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HomeMy WebLinkAboutCORRESPONDENCE - RFP - P926 PUBLIC SECTOR RETIREMENT PLAN, INVEST CONSULT (3)SAW\57133\386363.02 RESTATED POUDRE FIRE AUTHORITY NEW HIRE MONEY PURCHASE PENSION PLAN AND TRUST AGREEMENT December 24, 2001 SAW\57133\386363.02 i TABLE OF CONTENTS Page ARTICLE I. PURPOSE 1 ARTICLE II. DEFINITIONS AND CONSTRUCTION 2 2.1 Definitions 2 (a) Accrued Benefit 2 (b) Aggregate Account 2 (c) Authorized Leave of Absence 2 (c) Beneficiary 3 (d) Compensation 3 (e) Disability 3 (f) Effective Date 4 (g) Employee 4 (h) Employee Contribution Account 4 (i) Employee Rollover Account 4 (i) Employee Voluntary Contribution Account 4 (j) Employer 5 (k) Employer Contribution Account 5 (l) Fiduciaries 5 (m) Former Participant 5 (o) Income 5 (p) Internal Revenue Code 5 (q) Normal Retirement Age 5 (r) Participant 5 (s) Participation 5 SAW\57133\386363.02 ii (t) Plan 5 (u) Service 6 (v) Trust (or Trust Fund) 6 (w) Valuation Date 6 (x) Year (Plan Year) 6 2.2 Construction 6 ARTICLE III. PARTICIPATION AND SERVICE 6 3.1 Participation 6 3.2 Participation Upon Re-Employment 7 3.3 Mandatory Participation in Plan 7 ARTICLE IV. CONTRIBUTIONS AND FORFEITURES 7 4.1 Employer Contributions 7 4.2 Contributions by Participants 7 4.3 Disposition of Forfeitures 8 4.4 Rollover Contributions 9 ARTICLE V. ALLOCATIONS TO PARTICIPANTS' ACCOUNTS 9 5.1 Individual Accounts 9 5.2 Account Adjustments 10 5.3 Maximum Additions 11 5.4 Multiple Plan Reduction 13 5.5 Qualified Military Service 14 5.6 Return of Contributions 14 ARTICLE VI. BENEFITS 14 6.1 Benefits14 6.2 Payment of Benefits 15 6.3 Post-Death Distribution 18 6.4 Designation of Beneficiary 19 6.5 Distributions Under Domestic Relations Order 19 6.6 Direct Transfers and Rollovers 19 ARTICLE VII. THE TRUST AND TRUST FUND 21 SAW\57133\386363.02 iii 7.1 Contributions to Trust 21 7.2 Participant Direction of Investment 21 7.3 Trustees' Powers and Duties 23 7.4 Further Powers of the Trustees 24 7.5 Investment Manager 26 7.6 Claims Procedure 27 7.7 Records and Reports 27 7.8 Other Administrative Powers and Duties 28 7.9 Rules and Decisions 29 7.10 Benefit Payments 29 7.11 Application and Forms for Benefits 29 7.12 Indemnification 29 7.13 Loans to Participants 29 7.14 Payment of Expenses and Fees 31 7.15 Protection of the Trustees 31 7.16 Accounts of the Trustees 32 ARTICLE VIII. TRUSTEES 32 8.1 Trustees 32 8.2 Use of Corporate Trustee 33 8.3 Officers 34 8.4 Officer Responsibilities 35 8.5 Annual Meeting 35 8.6 Quorum35 8.7 Majority Vote 35 ARTICLE IX. FIDUCIARIES 36 9.1 Fiduciaries 36 9.2 General Fiduciary Duties 37 9.3 Bonding and Insurance 37 9.4 Delegation of Authority 37 ARTICLE X. MISCELLANEOUS 38 SAW\57133\386363.02 iv 10.1 Nonguarantee of Employment 38 10.2 Rights to Trust Assets 38 10.3 Nonalienation of Benefits 38 10.4 Payments to Minors or Persons of Unsound Mind 39 10.5 Disposition of Unclaimed Payments 39 10.6 Severability of Provisions 40 10.7 Trust and Plan to be Tax Exempt 40 ARTICLE XI. AMENDMENT OR TERMINATION OF THE PLAN 40 11.1 Right and Restrictions 40 11.2 Merger or Consolidation of the Plan 41 ARTICLE XII. GOVERNING LAW 41 SAW\57133\386363.02 POUDRE FIRE AUTHORITY NEW HIRE MONEY PURCHASE PENSION PLAN AND TRUST AGREEMENT WHEREAS, Poudre Fire Authority continues, within this Trust Agreement, a Plan for the administration and distribution of contributions made by the Employer and its eligible Employees for the purpose of providing retirement benefits for its eligible Employees. The provisions of this Plan shall apply solely to an Employee whose employment with the Employer terminates on or after the restated Effective Date of the Plan. If an Employee's employment with the Employer terminates prior to the restated Effective Date, that Employee shall be entitled to benefits under the Plan in which such Employee participated, as such Plan existed on the date of the Employee's termination of employment. Now, therefore, the Poudre Fire Authority amends and restates the New Hire Money Purchase Pension Plan and Trust Agreement to be effective December 24, 2001, the terms of which shall supersede the provisions of any plan in effect prior to December 24, 2001. ARTICLE I. PURPOSE Effective as of December 24, 2001, Poudre Fire Authority, known as the Employer, and ______, ______, ______, ______, and _______ as the Trustees, hereby adopt and establish the