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HomeMy WebLinkAbout5.E.1. Approval of Plan Documents for Firefighter OBRA Accounts-Res. No. 6877 0: E. J. City of Shako pee MEMORANDUM cnfU~~~,.~~ U flfl ~ ",,~ ~',t I . if . ~nl' TO: Mayor and City Council Mark McN eill, City Administrator FROM: Kris Wilson, Assistant City Administrato~ SUBJECT: Firefighter OBRA Accounts DATE: March 11, 2009 Introduction The Council is asked to adopt the attached resolution and authorize the appropriate City officials to sign a new plan document for the OBRA deferred compensation accounts established for the City's paid-on-call firefighters. Background The City's paid-on-call firefighters do not pay into Social Security on their firefighter wages. Instead they contribute to an alternative retirement system known as an "OBRA" account. These are similar to the 457 deferred compensation accounts we make available to our benefits-eligible employees, but with a few key differences. With an "OBRA" account, participation is mandatory for all employees within a given class, the employee must contribute at least 7.5% of their earnings, and all contributions are deposited into a fixed income investment option - there are no individual investment decisions allowed. See the attached information sheet from Nationwide for more information regarding OBRA accounts. In the fall oflast year, we discovered that the accounts established with Nationwide Retirement Solutions on behalf of our firefighters were not being managed as we thought they were. Specifically, our employees were being permitted to make individual investment choices with the funds in their account, rather than having all deposited funds invested in a fixed income account. When we contacted Nationwide regarding this issue we learned that they did not have our firefighter's accounts designated as "OBRA" within their systems: Apparently when we first started using OBRA accounts to meet retirement obligations for our firefighters it was considered acceptable to allow them to make individual investment choices. However, in 2005, Nationwide mailed updated information to all of their OBRA account employers saying that upon further review of the regulations they were recommending that all employers go to the fixed income investment option and eliminate the individual investment choices. They instructed employers to sign and return an enclosed letter indicating their desire to follow through with this advice. According to their records, the City of Shakopee did not respond, therefore when they moved all other OBRA accounts to fixed income investments and established a new coding for these accounts in their system, they did not move ours. t " . ~" .,'. ....4\, .,:. to ,~ . . Upon discovering this situation and discussing it with the City Administrator and Finance Director, we sent a letter to Nationwide informing them of our desire to ensure our compliance with the regulations by moving all account balances to the fixed income account and crediting all future deposits to this investment type as well. However, when employees in the Fire Department learned ofthis, several strongly objected to having their account balances moved to a fixed income investment, noting that it would force them to realize the losses they'd experienced as a result of the economic downturn and prohibit them from potentially earning back what they had lost when the markets recover. Following these concerns from impacted employees, we contacted an attorney that specializes in employee benefit issues. She reviewed the situation with us and with representatives of Nationwide. Based on this research, it is staff's recommendation that the City allow firefighters to maintain funds contributed prior to our discovery of the problem in the investments of their choice and simply require all future contributions to be deposited into the fixed income account. Staffhas also worked with Nationwide to obtain a new plan document that clearly documents our firefighter accounts as OBRA accounts, to be managed and administered in accordance with the appropriate regulations moving forward. Relationship to' Vision: This is a housekeeping item (F). Requested Action: The Council is asked to offer Resolution No. 6877, A Resolution Adopting an Updated "OBRA" Plan Document for the Paid-on-Call Firefighters of the City of Shakopee, and move its adoption. RESOLUTION NO. 6877 A RESOLUTION ADOPTING AN UPDATED "OBRA" PLAN DOCUMENT FOR RETIREMENT ACCOUNTS PROVIDED TO PAID-aN-CALL FIREFIGHTERS OF THE CITY OF SHAKOPEE Whereas, the Omnibus Budget Reconciliation Act of 1990 (OBRA) allows governmental employers to use a deferred compensation plan that meets certain criteria in lieu of paying and withholding Social Security taxes for part-time, temporary and seasonal employees; and Whereas, such deferred compensation plans are known as "OBRA Plans", and Whereas, it has been the City's intent and practice for many years to utilize an OBRA Plan for its paid-an-call firefighters; and Whereas, there is a need to clarify the terms and conditions of the OBRA Plan currently provided to the City's paid-on-call firefighters via Nationwide Retirement Solutions, Inc.; NOW THEREFORE BE IT RESOLVED by the City Council of the City of Shakopee, Minnesota that: 1. The City hereby adopts the attached OBRA Plan Document as offered by Nationwide Retirement Solutions, Inc. and authorizes the appropriate City officials to the sign the Plan Document. 2. The terms and conditions ofthe OBRA Plan Document adopted herein shall be effective for all deferred compensation withholdings from the wages ofthe City's paid-on-call firefighters, beginning November 7, 2008 and continuing forward. 3. The City understands that under the terms and conditions of the OBRA Plan Document adopted herein: (a) participation is mandatory for all paid-on-call firefighters employed by the City; (b) participating employees must contribute at least 7.5% of their monthly wages earned as a paid-on-call firefighter; (c) participants may elect to contribute more that 7.5% of their monthly wages, up to the annual dollar amount limit established by the IRS; and (d) all funds contributed shall be invested in a fixed-return annuity issued by Nationwide Life Insurance Company. 4. Funds deposited on behalf of employees prior to November 7, 2008, and any investments earnings from these funds, shall continue to be invested at the employees' discretion in an account that is segregated from the account receiving deposits on November 7,2008 and there forward. However, such accounts shall be closed to future deposits. 