Res 1392 - Amend ICMA Plan
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COUNCIL BILL NO. 1764
RESOLUTION NO. 1392
A RESOLUTION AMENDING THE INTERNATIONAL CITY MANAGERS ASSOCIATION (ICMA)
RETIREMENT CORPORATION DEFERRED COMPENSATION PLAN AND TRUST FOR CERTAIN
CITY EMPLOYEES.
WHEREAS, the City has had the ICMA deferred compensation plan
available for its employees since 1973 which serves the interest of the
City by enabling it to provide reasonable retirement security for its
employees, by providing increased flexibility in its personnel
management system, and by assisting in the attraction and retention of
competent personnel; and .
WHEREAS, the City has determined that the continuance of the
deferred compensation plan will serve these objectives; and
WHEREAS, amendments to the Internal Revenue Code have been
enacted that require changes to the structure of, and allow enhancements
of the benefits of the deferred compensation plan, now, therefore,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. The City hereby amends and restates the deferred
compensation plan (the "Plan") in the form of the ICMA Retirement
Corporation Deferred Compensation Plan and Trust, a copy of which is
attached as "Exhibit A".
Section 2. That the assets of the Plan shall be held in
trust, with the Employer serving as Trustee, for the exclusive benefit
of the Plan participants and their beneficiaries, and the assets shall
not be diverted to any other purpose, The City's beneficial ownership
of Plan assets held in the ICMA Retirement Trust shall be held for the
further exclusive benefit of the Plan participants and their
beneficiaries. Notwithstanding the foregoing, all Plan provisions
creating a Trust to hold all the assets of the Plan for the exclusive
benefit of participants and beneficiaries shall become effective once
the appropriate body, which includes the State of Oregon, makes the
necessary amendments permitting the establishment and maintenance of
such a Trust,
Section 3. That the Plan will not permit loans, however, the
City reserves the right to reconsider this action once the Trust is
established to hold all of the assets of the Plan for the exclusive
benefit of participants and beneficiaries, and guidelines have been
established by the Internal Revenue Service,
Section 4. That the City hereby
under the Plan rv7 /1/. /\
Approved as to'Form:/ /.f(va-/~
agrees to serve as trustee
Page 1 -
City Attorney
APPROVED <~?~~
NANCY A. K KSEY,
COUNCIL BILL NO. 1764 , RESOLUTION NO, 1392
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Passed by the Council
November 25, 1996
Submitted to the Mayor
November 27, 1996
Approved by the Mayor
November 27, 1996
Filed in the Office of the Recorder
November 27, 1996
ATTEST
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Mary nnant, Recorder
City of Woodburn, Oregon
Page 2 - COUNCIL BILL NO, 1764
RESOLUTION NO, 1392
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ICMA RETIREMENT CORPORATION
This deferred compensation plan has been submitted
to the Internal Revenue Service by a public employer
for a Private Letter Ruling.
The IRS has not yet issued a Ruling on the plan
and may require changes in this document
prior to issuing a'Ruling.
If changes are required in the document,
you will be notified of the changes.
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457 Deferred Compensation Plan and Trust Document
November 1996
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DEFERRED COMPENSATION PLAN & TRUST
ARTICLE I. PURPOSE
The Employer hereby establishes the Employer's De-
ferred Compensation Plan and Trust, hereafter referred
to as the" Plan." The Plan consists of the provisions set
forth in this document.
The primary purpose of this Plan is to provide retirement
income and other deferred benefits to the Employees of the
Employer and the Employees' Beneficiaries in accordance
with the provisions of Section 457 of the Internal Rev-
enue Code of 1986, as amended (the "Code"),
This Plan shall be an agreement solely between the
Employer and participating Employees, The Plan and
Trust forming a part hereof are established and shall be
maintained for the exclusive benefit of eligible Employ-
ees and their Beneficiaries, No part of the corpus or
income of the Trust shall revert to the Employer or be
used for or diverted to purposed other than the exclu-
sive benefit of Participants and their Beneficiaries.
ARTICLE II. DEFINITIONS
2.01 Account: The bookkeeping account maintained for
each Participant reflecting the cumulative amount of the
Participant's Deferred Compensation, including any
income, gains, losses, or increases or decreases in market
value attributable to the Employer's investment of the
Participant's Deferred Compensation, and further
reflecting any distributions to the Participant or the
Participant's Beneficiary and any fees or expenses
charged against such Participant's Deferred Compensa-
tion,
2,02 Accounting Date: Each business day that the New
York Stock Exchange is open for trading, as provided in
Section 6,06 for valuing the Trust's assets,
2,03 Administrator: The person or persons named to
carry out certain nondiscretionary administrative func-
tions under the Plan, as hereinafter described, The
Employer may remove any person as Administrator
upon 60 days' advance notice in writing to such person,
in which case the Employer shall name another person
or persons to act as Administrator. The Administrator
may resign upon 60 days' advance notice in writing to
the Employer, in which case the Employer shall name
another person or persons to act as Administrator.
2.04 Beneficiary: The person or persons designated by
the Participant in his Joinder Agreement who shall
receive any benefits payable hereunder in the event of
the Participant's death. In the event that the Participant
names two or more Beneficiaries, each Beneficiary shall
be entitled to equal shares of the benefits payable at the
Participant's death, unless otherwise provided in the
Participant's Joinder Agreement. If no beneficiary is
designated in the Joinder Agreement, if the Designated
Beneficiary predeceases the Participant, or if the desig-
nated Beneficiary does not survive the Participant for a
period of fifteen (15) days, then the estate of the Par-
ticipant shall be the Beneficiary.
2.05 Deferred Compensation: The amount of Normal
Compensation otherwise payable to the Participant
which the Participant and the Employer mutually agree
to defer hereunder, any amount credited to a
Participant's Account by reason of a transfer under
section 6.09, or any other amount which the Employer
agrees to credit to a Participant's Account.
