BROWN & BROWN, INC. EMPLOYEE SAVINGS PLAN
(RESTATED EFFECTIVE JANUARY 1, 2016)
BROWN & BROWN, INC. EMPLOYEE SAVINGS PLAN
(RESTATED EFFECTIVE JANUARY 1, 2016)
ARTICLE 1 - BACKGROUND 1
ARTICLE 2 - DEFINITIONS 2
ARTICLE 3 - PARTICIPATION 11
3.1 Eligibility for Participation. 11
3.2 Data. 11
3.3 Credit for Qualified Military Service. 11
ARTICLE 4 - CONTRIBUTIONS 12
4.1 Pre-Tax Elective Deferrals, Roth Elective Deferrals, and Catch-Up Contributions. 12
4.2 Safe Harbor Matching Contributions. 13
4.3 Discretionary Matching Contributions. 13
4.4 Discretionary Profit Sharing Contributions. 14
4.5 Qualified Nonelective Employer Contributions. 15
4.6 Form of Contributions. 16
4.7 Timing and Deductibility of Contributions. 16
ARTICLE 5 - ROLLOVER CONTRIBUTIONS 17
5.1 Requirements for Rollover Contributions. 17
5.2 Delivery of Rollover Contributions. 17
5.3 Withdrawal of Rollover Contributions. 17
ARTICLE 6 - LIMITATIONS ON CONTRIBUTIONS 19
6.1 Annual Limit on Pre-Tax Elective Deferrals and Roth Elective Deferrals. 19
6.2 Safe Harbor Status for Nondiscrimination Testing Purposes. 20
6.3 Maximum Allocations under Section 415 of the Code. 20
6.4 Other Limitations on Employer Contributions. 20
ARTICLE 7 - TRUST AND INVESTMENT FUNDS 22
7.1 Trust. 22
7.2 Investments. 22
ARTICLE 8 - PARTICIPANT ACCOUNTS AND INVESTMENT ELECTIONS 23
8.1 Participant Accounts. 23
8.2 Investment Elections. 23
8.3 Valuation of Funds and Plan Accounts. 23
ARTICLE 9 - VESTING 25
9.1 100 Percent Vesting Upon Retirement, Death or Disability. 25
9.2 100 Percent Vesting of Certain Accounts. 25
9.3 Gradual Vesting of All Other Contributions. 25
9.4 Forfeitures. 26
9.5 Accounts of Reemployed Participants 26
9.6 Vesting upon Complete Termination or Discontinuance of Contributions. 27
9.7 Vesting Requirement upon Partial Termination. 28
9.8 Amendments to the Vesting Schedule. 28
9.9 Service for Vesting Purposes When Previously Frozen Plan Resumes Allocations. 28
ARTICLE 10 – DISTRIBUTIONS 30
10.1 In General. 30
10.2 Distribution of Vested Account Upon Termination of Employment or Disability 30
10.3 Distribution of Benefit Upon Death. 32
10.4 Direct Rollover Option. 35
10.5 Distribution of Property. 37
10.6 Missing Persons. 37
10.7 Distributions to Minor and Disabled Distributees. 37
10.8 Required Minimum Distribution 37
10.9 Statutory Commencement of Benefits. 38
ARTICLE 11 – IN-SERVICE WITHDRAWALS 39
11.1 Financial Hardship Withdrawals. 39
11.2 Withdrawals On or After Age 59-1/2. 40
11.3 Withdrawal of Rollover Contributions. 41
ARTICLE 12 – LOANS 42
12.1 Loans to Participants. 42
12.2 General Rules. 42
12.3 Maximum Loan Amount. 42
12.4 Minimum Loan Amount. 42
12.5 Loan Repayments. 43
12.6 Assignments and Pledges Treated as Loans. 43
ARTICLE 13 – PROTECTED BENEFITS 44
13.1 In General. 44
13.2 List of Protected Benefits. 44
13.3 Application of Code §411(a) With Respect to Protected Benefits. 44
ARTICLE 14 – STOCK BONUS PLAN PORTION PROVISIONS 45
14.1 Definitions. 45
14.2 Purpose. 46
14.3 Dividends. 47
14.4 Distribution of Company Stock. 47
14.5 No Authorization for Exempt Loan. 47
14.6 Participant Voting Rights. 47
14.7 Diversification of Participant's Account. 48
14.8 Put Option. 48
ARTICLE 15 – ADMINISTRATION 50
15.1 Administrator’s General Powers and Duties. 50
15.2 Correcting Administrative Errors. 51
15.3 Promulgating Notices and Procedures. 51
15.4 Employment of Agents and Counsel. 52
15.5 Compensation and Expenses. 52
15.6 Claims Procedures. 53
15.7 Qualified Domestic Relations Orders. 53
15.8 Appointment of an Investment Manager. 53
15.9 Committee Provisions 54
ARTICLE 16 - PARTICIPATING EMPLOYERS 56
16.1 Participating Employers 56
16.2 Plan Contributions 56
16.3 Plan Amendments 56
16.4 Plan Expenses 56
16.5 Employee Transfers 56
16.6 Termination of Participation 57
ARTICLE 17 - MISCELLANEOUS 58
17.1 No Contract of Employment. 58
17.2 Title to Assets. 58
17.3 Fiduciaries and Bonding. 58
17.4 Severability of Provisions. 58
17.5 Interpretation of the Plan and Trust. 58
17.6 Costs and Expenses of Legal Action. 59
17.7 Qualified Plan Status. 59
17.8 Mailing of Notices to Administrator, Employer or Trustee. 59
17.9 Participant Notices and Waivers of Notices. 59
17.10 Evidence Furnished Conclusive. 60
17.11 Release of Claims. 60
17.12 No Duplication of Benefits. 60
17.13 Discontinued Contributions. 60
17.14 Multiple Copies of Plan and Trust Agreement. 60
17.15 Limitation of Liability and Indemnification. 60
17.16 Written Elections and Forms. 61
17.17 Assignment and Alienation of Benefits. 61
17.18 Exclusive Benefit Rule. 61
ARTICLE 18 - TOP-HEAVY PLAN REQUIREMENTS 62
18.1 Top-Heavy Plan Determination. 62
18.2 Definitions and Special Rules. 62
18.3 Minimum Contribution for Top-Heavy Years. 63
ARTICLE 19 - AMENDMENT, PLAN TERMINATION 64
19.1 Authority of Board to Terminate 64
19.2 Authority of Board and Administrator to Amend 64
19.3 Effective Date of Amendment 64
19.4 Merger 65
EXECUTION 66
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BROWN & BROWN, INC. EMPLOYEE SAVINGS PLAN
(RESTATED EFFECTIVE JANUARY 1, 2016)
ARTICLE 1 - BACKGROUND
Brown & Brown, Inc. (the “Company”) restates and amends the Brown & Brown,
Inc. Employee Savings Plan (the "Plan"), effective January 1, 2016 (the “Effective Date”),
or such other dates as may be specifically provided herein, or as otherwise required by law
for the Plan to satisfy the requirements of Section 401(a) of the Code. The original
effective date of the Plan was January 1, 1985. This restatement of the Plan incorporates
the Plan amendments from the prior restatement of the Plan, which was effective January
1, 2015, through January 1, 2016.
The Plan consists of two portions, i.e., a 401(k) Cash or Deferred Portion and a
Stock Bonus Portion. In addition, the Stock Bonus Portion of the Plan is designated as an
employee stock ownership intended to invest primarily in Company Stock and satisfy the
requirements of Sections 409 and 4975(e)(7) of the Code. Company Stock held by the
Plan will be deemed to be held in the Stock Bonus Plan Portion of the Plan. The
Administrator may direct the Trustee to invest in assets other than Company Stock to
provide for expenses and distributions to the extent the Plan Administrator deems
appropriate. The assets of the Plan that are not held in Company Stock will constitute the
Section 401(k) Cash or Deferred Portion of the Plan. The foregoing will apply regardless
of which of the Participants' accounts/sub-accounts within the Plan hold the various
assets.
Except as provided to the contrary herein, the provisions of this restated Plan will
apply only to Employees who complete an Hour of Service on or after the Effective Date.
The rights of any other individual will be governed by the Plan as in effect upon the date of
his termination of employment.
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ARTICLE 2 - DEFINITIONS
The following words and phrases will have the following respective meanings when
capitalized herein. Any term that is used herein without an initial capital letter and that is
used in a provision of the Code with which the Plan must comply to meet the requirements
of Section 401(a) of the Code, will be interpreted as having the meaning used in such
provision of the Code, if necessary for the Plan to comply with such provision.
Account. “Account” means the aggregate of a Participant’s sub-accounts described
in Section 8.1 of the Plan and such other sub-accounts that may be established from time
to time on behalf of a Participant, to be credited with contributions made by or on behalf of
the Participant, adjusted for earnings and losses, and debited by distributions to and
withdrawals of the Participant and expenses.
Administrator. “Administrator” means the Investment Committee of the Brown &
Brown, Inc. Employee Savings Plan. References in the Plan to the Administrator also will
include any person or entity to whom the Administrator has delegated any of its authority
pursuant to Article 15 of the Plan, to the extent of the delegation.
Affiliate. “Affiliate” means:
(a) A corporation that is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Code) as an Employer;
(b) A trade or business (whether or not incorporated) under common control
(within the meaning of Section 414(c) of the Code) with an Employer;
(c) Any organization (whether or not incorporated) that is a member of an
affiliated service group (within the meaning of Section 414(m) of the Code) that includes an
Employer, a corporation described in clause (a) of this subdivision or a trade or business
described in clause (b) of this subdivision; or
(d) Any other entity that is required to be aggregated with an Employer pursuant
to Regulations promulgated under Section 414(o) of the Code.
Age. “Age” means an individual’s age on his last birthday, except that an individual
reaches Age 59½ or Age 70½ on the corresponding date in the sixth calendar month
following the month in which his 59th or 70th (respectively) birthday falls (or the last day of
such sixth month if there is no such corresponding date therein).
Allocation Period. “Allocation Period” means a period of 12 consecutive months or
less for which an Employer contribution is made and allocated under the terms of the Plan
and/or earnings and losses are allocated under the terms of the Plan.
Beneficiary. “Beneficiary” means a person entitled under Section 10.6 of the Plan
to receive benefits in the event of the death of a Participant. Subject to the provisions of
Section 10.3 of the Plan regarding the rights of a Participant's Spouse, each Participant
may designate a Beneficiary in writing with the Administrator. If a Participant designates
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his or her Spouse and the Participant and his or her Spouse are legally divorced
subsequent to the date of the designation, then the designation of such Spouse as a
Beneficiary will be deemed null and void unless the Participant, subsequent to the legal
divorce, reaffirms the designation in writing. In the absence of any other designation, the
Participant will be deemed to have designated the following Beneficiaries in the following
order, provided however, that with respect to clauses (1) and (2) following, such
Beneficiaries are then living: (1) the Participant's Spouse, (2) the Participant's issue per
stirpes; and (3) the Participant's estate. In the absence of a Beneficiary designation or
other directive from a Participant to the contrary, any Beneficiary may name his or her own
Beneficiary under Section 10.3(a)(4) of the Plan to receive any benefits payable in the
event of the Beneficiary's death prior to the receipt of all the Participant's death benefits to
which the Beneficiary was entitled. Notwithstanding any provision in this definition of
“Beneficiary” to the contrary, any Beneficiary named hereunder will be considered a
contingent Beneficiary until the death of the Participant (or Beneficiary, as the case may
be), and until such time will have no rights granted to Beneficiaries under the Plan.
Benefit Commencement Date. “Benefit Commencement Date” means, for any
Participant or Beneficiary, the date as of which the first benefit payment, including a single
sum, from the Participant’s Account is due.
Board. “Board” means the Board of Directors of the Company.
Break in Service. With respect to any provision of the Plan that relates to the
determination of Service for purposes of eligibility to participate in the Plan, “Break in
Service” means a 12-month period of absence from employment with any Employer. With
respect to any provision of the Plan that relates to the determination of Service for
purposes of vesting, “Break in Service” means a Plan Year during which an Employee is
not credited with more than 500 Hours of Service. If any computation period is less than 12
consecutive months, then the Hours of Service threshold set forth in the preceding
sentence will be proportionately reduced.
Catch-Up Contributions. For any eligible Participant, “Catch-Up Contributions”
means contributions on his behalf as provided in Section 4.1(d) of the Plan that are made
in accordance with, and subject to the limitations of, Section 414(v) of the Code.
Code. “Code” means the Internal Revenue Code of 1986, as amended.
Company. “Company” means Brown & Brown, Inc., a Florida corporation, and any
successor thereto.
Compensation. For each Employee, for any Plan Year, Limitation Year, or other
period stated in the Plan with respect to a specific purpose (e.g., contribution allocation) or
statutory determination (e.g., whether an Employee is a Highly Compensation Employee):
(a) In General. Except as otherwise provided for specific purposes in subsection
(b) of this definition, and subject to the limitation set forth in subsection (c) of this definition,
“Compensation” means the Employee’s W-2 Wages (as defined below) for the relevant
period, excluding Compensation received prior to becoming a Participant, and excluding
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any differential wage payment (within the meaning of Section 3401(h)(2) of the Code) paid
with respect to a period during which the Employee is performing service in the uniformed
services while on active duty for more than 30 days, and excluding reimbursements or
other expense allowances, fringe benefits (cash and non-cash), moving expenses,
deferred compensation, and welfare benefits, but including pre-tax Elective Deferrals and
elective contributions that are not includible in gross income under Sections 125 or
402(a)(8) of the Code.
(1) For purposes of the Plan, “W-2 Wages” means wages as defined in
section 3401(a) of the Code, and all other payments of compensation for which the
Employer is required to furnish the Employee a written statement under Sections 6041(d)
and 6051(a)(3) of the Code, determined without regard to any rules under Section 3401(a)
of the Code that limit remuneration included in wages based on the nature or location of
the employment or services performed.
(b) For Purposes of Key Employee Determination, Top Heavy Allocations,
Highly Compensation Employee Determinations, and Section 415 Limitations. For
the purposes of Article 6 and Article 18 of the Plan, subject to the limitation set forth in
subsection (c) of this definition, “Compensation” means the Employee’s W-2 Wages,
including any elective deferral as defined by Section 402(g)(3) of the Code, all employee
contributions to an annuity under Section 403(b) of the Code, any amount that is
contributed or deferred by an Employer or Affiliate at the election of the Employee and that
is not includible in the gross income of the Employee by reason of Sections 125, 132(f), or
457 of the Code, and any differential wage payment (within the meaning of Section
3401(h)(2) of the Code) paid with respect to a period during which the Employee is
performing service in the uniformed services while on active duty for more than 30 days.
(c) Annual Dollar Limit. Only compensation not in excess of $265,000, as
adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the Code,
will be considered for all purposes other than for Elective Deferral purposes under Section
402(g) of the Code. If a Compensation determination period is less than 12 consecutive
months, then the Compensation limit described in this subsection (c) will be multiplied by a
fraction, the numerator of which is the number of months in the Compensation
determination period, and the denominator of which is 12.
(d) Post-Severance Compensation. Compensation includes the following
amounts that would have been included in the Participant’s Compensation if the amounts
were paid prior to the Participant’s termination of employment and that are paid to the
Participant by the later of 2½ months after the Participant’s termination of employment or
the end of the Limitation Year that includes the Participant’s date of termination of
employment:
(1) Regular pay after termination of employment if:
(A) the payment is regular compensation for services during the
Participant’s regular working hours, or compensation for services outside the Participant’s
regular working hours (such as overtime or shift differential), commissions, bonuses, or
other similar payments, and
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(B) the payment would have been paid prior to termination of
employment if the Participant had continued in employment with the Employer;
(2) Leave cashouts and deferred compensation if the amount is either:
(A) payment for unused accrued bona fide sick, vacation, or other
leave, but only if the Participant would have been able to use the leave if employment had
continued, or
(B) received by the Participant pursuant to a nonqualified unfunded
deferred compensation plan, but only if the payment would have been paid to the
Participant at the same time if the Participant had continued in employment with the
Employer and only to the extent that the payment is includible in the Participant’s gross
income.
Disability. “Disability” means a Participant’s physical or mental impairment that, in
the opinion of the Social Security Administration, qualifies the Participant for disability
benefits under the Social Security Act in effect on the date that the Participant suffers the
mental or physical impairment.
Discretionary Matching Contribution. “Discretionary Matching Contribution”
means a matching contribution made by the Employer pursuant to Section 4.3 of the Plan.
Discretionary Profit Sharing Contribution. “Discretionary Profit Sharing
Contribution” means a nonelective Employer contribution made pursuant to Section 4.4 of
the Plan.
Early Retirement Age. “Early Retirement Age” means Age 59½, provided that the
Participant is also credited with at least 5 Years of Service.
Effective Date. “Effective Date” means the effective date of this restatement of the
Plan, which is January 1, 2016.
Elective Deferral. “Elective Deferral” means any Employer contribution made to the
Plan at the election of the Participant in lieu of cash Compensation, and includes a Pre-
Tax Elective Deferral and a Roth Elective Deferral.