5. All prior resolutions and plan documents in conflict with this resolution, including Resolution No. 3502 and Resolution No. 5108, are hereby repealed. Adopted in adjourned regular session of the City Council of the City of Shakopee, Minnesota, held this 17th day of March, 2009. Mayor of the City of Shakopee ATTEST: City Clerk Hovv your en1ployer ping save rernent Let's face it. It's not easy saving for retirement. You have to fit it in your budget. And as a part-time, seasonal or a temporary worker, that's not easy. Introducing the Nationwide@ OBRA Plan The Omnibus Budget Reconciliation Act of 1990 (OBRA) allows governmental employers under certain circumstances to use a deferred compensation plan described in Section 457(b) of the Internal Revenue Code in lieu of paying and withholding Social Security/FICA taxes for employees that participate in such plans. In response to OBRA, Nationwide developed and offers FICA-replacement deferred compensation plans known as OBRA Plans. How does,the OBRA,Plan work? The OBRA Plan is designed for participation by all part-time, seasonal and temporary employees. You must contribute at least 7.5% of your total (gross) compensation to the OBRA Plan. However, you may choose to defer a greater amount, if your plan allows. Your employer automatically deducts the required contribution from your gross compensation - just as they would for FICA taxes - and invests it in a fixed-return annuity issued by Nationwide Life Insurance Company. The annuity offers an annual guaranteed rate, with a current interest rate that is adjusted quarterly. Guarantees are subject to the claims-paying ability of the company. When can 1 get my money? If you are no longer eligible to participate in the 9BRA Plan - for example, because you become a full- time employee - you may transfer the full value of your OBRA account into your employer's 457 Deferred Compensation Plan, provided your employer's plan permits such a transfer. OBRA Plans are also eligible for rollover to an IRA or, in most cases, to another employer's eligible retirement plan. You may withdraw your funds - without penalty - when you retire or stop working. . If you die before you receive your money, your account balance will be paid as a lump-sum payment to your estate or, if your plan allows, as your beneficiary or beneficiaries request. . If your account balance is less than $5,000 when you are eligible to withdraw from your account, you will receive a lump-sum distribution. . If your balance is $5,000 or more, you may choose a lump-sum distribution or a periodic payout. You choose the solution that's best for you. How can! get more information? Although neither Nationwide nor any of its representatives may offer legal or tax advice, our friendly Customer Service Representatives will gladly assist you in participating in the OBRA program. Just call toll-free at 1-877-677-3678, option 1, then 1, weekdays 8 a.m. - 9 p.m. Eastern Time. @ 2007, Nationwide Retirement Solutions, Ine. All Rights Reserved. Nationwide, On Your Side and the Nationwide framemark are federally registered service marks of Nationwide Mutual Insurance Company. The fixed annuity is issued by Nationwide Life Insurance Company, Columbus, Ohio. Contract number NRC-OI06AO, NRC-OI060R. In Oklahoma only: NRC-OI0601<. NRM-2722AO.2 D Nationwide@ On Your SideSM NATIONWIDE RETIREMENT SOLUTIONS, INC. DEFERRED COMPENSATION PLAN FOR PUBLIC EMPLOYEES OBRA PLAN DOCUMENT Effective January 1, 2006 The Plan consists of the provisions set forth in this document, and is applicable to each Public Employee who is required to participate in the Plan. The Plan is effective as to each such Public Employee upon the date he becomes.a Participant by entering into and filing with the Administrator the Acknowledgement Form/Card referred to herein, or, in the case of a Takeover Plan, the Plan Sponsor's execution of an Entity Authorization Form. ARTICLE I Definitions 1.01. The following terms shall, for purposes of this Plan, have the meaning set forth below. (a) ACKNOWLEDGEMENT FORM/CARD means the application to the Administrator to participate in the Plan. (b) ADMINISTRATOR means Nationwide Retirement Solutions, Inc. (c) ACCOUNT BALANCE means the bookkeeping account maintained with respect to each Participant which reflects the value of the deferred Compensation credited to the Participant, including the Participant's Annual Deferrals, the earnings or losses of the Participant's account (net applicable account expenses and fees) allocable to the Participant. The Account Balance includes any Plan Sponsor contributions, any Eligible Rollover Accounts(s), any plan-to-plan transfers, and any account established for a Beneficiary after a Participant's death. If a Participant has more' than one designated Beneficiary at the time of the Participant's death, then a separate account shall be established and maintained for each Beneficiary. (d) ANNUAL DEFERRAL means the amount of Compensation deferred by a Participant during a calendar year of Compensation and any contributions by the Plan Sponsor to the Participant's account. The minimum amount deferred into the Account Balance must equal at least 7.5% of Participant's Compensation, or such other minimum amount as shall be required for the Plan to be considered a retirement system under IRC Section 3121 (b) (7) (F) and Treas. Reg. 31.3121(b)(7)- 2. All Participant Compensation deferred shall be invested into the Nationwide group fixed annuity. The Annual Deferral amounts deferred by a Participant or contributed by the Plan Sponsor are on a pre-tax basis. (e) BENEFICIARY means the person(s) properly designated by a Participant under Article VII, or, if none, the Participant's estate, which is entitled to receive benefits under the Plan after the death of the Participant. (f) COMPENSATION means all cash compensation for services to the Plan Sponsor, including salary, wages, fees, commissions, bonuses, and overtime pay that is includible in the Public Employee's gross income for the calendar year, plus amounts that would be cash Compensation for services to the Plan Sponsor includible in the Public Employee's gross income for the calendar year but for a Compensation reduction election under IRC Sections 125, 132(f), 401(k), 403(b), or @ Nationwide Retirement Solutions, Inc. 1 457 OBRA Plan Amended and Restated Plan 457(b), including an election to defer Compensation under Article II Election to Defer Compensation of the Plan. (g) ELIGIBLE RETIREMENT PLAN means an individual retirement account described in IRC Section 408(a), individual retirement annuity described in IRC Section 408(b), a qualified trust described in IRC Section 401 (a), an annuity plan described in IRC Section 403(a) or 403(b), or an eligible governmental plan described in IRC Section 457(b). (h) ELIGIBLE ROLLOVER ACCOUNT means the separate bookkeeping account(s) maintained by the Administrator within the Plan for a Participant for amounts of eligible rollover contributions under Section 6.01 Eligible Rollover Contributions to the Plan. (i) ELIGIBLE ROLLOVER DISTRIBUTION means an Eligible Rollover Distribution as defined in IRC Section 402(c)(4), including Eligible Rollover Distributions to a surviving Spouse under IRC Section 402(c)(9). G) INCLUDIBLE