2.06 Employee: Any individual who provides services
for the Employer, whether as an employee of the
Employer or as an independent contractor, and who has
been designated by the Employer as eligible to partici-
pate in the Plan,
2.07 Includible Compensation: The amount of an
Employee's compensation from the Employer for a
taxable year that is attributable to services performed for
the Employer and that is includible in the Employee's
gross income for the taxable year for federal income tax
purposes; such term does not include any amount
excludable from gross income under this Plan or any
other plan described in Section 457(b) of the Code or
any other amount excludable from gross income for
federal income tax purposes. Includible Compensation
shall be determined without regard to any community
property laws,
2,08 Joinder Agreement: An agreement entered into
between an Employee and the Employer, including any
amendments or modifications thereof. Such agreement
shall fix the amount of Deferred Compensation, specify
a preference among the investment alternatives desig-
nated by the Employer, designate the Employee's
Bell eficiary or Beneficiaries, and incorporate the terms,
conditions, and provisions of the Plan by reference,
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ICMA RETIREMENT CORPORATION
2,09 Normal Compensation: The amount of compensa-
tion which would be payable to a Participant by the
Employer for a taxable year if no Joinder Agreement
were in effect to defer compensation under this Plan.
2,10 Normal Retirement Age: Age 70-1/2, unless the
Participant has elected an alternate Normal Retirement
Age by written instrument delivered to the Administra..
(Or prior to Separation from Service, A Participant's
0lormal Retirement Age determines the period during
which a Participant may utilize the catch-up limitation
0f Section 5.02 hereunder. Once a Participant has to
lny extent utilized the catch-up limitation of Section
),02, his Normal Retirement Age may not be changed.
:\ Participant's alternate Normal Retirement Age may
not be earlier than the earliest date that the Participant
will become eligible to retire and receive unreduced
retirement benefits under the Employer's basic retire-
ment plan covering the Participant and may not be later
than the date the Participant will attain age 70-1/2, If a
Participant continues employment after attaining age
70-1/2, not having previously elected alternate Normal
Retirement Age, the Participant's alternate Normal
Retirement Age shall not be later than the mandatory
retirement age, if any, established by the Employer, or
the age at which the Participant actually separates from
,ervice if the Employer has no mandatory retirement
age, If the Participant will not become eligible to
receive benefits under a basic retirement plan main-
tained by the Employer, the Participant's alternate
:'>Jonnal Retirement Age may not be earlier than age 55
Jlld may not be later than age 70-1/2,
2.11 Participant: Any Employee who has joined the
Phn pursuant to the requirements of Article IV,
2.12 Plan Year: The calendar year.
2,13 Retirement: The first date upon which both of the
following shall have occurred with respect to a partici-
pant: Separation from Service and attainment of age 65.
2,14 Separation From Service: Severance of the
I'articip:mt's employment with the Employer which
lOllstltutes a "separation from service" within the
1I1ealllllg of Section 402(d)(4)(A)(iii) of the Code. In
~el1nal, a Participant shall be deemed to have severed
h 1\ l' III pIOYIlll'1l t with the Employer for purposes of this
1'1.111 whl'II, In accordance with the established practices of
the hnployer, the employment relationship is considered
...... .
to have actually terminated. In the case of a Participant
who is an independent contractor of the Employer,
Separation from Service shall be deemed to have oc-
curred when the Participant's contract under which
services are performed has completely expired and
terminated, there is no foreseeable possibility that the
Employer will renew the contract or enter into a new
contract for the Participant's services, and is not antici-
pated that the Participant will become an Employee of
the Employer.
2.15 Trust: The Trust created under Article VI of the
Plan which shall consist of all compensation deferred
under the Plan, plus any income and gains thereon, less
any losses, expenses and distributions to Participants and
Beneficiaries,
ARTICLE III. ADMINISTRATION
3.01 Duties of the Employer: The Employer shall have
the authority to make all discretionary decisions affect-
ing the rights or benefits of Participants which may be
required in the administration of this Plan. The
Employer's decisions shall be afforded the maximum
deference permitted by applicable law,
3.02 Duties of Administrator: The Administrator, as
agent for the Employer, shall perform nondiscretionary
administrative functions in connection with the Plan,
including the maintenance of Participants' Accounts,
the provision of periodic reports of the status of each
Account, and the disbursement of benefits on behalf
of the Employer in accordance with the provisions of
this Plan,
ARTICLE IV. PARTICIPATION IN THE PLAN
4,01 Initial Participation: An Employee may become a
Participant by entering into a Joinder Agreement prior
to the beginning of the calendar month in which the
Joinder Agreement is to become effective to defer
compensation not yet earned.
4,02 Amendment of Joinder Agreement: A Participant
may amend an executed Joinder Agreement to change
the amount of compensation not yet earned which is to
be deferred (including the reduction of such future
deferrals to zero) or to change his investment preference
(subject to such restrictions as may result from the
nature of terms of any investment made by the Em-
ployer), Such amendment shall become effective as of
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457 Deferred Compel/sa/ioll Pla" allil Trust Do(umetl(
November 1996
the beginning of the calendar month commencing after
the date the amendment is executed, A Participant may
at any time amend his Joinder Agreement to change the
designated Beneficiary, and such amendment shall
become effective immediately,
ARTICLE V. LIMITATIONS ON DEFERRALS
5,01 Normal Lim.itation: Except as provided in section
5.02, the m,aximum amount of Deferred Compensation
for any Participant for any taxable year shall not exceed
the lesser of $7,500.00, as adjusted for the cost-of-living
in accordance with Code section 457(e)(15) for taxable
years beginning after December 31, 1996 (the" dollar
limitation"), or 33-1/3 percent of the Participant's
Includible Compensation for the taxable year. This
limitation will ordinarily be equivalent to the lesser of
the dollar limitation in effect for the taxable year or 25
percent of the Participant's Normal Compensation,
5.02 Catch-Up Limitation: For each of the last three (3)
taxable years of a Participant ending before his attain-
ment of Normal Retirement Age, the maximum amount
of Deferred Compensation shall be the lesser of: (1)
$15,000 or (2) the sum of (i) the Normal Limitation for
the taxable year, and (ii) the Normal Limitation for
each prior taxable year of the Participant commencing
after 1978 less the amount of the Participant's Deferred
Compensation for such prior taxable years, A prior
taxable year shall be taken into account under the
preceding sentence only if (i) the Participant was eli-
gible to participate in the Plan for such year (or in any
other eligible deferred compensation plan established
under Section 457 of the Code which is properly taken
into account pursuant to regulations under section 457),
and (ii) compensation (if any) deferred under the Plan
(or such other plan) was subject to the deferrallimita-
tions set forth in Section 5,01
5,03 Other Plans: The amount excludable from a
Participant's gross income under this Plan or any other
eligible deferred compensation plan under section 457
of the Code shall not exceed $7,500.00 (or such greater
amount allowed under Sections 5.01 or 5,02 of the
Plan), less any amount excluded from gross income
under section 403(b), 402(a) (8), or 402(h)(1)(B) of the
Code, or any amount with respect to which a deduction
is allowable by reason of a contribution to an organiza-
tion described in section 501(c)(18) of the Code,
ARTICLE VI. TRUST AND INVESTMENT
OF ACCOUNTS
6.01 Investment of Deferred Compensation: A Trust is
hereby created to hold all the assets of the Plan for the
exclusive benefit of Participants and Beneficiaries,
except that expenses and taxes may .be paid from the
Trust as provided in Section 6.03, The trustee shall be
the Employer or such other person which agrees to act
in that capacity hereunder.