Eligibility Computation Period. “Eligibility Computation Period” means a period of
12 consecutive months that is used for purposes of eligibility to participate in the Plan. An
Employee's initial Eligibility Computation Period will begin on his or her Employment
Commencement Date, and the second Eligibility Computation Period will begin on the first
day of the Plan Year which begins prior to the first anniversary of the Employee's
Employment Commencement Date (regardless of whether the Employee is credited with a
specific number of Hours of Service during the initial Eligibility Computation Period) and
each subsequent Eligibility Computation Period will consist of each subsequent Plan Year.
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Eligible Employee. “Eligible Employee” means an Employee other than an
Employee:
(a) Who is not treated as an Employee of an Employer on such Employer’s
payroll records (notwithstanding any determination by a court or administrative agency that
such individual is an Employee);
(b) Who is not a United States citizen or a resident alien and who provides
services in a location other than the United States; or
(c) Who is not expected to work at least 1,000 Hours of Service in an Eligibility
Computation Period; provided, however, that if such an Employee completes 1,000 Hours
of Service in an Eligibility Computation Period, such Employee will be an Eligible
Employee.
No individual who renders services for an Employer will be an Eligible Employee if
such individual renders services as a Leased Employee or pursuant to an agreement or
arrangement (written or oral) that such services are to be rendered by the individual as an
independent contractor.
Eligible Retirement Plan. “Eligible Retirement Plan” means any of:
(a) An individual retirement account described in Section 408(a) of the Code
(including a Roth IRA described in Section 408A of the Code);
(b) An individual retirement annuity described in Section 408(b) of the Code
(including a Roth IRA described in Section 408A of the Code, and excluding any
endowment contract);
(c) An employees’ trust described in Section 401(a) of the Code which is exempt
from tax under Section 501(a) of the Code;
(d) An annuity plan described in Section 403(a) of the Code;
(e) An eligible deferred compensation plan described in Section 457(b) of the
Code which is maintained by a state, political subdivision of a state or any agency or
instrumentality of a state or political subdivision of a state which agrees to account
separately for amounts transferred into such plan; and
(f) An annuity contract described in Section 403(b) of the Code.
Employee. “Employee” means an individual whose relationship with an Employer
is, under common law, that of an employee.
Employer. “Employer” means the Company or any Participating Employer. A
Participating Employer automatically will cease being an Employer as of the date it ceases
to be an Affiliate.
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Employment Commencement Date. For any Employee, “Employment
Commencement Date” means the date on which he is first entitled to be credited with an
Hour of Service.
ERISA. “ERISA” means the Employee Retirement Income Security Act of 1974, as
amended.
Forfeiture Account. “Forfeiture Account” means the notational bookkeeping
account into which all forfeitures are placed pending usage pursuant to Section 9.4(b) of
the Plan.
Highly Compensated Employee. For a Plan Year, a “Highly Compensated
Employee” is any Employee who:
(a) Is a 5-percent-owner (as determined under Section 416(i)(1) of the Code) at
any time during the current Plan Year or the preceding Plan Year; or
(b) For the preceding Plan Year, was paid compensation in excess of $115,000
(as adjusted in accordance with Section 414(q)(1)(B) of the Code) from an Employer or
Affiliate.
Hour of Service. “Hour of Service” means:
(a) With respect to any provision of the Plan that relates to the determination of
Service for purposes of eligibility to participate in the Plan, each hour for which an
Employee is paid, or is entitled to payment, by an Employer or an Affiliate for the
performance of duties.
(b) With respect to any provision of the Plan that relates to the determination of
Service for purposes of vesting:
(1) Each hour for which an Employee is paid, or entitled to payment, for
the performance of duties for the Employer or an Affiliate, which will be credited to the
Employee for the computation period in which the duties are performed;
(2) Each hour for which an Employee is paid, or entitled to payment, by
the Employer or an Affiliate 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, except that no more than 501 Hours of Service will be credited under
this clause (2) for any single continuous period (regardless of whether such period occurs
in a single computation period); and
(3) Each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Employer or an Affiliate, except that the same Hours
of Service will not be credited both under clause (1) or clause (2), as the case may be, and
under this clause (3), and these Hours of Service will be credited to the Employee for the
computation period or periods to which the award or agreement pertains rather than the
8
computation period in which the award, agreement or payment is made. Hours of Service
under this paragraph will be calculated and credited pursuant to Department of Labor
Regulation Section 2530.200b-2, which is incorporated herein by reference. Furthermore,
Hours of Service will be credited for any individual who is considered to be an Employee
under Section 414(n) of the Code for purposes of this Plan.
(c) Maternity/Paternity Leave. Solely for purposes of determining whether a
Break in Service has occurred in a computation period for purposes of an Employee's
eligibility for Plan participation, Vesting, and benefit accrual/allocation, an individual on
Maternity or Paternity Leave will receive credit for up to 501 Hours of Service which would
otherwise have been credited to such individual but for such absence, or in any case in
which such hours cannot be determined, 8 Hours of Service per day of such absence. The
Hours of Service credited for a Maternity or Paternity Leave will be credited in the
computation period in which the absence begins if the crediting is necessary to prevent a
Break in Service in that computation period, or in all other cases, in the following
computation period. The term "Maternity or Paternity Leave" means an Employee's
absence from work because of (a) the Employee's pregnancy; (b) the birth of the
Employee's child; (c) the placement of a child with the Employee in connection with the
adoption of such child by the Employee; or (d) the need to care for such child for a period
beginning immediately following the child's birth or placement as set forth above.
Leased Employee. “Leased Employee” means any person (other than an
Employee of the recipient-Employer) who pursuant to an agreement between the recipient-
Employer and other person (known as the "Leasing Organization") has performed services
for the recipient-Employer (or for the recipient-Employer and related persons determined in
accordance with Section 414(n)(6) of the Code) on a substantially full time basis for a
period of at least one year, and such services are performed under primary direction or
control by the recipient-Employer. Contributions or benefits provided to a Leased
Employee by the Leasing Organization that are attributable to services performed for the
recipient-Employer will be treated as provided by the recipient-Employer. A Leased
Employee will not be considered an Employee of the recipient-Employer if (a) such Leased
Employee is covered by a money purchase plan providing (1) a non-integrated Employer
contribution rate of at least 10 percent of the Leased Employee's compensation
determined under Section 415(c)(3) of the Code; (2) immediate participation in such plan;
and (3) full and immediate vesting; and (b) Leased Employees do not constitute more than
20 percent of the recipient-Employer's non-highly compensated work force.
Named Fiduciary. “Named Fiduciary” means the Administrator or other fiduciary
named by the Administrator to control and manage the operation and administration of the
Plan. To the extent authorized by the Administrator, a Named Fiduciary may delegate its
responsibilities to a third party or parties. The Employer is also a Named Fiduciary.
Normal Retirement Age. “Normal Retirement Age” means Age 65.
Participant. “Participant” means an Eligible Employee who has satisfied the
requirements set forth in Section 3.1 of the Plan. An individual shall cease to be a
Participant upon the complete distribution of his or her vested Account.
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Participating Employer. “Participating Employer" means the Affiliates that are
identified in Section 16.1 of the Plan as authorized by the Company to participate in the
Plan on account of their Employees.
Period of Service. The aggregate of the periods during which an Employee is
employed by an Employer, subject to the following:
(a) An Employee will be deemed to be employed by an Employer during:
(1) any period of absence from employment by an Employer that is of less
than 12 months’ duration,
(2) the first 12 months of any period of absence from employment by an
Employer for any reason other than the Employee’s quitting, retiring, being discharged or
death, and
(3) any period of absence from employment by an Employer due to or
necessitated by the Employee’s Qualified Military Service, provided that the Employee
returns to the employ of an Employer within the period prescribed by USERRA.
(b) An Employee’s period of employment by an entity other than an Affiliate that
becomes a Predecessor Company will be included as Service only to the extent expressly
provided in the documents effecting the acquisition or otherwise required by law.
Plan. “Plan” means the Brown & Brown, Inc. Employee Savings Plan, as set forth
herein and amended from time to time.
Plan Year. “Plan Year” means the calendar year.
Predecessor Company. Any entity:
(a) Of which an Affiliate is a successor by reason of having acquired all or
substantially all of its business and assets; or
(b) From which an Affiliate acquired a business formerly conducted by such
entity;
provided, however, that in the case of any such entity that continues to conduct a trade or
business subsequent to the acquisition by an Affiliate referred in (a) or (b) above, the
status of such entity as a Predecessor Company relates only to the period of time prior to
the date of such acquisition.
Pre-Tax Elective Deferral. “Pre-Tax Elective Deferral” means a Participant’s
Elective Deferral that is not includible in the Participant’s gross income at the time that the
Elective Deferral is deferred.
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Qualified Military Service. “Qualified Military Service” means an individual’s
service in the uniformed services (as defined in 38 U.S.C. Section 4303) if such individual
is entitled to reemployment rights under USERRA with respect to such service.
Regulations. “Regulations” means written regulations promulgated by the
Department of Labor construing Title I of ERISA or by the Internal Revenue Service
construing the Code.
Roth Elective Deferral. “Roth Elective Deferral” means a Participant's Elective
Deferral that is includible in the Participant's gross income at the time that the Elective
Deferral is deferred, and has been irrevocably designated as a Roth Elective Deferral by
the Participant in his deferral election.
Safe Harbor Matching Contribution. “Safe Harbor Matching Contribution” means
a matching contribution made by the Employer pursuant to Section 4.2 of the Plan.
Spouse. "Spouse" means the person to whom a Participant is legally married under
Federal law. A former Spouse will be treated as the Participant's Spouse or surviving
Spouse to the extent provided under a qualified domestic relations order as described in
Section 414(p) of the Code.
Trust. “Trust” means the trust described in Section 7.1 of the Plan and created by
agreement between the Company and the Trustee.
Trust Fund. “Trust Fund” means all money and property of every kind of the Trust
held by the Trustee pursuant to the terms of the agreement governing the Trust.
Trustee. “Trustee” means the person or entity appointed by the Board and serving
as trustee of the Trust.
USERRA. “USERRA” means the Uniformed Services Employment and
Reemployment Rights Act of 1994, as amended.
Valuation Date. “Valuation Date” means each day on which the New York Stock
Exchange is open for trading and any other day determined by the Administrator.
Vested Account. “Vested Account” means the nonforfeitable portion of a
Participant’s Account, as determined in accordance with Article 9 of the Plan.
Year of Service. “Year of Service” means a Plan Year during which an Employee is
credited with 1,000 Hours of Service with the Employer or an Affiliate. If any Plan Year is
less than 12 months, then the Hours of Service requirement set forth herein will be
proportionately reduced for purposes of determining whether an Employee is credited with
a Year of Service during such short Plan Year. Alternatively, with respect to a Plan Year,
an Employee will be credited with a Year of Service pursuant to Department of Labor
Regulation Section 2530.203-2(c).
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ARTICLE 3 - PARTICIPATION
3.1 Eligibility for Participation.
(a) Each Eligible Employee as of the Effective Date who was a Participant
immediately before the Effective Date shall continue to be a Participant as of the Effective
Date.
(b) Each Eligible Employee who was not a Participant immediately before the
Effective Date shall become a Participant on the first day of the payroll period coincident
with or following the date on which he has attained age 18 and completed a 1-month
Period of Service.
(c) If an individual is not an Eligible Employee on the first day of the payroll
period coincident with or following the date on which he has attained age 18 and
completed a 1-month Period of Service, he shall become a Participant on the first day of
the payroll period coincident with or following the date on which he becomes an Eligible
Employee.
(d) If an Eligible Employee does not attain age 18 and/or complete a 1-month
Period of Service prior to incurring a termination of employment, but is rehired by an
Employer prior to a 12-month period of absence of employment with an Employer, the prior
Period of Service will be considered for purposes of satisfying the requirements of Section
3.1(b). If the Eligible Employee is absent from employment with an Employer for 12
months or longer, his prior Period of Service will not be considered upon a subsequent
Employment Commencement Date.
(e) A Participant who ceases to be an Eligible Employee, due to incurring a
termination of employment or otherwise, and who later again becomes an Eligible
Employee, shall become a Participant as of the date on which he first again completes an
Hour of Service as an Eligible Employee.
3.2 Data.
Each Employee shall furnish to the Administrator such data as the Administrator
may consider necessary for the determination of the Employee’s rights and benefits under
the Plan, and shall otherwise cooperate fully with the Administrator in the administration of
the Plan.
3.3 Credit for Qualified Military Service.
Notwithstanding any provision in the Plan to the contrary, service credit with respect
to Qualified Military Service will be provided in accordance with Section 414(u) of the
Code.
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ARTICLE 4 - CONTRIBUTIONS
4.1 Pre-Tax Elective Deferrals, Roth Elective Deferrals, and Catch-Up
Contributions.
(a) Election to Make Elective Deferrals. Each Participant may elect to make
pre-tax Elective Deferrals or Roth Elective Deferrals by filing a notice of such election with
the Administrator in accordance with procedures established by the Administrator. Such
notice will authorize the Employer to reduce such Participant’s cash remuneration by an
amount determined in accordance with Section 4.1(b) of the Plan and to make pre-tax
Elective Deferrals or Roth Elective Deferrals on such Participant’s behalf in the amount of
such reduction. Such election will be effective as soon as administratively practicable
following receipt of his election by the Administrator. The Administrator, pursuant to an
administrative policy regarding Elective Deferrals that is promulgated under Section 15.3 of
the Plan, may establish provisions including, but not limited to, provisions that (1) set the
maximum Elective Deferral percentage for Participants who are Highly Compensated
Employees (if such percentage is less than the maximum percentage set forth in Section
4.1(b) of the Plan), and (2) permit a Participant to identify separate components of the
Participant's Compensation (such as base salary, bonuses, etc.) and to specify that a
different Elective Deferral percentage (or dollar amount) apply to each such component.
(b) Contribution of Elective Deferrals. Subject to the limitations set forth in
Article 6 of the Plan, the Employer shall contribute a pre-tax Elective Deferral and/or a
Roth Elective Deferral for each payroll period on behalf of each Participant in an amount
equal to a percentage of the Participant’s Compensation for the payroll period as elected
by the Participant pursuant to Section 4.1(a) of the Plan. The percentage of Compensation
designated by a Participant for a payroll period may not be less than 1 percent and may
not be more than 70 percent. The aggregate of a Participant’s pre-tax Elective Deferrals
and Roth Elective Deferrals for a payroll period pursuant to this Section 4.1(b) may not
exceed an amount equal to 70 percent of the Participant’s Compensation for the payroll
period.
(c) Annual Dollar Limit on Elective Deferrals. Except as otherwise provided in
Section 4.01(c) of the Plan with respect to Catch-Up Contributions, Pre-tax Elective
Deferrals and Roth Elective Deferrals made on behalf of a Participant under this Plan,
together with elective deferrals under any other plan or arrangement maintained by any
Employer or Affiliate, will not exceed $18,000 (as adjusted in accordance with Section
402(g) of the Code and Regulations thereunder) for any calendar year. To the extent
necessary to satisfy this limitation for any year, elections under Section 4.1(a) of the Plan
may be prospectively restricted.
(d) Catch-Up Contributions. Each Participant who (i) is eligible to make Pre-
Tax Elective Deferrals or Roth Elective Deferrals under the Plan and (ii) will attain age 50
before the end of the Plan Year will be eligible to have Pre-Tax Elective Deferrals and/or
Roth Elective Deferrals made on his or her behalf in addition to those described in Section
4.1(b) of the Plan. Catch-Up Contributions will be elected, made, suspended, resumed and
credited in accordance with and subject to the rules and limitations of Section 414(v) of the
Code and such other rules and limitations prescribed by the Administrator from time to
13
time; provided, however, that the amount of catch-up contributions made on behalf of a
Participant during a Plan Year will not exceed the maximum amount permitted under
Section 414(v)(2) of the Code for the calendar year ($6,000 for 2015). Catch-Up
Contributions will not be taken into account for purposes of Sections 6.1 and 6.3 of the
Plan, and the Plan will not be treated as failing to satisfy its provisions implementing the
requirements of Sections 401(k)(3), 401(k)(11), 401(k)(12), 410(b) or 416 of the Code, as
applicable, by reason of the making of Catch-Up Contributions.
(e) Discontinuance of Elective Deferrals and Catch-Up Contributions. A
Participant may discontinue his Pre-Tax Elective Deferrals, Roth Elective Deferrals, or
Catch-Up Contributions at any time. Such discontinuance will become effective as soon as
administratively practicable following receipt of notice of the discontinuance by the
Administrator.
4.2 Safe Harbor Matching Contributions.
(a) Amount. Subject to the limitations set forth in Article 6 of the Plan, the
Employer shall make a Safe Harbor Matching Contribution for each payroll period on
behalf of each Participant equal to the sum of:
(1) 100 percent of the Participant’s Elective Deferrals (including Catch-Up
Contributions) that do not exceed 3 percent of Compensation for the payroll period, plus
(2) 50 percent of the Participant’s Elective Deferrals (including Catch-Up
Contributions) that exceed 3 percent of Compensation for the payroll period but do not
exceed 5 percent of Compensation for the payroll period.