COMPENSATION means a Public Employee's actual wages in box 1 of Form W-2 for a given year for services performed for the Plan Sponsor, but subject to a maximum of $200,000 (or such higher maximum as may apply under IRC Section 401 (a) (17)) and increased (up to the dollar maximum) by any Compensation reduction election under IRe Sections 125, 132(f), 401(k), 403(b), or 457(b), including an election to defer Compensation under Section 2.02 Election Required for Participation. The amount of Includible Compensation shall be determined without regard to community property laws. (k) IRC means the Internal Revenue Code of 1986, as now in effect or as hereafter amended. All citations to sections of the Code are to such sections as they may from time to time be amended or renumbered. (1) OBRA means the Omnibus Budget Reconciliation Act of 1990, as now in effect or as hereafter amended. (m) PARTICIPANT means any Public Employee who is subject to IRC Section 3121 (b) (7) (F), as amended, and the regulations thereunder, and who must participate under this Plan by signing the Acknowledgement Form/Card. (n) PLAN means the OBRA Deferred Compensation Plan for Public Employees as set forth in this plan document and as it may be amended from time to time. (0) PLAN SPONSOR means the county, municipality, or other instrumentality of the State, which is an eligible governmental employer pursuant to IRC Section 457(e)(1), for which services are performed by Public Employees, and which participates in this Plan. (P) PLAN YEAR means the calendar year in which 'the Plan becomes effective, and each succeeding calendar year during the existence of the Plan. (q) PUBLIC EMPLOYEE means any person who receives any type of Compensation from the Plan Sponsor for services rendered to the Plan Sponsor (including, but not limited to, elected or appointed officials and salaried employees). (r) SEVERANCE FROM EMPLOYMENT means the date on which the Participant dies, retires or otherwise has a Severance from Employment with the Plan Sponsor. <i;d Nationwide Retirement Solutions, Inc. 2 457 OBRA Plan Amended and Restated Plan (s) SPOUSE means a person of the opposite sex who is a husband or wife, as defined under Title 28, Chapter 15, Section 1738 of the United States Code. (t) TAKEOVER PLAN shall mean this Plan when established by a Plan Sponsor to replace an existing OBRA plan. (u) VALUATION DATE means each business day/the last day of the calendar month/the last day of the calendar quarter/ each December 31. 1.02 Gender and Plurals. Whenever used herein, the masculine gender shall include the feminine and the singular shall include the plural unless the provisions of the Plan specifically require a different construction. ARTICLE II Election to Defer Compensation 2.01 Eligibility to Participate - New Public Employees. A new Public Employee shall, as a condition of employment participate in the Plan by signing and filing with the Administrator an Acknowledgement Form/Card and thereby consenting to a reduction of salary by the Annual Deferral amount specified in the Acknowledgement Form/Card. Allocations to the Participant's Account Balance must equal at least 7.5% of the Participant's Compensation, or such other minimum amount as shall be required for the Plan to be considered a retirement system under IRC Section 3121 (b) (7)(F) and Treas. Reg. 31.3121(b)(7)-2, and the reduction in the Participant's salary shall begin immediately thereafter. 2.02 Eligibility to Participate - Current Public Employees. A Public Employee who is newly eligible to participate in the Plan shall, prior to becoming eligible to participate in the Plan, sign and file with the Administrator an Acknowledgement Form/Card and thereby consent to a reduction of salary by the Annual Deferral amount specified in the Acknowledgement Form/Card. Allocations to the Participant's Account Balance must equal at least 7.5% of the Participant's Compensation or such other minimum amount as shall be required for the Plan to be considered a retirement system under IRC Section 3121 (b) (7) (F) and Treas. Reg. 31.3121(b)(7)-2, and the reduction in the Participant's salary shall begin no earlier than the first pay period commencing during the first month after the date on which the Acknowledgement Form/ Card is filed with the Administrator. 2.03 Takeover Plans. If the OBRA Plan is a Takeover Plan, a Public Employee who participated in the predecessor plan shall become a Participant in the Plan upon the Plan Sponsor's execution of the Entity Authorization Form. Allocations to each such Participant's Account Balance must equal at least 7.5% of the Participant's Compensation, or such other minimum amount as shall be required for the Plan to be considered a retirement system under IRC Section 3121(b)(7)(F) and Treas. Reg. 31.3121(b)(7)-2, and the reduction in the Participant's salary shall begin immediately thereafter. 2.04 Information Provided by the Participant. Each Public Employee enrolling in the Plan should provide to the Plan Sponsor at the time of initial enrollment, and later if there are any changes, any information necessary or advisable for the Plan Sponsor to administer the Plan, including, without limitation, whether the Public Employee is a Participant in any oth~r eligible plan under IRC Section 457(b). 2.05 Amendment of Participation Elections. Subject to other provisions of the Plan, and if pennitted by the Plan Sponsor, the Participant may revise his participation elections. r!;) Nationwide Retirement Solutions, Inc. 3 457 OBRA Plan Amended and Restated Plan 2.06 Amendment of Annual Deferral Election. A Participant may amend the amount of Compensation to be deferred by filing with the Administrator an amendment on a form and in the procedural manner approved by the Administrator, subject to the minimum Annual Deferral requirements under the Plan. Any amendment which increases or decreases the amount of Annual Deferrals for any pay period shall be effective only if an agreement providing for such an amendment is entered into before the beginning of the month in which the pay period commences. Any amendment of the Annual Deferrals shall be effective prospectively only and only if the amendment does not reduce the allocations to the Participant's Account Balance below 7.5% of the Participant's Compensation, or such other minimum amount as shall be required for the Plan to be considered a retirement system under IRC Section 3121(b)(7)(F) and Treas. Reg. 31.3121(b)(7)-2. 2.07 Leaves of Absence. Unless a deferral election is otherwise revised, if a Participant is absent from work by leave of absence, Annual Deferrals under the Plan shall continue to the extent that Compensation continues. 2.08 Participant Disability. A disabled Participant may elect to defer Compensation during any portion of a period of disability to the extent the Participant has actual Compensation (not imputed compensation and not disability benefits) from which to defer to the Plan and has not had a Severance from Employment, as determined by the Plan Sponsor. 