6,02 Investment Powers: The trustee or the Plan Ad-
ministrator, acting as agent for the trustee, shall have
the powers listed in this Section with respect to invest-
ment of Trust assets, except to the extent that the
investment of Trust assets is directed by Participants,
pursuant to Section 6.05.
(a) To invest and reinvest the Trust without dis-
tinction between principal and income in any form
of tangible or intangible property, real, personal, or
mixed, and wherever situated, including, but not by
way of limitation, common or preferred stocks,
shares of regulated investment companies and other
mutual funds, bonds, loans, notes, debentures,
mortgages, certificates of deposit, interest, or par-
ticipation, equipment trust certificates, commercial
paper including but not limited to participation in
pooled commercial paper accounts, contracts with
insurance companies including but not limited to
insurance, individual or group annuity, deposit
administration, and guaranteed interest contracts,
deposits at reasonable rates of interest at banking
institutions including but not limited to savings
accounts and certificates of deposit, and other forms
of securities or investments of any kind, class, or
character whatsoever and representing interests in
any form of enterprise, wherever it may be located,
organized or operated within or without the United
States of America, whether such investments are
income producing or not, without being limited in
any respect by statute or court rule or decision of
any jurisdiction now or hereafter in force purport-
ing to limit or otherwise affect such investments.
Assets of the Trust may be invested in securities or
new ventures that involve a higher degree of risk
than investments that have demonstrated their
investment performance over an extended period
of time,
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ICMA RETIREMENT CORPORATION
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(b) To invest and reinvest all or any pan of the
assets of the Trust in any common, collective or
commingled trust fund that is maintained by a bank
or other institution and that is available to Em-
ployee plans described undcr sections 457 or 401 of
the Code, or any successor provisions thereto, and
during the period of time that an investment
through any such medium shall exist, to the extent
of participation of the Plan, the declaration of trust
of such common, collective, or commingled trust
fund shall constitute a part of this Plan.
(c) To invest and reinvest all or any part of thc
assets of the Trust in any group annuity, deposit
administration or guaranteed interest contract issued
by an insurance company or other financial institu-
tion on a commingled or collective basis with the
assets of any other 457 plan or trust qualified under
section 401 (a) of the Code or any other pbn de-
scribed in section 401 (a)(24) of the Code, and such
contract may be held or issued in the name of the
Phn Administrator, or such custodian as the Plan
Administrator may appoint, as agent and nominee
for the Employer. During the period that an invest-
ment through any such contract shall exist, to the
extent of participation of the Plan, the terms and
conditions of such contract shall constitute a part of
the Plan,
(d) To purchase part interests in real property or in
mortgages on real property, wherever such real
property may be situated, and to delegate to a
property manager or the holder or holders of a
majority interest in such real property or mortgage
all real property the management and operation of
:IllY p:lrt interest in such re:lI property or IHortgages,
(e) To hold cash awaiting investment and to keep
sllch portion of the Trust in cash or cash balances,
without liability for interest, in such amounts as may
from time to time be deemed to be reasonable and
necessary to meet obligations under the Plan or
otherwise to be in the best interests of the Phn,
(I) To retain, manage, operate, administer, divide,
su bdivide, partition, mortgage, pledge, improve,
alter, demolish, remodel, repair, and develop in any
manner any property, or any part of or partial
interest in any property, real or personal, held in the
Trust, to lease such property for any period of time,
:lnd to grant options to sell, exchange, lease, or
otherwise dispose of any such property, without
regard to restrictions applicable to fiduciaries or
others and WIthout the approval of any court.
(g) To sell for cash or credit, redeem, exchange for
other property, convey, transfer, or otherwise
dispose of any property held in the Trust in any
manner and at any time, by private contract or at
public auction or otherwise, and no other person
shall be bound to see to the application of the
purchase money or to inquire into the validity,
expediency, or propriety of any such sale or other
disposition,
(h) To enter into contracts for or to make commit-
ments either alone or in company with others to
purchase or sell at any future date any property
acquired for the Trust.
(i) To vote or to refrain from voting any stocks,
bonds, or other securities held in the Trust, to
exercise any other right appurtenant to any securi-
ties or other property held in the Trust, to give
general or special proxies or powers of attorney with
or without power of substitution with respect to
such securities and other property, to exercise any
conversion privileges, subscription rights, or other
options or privileges with respect to such securities
and other property and make any payments inciden-
tal thereto, and generally to exercise, personally or
by general or limited power of attorney, any of the
powers of an owner 'with respect to stocks, bonds,
securities, or other property held in the Trust at
any time.
(j) To oppose or to consent to and participate In
any organization, reorganization, consolidation,
merger, combination, readjustment of finances, or
similar arrangement with respect to any corporation,
company, or association, any of the securities of
which are held in the Trust, to do any act with
reference thereto, including the exercise of options,
the making of agreements or subscriptions and the
payment of expenses, assessments, or subscriptions
that may be deem,ed necessary or advisable in
connection therewith, and to accept, hold, and
retain any securities or other property that may be
so acquired,
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457 Deferred Compensation Plall and Trust Document
November 1996
(k) To deposit any property held in the Trust with
any protective, reorganization, or similar commit-
tee, and to delegate discretionary power thereto and
to pay and agree to pay part of its expenses and
compensation and any assessments levied with
respect to any such property so deposited.