(b) Additional “True-Up” Contribution. If on the last day of any Plan Year, the
dollar amount of the Safe Harbor Matching Contributions made on behalf of a Participant is
less than the dollar amount that would have been made had the Safe Harbor Matching
Contributions been contributed for an Allocation Period of a Plan Year, then the Employer
may elect, pursuant to the Employer's discretion and subject to any Safe Harbor Notice
requirements, for any Plan Year to make an additional Safe Harbor Matching Contribution
so that the Safe Harbor Matching Contribution contributed for a Participant is equal to the
Safe Harbor Matching Contribution that would have been made had the Safe Harbor
Matching Contributions been contributed for an Allocation Period of the Plan Year.
However, any such additional Safe Harbor Matching Contributions may only be made to
the Plan on a uniform, nondiscriminatory basis.
4.3 Discretionary Matching Contributions.
(a) In General.
(1) The Employer, in its discretion, may contribute a matching contribution
on behalf of each eligible Participant for whom Elective Deferrals are made during the Plan
Year. Such discretionary matching contributions will be equal to a specified percentage of
the amount of the Elective Deferrals (including Catch-Up Contributions) made to the Plan
by the Participant, but will not exceed 2½ percent of the Participant’s Compensation.
14
(2) The Company's discretion in establishing a discretionary matching
contribution formula includes, but is not limited to, establishing the amount of the
contributions, the Allocation Period, the rate of match, as well as establishing a maximum
contribution per Participant (either as a dollar maximum per Participant, a maximum
percentage of each Participant's Compensation, and/or a maximum amount of each
Participant’s Elective Deferrals that will be recognized for matching purposes). In addition,
the Employer must, on or before the due date (plus any extensions) for filing the
Employer's tax return, adopt a written resolution (or other written action) that describes the
rate of match and the maximum limitations, if any, imposed on the discretionary matching
contribution for the Allocation Period. Any such matching contribution will then be allocated
to each Participant's Discretionary Matching Contribution Account in the ratio that each
such Participant's Elective Deferrals (including Catch-Up Contributions) for the Allocation
Period bears to the total Elective Deferrals (including Catch-Up Contributions) of all such
Participants for the Allocation Period, subject to any maximum limitations imposed on the
allocation in the written resolution (or other written action).
(b) Additional “True-Up” Contributions. If:
(1) the Allocation Period for discretionary matching contributions is a
computation period that is less than the Plan Year, and
(2) on the last day of any Plan Year, the dollar amount of the discretionary
matching contributions made on behalf of a Participant is less than the dollar amount that
would have been made had the discretionary matching contributions been contributed for
an Allocation Period of a Plan Year,
then the Employer may elect, pursuant to the Employer's discretion, for any Plan Year to
make an additional discretionary matching contribution so that the discretionary matching
contribution contributed for a Participant is equal to the discretionary matching contribution
that would have been made had the discretionary matching contribution been contributed
for an Allocation Period of the Plan Year. However, any such additional discretionary
matching contribution can only be made to the Plan on a uniform, nondiscriminatory basis.
In order to determine the group of Participants who are eligible to receive the additional
discretionary matching contribution, the Employer may impose allocation conditions that
are different from the allocation conditions used to determine Participants for purposes of
other discretionary matching contribution.
4.4 Discretionary Profit Sharing Contributions.
(a) In General.
(1) Subject to the limitations set forth in Article 6, the Employer in its
discretion may make a Discretionary Profit Sharing Contribution in such amount as the
Employer in its discretion may determine. Any such Discretionary Profit Sharing
Contribution will be allocated among the eligible Participants (determined in accordance
with Section 4.4(b) below) for the Allocation Period.
15
(2) The Employer’s discretion in establishing a Discretionary Profit
Sharing Contribution includes, but is not limited to, establishing the amount of the
contribution, the Allocation Period, as well as establishing a maximum contribution per
Participant (either as a dollar maximum per Participant and/or a maximum percentage of
each Participant's Compensation). In addition, the Employer must, on or before the due
date (plus any extensions) for filing the Employer's tax return, adopt a written resolution (or
other written action) that describes the amount of the contribution and the maximum
limitations, if any, imposed on the Discretionary Profit Sharing Contribution for the
Allocation Period. Any such Discretionary Profit Sharing Contribution will then be allocated
to each eligible Participant's Discretionary Profit Sharing Contribution Account in the ratio
that each such eligible Participant's Compensation for the Allocation Period bears to the
total Compensation of all such eligible Participants for the Allocation Period, subject to any
maximum limitations imposed on the allocation in the written resolution (or other written
action).
(b) Eligibility for Allocation of Discretionary Profit Sharing Contributions. A
Participant who is an Employee on the last day of the Allocation Period will be eligible for
an allocation of a Discretionary Profit Sharing Contribution for the Allocation Period. A
Participant who ceases to be an Employee for any reason prior to the last day of the
Allocation Period will not be eligible for an allocation of a Discretionary Profit Sharing
Contribution for the Allocation Period.
4.5 Qualified Nonelective Employer Contributions.
The Employer may make a Qualified Non-Elective Contribution to the Plan in such
amount as the Employer, in its sole discretion, may determine is necessary to satisfy a
nondiscrimination test that may apply to the Plan, subject to the following provisions:
(a) Contributions Treated as Qualified Non-Elective Contributions. The
Employer may elect to treat all or any portion of a Discretionary Profit Sharing Contribution
as a Qualified Non-Elective Contribution.
(b) Allocation of Qualified Non-Elective Contributions. Qualified Non-
Elective Contributions and Discretionary Profit Sharing Contributions that are treated as
Qualified Non-Elective Contributions will be allocated to the Qualified Non-Elective
Contribution Account of each eligible Participant (determined in accordance with Section
4.5(b)(2) below) for the Allocation Period. Such contributions will be allocated in the
manner elected by the Administrator, subject to the following:
(1) Permissible Methods of Allocation. The Administrator may elect to
make the allocation from one of the following allocation methods: (A) pro-rata based on the
Compensation of each eligible Participant; (B) pro-rata based on the Compensation of
each eligible Participant starting with the Eligible Participant with the lowest amount of
Compensation and working up until an applicable nondiscrimination test is satisfied; (C)
per capita to each eligible Participant; or (D) per capita based on the Compensation of
each eligible Participant starting with the Eligible Participant with the lowest amount of
Compensation and working up until an applicable nondiscrimination test is satisfied.
16
(2) Eligibility for Allocation of Qualified Non-Elective Contribution. A
Participant who is a non-highly compensated employee and is eligible, in the
Administrator's discretion, either to make an Elective Deferral (regardless of whether such
Participant actually makes an Elective Deferral), and/or to receive a Discretionary
Matching Contribution (regardless of whether such Participant actually receives a
Discretionary Matching Contribution), during the Allocation Period to which a
nondiscrimination test is being applied, will be eligible for an allocation of a Qualified Non-
Elective Contribution for that Allocation Period. Furthermore, the Administrator may elect to
limit the allocations of Qualified Non-Elective Contributions only to eligible Participants who
are employed on the last day of the Allocation Period, and may elect to allocate Qualified
Non-Elective Contributions to one or more Participants who are highly compensated
employees.
4.6 Form of Contributions.
All contributions will be contributed to the Plan in cash.
4.7 Timing and Deductibility of Contributions.
Employer contributions for any Plan Year under this Article shall be made no later
than the last date on which amounts so paid may be deducted for Federal income tax
purposes for the taxable year of the Employer in which the Plan Year ends. All Employer
contributions are expressly conditioned upon their deductibility for Federal income tax
purposes. Amounts contributed as Pre-Tax Elective Deferrals, Catch-Up Contributions,
and Roth Elective Deferrals, will be remitted to the Trustee as soon as practicable. Safe
Harbor Matching Contributions with respect to any Elective Deferrals made during a Plan
Year quarter will be contributed to the Plan by the last day of the immediately following
Plan Year quarter. In the case of a contribution made by the Employer as a mistake of fact,
or for which a tax deduction is disallowed, in whole or in part, by the Internal Revenue
Service, the Employer will be entitled to a refund of said contributions, which must be
made within one year after payment of a contribution made as a mistake of fact, or within
one year after disallowance.
17
ARTICLE 5 - ROLLOVER CONTRIBUTIONS
5.1 Requirements for Rollover Contributions.
If a Participant receives an “eligible rollover distribution” (as defined in Section
10.4(a) of the Plan) from an Eligible Retirement Plan, then such Participant may contribute
to the Plan an amount that does not exceed the amount of such eligible rollover distribution
(including the proceeds from the sale of any property received as part of such eligible
rollover distribution). Rollover contributions may not include after-tax employee
contributions, but may include Roth Elective Deferrals. A rollover contribution may be in
the form of cash. An Eligible Employee who has not yet become a Participant in the Plan in
accordance with the provisions of Article 3 may make a Rollover Contribution to the Plan.
Such Eligible Employee will be treated as a Participant under the Plan for all purposes of
the Plan, except eligibility to have Elective Deferrals made on his behalf and to receive an
allocation of any Employer contributions. The Administrator shall require such information
from Eligible Employees as it deems necessary to ensure that amounts contributed under
this Section 5.1 meet the requirements for tax-deferred rollovers established by Section
402(c) of the Code and develop procedures to govern the Plan’s acceptance of Rollover
Contributions. If a Rollover Contribution made under this Section 5.1 is later determined by
the Administrator not to have met the requirements of this Article 5 or of the Code or
Regulations, the Trustee shall, within a reasonable time after such determination is made,
and on instructions from the Administrator, distribute to the Employee the amounts then
held in the Trust attributable to such Rollover Contribution.
5.2 Delivery of Rollover Contributions.
Any rollover contribution made pursuant to this Article 5 will be delivered by the
Participant to the Trustee on or before the 60th day after the day on which the Participant
receives the distribution (or on or before such later date as may be prescribed by law), or
will be transferred to the Trustee on behalf of the Participant directly from the trust from
which the eligible rollover distribution is made. Any such contribution must be
accompanied by any information or documentation in connection therewith requested by
the Administrator or the Trustee. Notwithstanding the foregoing, the Administrator will not
permit a rollover contribution if in its judgment accepting such contribution would cause the
Plan to violate any provision of the Code or Regulations. Rollover Contributions will be
allocated to a Participant's Rollover Contribution Account.
5.3 Withdrawal of Rollover Contributions.
An Employee may request in writing a withdrawal of all or any portion of his Rollover
Contribution Account at any time prior to becoming a Participant, and thereafter upon the
earlier of:
(1) the date the Employee is entitled to a distribution of his Participant's benefits
under the provisions of Article 10 of the Plan, or
(2) the soonest possible administratively practical date after the Participant's
termination of employment.
18
In addition, an Employee may also withdraw all or any portion of his Rollover Contribution
Account upon attainment of Age 59½. The Administrator may require advance notice of a
reasonable period not to exceed 60 days prior to the requested date of withdrawal. Any
amount withdrawn can be redeposited to the Employee's Rollover Contribution Account if
the withdrawn distribution continues to be deemed a rollover (except for the fact that the
amount originated from this Plan). A withdrawal of all or any portion of an Employee's
Rollover Contribution Account will not prevent an Employee from accruing any future
benefit attributable to Employer contributions. The Administrator may establish rules or
procedures regarding withdrawals from an Employee's Rollover Contribution Account.
19
ARTICLE 6 - LIMITATIONS ON CONTRIBUTIONS
6.1 Annual Limit on Pre-Tax Elective Deferrals and Roth Elective Deferrals.
(a) General Rule. Notwithstanding the provisions of Section 4.1, the aggregate
of Pre-Tax Elective Deferrals and Roth Elective Deferrals made on behalf of a Participant
for any calendar year pursuant to such Section and pursuant to any other plan or
arrangement described in section 401(k) of the Code which is maintained by an Employer
or Affiliate will not exceed the dollar limitation in effect for such calendar year under section
402(g) of the Code, except to the extent permitted under Section 4.1(d) of the Plan and
section 414(v) of the Code with respect to Catch-Up Contributions.
(b) Distribution of Excess Pre-Tax Elective Deferrals and Roth Elective
Deferrals. If for any calendar year the Pre-Tax Elective Deferrals and Roth Elective
Deferrals to the Plan or the aggregate of the Pre-Tax Elective Deferrals and the Roth
Elective Deferrals to the Plan plus amounts contributed under other plans or arrangements
described in section 401(k), 403(b), 408(k) or 408(p) of the Code for a Participant reach
the limit imposed by Section 6.1(a) for such calendar year, any contributions under the
Plan during the calendar year that exceed such limit (“Excess Elective Deferrals”), plus any
income and minus any loss allocable to the Excess Elective Deferrals, will be distributed
no later than April 15th to any Participant to whose account Excess Elective Deferrals were
allocated for the preceding taxable year or calendar year and who claims Excess Elective
Deferrals for such taxable year or calendar year. Distribution of Excess Elective Deferrals
will be made in accordance with Sections 6.1(c) through (e).
(c) Assignment of Excess Elective Deferrals. A Participant may assign to this
Plan any Excess Elective Deferrals made during a taxable year of the Participant by
notifying the Administrator on or before March 15th (or such later date as established by
the Administrator) of the subsequent year of the amount of the Excess Elective Deferrals
to be assigned to the Plan. A Participant will be deemed to notify the Administrator of any
Excess Elective Deferrals that arise by taking into account only those Elective Deferrals
made to this Plan and any other plan, contract or arrangement of the Company.
Notwithstanding any other provision of the Plan, Excess Elective Deferrals, plus any
income and minus any loss allocable to such Excess Elective Deferrals, will be distributed
no later than April 15 to any Participant to whose account Excess Elective Deferrals were
assigned for the preceding year and who claims Excess Elective Deferrals for such taxable
year or calendar year.
(d) Determination of Income or Loss. Excess Elective Deferrals will be
adjusted for any income or loss up to the last day of the Plan Year, without considering the
gap period or any adjustment for income or loss during the gap period (the period between
the end of the Participant's taxable year and the date of distribution). The Plan may use
any reasonable method for computing income or loss allocable to Excess Elective
Deferrals, provided such method is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year, and is used by the Plan for
allocating income or loss to Participants' Accounts.
20
(e) Source of Distribution. Distribution of Excess Elective Deferrals will be
taken from a Participant's investment options (if any) based on rules established by the
Administrator. In addition, unless a different rule is established by the Administrator,
distribution of Excess Elective Deferrals will first be made from a Participant's Roth
Elective Deferral Account before the Participant's Pre-Tax Elective Deferral Account, to the
extent Roth Elective Deferrals were made for the year, unless the Administrator permits
the Participant to specify otherwise.
6.2 Safe Harbor Status for Nondiscrimination Testing Purposes.
The Plan intends to satisfy Section 401(k)(3)(a)(ii) of the Code by satisfying the
matching contribution requirement of Section 401(k)(12)(B) of the Code and the notice
requirement of Section 401(k)(12)(D) of the Code.
6.3 Maximum Allocations under Section 415 of the Code.
Notwithstanding anything in the Plan to the contrary, in no event will amounts
allocated to a Participant’s Account under the Plan exceed the limitations set forth in
Section 415 of the Code, which are hereby incorporated into the Plan. If the amounts
otherwise allocable to a Participant’s Account under the Plan exceed the limitations set
forth in Section 415(c) of the Code, then the Plan shall correct such excess in accordance
with the Employee Plans Compliance Resolution System as set forth in Revenue
Procedure 2013-12 or any superseding guidance, including, but not limited to, the
preamble of the final regulations governing Section 415 of the Code.
6.4 Other Limitations on Employer Contributions.
The contributions of the Employers for a Plan Year will not exceed the maximum
amount for which a deduction is allowable to such Employers for federal income tax
purposes for the fiscal year of such Employers that ends within or with such Plan Year.
Any contribution made by an Employer by reason of a good faith mistake of fact, or the
portion of any contribution made by an Employer that exceeds the maximum amount for
which a deduction is allowable to such Employer for federal income tax purposes by
reason of a good faith mistake in determining the maximum allowable deduction, will upon
the request of such Employer be returned by the Trustee to the Employer. An Employer’s
request and the return of any such contribution must be made within one year after such
contribution was mistakenly made or after the deduction of such excess portion of such
contribution was disallowed, as the case may be. The amount to be returned to an
Employer pursuant to this paragraph will be the excess of (i) the amount contributed over
(ii) the amount that would have been contributed had there not been a mistake of fact or a
mistake in determining the maximum allowable deduction. Earnings attributable to the
mistaken contribution will not be returned to the Employer, but losses attributable thereto
will reduce the amount to be so returned. If the return to the Employer of the amount
attributable to the mistaken contribution would cause the balance of any Participant’s
Account as of the date such amount is to be returned (determined as if such date
coincided with the close of a Plan Year) to be reduced to less than what would have been
the balance of such Account as of such date had the mistaken amount not been
21
contributed, the amount to be returned to the Employer will be limited so as to avoid such
reduction.