2.09 Protection of Persons Who Serve in a Uniformed Service. A Public Employee whose employment is interrupted by qualified military service under IRC Section 414(u) or who is on a leave of absence for qualified military service under IRC Section 414(u) may elect to make additional Annual Deferrals upon resumption of employment with the Plan Sponsor equal to the maximum Annual Deferrals that the Public Employee could have elected during that period if the Public Employee's employment with the Plan Sponsor had continued (at the same level of Compensation) without the interruption or leave, reduced by the Annual Deferrals, if any, actually made for the Public Employee during the period of the interruption or leave. This right applies for five (5) years following the resumption of employment (or, if sooner, for a period equal to three times the period of the interruption or leave). ARTICLE III Limitations on Amounts Deferred 3.01 Basic Annual Limitation. The maximum amount of the Annual Deferral under the Plan for any calendar year shall not exceed the lesser of (i) the Basic Annual Limitation or (ii) the Participant's Includible Compensation for the calendar year. The Applicable Dollar Amount is the amount established under IRC Section 457 (e) (15) applicable as set forth below: 2002 $11,000 2003 $12,000 2004 $13,000 2005: $14,000 2006: $15,000, adjusted for cost-of-living after 2006 to the extent provided under IRC Section 415(d). 3.02 Special Rules. For purposes of this Article III, the following rules shall apply: (a) Participant Covered By More Than One Eligible Plan. If the Participant is or has been a Participant in one or more other eligible plans within the meaning ofIRC Section 457(b) for a <<;> Nationwide Retirement Solutions, Inc. 4 457 OBRA Plan Amended and Restated Plan given year, then this Plan and all such other plans shall be considered as one plan for purposes of applying the foregoing limitations of this Article III. For this purpose, the Plan Sponsor shall take into account any other such eligible plan established by the Plan Sponsor. (b) Disregard Excess Deferrals. For purposes of Section 3.01 Basic Annual Limitation, an individual is treated as not having deferred Compensation under the Plan for a prior taxable year to the extent Excess Deferrals under the Plan are distributed, as described in Section 3.03 Correction of Excess Deferrals. 3.03 Correction of Excess Deferrals. (a) If Annual Deferrals credited to a Participant's Account Balance during the current Plan Year exceed the limitations described above as determined by the Plan Sponsor, the Administrator shall return the excess as directed by the Plan Sponsor as soon as administratively practicable after the Administrator is notified that there is an Excess Deferral. (b) If the Annual Deferral on behalf of a Participant for any calendar year exceeds the limitations described above as determined by the Plan Sponsor, or the Annual Deferral on behalf of a Participant for any calendar year exceeds the limitations described above when combined with oJ~er amounts deferred by the Participant under another eligible deferred compensation plan pursuant to IRC Section 457(b) then the Annual Deferral, to the extent in excess of the applicable limitation (adjusted for any income or loss in value, if any, allocable thereto), shall be distributed as soon as administratively practicable by the Administrator at the determination and direction of the Plan Sponsor. 3.04 Deferrals of Sick, Vacation, and Back Pay Under an Eligible Plan. A Participant who has not had a Severance from Employment may elect to defer accumulated sick pay, accumulated vacation pay, and back pay under an eligible plan. Such amount~ may be deferred for any calendar month only if an agreement providIDg for the deferral is entered into before the beginning of the month in which the amounts would otherwise be paid or made available and the Participant is a Public Employee on the date the amounts would otherwise be paid or made available, in accordance with Sections 2.01 Eligibility to Participate - New Public Employees, and 2.02 Eligibility to Participate.:.... Current Public Employees, of this Plan. In addition, to the extent permitted by law, deferrals may be made for former Public Employees with respect to Compensation described in Treas. Reg. 1.415(c)-2(e)(3)(1i) (relating to certain Compensation paid within 2 Yz months following Severance from Employment), Compensation described in Treas. Reg. 1.415(c)-2(g)(4) (relating to Compensation paid to Participants who are permanently and totally disabled), and Compensation relating to qualified military service under IRC Section 414(u). ARTICLE IV Plan Sponsor Contributions 4;01 The Plan Sponsor may contribute to the Plan for Participants. Plan Sponsor contributions shall vest at the time such contributions are made. Plan Sponsor contributions shall apply toward the maximum deferral limits in the Plan Year that such contributions are made. <<d Nationwide Retirement Solutions, Inc. 5 457 OBRA Plan Amended and Restated Plan ~ ARTICLE V Distribution of Benefits 5.01 Benefit Distributions at Retirement or Other Severance from Employment. A Participant may elect to commence distribution of benefits at any time after retirement or other Severance from Employment. Distributions from the Plan may not be made to a Participant earlier than: (a) the calendar year in whicb the Participant attains age 70 %; or (b) the calendar year in which the Participant retires or otherwise has a Severance from Employment. All irrevocable elections of a benefit commencement date by a Participant or a Beneficiary made prior to January 1, 2002 and defaulted distributions (other than a defaulted distribution to an annuity option) may be voided at the election of the Participant or the Beneficiary. In no event may distribution of benefits commence later than the date described in Section 5.03(b) Required Beginning Date. All irrevocable elections of a Benefit Commencement Date made by Participants prior to January 1, 2002 and defaulted distributions (other than a defaulted distribution to an annuity option) may be voided at the election of the Participant. 