(I) To hold, to authorize the holding of, and to
register any investment to the Trust in the name of
the Plan, the Employer, or any nominee or agent of
any of the foregoing, including the Plan Administra-
tor, or in bearer form, to deposit or arrange for the
deposit of securities in a qualified central depository
even though, when so deposited, such securities may
be merged and held in bulk in the name of the
nominee of such depository with other securities
deposited therein by any other person, and to
organize corporations or trusts under the laws of any
jurisdiction for the purpose of acquiring or holding
title to any property for the Trust, all with or
without the addition of words or other action to
indicate that property is held in a fiduciary or
representative capacity but the books and records of
the Plan shall at all times show that all such invest-
ments are part of the Trust.
(m) Upon such terms as may be deemed advisable
by the Employer or the Plan Administrator, as the
case may be, for the protection of the interests of
the Plan or for the preservation of the value of an
investment, to exercise and enforce by suit for legal
or equitable remedies or by other action, or to
waive any right or claim on behalf of the Plan or
any default in any obligation owing to the Plan, to
renew, extend the time for payment of, agree to a
reduction in the rate of interest on, or agree to any
other modification or change in the terms of any
obligation owing to the Plan, to settle, compromise,
adj ust, or submit to arbitration any claim or right in
favor of or against the Plan, to exercise and enforce
any and all rights of foreclosure, bid for property in
foreclosure, and take a deed in lieu of foreclosure
with or without paying consideration therefor, to
commence or defend suits or other legal proceedings
whenever any interest of the Plan requires it, and to
represent the Plan in all suits or legal proceedings in
any court of law or equity or before any body or
tribunal.
(n) To employ suitable consultants, depositories,
agents, and legal counsel on behalf of the Plan,
(0) To make, execute, acknowledge, and deliver
any and all deeds, leases, mortgages, conveyances,
contracts, waivers, releases, or other instruments in
writing necessary or proper for the accomplishment
of any of the foregoing powers.
(p) To open and maintain any bank account or
accounts in the name of the Plan, the Employer, or
any nominee or agent of the foregoing, including
the Plan Administrator, in any bank or banks,
(q) To do any and all other acts that may be
deemed necessary to carry out any of the powers set
forth herein.
6,03 Taxes and Expenses: All taxes of any and all kinds
whatsoever that may be levied or assessed under existing
or future laws upon, or in respect to the Trust, or the
income thereof, and all commissions or acq uisitions or
dispositions of securities and similar expenses of invest-
ment and reinvestment of the Trust, shall be paid from
the Trust. Such reasonable compensation of the Plan
Administrator, as may be agreed upon from time to time
by the Employer and the Plan Administrator, and
reimbursement for reasonable expenses incurred by the
Plan Administrator in performance of its duties hereun-
der (including but not limited to fees for legal, account-
ing, investment and custodial services) shall also be paid
from the Trust.
6.04 Payment of Benefits: The payment of benefits
from the Trust in accordance with the terms of the Plan
may be made by the Plan Administrator, or by any
custodian or other person so authorized by the Em-
ployer to make such disbursement. The Plan Adminis-
trator, custodian or other person shall not be liable with
respect to any distribution of Trust assets made at the
direction of the Employer.
6.05 Investment Funds: In accordance with uniform and
nondiscriminatory rules established by the Employer and
the Plan Administrator, the Participant may direct his/
her Accounts to be invested in one (1) or more invest-
ment funds available under the Plan; provided, how-
ever, that the Participant's investment directions shall
not violate any investment restrictions established by the
Employer. Neither the Employer, the Administrator,
nor any other person shall be liable for any losses
incurred by virtue of following such directions or with
any reasonable administrative delay in implementing
such directions,
. . . . . . . . . . ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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ICMA RETIREMENT CORPORATION
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(l.06 Valuation of Accounts: As of each Accounting
Date, the Plan assets held in each investment fund
offered shall be valued at fair market value and the
investment income and gains or losses for each fund
shall be determined. Such investment income and gains
or losses shall be allocated proportionately among all
Account balances on a fund-by-fund basis, The alloca-
tion shall be in the proportion that each such Account
balance as of the immediately preceding Accounting
Date bears to the total of all such Account balances as of
that Accounting Date, For purposes of this Article, all
Account balances include the Account balances of all
Participants and Beneficiaries,
(l.07 Participant Loan Accounts: Participant Loan
Accounts shall be invested in accordance with Section
8,03 of the Plan, Such Accounts shall not share in any
investment income and gains or losses of the investment
funds described in Sections 6,05 and 6,06,
(J.l)8 Crediting of Accounts: The Participant's Account
shall reflect the amount and value of the investments or
other property obtained by the Employer through the
investment of the Participant's Deferred Compensation
pursuant to Sections 6.05 and 6,06. It is anticipated that
the Employer's in vestments with respect to a Participant
will conform to the investment preference specified in
the Participant's Joinder Agreement, but nothing herein
shall be construed to require the Employer to make any
particular investment of a Participant's Deferred Com-
pensation, Each Participant shall receive periodic
reports, not less frequently than annually, showing the
then current value of his/her Account.
(d)') Transfers:
(a) Incoming Transfers: A transfer may be accepted
from an eligible deferred compensation plan main-
tained by another employer and credited to a
Participant's Account under the Plan if (I) the
Participant has separated from service with that
employer and become an Employee of the Em-
ployer, and (ii) the other employer's plan provides
that such transfer will be made. The Employer may
require such documentation from the predecessor
plan as it deems necessary to effectuate the transfer,
to confirm that such plan is an eligible deferred
compensation plan within the meaning of Section
457 of the Code, and to assure that transfers are
provided for under such plan, The Employer may
refuse to accept a transfer in the form of assets other
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than cash, unless the Employer and the Administra-
tor agree to hold such other assets under the Plan,
Any such transferred amount shall be treated as a
deferral subject to the limitations of Article V,
except that, for purposes of applying the limitations
of Sections 5.01 and 5.02, an amount deferred
during any taxable year under the plan from which
the transfer is accepted shall be treated as if it has
been deferred under this Plan during such taxable
year and compensation paid by the transferor em-
ployer shall be treated as if it had been paid by the
Employer,
(b) Outgoing Transfers: An amount may be trans-
ferred to an eligible deferred compensation plan
maintained by another employer, and charged to a
Participant's Account under this Plan, if (I) the
Participant has separated from service with the
Employer and become an employee of the other
employer, (ii) the other employer's plan provides
that such transfer will be accepted. and (iii) the
Participant and the employers have signed such
agreements as are necessary to assure that the
Employer's liability to pay benefits to the Partici-
pant has been discharged and assumed by the other
employer. The Employer may require such docu-
mentation from the other plan as it deems necessary
to effectuate the transfer, to confirm that such plan
is an eligible deferred compensation plan within the
meaning of section 457 of the Code, and to assure
that transfers are provided for under such plan, Such
transfers shall be made only under such circum-
stances as are permitted under section 457 of the
Code and the regulations thereunder.
