the close of the Plan Year. The Plan Ad— ministrator may approve such accounting by written notice of approval delivered to the Trustee or by failure to object in writing to the Trustee within sixty (60) days from the date upon which the account was delivered to the Plan Administrator. Upon receipt of written approval of the - account, or upon the passage of said period of time without written objections having been delivered to the Trustee, such accounting shall be deemed to be approved and the Trustee shall be released and discharged as to all items, matters and things set forth in such accounting as if such accounting had been settled and allowed by a decree of a court of competent jurisdiction. Section 10 Miscellaneous 10.1 General Fiduciary Duties: Trustee shall carry out its duties with the care, skill, prudence and diligence which a prudent man acting in like capacity would use under conditions prevailing at the Lime, including diversification of investments so that the risk of loss will be minimized unless this is clearly not prudent under the circumstances, 11 10.2 Ambiguity: This Trust and the Plans adopted in connection herewith are intended to comply with all the requirements for qualification under the provisions of the Internal Revenue Code as it has been amended by 'the ti Employee Retirement Income Security Act of 1974; therefore, if any provision of this Trust is subject to more than one interpretation, such ambiguity will be resolved in favor of that interpretation which shall be consistent with the Trust and the Plan being so qualified. 10.3 The Trustee shall be fully protected in acting upon any instrument, certifi— cate or paper, including the statements referred to in Section 2.2 above, believed by it to be genuine and to be signed or presented by the Plan Ad— ministrator or Employer, and the Trustee shall be under no duty to make any investigation or inquiry as to any statement contained in such writing but may accept same as conclusive evidence of the Truth and accuracy therein contained. 10.4 The Trustee shall not be responsible for the adequacy of the assets of the Trust to meet and discharge any and all distributions and liabilities under the Plan. 10.5 Third Parties: All persons dealing with the Trustee are released from inquiring into the decision or authority of the Trustee and from seeing to the application of any moneys, securities or other property paid or delivered to the Trustee. 10.6 Spendthrift Provision: No Participant entitled to any benefits under these Plan and Trust Agreements, or beneficiary so designated as provided in Section 17.7 of the Plan, shall have any right to assign, pledge, transfer, hypothecate, encumber, commute or anticipate his interest in any benefits under this Master Plan and Trust. To the extent permitted by law such benefits shall not in any way be subject to any legal process or levy of execution or attachment or garnishment proceedings in connection with the payment of any claim against such person. 10.7 Governing Law: This Trust shall, be administered in the United States of America, and its validity, construction and all rights hereunder shall be governed by the laws of the United States under ERISA. To the extent that ERISA shall not be held to have preempted local law, the Trust shall be administered under the laws of the State of Arkansas. If any provision of this Agreement shall be held invalid or unenforceable, the remaining provisions hereof shall continue to be fully effective.' 10.8 In the event the Employer's Plan does not initially meet the qualification requirements of Section 401(a) of the Internal Revenue Code and as a result thereof the Internal Revenue Service makes an adverse determination, and if the Employer is unable or unwilling to amend his Plan in such manner as to qualify his Plan, it shall terminate. Upon such termination, Trustee shall return to Employer contributions made by Employer less any charge made by Insurer in connection with issuance of a contract and less any charge made by Insurer in connection with contract which has matured as a death claim or under which other benefits have accrued and less any Trustee charges. Such termination of Employer's Plan under this Section shall be without further liability to any party thereto. The operation of this Section is conditioned upon Employer having requested a favorable Internal Revenue Service determination letter within a reasonable period after establishment of its Plan. 12 ti F(.f� 4 10.9 Notification of Interested Parties: interested parties of the filing of ments for qualification and provide formation as to how the Plan and/or interests and other information as The Employer agrees to notify all aforementioned Plan and any amend — the interested parties with in— amendment.will affect the parties prescribed by the Secretary of Labor IN WITNESS WHEREOF, the City of Fayettevillehas caused this Trust Agreement to be executed in its name and behalf and ;under its seal this 1st day of June, 1980. THE CITY OF FAYETTEVILLE WITNESS: EMPLOYER: PI Plan Administrator City Manager' McILROY BANK & TRUST WITNEESS:o- f TRUSTEE ST 13