5.02 Forms of Distribution - Benefit Payment Options. Benefits shall be paid in accordance with the payment option elected by the Participant. Payment, method of payment, and settlement options are available as provided by each of the available investment specifications. The Participant shall elect the method of payment based upon the options then available under the Plan, including but not limited to lump sum distributions, periodic payment by fixed amount, periodic payment by fixed time period, partial lump sum payment or purchased annuity. A Participant or Beneficiary who has chosen a payment option, other than the purchased annuity option, shall have the ability to change his payment option subject to any restrictions or limitations imposed by the Plan, the Administrator, an investment option provider, any regulatory agency, or as otherwise required by law. 5.03 Required Minimum Distributions. All distributions under the Plan must comply with IRC Section 401(a)(9) and the regulations issued thereunder. The provisions of this Section 5.03 will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 calendar year. The term Designated Beneficiary as used in this Section 5.03 shall have the meaning set forth in Treas. Reg. 1.401 (a) (9)-4. (a) Requirements of Treasury Regulations Incorporated into Plan. All distributions required under this Section 5.03 will be detennined and made in accordance with the Treasury Regulations under promulgated under IRC Section 401 (a)(9). (b) Required Beginning Date. The Participant's entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant's required beginning date, which is to begin no later than April 1 following the calendar year in which the Participant attains age 70 % or has a Severance from Employment, whichever is later. (c) Death of Participant before Distributions Begin. If the Participant dies before distributions begin, the Participant's entire interest will be distributed, or begin to be distributed, no later than as follows: (1) If the Participant's surviving Spouse is the Participant's sole Designated Beneficiary, distributions to the surviving Spouse will begin by December 31 of the calendar year @ Nationwide Retirement Solutions, Inc. 6 457 OBRA Plan Amended and Restated Plan immediately following the calendar year in which the Participant dies, or by December 31 of the calendar year in which the Participant would have attained age 70 %, if later. (2) If the Participant's surviving Spouse is not the Participant's sole Designated Beneficiary, distributions to the Designated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died. (3) If there is no Designated Beneficiary as of September 30 of the year following the year of the Participant's death, and there are no other Designated Beneficiaries, the Participant's entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Participant's death. (4) If the Participant's surviving Spouse is the Participant's sole Designated Beneficiary and the surviving Spouse dies after the Participant but before distributions to the surviving Spouse begin, this Section 5.03 will apply as if the surviving Spouse were the Participant. (d) Required Minimum Distributions during Participant's Lifetime. During the Participant's lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of: (1) the quotient obtained by dividing the Participant's Account Balance by the distribution period in the Uniform Lifetime Table set forth in Treas. Reg. 1.401 (a) (9)-9, using the Participant's age as of the Participant's birthday in the distribution calendar year; or (2) if the Participant's sole Designated Beneficiary for the distribution calendar year is the Participant's Spouse, the quotient obtained by dividing the Participant's Account Balance by the number in the Joint and Last Survivor Table set forth in Treas. Reg. 1.401 (a) (9)-9, using the Participant's and Spouse's attained ages as of the Participant's and Spouse's birthdays in the distribution calendar years. (e) Death On or After Date Distributions Begin and Participant Survived by Designated Beneficiary. (1) If the Participant dies on or after the date distributions begin and there is a Designated Beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant's death is the quotient obtained by dividing the Participant's Account Balance by the longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant's Designated Beneficiary, determined as follows: The Participant's remaining life expectancyis calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. (2) If the Participant's surviving Spouse is the Participant's sole Designated Beneficiary, the remaining life expectancy of the surviving Spouse is calculated for each distribution calendar year after the year of the Participant's death using the surviving Spouse's age as of the Spouse's birthday in that year. For distribution calendar years after the year of the surviving Spouse's death, the remaining life expectancy of the surviving Spouse is calculated using the age of the surviving Spouse as of the Spouse's birthday in the calendar year of the Spouse's death, reduced by one for each subsequent calendar year. (3) If the Participant's surviving Spouse is not the Participant's sole Designated Beneficiary, the Designated Beneficiary's remaining life expectancy is calculated using the age of the ~ Nationwide Retirement Solutions, Inc. 7 457 OBRA Plan Amended and Restated Plan Beneficiary in the year following the year of the Participant's death, reduced by one for each subsequent year. (4) No Designated Beneficiary. If the Participant clies on or after the date clistributions begin and there is no Designated Beneficiary as of September 30 of the year after the year of the Participant's death, the minimum amount that will be clistributed, in accordance with Section 7.01 Acceptance of Beneficiary Designation by Administrator, for each clistribution calendar year after the year of the Participant's death is the quotient obtained by clividing the Participant's Account Balance by the Participant's remaining life expectancy calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. (f) Death before Date Distributions Begin and Participant Survived by Designated Beneficiary. lEthe Participant clies before the date clistributions begin and there is a Designated Beneficiary, the minimum amount that will be clistributed for each distribution calendar year after the year of the Participant's death is the quotient obtained by dividing the Participant's Account Balance by the remaining life expectancy of the Participant's Designated Beneficiary. (1) No Designated Beneficiary. If the Participant clies before the date clistributions begin and there is no Designated Beneficiary as of September 30 of the year following the year of the Participant's death, distribution, in accordance with Section 7.01 Acceptance of Beneficiary Designation by Administrator, of the Participant's entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant's death. (g) Death of the Surviving Spouse before Distributions to Surviving Spouse are Required to Begin. If the Participant clies before the date clistributions begin, the Participant's surviving Spouse is the Participant's sole Designated Beneficiary, and the surviving Spouse <:lies before clistributions are required to begin, this Section 5.03 will apply as if the surviving Spouse were the Participant. (h) Election of Payment Option. If a Participant or Beneficiary fails to elect a payment option that meets the requirements of IRC Section 401 (a) (9), the Administrator will initiate such a distribution. A Participant or Beneficiary who has chosen a payment option, other than an annuity option, shall have the ability to change his or her payment option. 