(',10 Employer Liability: In no event shall the
Employer's liability to pay benefits to a Participant
under this Plan exceed the value of the amounts cred-
ited to the Participant's Account; neither the Employer
nor the Administrator shall be liable for losses arising
from depreciation or shrinkage in the value of any
investments acquired under this Plan,
................................................................................................,...... .
S e (l C fl
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4 5 7 D e fer red COllI P (' 11 sat i 0 If PIa II a fI d T r f~ s ( D 0 ( U m C fI t
November 1996
ARTICLE VII. BENEFITS
7,01 Retirement Benefits and Election on Separation
from Service: Except as otherwise provided in this
Article VII, the distribution of a Participant's Account
shall commence as of April 1 of the calendar year after
the Plan Year of the Participant's Retirement, and the
distribution of such Retirement benefits shalI be made
in accordance with one of the payment options de-
scribed in Section 7,02. Notwithstanding the foregoing,
but subject to the following paragraph of this Section
7.01, the Participant may irrevocably elect within 60
days following Separation from Service to have the
distribution of benefits commence on a fixed determin-
able date other than that described in the preceding
sentence which is at least 61 days after Separation from
Service, but not later than April 1 of the year following
the year of the Participant's Retirement or attainment
of age 70-1/2, whichever is later. Notwithstanding the
foregoing provisions of this Section 7,01, no election to
defer the commencement of benefits after a separation
from service shall operate to defer the distribution of
any amount in the Participant's Loan Account in the
event of a default of the Participant's loan.
Effective on or after January 1, 1997, the Participant
may elect to defer the commencement of distribution of
benefits to a fixed determinable date later than the date
described above, but not later than April 1 of the year
following the year of the Participant's retirement or
attainment of age 70-1/2, whichever is later, provided
(a) such election is made after the 61st day following
Separation from Service and before commencement of
distributions and (b) the Participant may make only one
(1) such election. Notwithstanding the foregoing, the
Administrator, in order to ensure the orderly adminis-
tration of this provision, may establish a deadline after
which such election to defer the commencement of
distribution of benefits shall not be allowed,
7,02 Payment Options: As provided in Sections 7.01,
7.04 and 7.05, a Participant or Beneficiary may elect to
have value of the Participant's Account distributed in
accordance with one of the following payment options,
provided that such option is consistent with the limita-
tions set forth in Section 7.03,
(a) Equal monthly, quarterly, semi-annual or annual
payments in dn amount chosen by the Participant,
continuing until his/her Account is exhausted;
-,
~"
'-'"T~'''
(b) One lump-sum payment;
(c) Approximately equal monthly, quarterly, semi-
annual or annual payments, calculated to continue
for a period certain chosen by the Participant.
(d) Annual Payments equal to the minimum distri-
butions required under Section 401 (a)(9) of the
Code over the life expectancy of the Participant or
over the life expectancies of the Participant and his
Beneficiary,
(e) Payments equal to payments made by the issuer
of a retirement annuity policy acquired by the
Employer.
(f) A split distribution under which payments under
options (a), (b), (c) or (e) commence or are made at
the same time, as elected by the Participant under
Section 7,01, provided that all payments commence
(or are made) by the latest benefit commencement
date under Section 7.01 and that once a payment is
made subsequent payments wiII be made in substan-
tiaIly nonincreasing amounts.
(g) Any payment option elected by the Participant
and agreed to by the Employer and Administrator,
provided that such option must provide for substan-
tiaIly nonincreasing payments for any period after
the benefit commencement date under Section 7.01,
A Participant's or Beneficiary's selection of a payment
option made after December 31, 1995, under Subsec-
tions (a), (c), or (g) above may include the selection of
an automatic annual cost-of-living increase, Such
increase wiIl be based on the rise in the Consumer Price
Index for AIl Urban Consumers (CPI-U) from the third
quarter of the last year in which a cost-of-living in-
crease was provided to the third quarter of the current
year. Any increase will be made in periodic payment
checks beginning the following January, The first cost-
of-living increase will be based on the rise in the CPI-U
from the third quarter of 1995 to the third quarter of
1996, and will be applied to amounts paid beginning
January 1997.
A Participant's or Beneficiary's election of a payment
option must be made at least 30 days before the pay-
ment of benefits is to commence, If a Participant or
BenefiClary fails to make a timely election of a payment
option, benefits shaIl be paid monthly under option (c)
E ig Ir I
ICMA RETIREMENT CORPORATION
above for a period of five years or such shorter period of
time necessary to ensure that the amount of any install-
ment is not less than $1,200 per year, without the
inclusion of a cost-of-living increase.