22
ARTICLE 7 - TRUST AND INVESTMENT FUNDS
7.1 Trust.
A Trust has been created by the execution of the Trust agreement between the
Company and the Trustee. The specific powers and duties of the Trustee will be governed
under the terms of Trust agreement. Prior to the satisfaction of all liabilities under the Plan
in the event of termination of the Plan, no part of the corpus or income of the Trust Fund
will be used for or diverted to purposes other than for the exclusive benefit of Participants
and their beneficiaries except as expressly provided in the Plan and in the Trust
agreement. No person will have any interest in or right to any part of the assets or income
of the Trust Fund, except to the extent expressly provided in the Plan and in the Trust
agreement.
7.2 Investments.
(a) In General. The Administrator shall establish an investment policy for the
Plan. The Administrator shall cause the Trustee to establish and maintain three or more
separate investment funds exclusively for the collective investment and reinvestment as
directed by Participants of amounts credited to their Accounts. Additional investment funds
may be established as determined by the Administrator from time to time in its sole
discretion. The Administrator, in its sole discretion, may appoint investment managers to
provide services in connection with the investment funds established under the Plan.
(b) Company Stock Fund. In addition to the investment funds established at the
direction of the Administrator pursuant to Section 7.2(a) of the plan, the Trustee shall
establish and maintain a Company Stock Fund. The assets of the Company Stock Fund
will be invested primarily in shares of Company Stock in accordance with Article 14 of the
Plan. Each Participant’s interest in the Company Stock Fund will be represented by units
of participation, and each such unit will represent a proportionate interest in all the assets
of such fund.
23
ARTICLE 8 - PARTICIPANT ACCOUNTS AND INVESTMENT ELECTIONS
8.1 Participant Accounts.
The Administrator shall establish and maintain, or cause the Trustee or such other
agent as the Administrator may select to establish and maintain, a separate Account for
each Participant. Such Account will be solely for accounting purposes, and no segregation
of assets of the Trust Fund among the separate Accounts will be required. Each Account
will consist of the following sub-accounts:
(a) Pre-Tax Elective Deferral Account;
(b) Roth Elective Deferral Account;
(c) Discretionary Matching Contribution Account;
(d) Discretionary Profit Sharing Contribution Account;
(e) Qualified Non-Elective Contribution Account;
(f) Safe Harbor Matching Contribution Account;
(g) Rollover Contribution Account;
(h) Other Employer Contributions Account;
(i) ESOP Dividend Account; and
(j) Any other sub-accounts the Administrator may determine necessary from
time to time.
8.2 Investment Elections.
Pursuant to and in accordance with the applicable administrative policy established
by the Administrator, Participants may direct the investment of their Accounts. In
accordance with Department of Labor Regulation Section 2550.404c-5, the Account of any
Participant who fails to exercise the right to direct the investment of his Account will be
invested by the Trustee at the direction of the Administrator in a “qualified default
investment alternative” that is selected by the Administrator. The Plan is intended to meet
the requirements of Section 404(c) of ERISA and the Regulations thereunder, and the
provisions of the Plan will be construed and interpreted to meet such requirements. A
Participant may change his investment election as of any Valuation Date, subject to such
limitations as the Administrator from time to time may impose (including restrictions on
investment election changes that apply solely to a particular investment fund). A
Participant’s investment election change will be limited to the investment alternatives then
maintained by the Trustee. A change in investment election made pursuant to this Section
8.2 will apply to a Participant’s existing Account or contributions made for the benefit of the
Participant after such change, or both. A Participant’s change of investment election must
be made in the manner prescribed by the Administrator. The Administrator shall prescribe
rules regarding the time by which such an election must be made in order to be effective
for a particular Valuation Date.
8.3 Valuation of Funds and Plan Accounts.
As of each Valuation Date, amounts in Participants' Accounts which have not been
segregated from the general Trust Fund for investment purposes (Accounts which have
been segregated include any directed investment accounts established under Section 8.2
24
of the Plan) and which have not been distributed since the prior Valuation Date will have
the net income of the Trust Fund that has been earned since the prior Valuation Date
allocated in accordance with such rules and procedures that are established by the
Administrator and that are applied in a uniform and nondiscriminatory manner based upon
the investments of the Trust Fund and the Participants' Accounts to which the net income
is allocated. For purposes of this Section 8.3, the term "net income" means the net of any
interest, dividends, unrealized appreciation and depreciation, capital gains and losses, and
investment expenses of the Trust Fund determined on each Valuation Date. However,
Participants' Accounts which have been segregated from the general Trust Fund for
investment purposes (Accounts which have been segregated include any directed
investment accounts established under Section 8.2 of the Plan) will only have the net
income earned thereon allocated thereto.
25
ARTICLE 9 - VESTING
9.1 100 Percent Vesting Upon Retirement, Death or Disability.
A Participant will have a 100 percent vested interest in his Account upon:
(a) Reaching Normal Retirement Age prior to termination of employment;
(b) Retirement at Early Retirement Age;
(c) Disability prior to termination of employment; or
(d) Death prior to termination of employment.
For purposes of this Section 9.01, a Participant who dies while performing Qualified
Military Service with respect to an Employer shall be treated as if the Participant had
resumed employment in accordance with his or her reemployment rights under chapter 43
of title 38, United States Code, on the day preceding the Participant’s death and then
terminated employment on account of the Participant’s death.
9.2 100 Percent Vesting of Certain Accounts.
A Participant will at all times have a 100 percent vested interest in his:
(a) Rollover Contribution Account;
(b) Pre-Tax Elective Deferral Account;
(c) Roth Elective Deferral Account;
(d) Safe Harbor Matching Contribution Account;
(e) Other Employer Contributions Account;
(f) ESOP Dividend Account; and
(g) Qualified Non-Elective Contribution Account.
9.3 Gradual Vesting of All Other Contributions.
Except as otherwise provided in this Article 9 of the Plan, a Participant's vested
interest in his Discretionary Matching Contribution Account and Discretionary Profit
Sharing Contribution Account will be determined by the vesting schedule set forth below in
this Section 9.3. A Participant's vested interest will be based on the Years of Service that
are credited to such Participant.
Years
of Service
Vested
Percentage
1 20%
2 40%
3 60%
4 80%
5 or more 100%
26
9.4 Forfeitures.
The following provisions relate to Forfeitures and their usage:
(a) Timing of Forfeitures. Forfeiture of the non-vested portion of the
Participant's Discretionary Matching Contributions Account and Discretionary Profit
Sharing Contributions Account will occur as of the earlier of:
(A) the date that the Participant who terminated employment
receives a distribution of his or her Vested Account under Article 10, or
(B) the date that the Participant incurs 5 consecutive Breaks in
Service after termination of employment.
A forfeiture will not occur pursuant to the provisions of clause (A) of the prior sentence
unless the entire Elective Deferral Account of the Participant who terminated employment
is or has been distributed. Furthermore, if a Participant's vested interest in the entire
Participant's Account balance attributable to Employer contributions is zero on the date
that the Participant terminates employment, then the Participant will be deemed to have
received a distribution of such vested interest on the date of such termination of
employment and a forfeiture of the Participant's Account attributable to Employer
contributions will occur pursuant to the provisions of clause (A) on the date of such
termination of employment. If a portion of a Participant’s Account is forfeited, Company
Stock released from the suspense account and allocated to the Participant’s Account must
be forfeited only after other assets. If Shares in more than one class of such Company
Stock have been allocated to the Participant’s Account, the same proportion of each class
will be forfeited.
(b) Usage of Forfeitures. On each annual Valuation Date, the Administrator
may elect to use all or any portion of the Forfeiture Account to pay administrative expenses
incurred by the Plan. The portion of the Forfeiture Account that is not used to pay
administrative expenses will be used first to restore previous forfeitures of Participants'
Accounts pursuant to Section 9.5 of the Plan and/or to restore Participants' Accounts
pursuant to Section 10.6. The portion of the forfeiture account that is not used to pay
administrative expenses and is not used to satisfy the provisions of the previous sentence
will then be used to reduce any Employer contribution (or combination of Employer
contributions), as determined by the Administrator; provided, however, that except as
specifically provided in the Code or in regulations, revenue rulings, notices, or other
guidance of general applicability published in the Internal Revenue Bulletin, forfeitures may
not be used to reduce the Employer’s obligation to remit to the Trust Elective Deferrals,
Qualified Nonelective Employer Contributions, Qualified Matching Contributions, or Safe
Harbor Matching Contributions.
9.5 Accounts of Reemployed Participants
27
If a Participant who is not 100-percent vested in his Account terminates employment
with the Employer, a forfeiture of all or a portion of the Account of the Participant who has
terminated employment may have occurred, and the Participant is subsequently
reemployed by the Employer, then the Account of the reemployed Participant will be
administered in accordance with the following provisions:
(a) Reemployment of a Participant After 5 Consecutive Breaks in Service. If
the Participant is reemployed by the Employer after incurring 5 consecutive Breaks in
Service, then any previous forfeiture of the Participant's Account will not be restored under
the terms of this Plan.
(b) Reemployment of a Non-Vested Participant Before 5 Consecutive
Breaks in Service. If a Participant's vested interest in the entire Account attributable to
Employer contributions is zero percent on the date the Participant terminates employment,
the Participant is deemed to have received a distribution of such vested interest on the
date of such termination of employment, a forfeiture of the Participant's Account
attributable to Employer contributions occurs on the date of such termination of
employment, and the Participant is subsequently reemployed by the Employer before
incurring 5 consecutive Breaks in Service, then the previous forfeiture of such Participant's
Account attributable to Employer contributions will be restored, calculated as of the date
that the forfeiture occurred (unadjusted by subsequent gains and losses).
(c) Reemployment of a Vested Participant Before 5 Consecutive Breaks in
Service. If a terminated Participant is reemployed prior to incurring a Break in Service of
five consecutive years, and, at or after the Participant’s termination of employment, the
Participant received a distribution of the Participant’s vested interest in the Account
attributable to Employer contributions and any portion of the Participant’s Account was
forfeited, the forfeited amount will be restored to his Account, if, and only if, he repays the
full amount of such distribution (if any) prior to the earlier of (1) the 5th anniversary of the
date on which he subsequently is reemployed or (2) the first date the Participant incurs 5
consecutive Breaks in Service following the date of the distribution. The sources to restore
a previous forfeiture of the non-vested portion of the Participant's Account attributable to
Employer contributions will be made first by using available forfeitures to restore the
previous forfeiture and, if such available forfeitures are insufficient to restore the previous
forfeiture, by the Employer making a special Employer contribution to the Plan to the
extent necessary to restore the previous forfeiture.
9.6 Vesting upon Complete Termination or Discontinuance of Contributions.
Upon a complete termination of the Plan or a complete discontinuance of
contributions under the Plan, then each of the following Participants will have a 100
percent vested interest in his Account:
(a) Any Participant who is affected by such complete termination or, if
applicable, such complete discontinuance of contributions;
(b) Any Participant who has not terminated employment with the Employer;
28
(c) Any Participant who has terminated employment with the Employer and has
not received a complete distribution of the Participant's Vested Account; and
(d) Any Participant who has terminated employment but has not incurred five
consecutive Breaks in Service will have a 100 percent vested interest in his unpaid
Account.
9.7 Vesting Requirement upon Partial Termination.
Upon partial termination of the Plan, only a Participant who has terminated
employment because of the event which causes the partial termination but who has not
incurred five consecutive Breaks in Service will have a 100 percent vested interest in his
unpaid Participant's Account as of the date of partial termination. The determination of
whether a partial termination of the Plan has occurred under Section 411(d)(3) of the Code
depends on the facts and circumstances, pursuant to Revenue Ruling 2007-43.
9.8 Amendments to the Vesting Schedule.
No amendment to the Plan may directly or indirectly reduce a Participant's vested
interest in his Account. If the Plan is amended in any way that directly or indirectly affects
the computation of a Participant's Vested Account, then the following provisions will apply:
(a) Participant Election. Any Participant with at least three Years of Service
may, by filing a written request with the Administrator, elect to have the vested interest in
his Account computed by the vesting schedule in effect prior to the amendment. A
Participant who fails to make an election will have the vested interest computed under the
new schedule. The period in which the election may be made will begin on the date the
amendment is adopted or is deemed to be made and will end on the latest of:
(1) 60 days after the amendment is adopted;
(2) 60 days after the amendment becomes effective; or
(3) 60 days after the Participant is issued written notice of the amendment
by the Employer or Administrator.
(b) Preservation of Vested Interest. Notwithstanding the foregoing to the
contrary, if the vesting schedule is amended, then in the case of an Employee who is a
Participant as of the later of the date such amendment is adopted or the date it becomes
effective, the vested interest in his Account determined as of such date will not be less
than his vested interest computed under the Plan without regard to such amendment.
9.9 Service for Vesting Purposes When Previously Frozen Plan Resumes
Allocations.
If (a) the Plan becomes frozen; (b) the freezing of allocations under the Plan causes
a partial termination of the Plan to occur; and (c) allocations later resume under the
previously-frozen Plan, then all Years of Service or 1-Year Periods of Service, as
29
applicable, after the Plan was established must be recognized for vesting purposes. In
addition, if allocations are made under a new plan maintained by the same Employer and if
the new plan is merged with the frozen Plan, then all Years of Service or 1-Year Periods of
Service, as applicable, after the frozen Plan was established must be recognized for
vesting purposes for any allocations under the new plan after the merger. The provisions
of this Section 9.9 comply with Revenue Ruling 2003-65.
30
ARTICLE 10 – DISTRIBUTIONS
10.1 In General.
(a) In the event of the termination of a Participant’s employment with all
Employers and Affiliates for any reason, or in the event of the Participant’s Disability or
death, then the Participant’s Vested Account will be distributed at the time and in the form
provided in this Article 10, except in the event of the termination of the Plan.
(b) The provisions of this Article 10 will be construed in accordance with Section
401(a)(9) of the Code and regulations thereunder, including the incidental death benefit
requirements of Section 401(a)(9)(G) of the Code.
(c) In the case of a Participant who dies while performing Qualified Military
Service, the survivors of such Participant will be entitled to any benefit, including but not
limited to any acceleration of vesting, that would be provided under the Plan had the
Participant resumed employment with his employer and then terminated employment on
account of his death.
10.2 Distribution of Vested Account Upon Termination of Employment or Disability
(a) Vested Account Exceeds $5,000. If the value of the Participant’s Vested
Account, including his Rollover Account, exceeds $5,000 at the time of his termination of
employment for any reason other than death, or his Disability, then the Participant’s
Vested Account will be distributed as follows:
(1) Time of Payment. Distribution will be made to the Participant within
an administratively reasonable time after the Participant requests payment on account of
his termination of employment or Disability.
(A) Participant’s Consent Required. No distribution will be made
to the Participant before he reaches his Normal Retirement Age without the Participant’s
consent within the 180-day period ending on the Benefit Commencement Date.
(B) Notice Regarding Timing and Form of Distribution. Not less
than 30 days and not more than 180 days before the Benefit Commencement Date, the
Administrator shall provide such Participant with written notice containing a general
description of the material features of each form of distribution available under the Plan
and an explanation of the financial effect of electing each form of distribution available
under the Plan. The notice will also inform the Participant of his right to defer receipt of the
distribution, the consequences of failing to defer, and his right to make a direct rollover.
Distribution may commence fewer than 30 days after such notice is given, provided that:
(i) the Administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after receiving the notice to consider
the decision of whether or not to elect a distribution (and, if applicable, a particular
distribution option); and
31
(ii) the Participant, after receiving the notice, affirmatively
elects a distribution.
(2) Form of Payment. The Participant may elect to have his Vested
Account paid in one of the following forms of payment:
(A) A lump sum payment; or
(B) Substantially equal monthly, quarterly, semi-annual or annual
cash installment payments over a period certain that does not extend beyond the life of the
Participant, the joint lives of the Participant and a designated Beneficiary, or a period
certain not extending beyond the life expectancy of the Participant and a designated
Beneficiary.
(i) The term "substantially equal" means a series of
installment payments in which a single installment payment is equal to the Participant's
Vested Account balance as of the most recent Valuation Date divided by the remaining
duration of the installment payments, or is determined by such other method to determine
a series of substantially equal installment payments that may be established by the
Administrator.
(ii) If the Participant elects installment payments, then the
lump sum value of the Participant's Vested Account either may be segregated and
separately invested and the substantially equal installments will be paid from the Plan; may
remain invested in the Trust's assets and the substantially equal installments will be paid
from the Plan; or may be used to purchase a nontransferable immediate or deferred
annuity that is selected by the Employer and that complies with the terms of the Plan from
an insurance company to provide for such substantially equal installments.
If a Participant receives a distribution of less than 100 percent of his Vested
Account, then the Administrator will determine the portion (including zero) of the
distribution that will be made from each of the Participant's sub-accounts, provided that
any such determination is made in a uniform and nondiscriminatory manner.