5.04 Order of Priorities. This Section 5.04 has been prepared in accordance with Treasury Regulations promulgated under IRC Section 401 (c) (9). To the extent there is a conflict between Section 5.03 Required Minimum Distributions, or this Section 5.04 and the IRC, the provisions of the IRC and applicable Treasury Regulations shall prevail. For any calendar year, a Beneficiary may elect distribution of a greater amount (not to exceed the amount of the remaining Account Balance in lieu of the amount calculated using the formula set forth in Section 5.01 Benefit Distributions at Retirement or Other Severance from Employment). 5.05 Death Benefit Distributions. If the Participant dies before the benefits to which he is entided under the Plan have been paid or exhausted, then the remaining benefits payable under the Plan shall be paid to his Designated Beneficiary. The Beneficiary shall have the right to elect the time and form of distribution of such benefits, subject to the limitations set forth in the Plan. 5.06 Amount of Account Balance. Except as provided in Section 5.02 Forms of Distribution - Benefit Payment Options, the amount of any payment under this Article V shall be based on the amount of the Account Balance on the preceding Valuation Date. i{) Nationwide Retirement Solutions, Inc. 8 457 OBRA Plan Amended and Restated Plan ARTICLE VI Eligible Rollovers and Plan-to-Plan Transfers 6.01 Eligible Rollover Contributions to the Plan. (a) Incoming Rollover Contributions. A Participant who is a Public Employee and who is entided to receive an Eligible Rollover Distribution from another Eligible Retirement Plan may request to have all or a portion of the Eligible Rollovet Distribution paid to the Plan, provided, (1) the Eligible Rollover Distribution is made entirely in the form of U.S.' dollars, and, (2) the Participant demonstrates to the Administrator's satisfaction that the amount is a qualifying Eligible Rollover Distribution under IRC Sections 402(c)(4), 403 (a) (4), or 408(d)(3). (b) Definition of Eligible Rollover Distribution. For purposes of Section 6.01(a) Incoming ,Rollover Contributions, an Eligible Rollover Distribution means any contribution of all or any portion of a Participant's benefit under another Eligible Retirement Plan to the Plan, except that an Eligible Rollover Distribution does not include: (1) any installment payment for a period of 10 years or more, (2) any distribution made as a result of an Unforeseeable Emergency, or (3) For any other distribution, the portion, if any, of the distribution that is a required minimum distribution under IRC Section 401 (a) (9). (c) Separate Account for Eligible Rollover Contributions. The Plan shall establish and maintain for the Participant an Eligible Rollover Account for any Eligible Rollover Distribution paid to the Plan from any Eligible Retirement Plan that is not an eligible governmental plan under IRC Section 457(b). In addition, the Plan shall establish and maintain for the Participant an Eligible Rollover Account for any Eligible Rollover Distribution paid to the Plan from any Eligible Retirement Plan that is an eligible governmental plan under IRC Section 457(b). 6.02 Permissive Rollovers to an Eligible Retirement Plan. A Participant or the surviving Spouse ofa Participant who is entitled to an Eligible Rollover Distribution may elect, a~ the time and in the manner prescribed by the Administrator, to have all the Account Balance paid directly to an Eligible Retirement Plan specified by the Participant in a direct rollover. 6.03 Plan-to-Plan Transfers to the Plan of Eligible GovemmentaI457(b) Assets. (a) Permissive Plan-to-Plan Transfers. At the direction of the Plan Sponsor, the Administrator may permit a class of Participants who are Participants in another eligible governmental IRC Section 457(b) Plan to transfer assets to the Plan as provided herein. Such a transfer is permitted only if the other Plan provides for the direct transfer of each Participant's interest therein to the Plan. Transfers from other eligible deferred compensation Plans (as defined in IRC Section 457) to the Plan will be accepted at the Participant's request if such transfers are in cash. (b) Effect of Transfers on Annual Deferral Limitations. Any such transferred amount shall not be subject to the limitations of Section 3.01 Basic Annual Limitation as an Annual Deferral, provided however, that the actual amount deferred during the calendar year under both Plans shall be taken into account in calculating the maximum Annual Deferral for that year. The amount so I\':) Nationwide Retirement Solutions, Inc. 9 457 OBRA Plan Amended and Restated Plan transferred shall be credited to the Participant's Account Balance and shall be held, accounted for, administered, and otherwise treat~d in the same manner as an Annual Deferral by the Participant under the Plan. (c) Required Documentation for Transfers to the Plan. The Administrator may require such documentation from the other Plan as it deems necessary to effectuate the transfer in accordance with IRC Section 457(e)(1O) and Treas. Reg. 1.457-10(b) and to confirm that the other Plan is an eligible governmental plan as defmed in Treas. Reg. 1.457-2(f). 6.04 Plan-to-Plan Transfers from the Plan to another Eligible GovemmentaI457(b) Plan. (a) Outgoing Plan-to-Plan Transfers Pursuant to Severance of Employment. At the direction of the Plan Sponsor, the Administrator may permit a class of Participants and Beneficiaries to elect to have all of their Account Balance transferred to another eligible governmental plan within the meaning ofIRC Section 457(b) and Treas. Reg. 1.457-2(f). A transfer is permitted under this Section 6.04(a) for a Participant only if the Participant has had a Severance from Employment with the Plan Sponsor and is a Public Employee of the entity that maintains the other eligible governmental 457 (b) Plan. Further, a transfer is permitted under this Section 6.04(a) only if the other eligible governmental 457 (b) plan provides for the acceptance of plan-to-plan transfers with respect to the Participants and Beneficiaries and for each Participant and Beneficiary to have an amount deferred under the other plan immediately after the transfer at least equal to the amount transferred. (b) Plan-to-Plan Transfers to Voluntary 457 Plan. If a Participant is no longer eligible to participate in the Plan, but elects to participate in the Plan Sponsor's voluntary Section 457 deferred compensation plan, and such other plan accepts transfers, the value of the Participant's Account Balance under the Plan may be transferred to the Plan Sponsor's voluntary Section 457 deferred compensation plan at the time and in the manner prescribed by the Administrator. (c) Limitation of Liability. Upon the