7,03 Limitation on Options: No payment option may be
selected by a Participant under subsections 7'()2(a) or (c)
unless the amount of any installment is not less than
$1,200 per year. No payment option may be selected
by a ParticipaIlt or Beneficiary under Sections 7,02,
7,04, or 7.05 unless it satisfies the requirements of
Sections 401 (a)(<J) and 457 (d)(2) of the Code, including
that payments commencing before the death of the
Participant shall satisfy the incidental death benefits
requirement under section 457(d)(2)(B)(i)(l), A cost-of-
living increase included as part of a payment option
selected under Section 7,02 shall not be considered to
fail to satisfy the req uirement under section 457 (d)(2)(b)
that any distribution made over a period of more than 1
year can only be made in substantially nonincreasing
amounts, Unless otherwise elected by the Participant
(or spouse, in the case of distributions described in
Section 7.05 below) by the time distributions are
required to begin, life expectancies shall be recalculated
annually, Such election shall be irrevocable as to the
Participant (or spouse) and shall apply to all subsequent
years, The life expectancy of a nonspouse Beneficiary
may not be recalculated,
7,04 Post-retirement Death Benefits:
(a) Should the Participant die after he/she has begun
to receive benefIts under a payment option, the
remaining payments, if any, under the payment
option shall be payable to the Participant's Benefl-
ci:ny within the 30-day penod commenclllg WIth
the 61st day after the Participant's death, unless the
Beneficiary elects payment under a different pay-
ment optIOn that is available under SectIon 7,02
within 60 days of the Participant's death, Any
different payment option elected by a Benefici;ny
under this section must provide for payments :1t a
rate that is :It least as rapid under the payment
option thJt was JppJicable to the Particip.11lt. In no
event shall the Employer or Administr:1tor be JiJble
to the Beneficiary for the amount of any payment
mack in the name of the Particip:lllt befon'
the Administrator receives proof of dc;lth of the
(larticipallt,
(b) If the designated Beneficiary does not continue
to live for the remaining period of payments under
the payment option, then the commuted value of
any remaining payments under the payment option
shall be paid in a lump sum to the estate of the
Beneficiary, In the event that the Participant's estate
is the Beneficiary, the commuted value of any
remaining payments under the payment option shall
be paid to the estate in a lump Slim,
7, OS Pre-retirement Death Benefits:
(a) Should the Participant die before he has begun
to receive the benefits provided by Section 7.01, the
\'Jlue of the Participant's Account shall be payable
to the Beneficiary commencing within the 30-l13y
period commencing on the 91st day after the
Participant's death, unless the Beneficiary elects a
different fixed or determinable benefit commence-
ment dJte within <JO days of the Participant's de;lth,
Such benefit commencement date shall be not bter
than the later of (I) December 31 of the year fol-
lowing the year of the Participant's death, or (ii) if
the Beneficiary is the Participant's spouse, Decem-
ber 31 of the year in which the Participant would
ha ve Jttained age 70-1/2,
{b) Unless a Beneficiary elects a different payment
option prior to the benefit commencement date.
death benefits under this Section shall be paid in
approximately equal aIlnual installments over flve
years, or over such shorter period as may be neces-
sary to assure that the amount of any annual install-
ment is not less than $3,500, A BeneficiJry shall be
treated as if he/she were a Participant for purposes
of determining the payment options available under
Section 7,02, provided, however, that the payment
option chosen by the Beneficiary must provide for
payments to the Beneficiary over a period no longer
than the life expectancy of the Beneficiary, and
provided that such period may not exceed (15) years
if the Beneficiary is not the Participant's spoliSe,
(c) In the event that the Beneficiary dies before the
payment of death benefits has commenced or been
completed, the remaining value of the Participant's
Account shall be paid to the estate of the BenefI-
ciary in a lump sum. In the event thJt the
Participant's estJte is the Beneficiary, payment shall
be made to the estate in a lump sum.
..................................................................................,................... .
..
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4 S 7 D e fer red Com P (' II sat i 0 II P I a /I a II d T r " 5 I D 0 ( /I m e II I
November 1996
7,06 Unforeseeable Emergencies:
(a) In the event an unforeseeable emergency occurs,
a Participant may apply to the Employer to receive
that part of the value of his/her Account that is
reasonably needed to satisfy the emergency need, If
such an application is approved by the Employer,
the Participant shall be paid only such amount as the
Employer deems necessary to meet the emergency
need, but payment shall not be made to the extent
that the financial hardship may be relieved through
cessation of deferral under the Plan, insurance or
other reimbursement, or liquidation of other assets
to the extent such liquidation would not itself cause
severe financial hardship,
(b) An unforeseeable emergency shall be deemed to
involve only circumstances of severe financial
hardship to the Participant resulting from a sudden
unexpected illness, accident, or disability of the
Participant or of a dependent (as defined in section
152(a) of the Code) of the Participant, loss of the
Participant's property due to casualty, or other
similar and extraordinary unforeseeable circum-
stances arising as a result of events beyond the
control of the Participant. The need to send a
Participant's child to college or to purchase a new
home shall not be considered unforeseeable emer-
gencies, The determination as to whether such an
unforeseeable emergency exists shall be based on the
merits of each individual case.
7,07 Transitional Rule for Pre-1989 Benefit Elections:
In the event that, prior to January 1, 1989, a Participant
or Beneficiary has commenced receiving benefits under
a payment option or has irrevocably elected a payment
option or benefit commencement date, then that pay-
ment option or election shall remain in effect notwith-
standing any other provision of the Plan,
7,08 De Minimis Accounts: Notwithstanding the fore-
going provisions of this Article, if the value of a
Participant's Account does not exceed $3,500 and (a) no
amount has been deferred under the Plan with respect
to the Participant during the 2-year period ending on
the date of the distribution and (b) there has been no
prior distribution under the Plan to the Participant
pursuant to this Section 7,08, the Participant may elect
to receive or the Employer may distribute the Participant's
entire Account without the consent of the Participant.
Such distribution shall be made in a lump stun.
ARTICLE VIII. LOANS TO PARTICIPANTS
8,01 Availability of Loans to Participants:
(a) Effective January 1, 1997, the Employer may
elect to make loans available to Participants in this
Plan. If the Employer has elected to make loans
available to Participants, a Participant may apply for
a loan from the Plan subject to the limitations and
other provisions of this Article,
(b) The Employer shall establish written guidelines
governing the granting of loans, provided that such
guidelines are approved by the Plan Administrator
and are not inconsistent with the provisions of this
Article, and that loans are made available to all
Participants on a reasonably equivalent basis.