Amended and Restated Poudre SAW\57133\386363.02 2 Fire Authority New Hire Money Purchase Pension Plan and Trust Agreement. The purpose of the Plan is to reward Employees of the Employer for their loyal and faithful service, to help the Employees accumulate funds for their later years and to provide funds for their beneficiaries in the event of death or disability. The benefits provided by this Plan will be paid from a Trust Fund established by the Employer and will be in addition to the benefits Employees are entitled to receive under any other programs of the Employer. The provisions of this Plan and Trust shall apply only to an Employee who terminates employment on or after the Effective Date of this Plan December 24, 2001). The rights and benefits, if any, of a former employee whose employment terminated prior to December 24, 2001 shall be determined in accordance with the provisions of the Plan and Trust in effect on the date his employment terminated. The Plan is being established pursuant to C.R.S. § 31-30.5-802 and 31-31-601 and is a governmental retirement plan exempt from the provisions of the Employee Retirement Income Security Act. The Plan and Trust are intended to meet the requirements of Sections 401(a) and 501(a) of the Internal Revenue Code of 1986 to the extent applicable to governmental plans. SAW\57133\386363.02 3 ARTICLE II. DEFINITIONS AND CONSTRUCTION 2.1Definitions: The following words and phrases, when used herein, unless their context clearly indicates otherwise, shall have the following respective meanings: (a) Accrued Benefit: Means the amount standing in a Participant's account(s) as of any date derived from Employer contributions, Mandatory Participant Contributions and Rollover Contributions. (b) Aggregate Account: The value of all accounts maintained on behalf of a Participant, whether attributable to Employer or Employee contributions or rollover accounts. (c) Authorized Leave of Absence: Any absence authorized by the Employer under the Employer's standard personnel practices provided that all persons under similar circumstances must be treated alike in the granting of such Authorized Leaves of Absence and provided further that such leave shall end as of the date it was extended to. (d) Beneficiary: A person or persons (natural or otherwise) designated by a Participant in accordance with the provisions of Section 6.4 to receive any death benefit which shall be payable under this Plan. (e) Compensation: A Participant's base salary received from the Employer for personal services during the Year, but excluding holiday pay, acting officer pay, SAW\57133\386363.02 4 longevity pay, bonus payments, payments for unused vacation, overtime, uniform cleaning and travel allowances, and excluding any benefits paid under this Plan or any other retirement or life insurance program or under any other health or welfare plan. For purposes of allocating the Employer's contribution for the Year in which a Participant begins or resumes Participation, Compensation shall be determined as of the first day of the year in which the Employee became a Participant and Compensation before his Participation began or resumed shall be disregarded. Contributions shall be made on a Participant's base salary as defined herein, before taking into account the reduction of any salary deferrals under the Employer's deferred compensation plan maintained under Code Section 457. Effective January 1, 1994, Compensation in excess of $150,000 (as adjusted by the Secretary of the Treasury for cost of living increases or by Congress) shall not be taken into account under the Plan. (f) Disability: Disability hereunder shall mean when a Participant is found by the Board of Directors of the Colorado Fire and Police Pension Association to be eligible for disability benefits as a result of such Participant's becoming totally disabled or occupationally disabled as provided under and defined in C.R.S. Section 31-31-803. (g) Effective Date: The original effective date is January 1, 1988. The Effective Date of this amended and restated Plan shall be December 24, 2001, except as otherwise noted. (h) Employee: Employee shall mean any person: (1) who is employed by the Employer on or after the Effective Date; SAW\57133\386363.02 5 (2) whose most recent employment with the Employer or the City of Fort Collins, Colorado (the "City") commenced on or after