transfer of assets under this Section 6.04, the Plan's liability to pay benefits to the Participant or Beneficiary under this Plan shall be discharged to the extent of the amount so transferred for the Participant or Beneficiary. The Administrator may require such documentation from the receiving plan as it deems -appropriate or necessary to comply with this Section 6.04 (for example, to confirm that the receiving plan is an eligible governmental plan under paragraph (a) of this Section 5.04, and to assure that the transfer is permitted under the receiving plan) or to effectuate the transfer pursuant to Treas. Reg. 1.457-10(b). ARTICLE VII Designation of BENEFICIARY 7.01 Acceptance of Beneficiary Designation by Administrator. The Participant shall have the right to file with the Administrator, a signed, written beneficiary or change of beneficiary form designating the person or persons who shall receive the benefits payable under the Plan in the event of the Participant's death. If the Participant dies without having a valid beneficiary form on ftie, the benefits will be paid to the Participant's estate or as otherwise required by applicable state law. A change in the Beneficiary designation shall take effect when the election is accepted by the Administrator, and must be on a form and in the procedural manner approved by the Administrator. 7.02 Participant Obligation to File Beneficiary Designation Form. The Participant accepts and acknowledges that he has the burden of executing and filing with the Administrator prior to the @ Nationwide Retirement Solutions, Inc. 10 457 OBRA Plan Amended and Restated Plan Participant's death a proper beneficiary designation form. If the Participant dies without having a valid Beneficiary form on me with the Administrator, the benefits will be paid to the Participant's estate. ARTICLE VIII Investment of Deferred Amounts 8.01 Designation for Investment. Deferred Compensation amounts shall be delivered by the Plan Sponsor to the Administrator for investment as designated by the Plan Sponsor in the investment option selected by the Plan Sponsor. The Plan Sponsor shall be under no obligation to invest the Annual Deferrals as specified by the Participant. 8.02 Participant Account Credits and Debits. All interest, dividends, charges for premiums and administrative expenses, and changes in value due to market fluctuations applicable to each Participant's Account Balance shall be credited or debited to the account. All dividends will be reinvested in the associated investment option. 8.03 Annuity Contract. All assets of the Plan, including all Annual Deferral amounts, property and rights purchased with such amounts, and all income attributable to such amounts, property or rights, shall (until made available to the Participant or Beneficiary) be held in an annuity contract described in IRC Section 457(g) for the exclusive benefit of the Participants, ARTICLE IX Administration of Plan 9.01 Exclusive Benefit of Participants and Beneficiaries. The Plan Sponsor may at any time amend, modify or tenninate the Plan under Section 12.01 Amendment and Tennination, without the consent of the Participant or any Beneficiary; provided, however, that the assets of thePlan shall be held for the exclusive benefit of Participants and Beneficiaries at all times. All amendments shall become effective forty~five (45) days after the issuance of notice of the amendments by the Administrator to the Plan Sponsor. No amendments shall deprive a Participant of any of the benefits to which he is entided under this Plan with respect to Annual Deferrals credited to his Account Balance prior to the effective date of the amendment. 9.02 No Third Party Interest in Plan. Any companies that may issue any policies, contracts, or other forms of investment media used by the Plan Sponsor or specified by the Participant, are not parties to this Plan and such companies shall have no responsibility or accountability to any Participant or Beneficiary with regard to the operation of this Plan. 9.03 Tax Consequences of Participation in Plan. The Plan Sponsor and the Administrator do not represent or guarantee that any particular federal or state income, payroll, personal property, or other tax consequence will occur because of participation in this Plan. The Participant or Beneficiary should consult with his own representative regarding all questions, of federal and state income, payroll, personal property, or other tax consequences arising from participation in this Plan. 9.04 Appointment of Agents. The Administrator shall have the power to appoint agents to act for and in the administration of this Plan and to select depositories for the assets of this Plan. 9.05 Construction. This Plan shall be construed, administered, and enforced according to the Constitution, laws of the state in which the Plan Sponsor resides, and the IRe. @ Nationwide Retirement Solutions, Inc. 11 457 OBRA Plan Amended and Restated Plan 9.06 Total Agreement. This Plan and any properly adopted amendment or modification shall constitute the total agreement or contract between the Plan Sponsor and the Participant regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant. 9.07 Effect of Adopted Plan Amendment. This Plan and any properly adopted amendment or modification shall be binding on the parties hereto and their respective heirs, administrators, trustees, successors, and assignees and on all Participants and Beneficiaries. ARTICLE X Authority of Plan Sponsor and Administrator 10.01 Authority Binding on Participants and Beneficiaries. The Plan Sponsor, the Administrator, or their respective agents shall be authorized to resolve any questions of fact necessary to decide the Participant's right under this Plan and such decision shall be binding on the Participant and Beneficiary, provided, however, that assets of the Plan shall be held for the exclusive benefit of Participants and Beneficiaries at all times. 10.02 Authority to Interpret Plan. The Plan Sponsor, the Administrator, or their respective agents shall be authorized to construe the Plan and to resolve any ambiguity in the Plan. 10.03 Investment Losses. The Participant specifically agrees not to seek recovery against the Plan Sponsor, the Administrator or any other employee, contractee, or agent of the Plan Sponsor or Administrator for any loss sustained by a Participant or a Beneficiary for the non-performance of their duties, negligence, or any other misconduct of the above-named persons, except that this paragraph shall not excuse. fraud or wrongful taking by any person. 