(b) Vested Account Does Not Exceed $5,000. If the value of the Participant’s
Vested Account, including his Rollover Account, does not exceed $5,000 at the time of his
termination of employment or Disability, then the Participant’s Vested Account will be
distributed as follows:
(1) Time of Payment. If a Participant’s Vested Account, including his
Rollover Contribution Account, does not exceed $5,000 at the time of his termination of
employment or Disability, then the Vested Account will be distributed as soon as
administratively feasible after the Participant terminates employment or becomes Disabled.
(2) Form of Payment. At the election of the Participant, the distribution
will be made as a lump sum payment or as a direct rollover under Section 10.4 of the Plan.
However, if the Participant does not elect to have the distribution paid directly to an eligible
retirement plan specified by the Participant in a direct rollover or to receive the distribution
32
as a lump sum cash payment, the Administrator will pay the distribution in an automatic
direct rollover to an individual retirement plan designated by the Administrator.
(3) Later Distribution if Account Value Decreases. If a Participant
would have received a distribution under this Section 10.2 but for the fact that his Vested
Account exceeded $5,000, and if at a later time the Participant's Vested Account is
reduced to an amount not greater than $5,000, then the Administrator shall distribute such
Vested Account in a lump sum without the Participant's consent as soon as
administratively feasible after the date the Participant's Vested Account no longer exceeds
$5,000.
10.3 Distribution of Benefit Upon Death.
(a) Vested Account Exceeds $5,000. If the value of the Participant’s Vested
Account, including his Rollover Account, exceeds $5,000 at the time of his death, then the
Participant’s Vested Account will be distributed as follows:
(1) Surviving Spouse is Beneficiary. If the Participant has a surviving
Spouse on the date of the Participant's death, then notwithstanding any other Beneficiary
designation made by the Participant, unless the surviving Spouse has waived the right in
accordance with Section 10.3(a)(1)(D) of the Plan, the deceased Participant's surviving
Spouse will be entitled to receive a death benefit determined in accordance with the
following provisions:
(A) Form of Payment. The surviving Spouse may elect to have the
Participant’s Vested Account paid in one of the following forms of payment:
(i) A lump sum payment; or
(ii) Substantially equal monthly, quarterly, semi-annual or
annual cash installment payments over a period certain that does not extend beyond the
life of the surviving Spouse or the life expectancy of the surviving Spouse.
(a) The term "substantially equal" means a series of
installment payments in which a single installment payment is equal to the Participant's
Vested Account balance as of the most recent Valuation Date divided by the remaining
duration of the installment payments, or is determined by such other method to determine
a series of substantially equal installment payments that may be established by the
Administrator.
(b) If the surviving Spouse elects installment
payments, then the lump sum value of the Participant's Vested Account either may be
segregated and separately invested and the substantially equal installments will be paid
from the Plan; may remain invested in the Trust's assets and the substantially equal
installments will be paid from the Plan; or may be used to purchase a nontransferable
immediate or deferred annuity that is selected by the Employer and that complies with the
terms of the Plan from an insurance company to provide for such substantially equal
installments.
33
If the surviving Spouse receives a distribution of less than 100 percent of the
Participant’s Vested Account, then the Administrator will determine the portion (including
zero) of the distribution that will be made from each of the Participant's sub-accounts,
provided that any such determination is made in a uniform and nondiscriminatory manner.
(B) Time of Distribution. Any death benefit payable to a surviving
Spouse will be distributed within a reasonable time after the death of the Participant, but
not later than December 31st of the calendar year which contains the fifth anniversary of
the date of the Participant's death, if required minimum distributions to the Participant have
not begun. However, the Participant or the surviving Spouse may elect to defer the
commencement of the distribution of the death benefit to a date that is no later than
December 31st of the calendar year in which the deceased Participant would have
attained Age 70½, and to have the death benefit distributed over a period not longer than
the life expectancy of the surviving Spouse.
(C) Death of Surviving Spouse Before Distribution Begins. If
the surviving Spouse dies before distribution begins, then distribution will be made as if the
surviving Spouse were the Participant. If the Participant (or, if no election has been made
by the Participant prior to the Participant's death, then the Participant's surviving Spouse)
elects to have the death benefit distributed over a period not longer than the life
expectancy of the surviving Spouse, then distribution will be considered to have begun
when the deceased Participant would have reached Age 70½ even if payments have been
made to the surviving Spouse before that date.
(D) Spouse Waiver of Right to Death Benefit. With regard to a
death benefit payable to a Spouse under Section 10.3(a)(1) of the Plan, a Spouse can
elect to waive such death benefit, but the election will not be effective unless (i) the
election is in writing; (ii) the election designates a specific Beneficiary or form of benefit
that may not be changed without Spousal consent (or the Spouse's consent expressly
permits designations by the Participant without any requirement of further Spousal
consent); and (iii) the Spouse's consent acknowledges the effect of the election and is
witnessed by the Administrator or a notary public.
(2) Non-Spouse Beneficiary. If the Participant does not have a surviving
Spouse on the date of the Participant's death, or if the surviving Spouse has waived the
right in accordance with Section 10.3(a)(1)(D) of the Plan and the Participant designated a
non-Spouse Beneficiary, the non-Spouse Beneficiary will be entitled to receive a death
benefit determined in accordance with the following provisions:
(A) Form of Payment. The Beneficiary may elect to have the
Participant’s Vested Account paid in one of the following forms of payment:
(i) A lump sum payment; or
(ii) Substantially equal monthly, quarterly, semi-annual or
annual cash installment payments over a period certain that does not extend beyond the
life of the Beneficiary or the life expectancy of the Beneficiary.
34
(a) The term "substantially equal" means a series of
installment payments in which a single installment payment is equal to the Participant's
Vested Account balance as of the most recent Valuation Date divided by the remaining
duration of the installment payments, or is determined by such other method to determine
a series of substantially equal installment payments that may be established by the
Administrator.
(b) If the Beneficiary elects installment payments,
then the lump sum value of the Participant's Vested Account either may be segregated
and separately invested and the substantially equal installments will be paid from the Plan;
may remain invested in the Trust's assets and the substantially equal installments will be
paid from the Plan; or may be used to purchase a nontransferable immediate or deferred
annuity that is selected by the Employer and that complies with the terms of the Plan from
an insurance company to provide for such substantially equal installments.
If the Beneficiary receives a distribution of less than 100 percent of the Participant’s
Vested Account, then the Administrator will determine the portion (including zero) of the
distribution that will be made from each of the Participant's sub-accounts, provided that
any such determination is made in a uniform and nondiscriminatory manner.
(B) Time of Distribution. Any death benefit payable to a non-
Spouse Beneficiary will be distributed within a reasonable time after the death of the
Participant, but not later than December 31st of the calendar year which contains the fifth
anniversary of the date of the Participant's death, if required minimum distributions to the
Participant have not begun. However, the Participant or the Beneficiary may elect to have
the death benefit distributed over a period not longer than the life expectancy of the
Beneficiary, and if such an election is made, the distribution of the death benefit must
begin no later than December 31st of the calendar year immediately following the calendar
year in which the Participant died.
(3) Distribution If the Participant or Other Payee Is In Pay Status. If a
Participant or Beneficiary who has begun receiving distribution of his benefit dies before
the entire benefit is distributed, then the balance thereof will be distributed to the
Participant's Beneficiary (or Beneficiary's Beneficiary) at least as rapidly as under the
method of distribution being used on the date of the Participant's or Beneficiary's death, as
determined pursuant to Treasury Regulation Section 1.401(a)(9)-2.
(4) Payments to a Beneficiary of a Beneficiary. In the absence of a
Beneficiary designation or other directive from the deceased Participant to the contrary,
any Beneficiary may name his own Beneficiary to receive any benefits payable in the event
of the Beneficiary's death prior to receiving the entire death benefit to which the
Beneficiary is entitled; if a Beneficiary has not named his own Beneficiary, then the
Beneficiary's estate will be the Beneficiary. If any benefit is payable under this paragraph
to a Beneficiary of the deceased Participant's Beneficiary, to the estate of the deceased
Participant's Beneficiary, or to any other Beneficiary or the estate thereof, then subject to
the limitations of this Article 10 regarding the latest dates for benefit payment, the
Administrator may (1) continue to pay the remaining value of such benefits in the amount
35
and form that has already commenced, (2) pay such benefits in any other manner
permitted under the Plan for distribution of benefits upon death, and/or (3) if payments
have not already commenced, pay such benefits in any other manner permitted under the
Plan for distribution of benefits upon death. Distribution to the Beneficiary of a Beneficiary
must begin no later than the date that a distribution would have been made to the
Participant's Beneficiary. The Administrator's determination under this paragraph will be
final and will be applied in a uniform and nondiscriminatory manner.
(b) Vested Account Does Not Exceed $5,000. If the value of the Participant’s
Vested Account, including his Rollover Account, does not exceed $5,000 at the time of his
death, then the Participant’s Vested Account will be distributed as follows:
(1) Beneficiary. If the Participant has a surviving Spouse on the date of
the Participant's death, then notwithstanding any other Beneficiary designation made by
the Participant, unless the surviving Spouse has waived the right in accordance with
Section 10.3(a)(1)(D) of the Plan, the deceased Participant's surviving Spouse will be
entitled to receive the distribution of the Participant’s Vested Account. If the Participant
does not have a surviving Spouse on the date of the Participant's death, or if the surviving
Spouse has waived the right in accordance with Section 10.3(a)(1)(D) of the Plan and the
Participant designated a non-Spouse Beneficiary, the non-Spouse Beneficiary will be
entitled to receive the distribution of the Participant’s Vested Account.
(2) Time of Payment. If a Participant’s Vested Account, including his
Rollover Contribution Account, does not exceed $5,000 at the time of his death, then the
Vested Account will be distributed as soon as administratively feasible after the
Participant’s death.
(3) Form of Payment. At the election of the Beneficiary, the distribution
will be made as a lump sum payment or as a direct rollover under Section 10.4 of the Plan.
However, if the Beneficiary does not elect to have the distribution paid directly to an
eligible retirement plan specified by the Beneficiary in a direct rollover or to receive the
distribution as a lump sum cash payment, the Administrator will pay the distribution as a
lump sum cash payment.
(4) Later Distribution if Account Value Decreases. If a Beneficiary
would have received a distribution under this Section 10.3 but for the fact that the
Participant’s Vested Account exceeded $5,000, and if at a later time the Participant's
Vested Account is reduced to an amount not greater than $5,000, then the Administrator
shall distribute such Vested Account in a lump sum without the Beneficiary's consent as
soon as administratively feasible after the date the Participant's Vested Account no longer
exceeds $5,000.
10.4 Direct Rollover Option.
Notwithstanding any provision of the Plan to the contrary that would otherwise limit
a distributee's election, a distributee may elect, at the time and in the manner prescribed
by the Plan, to have any portion of an eligible rollover distribution that is equal to at least
$500 paid directly to an Eligible Retirement Plan specified by the distributee in a direct
36
rollover. If an eligible rollover distribution is less than $500, then a distributee may not
make the election described in the preceding sentence to rollover a portion of the eligible
rollover distribution.
(a) Definition of Eligible Rollover Distribution. The term "eligible rollover
distribution" means any distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include (1) any distribution
that is one of a series of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint
life expectancies) of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; (2) any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; (3) the portion of any distribution that is not
includible in gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to Employer securities); (4) the portion of any distribution which
is attributable to a financial hardship distribution; and (5) any other distribution that is
reasonably expected to total less than $200 during a year.
(b) Definition of Distributee. The term "distributee" means:
(1) An Employee or former Employee;
(2) An Employee's or former Employee's surviving Spouse;
(3) An Employee's or former Employee's Spouse or former Spouse who is
the alternate payee under a qualified domestic relations order as defined in Section 414(p)
of the Code; and
(4) A Beneficiary who is a non-Spouse Beneficiary; provided, however,
that if the distributee is a non-Spouse Beneficiary, the eligible rollover distribution may be
transferred only to an individual retirement account or annuity described in section 408(a)
or (b) of the Code and only if such account or annuity has been established for the
purpose of receiving such distribution on behalf of the non-Spouse Beneficiary and will be
treated as an inherited individual retirement account or annuity pursuant to the provisions
of Section 402(c)(11) of the Code.
(c) Definition of Direct Rollover. The term "Direct Rollover" means a payment
by the Plan to the eligible retirement plan that is specified by the distributee.
(d) Direct Rollover Rules for Roth Elective Deferral Account. The Plan will
not provide for a direct rollover for distributions from a Participant's Roth Elective Deferral
Account if the amount of the distributions that are eligible rollover distributions are
reasonably expected to total less than $200 during a year. In addition, any distribution from
a Participant's Roth Elective Deferral Account is not taken into account in determining
whether distributions from the other Participant's Account(s) are reasonably expected to
total less than $200 during a year. Furthermore, the provision of this Section that allows a
Participant to elect a direct rollover of only a portion of an eligible rollover distribution (but
only if the amount rolled over is at least $500) is applied by treating any amount distributed
from the Participant's Roth Elective Deferral Account as a separate distribution from any
37
amount distributed from the other Participant's Account(s) in the Plan, even if the amounts
are distributed at the same time. A Participant’s Roth Elective Deferral Account may be
transferred only to another Roth Elective Deferrals account under an applicable retirement
plan described in Section 402A(e)(1) of the Code or to a Roth IRA described in Section
408A of the Code, and only to the extent the rollover is permitted by the rules of Section
402(c)(2) of the Code. An eligible rollover distribution of amounts other than amounts in a
Participant’s Roth Account may be transferred to a Roth IRA only if the modified adjusted
gross income and other limits of Section 408A(c)(3)(B) of the Code are satisfied.
10.5 Distribution of Property.
Except as otherwise provided in Article 14 of the Plan, the determination to pay any
distribution in property will be made by the Administrator in its sole discretion applied in a
nondiscriminatory manner that does not discriminate in favor of Participants who are
Highly Compensated Employees.
10.6 Missing Persons.
If, following the date on which a Participant’s Account may be distributed without the
Participant’s consent, the Administrator in the exercise of reasonable diligence has been
unable to locate the person or persons entitled to the Participant’s Account, then the
Participant’s Account will be forfeited; provided, however, that to the extent required by law
the Plan shall reinstate and pay to such person or persons the amount so forfeited upon a
claim for such amount made by such person or persons. The amount to be so reinstated
will be obtained from the total amount that will have been forfeited pursuant to this Section
10.6 and Section 9.2(b) of the Plan during the Plan Year that the claim for such forfeited
benefit is made, and will not include any earnings or losses from the date of the forfeiture
under this Section. If the amount to be reinstated exceeds the amount of such forfeitures,
the Employer in respect of whose Eligible Employee the claim for forfeited benefit is made
will make a contribution in an amount equal to such excess.
10.7 Distributions to Minor and Disabled Distributees.
Any distribution that is payable to a distributee who is a minor or to a distributee
who has been legally determined to be unable to manage his or her affairs by reason of
illness or mental incompetency may be made to, or for the benefit of, any such distributee
at such time consistent with the provisions of this Plan and in such of the following ways as
the legal representative of such distributee shall direct: (a) directly to any such minor
distributee if, in the opinion of such legal representative, he or she is able to manage his or
her affairs, (b) to such legal representative, (c) to a custodian under a Uniform Gifts to
Minors Act for any such minor distributee, or (d) as otherwise directed by such legal
representative. Neither the Administrator nor the Trustee shall be required to oversee the
application by any third party other than the legal representative of a distributee of any
distribution made to or for the benefit of such distributee pursuant to this Section.
10.8 Required Minimum Distribution
Notwithstanding any provision of the Plan to the contrary, all distributions under the
Plan will be made in accordance with the minimum distribution requirements of Section
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401(a)(9) of the Code and the final Regulations promulgated thereunder, including the
incidental death benefit requirements of Section 401(a)(9)(G) of the Code. Notwithstanding
the other provisions of this Article 10, distributions may be made under a designation made
before January 1, 1984, in accordance with Tax Equity and Fiscal Responsibility Act
(TEFRA) Section 242(b)(2) and the provisions of the Plan that relate to TEFRA Section
242(b)(2).
10.9 Statutory Commencement of Benefits.
Unless the Participant otherwise elects, distribution of a Participant's Vested
Account must begin no later than the 60th day after the latest of the close of the Plan Year
in which the Participant (a) reaches the Normal Retirement Age; (b) reaches the 10th
anniversary of the year that the Participant commenced Plan participation; or (c)
terminates employment with the Employer. However, the failure of a Participant to consent
to a distribution while his Vested Account is immediately distributable will be deemed to be
an election to defer the distribution (or the commencement of the payment) until a date no
later than April 1 of the calendar year following the calendar year in which the Participant
attains Age 70½. With respect to a Participant who continues in employment after attaining
Age 70½, distribution of the Participant’s Vested Account will begin no later than the
Participant’s required beginning date. For purposes of this Section 10.9, the term “required
beginning date” means:
(a) With respect to a Participant who is a 5 percent owner (within the meaning of
Section 416(i) of the Code), April 1 of the calendar year following the calendar year in
which the Participant attains age 70½; and
(b) With respect to any other Participant, April 1 of the calendar year following
the calendar year in which the Participant terminates employment with all Employers and
Affiliates.