3,02 Terms and Conditions of Loans to Participants:
Any loan by the Plan to a Participant under Section
8,01 of the Plan shall satisfy the following requirements:
(a) Availability, Loans shall be made available to all
Participants on a reasonably equivalent basis,
(b) Interest Rate, Loans must be adequately secured
and bear a reasonable interest rate,
(c) Loan Limit. No Participant loan shall exceed the
present value of the Participant's Account,
(d) Foreclosure. In the event of default on any
installment payment, the outstanding balance of the
loan shall be a deemed distribution. In such event,
an actual distribution of a plan loan offset amount
will not occur until a distributable event occurs in
the Plan,
(e) Reduction of Account. Notwithstanding any
other provision of this Plan, the portion of the
Participant's Account balance used as a security
interest held by the Plan by reason of a loan out-
standing to the Participant shall be taken into
account for purposes of determining the amount of
the Account balance payable at the time of death or
distribution, but only if the reduction is used as
repayment of the loan.
................................ eo......................................................................."....
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'1
Te II
leMA RETIREMENT -:ORPORATION
--
(t) Amount of Loan, At the time the loan is made,
the principal amount of the loan plus the outstand-
ing balance (principal plus accrued interest) due 011
any other outstanding loans to the Participant frol11
the Plan and from all other plans of the Employer
that are qualified employer plans under section
72(p)(4) of the Code shall not exceed the least of:
(1) $50,000, reduced by the excess (if any) of
(a) The highest outstanding balallce of loans
from the Plan during the one (1) year
period ending on the day before the date
on which the loan is made, over
(b) The outstanding balance of loans from the
Plan on the date on which such loan IS
made; or
(2) One-half of the value of the Participant's
interest in all of his/her Accounts under
this Plan.
(g) Application for Loan, The Participant must
give the Employer adequate written notice, as
determined by the Employer, of the amount and
desired time for receiving a loan, No more than
one (1) loan may be made by the Plan to a Partici-
pant in any calendar year. No loan shall be ap-
proved if an existing loan from the Plan to the
Participant is in default to any extent.
(h) Length of Loan. Any loan issued shall req UHe
the Participant to repay the loan in substantially
equal installments of principal and interest, at least
monthly, over a period that does not exceed five (5)
years from the date of the loan; provided, however,
that if the proceeds of the loan are applied by the
Participant to acquire any dwelling unit that is to be
used within a reasonable time (determined at the
time the loan is made) after the loan is made as the
principal residence of the Participant, the five (5)
year limit shall not apply. In this event, the period
of repayment shall not exceed a reasonable period
determined by the Employer. Principal installments
and interest payments otherwise due may be sus-
pended for up to one (1) year during an authorized
leave of absence, if the promissory note so provides,
but not beyond the original term permitted under
this Subsection (h), with a revised payment schedule
....................................................... .
E / (' I' , t,
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'within such term) instituted at the end of such
period of suspension.
'j) Prepayment. The Participant shall be permitted
:0 repay the loan in whole or in part at any time
?rior to maturity, without penalty,
j) Promissory Note, The loan shall be evidenced
by a promissory note executed by the Participant
lnd delivered to the Employer, and shall bear
lI1terest at a reasonable rate determined by the
Employer.
k) Security. The loan shall be secured by an
1ssignment of the Participant's right, title and
Interest in and to his/her Account.
I) Assignment or Pledge, For the purposes of
?Jragraphs (t) and (g), assignment or pledge of any
?ortion of the Participant's interest in the Plan and a
:oan, pledge, or assignment with respect to any
Insurance contract purchased under the Plan, will be
treated as a loan.
Ill) Other Terms and Conditions. The Employer
,hall fix such other terms and conditions of the loan
1S it deems necessary to comply with legal require-
:nents, to maintain the qualification of the Plan and
Trust under section 457 of the Code, or to prevent
the treatment of the loan for tax purposes as a
iistribution to the Participant. The Employer, in
Its discretion for any reason, may fix other terms
lIld conditions of the loan, not inconsistent with
the provisions of this Article and section 72(p) of
the Code.
:-, Participant Loan Accounts:
;}) Upon approval of a loan to a Participant by the
Employer, an amount not in excess of the loan shall
oe transferred from the Participant's other invest-
:nent fund(s), described in Section 6,05 of the Plan,
:0 the Participant's Loan Account as of the Account-
:ng Date immediately preceding the agreed upon
Jate on which the loan is to be made,
b) The assets of a Participant's Loan Account may
be invested and reinvested only in promissory notes
.eceived by the Plan from the Participant as consid-
~ration for a loan permitted by Section 8.01 of the
Plan or in cash. Uninvested cash balances in a
..................................................... .
457 Drfrrrl'd COltll'l'flsation Pia 11 afld Trust Document
NOlJcmbcr 1996
: ::cipant's Loan Account shall not bear interest.
:ner the Employer, the Administrator, nor any
. ,~ person shall be liable for any loss, or by reason
,::y breach, that results from the Participant's
.. : ~ise of such control.
::z.epayment of principal and payment of interest
: be made by payroll deduction or, where
.....ment cannot be made by payroll deduction, by
.. . K, and shall be invested in one (1) or more
'..:'~ investment funds, in accordance with Section
: of the Plan, as of the next Accounting Date
.. . : payment thereof to the Trust. The amount so
,'ted shall be deducted from the Participant's
:: Account,
The Employer shall have the authority to
~ lish other reasonable rules, not inconsistent
: the provisions of the Plan, governing the
:::-lishment and maintenance of Participant Loan
'.. . Junts,
ARTICLE IX NON-ASSIGNABILITY
::;eneral: Except as provided in Article VIII
'. .:ion 9,02, no Participant or Beneficiary shall
: right to commute, sell, assign, pledge, transfer
. :wise conveyor encumber the right to receive
,::lents hereunder, which payments and rights
:. ''c'ssly declared to be non-assignable and
." . ::sferable.
, .- )mestic Relations Orders:
':.lIowance of Transfers: To the extent required
:: ,'r final judgement, decree, or order (including
.:':' :oval of a property settlement agreement) made
. ." :.Jant to a state domestic relations law, any
: :::on of a Participant's Account may be paid or
.: .side for payment to a spouse. former spouse, or
:', i of the Participant. Where necessary to carry
u: :he terms of such an order, a separate Account
:.. be established with respect to the spouse,
::::er spouse, or child who shall be entitled to
.: '.:' investment selections with respect thereto in
",: ':lme manner as the Participant; any amount so
.: ~slde for a spouse, former spouse, or child shall
" ~ lid out In a lump sum at the earliest date that
,: :,fits may be paid to the Participant, unless the
':. ~ directs a different tIme or form of payment.