10.04 Suspension of Benefit Payments. The Plan Sponsor, the Administrator, or their respective agents, if in doubt concerning the correctness of their action in making a payment of a benefit, may suspend the payment until satisfied as to the correctness of the payment or the identity of the person to receive the payment or allow the filing in any State court of competent jurisdiction, a suit in such form as they consider appropriate for a legal determination of the benefits to be paid and the persons to receive them. The Plan Sponsor shall comply with the final orders of the court in any such suit and all Participants, Beneficiaries, and Alternate Payees consent to be bound thereby insofar as it affects the benefits payable under this Plan or the method or manner of payment. 10.05 Hold Harmless. The Plan Sponsor, the Administrator, and their respective agents are hereby held harmless from all court costs and all, claims for the attorney's' fees arising from any action brought by any Participant or Beneficiary under this Plan or to enforce his rights under this Plan, including any amendment, modification or termination hereof. 10.06 Litigation. The Administrator shall not be required to participate in any litigation concerning the Plan except upon written demand from the Plan Sponsor. The Administrator may compromise, adjust or effect settlement of litigation when specifically instructed to do so by the Plan Sponsor. ARTICLE XI Miscellaneous 11.01 Non-Assignability. Except as provided in Section 11.02 IRS Levy, the interests of each Participant and Beneficiary under the Plan are not subject to the claims of the Participant's or Beneficiary's creditors; and neither the Participant nor any Beneficiary shall have any right to sell, assign, transfer, or otherwise convey the right to receive any payments hereunder or any interest under the Plan, which ~ Nationwide Retirement Solutions, Inc. 12 457 OBRA Plan Amended and Restated Plan payments and interest are expressly declared to be non-assignable and non-transferable. Furthermore, in accordance Section 522 of the Bankruptcy Abuse Protection and Consumer Protection Act of 2005 ("the Act"), retirement funds that are in a fund that is exempt from taxation under IRC Section 457 may be exempted from an individual's property estate for purposes of the Act. 11.02 IRS Levy. Notwithstanding Section 11.01 Non-Assignability, the Administrator may pay from a Participant's, Beneficiary's, or Alternate Payee's Account Balance the amount that the Administrator finds is lawfully demanded under a levy issued by the Internal Revenue Service with respect to that Participant or Beneficiary or is sought to be collected by the United States Government under a judgment resulting from an unpaid tax assessment against the Participant or Beneficiary. 11.03 Mistaken Contributions. If any contribution (or any portion of a contributlon) is made to the Plan by a good faith mistake of fact, then within one year after the payment of the contribution, and upon receipt in good order of a proper request approved by the Administrator, the amount of the mistaken contribution (adjusted for any income or loss in value, if any, allocable thereto) shall be returned directly to the Participant or, to the extent required or permitted by the Administrator, to the Plan Sponsor. ARTICLE XII Amendment and Termination 12.01 Amendment and Termination. The Plan Sponsor may at any time modify, amend, suspend, or terminate the Plan in whole or in part (including retroactive amendments) or cease deferring Compensation pursuant to the Plan for some or all Participants. In the event of such an action, the Plan Sponsor shall deliver to each affected Participant a notice of such modification, amendment, or termination or a notice that it shall cease deferring Compensation; provided, however, that the Plan Sponsor shall not have the right to reduce or affect the value of any Participant's Account Balance or any rights accrued under the Plan prior to such modification, amendment, termination, or cessation. 12.02 No Effect of Plan on Employment of Participants. Neither the establishment of the Plan nor any modification thereof, nor the establishment of an account, nor any agreement between the Plan Sponsor and the' Administrator nor the payment of any benefits, shall be construed as giving to any Participant or other person any legal or equitable right against the Plan Sponsor except as herein provided, and in no event shall the terms of employment of the Public Employee, Independent Contractor, or Participant be modified or in any way affected. 12.03 Interpretation. This Plan is intended to be an eligible deferred compensation Plan under IRC Section 457, and shall be interpreted and administered in a manner consistent with IRC Section 3121 and regulations thereunder. This Plan may be amended to the extent that it may be necessary to conform to the Plan to the requirements ofIRC Sections 457 and 3121, the regulations thereunder, and any other applicable law, regulation, or ruling, including amendments that are retroactive to the effective date of the Plan. In the event that the Plan is deemed by the Internal Revenue Service to be administered in a manner inconsistent with the Internal Revenue Code, the Plan Sponsor shall correct such administration. <1J Nationwide Retirement Solutions, Inc. 13 457 OBRA Plan Amended and Restated Plan ARTICLE XIII Prior Plan If the Plan Sponsor has already accepted the OBRA Deferred Compensation Program and adopted an eligible deferred compensation plan, as defined by IRC Section 457 and is defIned as a retirement system under IRe Section 3121 and the regulations thereunder, then the Plan Sponsor intends that this Plan shall amend and restate the Prior Plan. In such event, this Plan shall apply to all Participants in the Prior Plan on the effective date hereof, and also to each Public Employee who elects, or is required, to participate in this Plan on and after the effective date hereof. Article XIV Effective Date This Plan shall be effective on the date and year written below. IN WITNESS WHEREOF, the undersigned has executed this Plan this day of , By: (signature) (printed name) (tide/ role) (plan Name) Please retain this copy for your records. ilJ Nationwide Retirement Solutions, Inc. 14 457 OBRA Plan Amended and Resrated Plan ARTICLE XIV Prior Plan If the Plan Sponsor has already accepted the OBRA Deferred Compensation Program and adopted an eligible deferred compensation plan, as defined by IRC Section 457 and is defined as a retirement system under IRC Section 3121 and the regulations thereunder, then the Plan Sponsor intends that this Plan shall amend and restate the Prior Plan. In such event, this Plan shall apply to all Participants in the Prior Plan on the effective date hereof, and also to each Public Employee who elects, or is required, to participate in this Plan on and after the effective date hereof. ARTICLE XV Effective Date This Plan shall be effective on the date and year written below. IN WITNESS WHEREOF, the undersigned has executed this Plan this day of , By: (signature) (printed name) (title/role) (plan Name) Please tear out this page and retum to Nationwide Retirement Solutions. ~ Nationwide Retirement Solutions, Inc. 15 457 OBRA Plan Amended and Restated Plan