Distributions made pursuant to this Section 10.9 will be made in accordance with
Section 10.8 of the Plan.
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ARTICLE 11 – IN-SERVICE WITHDRAWALS
11.1 Financial Hardship Withdrawals.
A Participant who is still an Employee may make a written request to the
Administrator for a withdrawal because of the Participant’s immediate and heavy financial
hardship. Any such withdrawal will be permitted in accordance with the provisions of an
administrative policy regarding financial hardship withdrawals that is promulgated under
Section 15.3 of the Plan by the Administrator. Such administrative policy will include (but
not be limited to):
(a) The Participant's accounts (or sub-accounts) that are available for financial
hardship withdrawals;
(b) The maximum percentages of such accounts (or sub-accounts) that may be
withdrawn for financial hardships; and
(c) The standards that will be used for determining whether a Participant has
incurred a financial hardship for purposes of financial hardship withdrawals from accounts
(or sub-accounts) other than Elective Deferrals. Such standards must be based on non-
discriminatory and objective criteria.
Any withdrawal under this Section 11.01 of a Participant's Pre-Tax Elective
Deferrals may include any allocable earnings that are credited to such Participant's Pre-
Tax Elective Deferral Account as of the later of December 31, 1988, or the end of the last
Plan Year ending before July 1, 1989, any Qualified Non-Elective Contributions (and
allocable earnings) as of the later of December 31, 1988, or the end of the last Plan Year
ending before July 1, 1989, and any Qualified Matching Contributions (and allocable
earnings) as of the later of December 31, 1988, or the end of the last Plan Year ending
before July 1, 1989. Any financial hardship distribution of Elective Deferrals from the Plan
will comply with the following provisions:
(1) Immediate and Heavy Financial Needs. The following are the only
financial needs considered immediate and heavy:
(A) Expenses incurred or necessary for medical care, described in
Section 213(d) of the Code, of the Employee, the Employee's Spouse or dependents;
(B) The purchase (excluding mortgage payments) of a principal
residence for the Employee;
(C) Payment of tuition and related educational fees for the next 12
months of post-secondary education for the Employee, the Employee's Spouse, the
Employee's children or the Employee's dependents;
(D) Payments necessary to prevent the eviction of the Employee
from, or a foreclosure on the mortgage of, the Employee's principal residence;
40
(E) Payments for funeral or burial expenses for the Employee's
deceased parent, Spouse, children, or dependents (as defined in Section 152 of the Code,
without regard to Section 152(d)(1)(B) of the Code); or
(F) Expenses for the repair of damage to the Employee's principal
residence that would qualify for a casualty loss deduction under Section 165 of the Code
(determined without regard to whether the loss exceeds 10 percent of adjusted gross
income).
(2) Necessary to Satisfy an Immediate and Heavy Financial Need. A
financial hardship withdrawal will be considered as necessary to satisfy an immediate and
heavy financial need of the Employee only if:
(A) The withdrawal is not in excess of the amount of the immediate
and heavy financial need (including amounts necessary to pay any federal, state or local
income taxes or penalties reasonably anticipated to result from the withdrawal);
(B) The Employee has obtained all distributions and withdrawals,
other than financial hardship withdrawals, and all nontaxable loans under all plans
maintained by the Employer; and
(C) All plans maintained by the Employer provide that the
Employee's Elective Deferrals (and Employee contributions) will be suspended for 6
months after the receipt of the financial hardship withdrawals.
11.2 Withdrawals On or After Age 59-1/2.
A Participant who is still an Employee may request in writing to the Administrator a
withdrawal of up to 100 percent of the Participant's Vested Account, subject to the
following provisions:
(a) Amount and Form of Withdrawal. The amount of a Participant's Vested
Account for withdrawal under this Section 11.2 will be determined as of the Valuation Date
that coincides with or immediately precedes the date of withdrawal. Any withdrawal under
this Section will be made to the Participant in a single payment. When feasible, any such
withdrawal will be paid at the Participant's direction within 60 days of his request, but not
later than a date as soon as administratively practical following the next Valuation Date
after the Administrator's receipt of such request.
(b) Frequency of In-Service Withdrawals. The frequency of in-service
withdrawals to any Participant under this Section 11.2 will be determined pursuant to an
administrative policy regarding in-service distributions that is promulgated under Section
15.3 of the Plan by the Administrator.
(c) Participants Who Are Not 100 Percent Vested. If a distribution is made
under this Section at a time when the Participant has less than a 100 percent vested
interest in his or her Discretionary Matching Contribution Account and Discretionary Profit
Sharing Contribution Account and such vested interest may increase, a separate account
41
will be established for the Participant's Discretionary Matching Contribution Account
balance and the Participant's Discretionary Profit Sharing Contribution Account balance at
the time of withdrawal, and at any relevant time the Participant's vested interest in the
separate account will be equal to an amount ("X") determined by the following formula: X =
P(AB + (R x D)) - (R x D). In applying the formula, "P" is the Vested Interest at the relevant
time, "AB" is the respective account balance at the relevant time, "D" is the amount of the
withdrawal, and "R" is the ratio of the respective account balance at the relevant time to
the respective account balance after withdrawal.
11.3 Withdrawal of Rollover Contributions.
Withdrawals from a Participant’s Rollover Contribution Account may be made in
accordance with Section 5.3 of the Plan.
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ARTICLE 12 – LOANS
12.1 Loans to Participants.
Loans may be made from the Trust Fund to Participants and Beneficiaries. A
Participant or Beneficiary may make application to the Administrator requesting a loan.
The Administrator will have the sole right to approve or disapprove the application. All
loans must be evidenced by a legally enforceable agreement (which may include more
than one document) set forth in writing or in such other form as may be approved by the
Internal Revenue Service, and the terms of such agreement must specify the amount and
term of the loan, and the repayment schedule. Loans will only be made in accordance with
a separate written loan program that satisfies the requirements of Section 72(p) of the
Code and the Regulations promulgated thereunder, and the following provisions:
12.2 General Rules.
Loans:
(a) Will be made available to all Participants and Beneficiaries on a reasonably
equivalent, non-discriminatory basis;
(b) Will not be made available to Highly Compensated Employees in an amount
greater than the amount made available to other Employees;
(c) Must be adequately secured and bear a reasonable interest rate; and
(d) Cannot exceed the present value of the Participant's Vested Account.
12.3 Maximum Loan Amount.
No loan to a Participant or Beneficiary can be made to the extent such loan, when
added to the outstanding balance of all other loans to the Participant or Beneficiary, would
exceed the lesser of:
(a) $50,000 reduced by the excess (if any) of the highest outstanding balance of
loans during the one-year period ending on the day before the loan is made, over the
outstanding balance of loans from the Plan on the date the loan is made; or
(b) One-half the present value of the Participant’s Vested Account.
However, notwithstanding the limitation in clause (b) of the preceding sentence, the
written loan policy may permit a Participant whose Vested Account balance is $20,000 or
less to borrow an amount that does not exceed the lesser of $10,000 or 100 percent of the
Participant’s Vested Aggregate Account balance if adequate security is provided on the
loan amount in excess of that determined under clause (b).
12.4 Minimum Loan Amount.
The written loan policy may provide for a minimum loan not to exceed $1,000.
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12.5 Loan Repayments.
Any loan by its terms will require that repayment (of both principal and interest) be
amortized in level payments, not less frequently than quarterly, over a period not extending
beyond five years from the date of the loan, unless such loan is used to acquire a dwelling
unit which within a reasonable time (determined at the time the loan is made) will be used
as the principal residence of the Participant. In the event of default, then foreclosure on the
note and attachment of security will not occur until a distributable event occurs in the Plan.
However, notwithstanding the foregoing to the contrary, loan repayments will be
suspended as permitted under Section 414(u)(4) of the Code.
12.6 Assignments and Pledges Treated as Loans.
An assignment or pledge of any portion of the Participant's interest in the Plan and
a loan, pledge, or assignment with respect to any insurance contract purchased under the
Plan, will be treated as a loan under this Article 12.
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ARTICLE 13 – PROTECTED BENEFITS
13.1 In General.
In the event of a merger or consolidation with another plan, or a transfer of assets or
liabilities from another plan, the Plan shall preserve any accrued benefit under the
transferor plan that is described in Treasury Regulation Section 1.411(d)-4, including any
optional form of benefit provided under the transferor plan that may not, except in
accordance with such Regulation, be reduced, eliminated, or made subject to Employer
discretion.
13.2 List of Protected Benefits.
Without limiting the generality of Section 13.1 of the Plan, and notwithstanding any
contrary provision of the Plan, the following benefits are preserved:
(a) The Accounts of Participants whose Employment Commencement Date
occurred prior to October 1, 1996, are 100 percent vested.
(b) The Early Retirement Age for Participants who became Participants prior to
July 1, 2009, is Age 59½.
13.3 Application of Code §411(a) With Respect to Protected Benefits.
Any applicable Plan amendment that decreases a Participant's Account balance, or
otherwise places greater restrictions or conditions on a Participant's rights to protected
benefits under Section 411(d)(6) of the Code is not permitted, even if the Plan amendment
merely adds a restriction or condition that is permitted under the vesting rules in Sections
411(a)(3) through (11) of the Code. However, a Plan amendment does not violate Section
411(d)(6) of the Code to the extent that the amendment applies to allocations after the
applicable amendment date (defined below). Notwithstanding the first sentence of this
Section 13.3, a Plan amendment that satisfies the requirements of Department of Labor
Regulation Section 2530.203–2(c) (relating to vesting computation periods) does not
violate the requirements of Section 411(d)(6) of the Code even though the Plan
amendment changes the Plan's vesting computation periods. For purposes of this Section
13.3, the term "applicable amendment date" means the later of the effective date of the
amendment or the date the amendment is adopted.
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ARTICLE 14 – STOCK BONUS PLAN PORTION PROVISIONS
Notwithstanding any other provisions in the Plan, the following provisions are
applicable to the Stock Bonus Plan Portion of the Plan:
14.1 Definitions.
For purposes of this Article 14 and the Plan, the following terms shall apply:
(a) Company Stock. The term "Company Stock" means:
(1) Common stock issued by the Company or by a corporation which is a
member of the same controlled group of the Company (within the meaning of Section
409(1) of the Code) that is either:
(A) Freely Tradable Stock, or
(B) if not Freely Tradable Stock, has a combination of voting power
and dividend rights equal to or in excess of the class of common stock of the Company
(and/or any other such corporation which is a member of the same controlled group of the
Company), which has the greatest voting power, and dividend rights;
(2) Non-callable preferred stock, if:
(A) the stock is convertible at any time into stock which meets the
requirements described in Section 14.1(a)(1), and
(B) the conversion price associated with such stock is reasonable on
the date of the acquisition by the Trust; and
(3) Callable preferred stock, if after the call there will be a reasonable
opportunity for a conversion which meets the requirements reflected in Section 14.1(a)(2)
of the Plan.
(b) Company Stock Account. The term "Company Stock Account" means the
portion of the Participant's Account which is credited with shares and fractional shares of
Company Stock purchased and paid for by the Trust or contributed to the Trust or shares
of Company Stock otherwise allocable because of the Participant's participation in the
Plan.
(c) Company Stock Distributee. The term "Company Stock Distributee"
means:
(1) The Participant or Beneficiary (including an alternate payee under a
qualified domestic relation order, as defined in Section 414(p) of the Code) receiving the
distribution of the Company Stock;
46
(2) Any other party to whom the stock is transferred by gift or by reason of
death; and
(3) The trustee of an individual retirement account (as defined under Section
408 of the Code) or of a tax-qualified retirement plan to which all or any portion of the
distributed Company Stock is transferred pursuant to a tax-free "rollover" transaction
satisfying the requirements of Section 402 of the Code.
(d) Exempt Loan. The term "Exempt Loan" means a loan or loans made to the
Plan by, or a loan or loans to the Plan that is guaranteed by, a "disqualified person" (as
defined under ERISA).
(e) Freely Tradable Stock. The term "Freely Tradable Stock" means Company
Stock that, at the time of reference is readily tradable on an established securities market
within the meaning of Treasury Regulation Section 1.401(a)(35)-1(f)(5).
(f) Section 401(k) Cash or Deferred Portion. The term "Section 401(k) Cash
or Deferred Portion" means the portion established under this Plan to hold all assets of the
Plan not invested in Company Stock.
(g) Stock Bonus Plan Portion. The term "Stock Bonus Plan Portion" means the
stock bonus portion established under this Plan, which is established to hold all the assets
of the Plan invested in Company Stock.
14.2 Purpose.
The Stock Bonus Plan Portion shall be considered and designated as an employee
stock ownership plan intended to invest primarily in Company Stock and satisfy the
requirements of Section 409 of the Code and Section 4975(e)(7) of the Code. The
purpose of the Stock Bonus Plan Portion is to allocate to Participants and their
Beneficiaries an ownership interest in the Company through distribution of Company Stock
(or the fair market value of Company Stock). Neither the Company, its officers, directors,
Employees or shareholders, nor any fiduciary of the Plan will have any responsibility for
the value of any stock or other securities of the Company allocated to the Account of, or
distributed to, any Participant or Beneficiary hereunder; it being understood that such stock
or securities may decline in value or become wholly worthless due to risks and
circumstances which cannot be foreseen and which may not be within the control of any
such person or entities. A principal purpose of the Stock Bonus Plan Portion is to provide
an avenue for Employees to acquire Company Stock. Accordingly, contributions made to
the Stock Bonus Portion of the Plan in cash and other cash received for the Stock Bonus
Plan Portion by the Trustee shall be invested primarily or exclusively in Company Stock.
Purchases of Company Stock may be made in the open market or, to the extent permitted
by law, by purchases directly from the Company or from shareholders of the Company. If
Company Stock is not available for purchase, or if the Trustee determines that the
purchase of additional Company Stock is not prudent or would not further the purposes of
the Plan, the Trustee shall, to the extent not inconsistent with the continued tax
qualification of the Stock Bonus Plan Portion as an employee stock ownership plan under
Section 4975(e)(7) of the Code, invest the assets of the Stock Bonus Plan Portion in
47
securities or investments other than Company Stock. The Trustee may maintain reserves
in the Plan to provide funds for the payment of expenses from the Trust, and for
distributions in cash. Such reserves may be invested in cash, savings accounts,
certificates of deposit and other similar cash equivalent investments, including those of the
Trustee, as well as any other authorized investment provided in the Trust. All purchases of
Company Stock will be made at prices, which, in the judgment of the Trustee, do not
exceed the fair market value of such Company Stock at the time of purchase.
14.3 Dividends.
Dividends paid by the Company with respect to shares of Company Stock held by
the Stock Bonus Plan Portion in a Participant's Company Stock Account will:
(a) unless otherwise elected by the Participant in accordance with this Section
14.3, be paid to the Stock Bonus Plan Portion and reinvested in Company Stock, or
(b) if elected by the Participant in accordance with this Section 14.3, be paid in
cash directly to the Participant (or Beneficiary), or paid to the Plan and distributed in cash
to the Participant (or Beneficiary) no later than 90 days after the close of the Plan Year in
which such dividends are paid.
A Participant's election to receive cash payment of dividends on Company Stock
will be made in the manner and time indicated by the Administrator. Cash dividends
received on shares of Company Stock will be allocated to the Participant's Company Stock
Account based on the number of shares of Company Stock held in each such Account,
unless the Participant elects to receive such dividends in cash pursuant to this Section.
14.4 Distribution of Company Stock.
Notwithstanding any other provision of the Plan, distribution of a Participant's
Company Stock Account may be made in cash, in kind, in Company Stock, or any
combination thereof, provided, however, that if a Participant or Beneficiary so demands,
such Company Stock Account shall be distributed only in the form of Company Stock.
14.5 No Authorization for Exempt Loan.
The Plan Administrator is not authorized to direct the Trustee to enter into an
Exempt Loan transaction to finance the acquisition of Company Stock.
14.6 Participant Voting Rights.
Each Participant (or Beneficiary) shall be entitled to direct the Trustee as to how to
vote the shares of Company Stock that are allocated to the Participant's Company Stock
Account. Shares for which no direction is received shall be voted by the Trustee in the
same manner and proportion as the shares for which direction is received.
48
14.7 Diversification of Participant's Account.
A Participant (or Beneficiary) may, at the Participant's (or Beneficiary's) discretion,
diversify the investment of the Participant's Company Stock Account in accordance with
Section 8.2 of the Plan.
14.8 Put Option.
(a) Solely in the event that a Company Stock Distributee receives a distribution
consisting in whole or in part of Company Stock that at the time of the distribution thereof
is not Freely Tradable Stock (or which ceases to be Freely Tradable Stock during the time
periods specified below), the distributed Company Stock will be subject to a put option
("Put Option") as set forth in this Section 14.8.