Nothing in this Section shall be co::,true,: ::; autho-
rize any amount to be distributed u::der I:'.:' Plan at
a time or in a form that is not pern::tted :::::cr
Section 457 of the Code, Any Payr;~~nt J:',~~:' to a
person other than the Participant p::,suarc: :: this
Section shall be reduced by require": inuc.o tax
withholding; the fact that payment :; mac" :') a
person other than the Participant n:~\' no: :-:::vent
such payment from being includibJ~ in the ;:-oss
income of the Participant for withl:~ldin::: ,-:.d
income tax reporting purposes,
(b) Release from Liability to PartiC:?:lnt: -
Employer's liability to pay benefits :0 a I) .:::cipant
shall be reduced to the extent that ~:,101lr.:' 'lave
been paid or set aside for payment :2 a ~r: .:'e,
former spouse, or child pursuant to ?araf!:~:-i (a) of
the Section, No such transfer shall ':: ~ efL:: .:ated
unless the Employer or Administrar::r ha' :: :::n
provided with satisfactory evidence :hat t~.: .em-
ployer and the Administrator are re:~ased :::m any
further claim by the Participant wi;:: resp,.: to such
amounts. The Participant shall be d~::mec :: have
released the Employer and the AdIl:::listr~::: from
any claim with respect to such amo.::lts, ::', ~ny case
in which (i) the Employer or Admi::;stralC: ias been
served with legal process or otherw:<e jOl:.: : in a
proceeding relating to such transfer. (ii) t~.' ?artici-
pant has been notified of the pende::cy 0:' . .:h
proceeding in the manner prescribe: by t~.' :aw of
the jurisdiction in which the proceding .' :-::nding
for service of process in such actior. or by::.: lil from
the Employer or Administrator to t~.~ Par: :.pant's
last known mailing address, and (iii (he f' ~::lcipant
fails to obtain an order of the COUrt :n tht :::oceed-
ing relieving the Employer or Adm:J.istra::: from
the obligation to comply with the .I.:dgmt:: decree,
or order.
(c) Participation in Legal Proceedir:~s: Th, .::m-
player and Administrator shall not :-:: obL:::ed to
defend against or set aside any judg~ll1enl ~=cree, or
order described in paragraph (a) an', legal:: ier
relating to the garnishment of a Par::cipa,.: ; ben-
efits, unless the full expense of sud: legal ~::lon is
borne by the Participant. In the eyet th~: ::'le
Participant's action (or inaction) nc::ethe.,,' causes
the Employer or Administrator to ll'.-:ur ~:..:::. ex-
pense, the amount of the expense c,-y be . ::.arged
against the Participant's Account ar.: the:, :.; reduce
the Employer's obligation to pay be::efit~ ::: the
T w {' I" c
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.~_..
-'''T-
ICMA RETIF..EMf'.:T CORPORATION
;'lrticipant. In the course of any proceeding ~::Iatill~
:,' divorce, separation, or child support, the E:n-
:' :oyer and Administrator shall be authorized :'J
.':'iclose information relating to the P:nticip:L:'s
~,(count to the Particip:ll1t's spouse, former <~<)lISl'"
:: child (including the legal representatives c:' the
<'ouse, former spouse, or child), or to a cour:
ARTICLE X. RELATIONSHIP TO OTHER PLANS
AND EMPLOYMENT AGREEMENTS
Th> ?lan serves in addition to any other retirell:::lt,
pcr.'>Jn, or benefit plan or system presently in e:'::itcllt "
or :-, :reinafter established for the benefit of the
En: :-:'Jyer' s employees, and participation hereu n:::r SILl L
llo:'.:Tect benefits receivable under any such pb:, l)f
sy,: t'::1. Nothing contained in this Plan shall be C ::ll1ed
to ,::lstitute an employment contract or agreell1:::t
be!..', ~en any Participant and the Employer or to ;lVC
;1Il\ hrticipant the right to be retained in the en'.~loy 0:'
the ::mployer. Nor shall anything herein be COIE::ueo
to .:. Jdify the terms of :lIlY employment contraCl jr
agL :ment between a Participant and the Employ:r.
ARTICLE XI. AMENDMENT OR TERMINATION
OF PLAN
The =mployer may at any time amend this Plall :: :()-
vide.: that it transmits such amendment in writiL-" to th,
Ad::':nistrator at least 30 days prior to the effecc', : datt
of!;':: amendment. The consent of the Adminiq: ~~or
siD:: aot be required in order for such amendme:.: to
bcc':ne effective, but the Administrator shall bt' _:lder
110 ,":,Iigation to continue acting as Administrate,:
here.:nder if it disapproves of such amendment, . .le
Ell: ::-:oyer may at any time terminate this Plan,
Th: :\dministrator may at any time propose an J: 'clld-
m(':'.: to the Plan by an instrument in writing trd:. mit-
ted :,) the Employer at least 30 days before the e:':'::ctivc
da!f of the amendment. Such amendment shall be :0111('
efft'::lve unless, within such 30-day period, the =:n-
pItY, or notifies the Administrator in writing tha I .:
th';,?proves such amendment, in which case sue!:
:lln:,::dment shall not become effective, In the n::l!
of, .::h disapproval, the Administrator shall be u: in
110 ,'::>Iigation to continue acting as Administr:lto:
hne.:Jlder.
Except as may be required to maintain the status of the
Plan as an eligible deferred compensation plan under
section 457 of the Code or to comply with other
applicable laws, no amendment or termination of the
Plan shall divest any Participant of any rights with
respect to compensation deferred before the date of the
amendment or termination.
ARTICLE XII. APPLICABLE lAW
This Plan and Trust shall be construed under the laws of
the state where the Employer is located and is estab-
lished with the intent that it meet the requirements of
an "eligible deferred compensation plan" under Section
457 of the Code, as amended. The provisions of this
Plan and Trust shall be interpreted wherever possible in
conformity with the requirements of that section.
ARTICLE XIII. GENDER AND NUMBER
The masculine pronoun, whenever used herein, shall
include the feminine pronoun, and the singular shall
include the plural, except where the context requires
otherwise.
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