(b) During the 60-day period following the date the Company Stock first
becomes distributable, the Company Stock Distributee will have the right to require the
Company to purchase all or a portion of the distributed Company Stock held by the
Company Stock Distributee. A Company Stock Distributee will exercise this right by giving
written notice to the Company of the number of shares of distributed Company Stock that
the Company Stock Distributee intends to sell to the Company. This notice must be given
within the 60-day period following the date the Company Stock first becomes distributable.
The purchase price to be paid for the Company Stock will be its fair market value
determined as of the Valuation Date coincident with or immediately preceding the date of
the distribution.
(c) If a Company Stock Distributee does not exercise his Put Option, the Put
Option will temporarily lapse. Upon the expiration of the 60-day period following the last
day of the Plan Year in which the 60-day option period expires, the Company shall provide
the non-electing Company Stock Distributee (if he or she is then a shareholder of record)
with a notice (the "Notice of Value") indicating the fair market value of the Company Stock,
determined by an independent appraiser who meets the requirements of Section
401(a)(28)(C) of the Code. During the 60-day period following receipt of the Notice of
Value, the Company Stock Distributee will have the right to require the Company to
purchase all or any portion of the distributed Company Stock with the purchase price
based on the amount stated in the Notice of Value. If a Company Stock Distributee fails to
exercise his option right under this paragraph with respect to any portion of the distributed
Company Stock, no further options will be applicable under this Plan with respect to the
Company Stock, and the Company will have no further purchase obligations.
(d) In the event that a Company Stock Distributee exercises a Put Option, then
the Company have the option of paying the purchase price of the Company Stock which is
subject to the Put Option ("Option Stock") under either of the following methods: (1) a lump
sum payment of the purchase price within 30 days after the date upon which the Put
Option is exercised ("Exercise Date"); or (2) a series of 6 equal installment payments, with
the first payment to be made within 30 days following the Exercise Date and the 5
remaining payments to be made on the 5 anniversary dates of the Exercise Date. If the
Company elects to pay the purchase price of the Option Stock under the installment
method, the Company shall, within 30 days after the Exercise Date, give the Company
49
Stock Distributee the Company's promissory note for the full, unpaid balance of the option
price. This note will provide adequate security, state a rate of interest reasonable under
the circumstances, and provide that the full amount of the note will accelerate and become
due immediately in the event that the Company defaults in the payment of a scheduled
installment payment.
(e) The Put Option will be effective solely against the Company and will not
obligate the Plan in any manner. The Plan may, with the Company's consent, elect to
purchase any Company Stock that otherwise must be purchased by the Company
pursuant to a Company Stock Distributee's exercise of a Put Option.
(f) Except as is expressly provided above with respect to any distributed
Company Stock that is not Freely Tradable Stock, no Participant will have any Put Option
rights with respect to Company Stock distributed under this Plan, and neither the Company
nor this Plan shall have any obligation whatsoever to purchase any distributed Company
Stock from any Participant or other Company Stock Distributee.
(g) The protections and rights described in this Section 14.8 are non-terminable
and must continue to exist under the terms of the Plan, regardless of whether or not the
Plan continues to include the Stock Bonus Plan Portion or whether any Exempt Loan is
repaid.
50
ARTICLE 15 – ADMINISTRATION
15.1 Administrator’s General Powers and Duties.
As defined in the Plan, the Investment Committee of the Brown & Brown, Inc.
Employee Savings Plan (the “Committee”) is the Administrator. As the Administrator, the
Committee will have such powers and duties as are specifically conferred upon it by the
Plan and the Board. Such powers and duties include, but are not limited to:
(a) Administering the Plan;
(b) Establishing rules and procedures for the conduct of the Administrator’s
business and the administration and effectuation of the Plan;
(c) Interpreting and construing the terms of the Plan and deciding and resolving
any and all questions that may arise in the administration of the Plan;
(d) Allocating fiduciary responsibilities and delegating one or more persons to
carry out fiduciary responsibilities;
(e) Appointing professional advisors to the Plan, which may include, but not be
limited to, investment managers, trustees, consultants, plan administrators, attorneys,
accountants, and clerical staff by using any method that the Administrator deems prudent
under the circumstances, and monitor the performance thereof;
(f) Obtaining information, analyses, evaluations, advice, or opinions from
professional advisors and other persons, including persons employed by the Employer, as
it may deem necessary or advisable for such purpose;
(g) Establishing, executing, and maintaining an investment policy for the Plan;
(h) Reviewing, monitoring, and comparing the investment options provided to
Participants under the Plan, including the results of the investment options and the fees
associated with each investment option;
(i) Adding or removing investment options under the Plan as determined by the
stated process for watch list and replacement in the Plan’s investment policy statement;
(j) Monitoring other Plan service providers as needed;
(k) Appointing a proxy voting agent;
(l) Exercising all proxies on investments held by the Plan except to the extent
such rights are passed through to participants or otherwise provided by ERISA;
(m) Reporting to the Board as necessary on the performance of Administrator
responsibilities and on the performance of any organization or persons to whom any of its
powers and responsibilities may have been delegated;
51
(n) Delegating authority and responsibility, as the Administrator deems proper,
and periodically reviewing such delegation;
(o) Directing the Trustees with respect to payments from the Trust Fund;
(p) Deciding if a Participant is entitled to a benefit;
(q) Communicating with Employees regarding their participation and benefits
under the Plan, including the administration of all claims procedures;
(r) Filing any returns and reports with the Internal Revenue Service, Department
of Labor, or any other governmental agency;
(s) Reviewing and approving any financial reports, investment reviews, or other
reports prepared by any party;
(t) Making any findings of fact the Administrator deems necessary to proper
Plan administration; and
(u) Taking such other actions, consistent with the terms of the Plan, as the
Administrator deems appropriate.
Notwithstanding any contrary provision of this Plan, benefits under this Plan will be
paid only if the Administrator decides in its discretion that the applicant is entitled to them.
The Administrator's interpretation of Plan provisions, and any findings of fact, including
eligibility to participate and eligibility for benefits, are final and will not be subject to "de
novo" review unless shown to be arbitrary and capricious.
15.2 Correcting Administrative Errors.
The Administrator shall take such steps as the Administrator considers necessary
and appropriate to remedy administrative or operational errors, including, but not be limited
to, the following: (a) any action pursuant to (1) any Employee Plans Compliance
Resolution System (EPCRS) that is issued by the Internal Revenue Service, (2) any asset
management or fiduciary conduct error correction program that is issued by the
Department of Labor, or (3) any other correction program issued by any Department or
governmental agency; (b) a reallocation of Plan assets; (c) an adjustment in the amount of
future payments to any Participant, Beneficiary or Alternate Payee; and (d) the institution,
prosecution, and/or settlement of legal actions to recover benefit payments made in error
or on the basis of incorrect or incomplete information.
15.3 Promulgating Notices and Procedures.
The Employer and Administrator are given the power and responsibility to
promulgate certain written notices, policies and/or procedures under the terms of the Plan
and disseminate them to Participants, and the Administrator may satisfy such responsibility
by the preparation of any such notice, policy and/or procedure in a written form which can
52
be published and communicated to a Participant in one or more of the following ways: (a)
by distribution in hard copy; (b) through distribution of a summary plan description or
summary of material modifications thereto which sets forth the policy or procedure with
respect to a right, benefit or feature offered under the Plan; (c) by e-mail, either to a
Participant's personal e-mail address or his or her Employer-maintained e-mail address;
and (d) by publication on a web-site accessible by the Participant, provided the Participant
is notified of said web-site publication. Any notice, policy and/or procedure provided
through an electronic medium will only be valid if the electronic medium which is used is
reasonably designed to provide the notice, policy and/or procedure in a manner no less
understandable to the Participant than a written document, and under such medium, at the
time the notice, policy and/or procedure is provided, the Employee may request and
receive the notice, policy and/or procedure on a written paper document at no charge.
Notwithstanding any provision of the Plan to the contrary, the use of electronic
technologies will be deemed to satisfy any written notice, consent, delivery, signature or
disclosure requirement under the Plan, the Code, or ERISA to the extent permitted by the
Administrator and permissible under and consistent with applicable law and regulations.
15.4 Employment of Agents and Counsel.
The Administrator may appoint such actuaries, accountants, custodians, counsel,
agents, consultants, service companies and other persons deemed necessary or desirable
in connection with the administration and operation of the Plan. Any person or company so
appointed will exercise no discretionary authority over investments or the disposition of
Trust assets, and their services and duties will be ministerial only and will be to provide the
Plan with those things required by law or by the terms of the Plan without in any way
exercising any fiduciary authority or responsibility under the Plan. The duties of a third
party Administrator will be to safe-keep the individual records for all Participants and to
prepare all required actuarial services and disclosure forms under the supervision of the
Administrator and any fiduciaries of the Plan. It is expressly stated that the third party
Administrator's services are only ministerial in nature and that under no circumstances will
such third party Administrator (a) exercise any discretionary authority whatsoever over
Plan Participants, Plan investments, or Plan benefits; or (b) be given any authority or
discretion concerning the management and operation of the Plan that would cause them to
become fiduciaries of the Plan.
15.5 Compensation and Expenses.
The Administrator may receive such compensation as agreed upon between the
Employer and the Administrator, provided that any person who already receives full-time
pay from the Employer may not receive any fees from the Plan for services to the Plan as
Administrator or in any other capacity, except for reimbursement for expenses actually and
properly incurred. The Employer will pay all "settlor" expenses (as described in
Department of Labor Advisory Opinion 2001-01-A) incurred by the Administrator, the
Committee or any party that is appointed under Section 15.4 in the performance of their
duties. The Employer may pay, but is not required to pay, all "non-settlor" expenses
incurred by the Administrator or any party that is appointed under Section 15.4 in the
performance of their duties. Any "non-settlor" expenses incurred by the Administrator or
any party that is appointed under Section 15.4 that the Employer elects not to pay will be
53
reimbursed from Trust Fund assets. Any expenses paid from the Trust Fund will be
charged to each Participating Employer in the ratio that each Participating Employer's
Participants' Accounts bears to the total of all the Participants' Accounts maintained by this
Plan, or in any other reasonable method elected by the Administrator.
15.6 Claims Procedures.
The claims procedure required under Section 503 of ERISA and Department of
Labor Regulations thereunder is set forth in an administrative policy regarding claims
procedures that is promulgated under Section 15.3 of the Plan by the Administrator. Such
administrative policy will be the sole and exclusive remedy for an Employee, Participant or
Beneficiary ("Claimant") to make a claim for benefits under the Plan.
15.7 Qualified Domestic Relations Orders.
A Qualified Domestic Relations Order, or QDRO, is a signed domestic relations
order issued by a State or a Commonwealth court that satisfies the requirements of
Section 414(p) of the Code and creates, recognizes, or assigns to an alternate payee(s)
the right to receive all or part of a Participant's Plan benefit, including (a) an order that is
issued with respect to another domestic relations order or QDRO, including an order that
revises or amends a prior order; (b) an order issued after the Participant's Benefit
Commencement Date or death; or (c) an order that names as the alternate payee a person
deemed financially dependent upon the Participant, provided that the other requirements
for a QDRO as set forth in the Plan's QDRO procedure and/or as defined in Section 414(p)
of the Code are satisfied. An alternate payee is a Spouse, former Spouse, child, or other
dependent of a Participant who is treated as a Beneficiary under the Plan as a result of the
QDRO. The Administrator will determine if a domestic relations order received by the Plan
is a Qualified Domestic Relations Order based on an administrative policy regarding
Qualified Domestic Relations Orders that is promulgated under Section 15.3 of the Plan by
the Administrator.
15.8 Appointment of an Investment Manager.
The Administrator, with the consent of the Employer, may appoint an Investment
Manager to manage and control the investment of all or any portion of the assets of the
Trust. Each Investment Manager must be a person (other than the Trustee) who (a) has
the power to manage, acquire, or dispose of Plan assets, (b) is an investment adviser, a
bank, or an insurance company as described in Section 3(38)(B) of ERISA, and (c)
acknowledges fiduciary responsibility to the Plan in writing. The Administrator will enter
into an agreement with an Investment Manager that specifies the duties and compensation
of the Investment Manager and specifies any other terms and conditions under which the
Investment Manager will be retained. The Trustee is not liable for any act or omission of an
Investment Manager and is not liable for following an Investment Manager's advice with
respect to duties delegated by the Administrator to the Investment Manager. The
Administrator can determine the portion of the Plan's assets to be invested by a
designated Investment Manager and can establish investment objectives and guidelines
for the Investment Manager to follow.
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15.9 Committee Provisions
(a) Membership. The Committee will consist of such number of individuals as
are appointed by the Board to serve at the pleasure of the Company. The members of the
Committee, who need not be Participants or Employees, will hold office until termination of
such membership status. Any member of the Committee may resign as any time by giving
written notice to the other members of the Committee and to the Board, effective as therein
stated. The Board may remove any member of the Committee at any time. In the case of a
Committee member who is also an Employee, his status as a Committee member will
terminate upon his termination of employment with the Employer, except as otherwise
provided by the Board. Upon the death or removal of any Committee member, the Board
may appoint a successor. The Company in writing shall give notice of appointment of a
successor member to other members of the Committee.
(b) Establishment of Offices. The Committee will have a Chairman and a
Secretary. The Chairman will be responsible for the conduct of all the meetings of the
Committee and will have voting rights the same as any other Committee member. The
Secretary will be responsible for keeping minutes of the transactions of the Committee and
will be the official custodian of records of the Committee.
(c) Conflict of Interest. Notwithstanding any provision of law, no Committee
member will vote or participate in a determination of any matter in which the Committee
member will receive a special private gain, except in the case of voting matters pertaining
to benefits applicable to all Participants. No individual member of the Committee, when
acting in his capacity as a member of the Committee, will have any right to vote or decide
on any matter relating solely to himself or his rights or benefits under the Plan.
Furthermore, no individual member of the Committee will take actions for the purposes of
benefiting a third party. Members of the Committee have a duty of loyalty that precludes
them from being influenced by motives other than the accomplishment of the purposes of
the Plan. Committee members, in the performance of their duties, must conform and act
pursuant to the documents and instruments establishing and governing the Plan and Trust.
(d) Committee Meetings. The Committee shall set its own schedule of
meetings. Special meetings may be called as needed. A majority of the members of the
Committee at the time in office will constitute a quorum for the transaction of business. The
action of the Committee will be determined by a vote or other affirmative expression by the
majority of its members in attendance where a quorum is present. The Committee may
also act through unanimous written consent of all of its members. The Committee may
designate one or more of its members (the “Designated Members”) as authorized to
execute any document or documents on behalf of the Committee, in which event the
Committee shall notify the trustee of this action and the name or names of the Designated
Members.
(e) Subcommittees. The Committee, in the conduct of its business, may choose
to establish subcommittees consisting of a lesser number of Committee members. The
Chairman shall appoint subcommittees. Meetings of subcommittees consisting of two or
more Committee members will be conducted in accordance with the operating rules and
procedures governing the Committee as a whole.
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(f) Adopting Rules. All rules to be adopted by the Committee will be in writing
and will be adopted by a majority vote of the Committee. No rule or regulation of the Plan
may conflict with ERISA or the Code or Regulations or applicable state law.
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ARTICLE 16 - PARTICIPATING EMPLOYERS
16.1 Participating Employers
The following Affiliates are Participating Employers that are authorized by the
Company to participate in the Plan on account of their Employees:
(a) Each Subsidiary of the Company. For purposes of this Section 16.1,
"Subsidiary" means any corporation, partnership, limited liability company, or other legal
entity of which the Company or one of the Company's Subsidiaries, in either case acting
alone or with one or more of the Company’s other Subsidiaries, owns, or has the power to
vote or exercise a controlling influence with respect to, 100 percent of the capital stock or
other ownership interest giving holders the right to do one or both of the following: (1) elect
the board of directors or other governing body of that legal entity and (2) receive the net
assets of that legal entity available for distribution to holders of all stock or other ownership
interests upon liquidation or dissolution of that legal entity.
In addition to all other terms and conditions in the Plan, Participating Employers will be
subject to, and must comply with, the terms and conditions set forth in this Article 16.
16.2 Plan Contributions
Unless otherwise agreed to by the parties, or unless otherwise required by law, no
Employer will have any obligation to make contributions to this Plan for or on behalf of the
Employees of any other Employer. If an Employee is employed by more than one
Employer, any contributions made on his or her behalf will be prorated between those
Employers on the basis of the Compensation that the Employee received from each
Employer. If any Employer is unable to make a contribution for any Plan Year, any
Employer may make an additional contribution to the Plan on behalf of any Employee of
the non-contributing Employer.
16.3 Plan Amendments
Any amendment to the Plan that is adopted by the Company, at any time, will be
deemed to be accepted by any Participating Employer.
16.4 Plan Expenses
Any expenses paid from the Trust will be charged to each Participating Employer in
the ratio that each Participating Employer's Participants' Accounts bears to the total of all
the Accounts maintained by the Plan, or in any other reasonable method elected by the
Administrator.
16.5 Employee Transfers
An Employee's transfer to or from an Employer or Participating Employer will not
affect his or her Account balance and total Years of Service or Periods of Service.
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16.6 Termination of Participation
A Participating Employer may terminate its participation in the Plan by delivering
written notice to the Company, to the Administrator and to the Trustee (but in accordance
with Article 19, only the Company can terminate the Plan). Upon any such termination of
participation by a Participating Employer, the Participating Employer may request a
transfer of Trust Fund assets attributable to its Employees from this Plan to a successor
qualified retirement plan maintained by the Participating Employer or its successor. If such
request is not made by the Participating Employer, or if the Administrator refuses to make
the transfer because in its opinion a transfer would operate to the detriment of any
Participant, would jeopardize the continued qualification of the Plan, or would not comply
with any requirements of the Code, Regulations, or rules promulgated by the Department
of Treasury or Internal Revenue Service, then termination of participation by a Participating
Employer as described in this Section 16.6 will not be considered a distributable event;
distribution of a Participant's Account of an Employee of the Participating Employer will be
made in accordance with the provisions of Article 10 upon the death, retirement, Disability,
or the termination of employment from the Participating Employer or former Participating
Employer, as if such termination of participation by the Participating Employer had not
occurred.
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ARTICLE 17 - MISCELLANEOUS
17.1 No Contract of Employment.
Except as otherwise provided by law, neither the establishment of this Plan, any
modification hereto, the creation of any fund or account, nor the payment of any benefits,
will be construed as giving any Participant or other person any legal or equitable rights
against the Employer, any officer or Employee thereof, or the Trustee, except as herein
provided. Further, under no circumstances will the terms of employment of any Participant
be modified or otherwise affected by this Plan.
17.2 Title to Assets.
No Participant or Beneficiary will have any right to, or any interest in, any assets of
the Trust upon separation from service with the Employer or an Affiliate, except as
otherwise provided by the terms of the Plan.
17.3 Fiduciaries and Bonding.
Fiduciaries (including Named Fiduciaries) of the Plan will have only those powers
and duties specifically given to them under the terms of this Plan. Every fiduciary other
than a bank, an insurance company, a broker-dealer who is registered under Section 15(b)
of the Securities Exchange Act of 1934 and who is subject to the fidelity bond
requirements of a self-regulatory organization as defined in Section 412(a) of ERISA, or a
fiduciary of an Employer which has no common-law employees, will be bonded in an
amount not less than 10 percent of the amount of funds under the fiduciary's supervision,
but the bond will not be less than $1,000 or more than $1,000,000 or such other amount
that may be required by law. The bond will provide protection to the Plan against any loss
for acts of fraud or dishonesty by a fiduciary acting alone or in concert with others. The
cost of such bond will be an expense of either the Company or the Trust, at the election of
the Company.
17.4 Severability of Provisions.
If any Plan provision is held invalid or unenforceable, such invalidity or
unenforceability will not affect any other provision of this Plan, and this Plan will be
construed and enforced as if such provision had not been included.
17.5 Interpretation of the Plan and Trust.
The following provisions apply to the interpretation of the Plan and Trust:
(a) Names. Names that are used in this Plan should be used consistently in any
appendixes, policies, procedures, and/or any other documents which are legally binding
upon the Plan. However, in documents that are not considered to be part of this Plan,
appendixes, policies or procedures that are not legally binding upon the Plan; and that may
be are distributed to individuals (such as the summary plan descriptions, summaries of
material modification, notices, and election forms), names may use plain English terms.
59
(b) Gender. Words that are used in the masculine gender may be construed as
though they are also used in the feminine or neuter gender, where applicable (and vice
versa).
(c) Number. Words that are used in the singular form may be construed as
though they are also used in the plural form, where applicable (and vice versa).
(d) Headings and Subheadings. Headings and subheadings are inserted for
convenience of reference. Headings and subheadings constitute no part of this Plan and/or
Trust and are not to be considered in its construction or interpretation.
(e) Single Subparagraphs. This Plan and/or Trust may have Sections and/or
paragraphs that contain a single subparagraph; such document construction will not
constitute a Scrivener's error.
(f) Application of Law. This Plan and/or Trust will be construed and interpreted
in accordance with the Code and ERISA. However, if the Plan needs to be construed and
interpreted according to a State's or Commonwealth's laws (to the extent that such laws
are not preempted by the provisions of the Code and ERISA), then this Plan will be
construed and interpreted according to the laws of the State of Florida. Unless the Trust
otherwise provides, if the Trust needs to be construed and interpreted according to a
State's or Commonwealth's laws (to the extent that such laws are not preempted by the
provisions of the Code and ERISA), then the Trust will be construed and interpreted
according to the laws of the State of Florida.
17.6 Costs and Expenses of Legal Action.
Unless otherwise prohibited by law, either the Company or the Trust, in the sole
discretion of the Company, will reimburse the Trustee and/or the Administrator for all costs,
attorneys fees and other expenses associated with any claim, suit or proceeding.
17.7 Qualified Plan Status.
This Plan and the related Trust agreement are intended to be a qualified retirement
plan under the provisions of Sections 401(a) and 501(a) of the Code.
17.8 Mailing of Notices to Administrator, Employer or Trustee.
Except as otherwise provided in Section 15.3 of the Plan, notices, documents or
forms required to be given to or filed with the Administrator or the Employer will be either
hand delivered or mailed by first class mail, postage prepaid, to the Administrator or the
Employer, at the Employer's principal place of business. Any notices, documents or forms
required to be given to or filed with the Trustee will be either be hand delivered or mailed
by first class mail, postage prepaid, to the Trustee at its principal place of business.
17.9 Participant Notices and Waivers of Notices.
Whenever written notice is required to be given under the terms of this Plan, such
notice will be deemed to be given on the date that such written notice is either hand
60
delivered to the recipient or deposited at a United States Postal Service Station, first class
mail, postage paid. Notice may be waived by any party entitled to receive written notice
concerning any matter under the terms of this Plan.
17.10 Evidence Furnished Conclusive.
Anyone required to give evidence under the terms of the Plan may do so by
certificate, affidavit, document or other information that the person to act in reliance may
consider pertinent, reliable and genuine, and to have been signed, made or presented by
the proper party or parties. The fiduciaries of the Plan will be fully protected in acting and
relying upon any evidence described under this Section 17.10.
17.11 Release of Claims.
Any payment to a Participant or Beneficiary, his legal representative, or to a
guardian or committee appointed for such Participant or Beneficiary, will, to the extent
thereof, be in full satisfaction of all claims hereunder against the Administrator and the
Trustee, either of whom may require such Participant, legal representative, Beneficiary,
guardian or committee, as a condition precedent to such payment, to execute a receipt
and release thereof in such form as determined by the Administrator or the Trustee.
17.12 No Duplication of Benefits.
There will be no duplication of benefits under the Plan because of employment by
more than one participating Employer.
17.13 Discontinued Contributions.
Any Participants' Accounts (or sub-Accounts) that were established for specific
contributions to the Plan which are (or were) subsequently discontinued will continue to be
administered in accordance with the vesting and forfeiture provisions of the Plan in effect
on the date that such contributions are (or were) discontinued.
17.14 Multiple Copies of Plan and Trust Agreement.
This Plan and the related Trust agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which will constitute one
and the same Plan or Trust agreement, as the case may be, and will be binding on the
respective successors and assigns of the Employer and all other parties.
17.15 Limitation of Liability and Indemnification.
In addition to and in furtherance of any other limitations provided in the Plan, and to
the extent permitted by applicable law, the Employer will indemnify and hold harmless its
board of directors (collectively and individually), the Administrator (collectively and
individually), and its officers, Employees, and agents against and with respect to any and
all expenses, losses, liabilities, costs, and claims, including legal fees to defend against
such liabilities and claims, arising out of their good-faith discharge of responsibilities under
or incident to the Plan, excepting only expenses and liabilities resulting from willful
61
misconduct, fraud, bad faith, or gross negligence. This indemnity will not preclude such
further indemnities as may be available under insurance purchased by the Employer or as
may be provided by the Employer under any by-law, agreement, vote of shareholders or
disinterested directors, or otherwise, as such indemnities are permitted under state law.
Payments with respect to any indemnity and payment of expenses or fees under this
Section will be made only from assets of the Employer, and will not be made directly or
indirectly from assets of the Trust.
17.16 Written Elections and Forms.
Whenever the word "written" or the words "in writing" are used, such words will
include any method of communication permitted by the Department of Labor with respect
to such documentation. In a similar manner, the word "form" will include any other method
of election permitted under current law. Such alternative methods will include, but not be
limited to, electronic modes to the extent permitted by law.
17.17 Assignment and Alienation of Benefits.
Except as may otherwise be permitted under Section 401(a)(13)(C) of the Code, as
may otherwise be permitted under a Qualified Domestic Relations Order as provided in
Section 15.7 of the Plan, or as may otherwise be permitted under Article 12 relating to
loans to Participants, no right or claim to, or interest in, any part of the Trust Fund, or any
payment therefrom, will be assignable, transferable, or subject to sale, mortgage, pledge,
hypothecation, commutation, anticipation, garnishment, attachment, execution, or levy of
any kind, and the Trustees will not recognize any attempt to assign, transfer, sell,
mortgage, pledge, hypothecate, commute, or anticipate the same, except to the extent
required by law.
17.18 Exclusive Benefit Rule.
All contributions made by the Employer or an Affiliate to the Trust Fund will be used
for the exclusive benefit of the Participants who are Employees of the Employer or Affiliate
and for their Beneficiaries and will not be used for nor diverted to any other purpose except
the payment of the costs of maintaining the Plan.
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ARTICLE 18 - TOP-HEAVY PLAN REQUIREMENTS
18.1 Top-Heavy Plan Determination.
If as of the determination date (as defined in Section 18.2 of the Plan) for any Plan
Year the aggregate of (a) the account balances under the Plan and all other defined
contribution plans in the aggregation group (as defined in Section 18.2 of the Plan) and (b)
the present value of accrued benefits under all defined benefit plans in such aggregation
group of all participants in such plans who are key employees (as defined in Section 18.2
of the Plan) for such Plan Year exceeds 60 percent of the aggregate of the account
balances and the present value of accrued benefits of all participants in such plans as of
the determination date, then the Plan will be a “top-heavy plan” for such Plan Year, and the
requirements of Section 18.3 of the Plan will be applicable for such Plan Year as of the first
day of such Plan Year. If the Plan is a top-heavy plan for any Plan Year and is not a top-
heavy plan for any subsequent Plan Year, the requirements of Section 18.3 of the Plan will
not be applicable for such subsequent Plan Year.
18.2 Definitions and Special Rules.
(a) Definitions. For purposes of this Article 18, the following definitions will
apply:
(1) Determination Date. The determination date for all plans in the
aggregation group will be the last day of the preceding Plan Year, and the valuation date
applicable to a determination date will be (i) in the case of a defined contribution plan, the
date as of which account balances are determined that coincides with or immediately
precedes the determination date, and (ii) in the case of a defined benefit plan, the date as
of which the most recent actuarial valuation for the Plan Year that includes the
determination date is prepared, except that if any such plan specifies a different
determination or valuation date, such different date will be used with respect to such plan.
(2) Aggregation Group. The aggregation group will consist of (a)
each plan of an Employer in which a key employee is a participant, (b) each other plan that
enables such a plan to be qualified under Section 401(a) of the Code, and (c) any other
plans of an Employer that the Company designates as part of the aggregation group.
(3) Key Employee. Key employee will have the meaning set forth in
Section 416(i) of the Code.
(b) Special Rules. For the purpose of determining the accrued benefit or account
balance of a participant, (i) the accrued benefit or account balance of any person who has
not performed services for an Employer at any time during the 1-year period ending on the
determination date will not be taken into account pursuant to this Section, and (ii) any
person who received a distribution from a plan (including a plan that has terminated) in the
aggregation group during the 1-year period ending on the determination date will be
treated as a participant in such plan, and any such distribution will be included in such
participant’s account balance or accrued benefit, as the case may be; provided, however,
that in the case of a distribution made for a reason other than a person’s severance from
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employment, death or disability, clause (ii) of this Section 18.2(b) will be applied by
substituting “5-year period” for “1-year period.”
18.3 Minimum Contribution for Top-Heavy Years.
Notwithstanding any provision of the Plan to the contrary, for any Plan Year for
which the Plan is a top-heavy plan, a minimum contribution will be made on behalf of each
Participant (other than a key employee) who is an Employee on the last day of the Plan
Year in an amount equal to the lesser of (i) 3 percent of such Participant’s Compensation
during such Plan Year and (ii) the highest percentage at which Employer contributions
(including Pre-Tax Elective Deferrals) are made on behalf of any key employee for such
Plan Year. If during any Plan Year for which this Section 18.3 is applicable a defined
benefit plan is included in the aggregation group and such defined benefit plan is a top-
heavy plan for such Plan Year, the percentage set forth in clause (i) of the first sentence of
this Section 18.3 will be 5 percent. The percentage referred to in clause (ii) of the first
sentence of this Section 18.3 will be obtained by dividing the aggregate of Employer
contributions made pursuant to Article 4 and pursuant to any other defined contribution
plan that is required to be included in the aggregation group (other than a defined
contribution plan that enables a defined benefit plan that is required to be included in such
group to be qualified under Section 401(a) of the Code) during the Plan Year on behalf of
such key employee by such key employee’s compensation for the Plan Year.
Notwithstanding the foregoing, the minimum contribution described in this Section 18.3 for
any Plan Year for which the Plan is a top-heavy plan will not be made under this Plan with
respect to any Participant who receives a minimum contribution or minimum benefit for
purposes of Section 416(c) of the Code under another plan maintained by an Affiliate.
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ARTICLE 19 - AMENDMENT, PLAN TERMINATION
19.1 Authority of Board to Terminate
It is the intention of the Company that this Plan will be permanent. However, the
Company reserves the power to terminate the Plan at any time by action of the Board.
Upon any such termination, the Trust Fund will continue to be administered until complete
distribution has been made to the Participants and other payees, which distribution must
occur as soon as administratively feasible after the termination of the Plan, and must be
made in accordance with the provisions of Article 10 of the Plan. However, the
Administrator may elect not to distribute the Accounts of Participants and other payees
upon termination of the Plan but instead to transfer the entire Trust Fund assets and
liabilities attributable to this terminated Plan to another qualified plan maintained by the
Employer or its successor.
19.2 Authority of Board and Administrator to Amend
The Company reserves the power to amend the Plan at any time and to any extent
by action of the Board, to the extent permitted by applicable law. In addition to the authority
of the Board to amend the Plan, the Administrator may amend the Plan at any time,
pursuant to this Section 19.2 and to the extent permitted by applicable law, to:
(a) Comply with changes in ERISA, the Code or other applicable law;
(b) Simplify or clarify the administration of the Plan; and
(c) Make other reasonable or necessary changes to the extent such changes will
not materially increase the cost to the Company of maintaining the Plan.
Any action to terminate the Plan, materially increase or decrease benefits payable
pursuant to the terms of the Plan, or to materially increase the cost to the Company of
maintaining the Plan must be taken by the Board.
19.3 Effective Date of Amendment
Any amendment or termination of the Plan will become effective as of the date
designated by the Board or Administrator, as applicable; provided however, that an
amendment to the Plan will not be effective to the extent that it has the effect of decreasing
a Participant’s accrued benefit under Section 411(d)(6) of the Code. Except as expressly
provided elsewhere in the Plan, prior to the satisfaction of all liabilities with respect to the
benefits provided under this Plan, no amendment or termination will cause any part of the
monies contributed hereunder to revert to the Employer or to be diverted to any purpose
other than for the exclusive benefit of Participants and their Beneficiaries. Upon
termination or partial termination of the Plan, or upon complete discontinuance of
contributions, the rights of all affected persons to benefits accrued to the date of such
termination shall be nonforfeitable. Upon termination of the plan without establishment or
maintenance of another defined contribution plan (other than an employee stock
ownership plan as defined in Section 4975(e)(7) of the Code or a simplified employee
65
pension plan as defined in Section 408(k) of the Code), Accounts will be distributed in
accordance with applicable law.
19.4 Merger
The Plan will not be merged with or consolidated with, nor shall its assets be
transferred to, any other qualified retirement plan unless each Participant would receive a
benefit after such merger, consolidation, or transfer (assuming the Plan then terminated)
which is of actuarial value equal to or greater than the benefit he would have received from
his Account if the Plan had been terminated on the day before such merger, consolidation,
or transfer.
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EXECUTION
IN WITNESS WHEREOF, the Company has caused this restatement to be executed in its
name and behalf effective as of the first day of January, 2016.
BROWN & BROWN, INC.
BY: /s/ R. ANDREW WATTS
Printed Name: R. Andrew Watts
Title: Executive Vice President, Treasurer and Chief
Financial Officer