April 8, 1978 and (3) who is paid by the Employer on a salary basis; and (4) whose duties are directly involved with the provision of fire protection as certified by the Employer. The term "Employee" shall not mean nor include clerical or other personnel whose services for the Employer are auxiliary to actual fire protection or any volunteer firefighter, as defined in C.R.S. Section 31-30-1102(9), as may be amended from time to time. The Employer shall, under its current employment policies, make the determination of whether a person employed by it meets the definition of "Employee" as set forth herebefore in this Section 2.1(h). (i) Employee Contribution Account: The account maintained for a Participant to record his mandatory contributions to the Plan and adjustments relating thereto. (j) Employee Rollover Account: The account established to hold and account for the contributions rolled over by a Participant from Prior Plans or any other qualified rollover. SAW\57133\386363.02 6 (k) Employee Voluntary Contribution Account: The account maintained for a Participant to record his voluntary contribution to the Trust and adjustments relating thereto. (l) Employer: The Employer shall mean the Poudre Fire Authority. (m) Employer Contribution Account: The account maintained for a Participant to record his share of the contributions of the Employer and adjustments relating thereto. (n) Fiduciaries: The Employer and the Trustees, but only with respect to the specific responsibilities of each for Plan and Trust administration, all as described in Article IX. (o) Former Participant: A Participant whose employment with the Employer has terminated but who has a vested account balance under the Plan which has not been paid in full. (p) Income: The net gain or loss of the Trust Fund from investments, as reflected by interest payments, dividends, realized and unrealized gains and losses on securities, other investment transactions and expenses paid from the Trust Fund. In determining the Income of the Trust Fund for any period, assets shall be valued on the basis of their fair market value. (q) Internal Revenue Code: The Internal Revenue Code of 1986, as amended. SAW\57133\386363.02 7 (r) Normal Retirement Age: The date a Participant completes twenty (20) Years of Service or attains the age of fifty (50), whichever occurs first. (s) Participant: An Employee participating in the Plan in accordance with the provisions of Section 3.1. (t) Participation: The period commencing as of the date the Employee became a Participant and ending upon the termination of employment. (u) Plan: The Poudre Fire Authority New Hire Money Purchase Pension Plan and Trust, the Plan set forth herein, as amended from time to time. (v) Service: A Participant's period of employment with the Employer determined in accordance with Section 3.2. (w)Trust (or Trust Fund): The Trust maintained in accordance with the terms of this Trust Agreement, as from time to time amended, which constitutes a part of this Plan, and the funds now or hereafter placed with the Trustees to be held, invested and paid out pursuant to the provisions of this Plan and Trust Agreement. (x) Valuation Date: The Valuation Date is the last day of each Year or such other date or dates deemed necessary by the Trustees. The Valuation Date may include any day during the Plan Year that the Trustees, any transfer agent appointed by the Trustees and any stock exchange used by such agent are open for business. (y) Year (Plan Year): The plan year consisting of the 12-month period commencing on January 1 and ending on the following December 31. SAW\57133\386363.02 8 2.2Construction: The masculine gender, where appearing in this Plan and Trust, shall be deemed to include the feminine gender, unless the context clearly indicates to the contrary. ARTICLE III. PARTICIPATION AND SERVICE 3.1Participation: Each Employee becomes a Participant in the Plan on the later of his date of hire or the date he attains age 18. Each Employee who was a Participant in the Prior Plans on the day before the Effective Date of this restated Plan continues as a Participant in the Plan. 3.2Participation Upon Re-Employment: If the Service of an Employee terminates and he or she is re-employed as an Employee, such re-employed Employee will be eligible to become a Participant and shall begin participation in the Plan on the date he or she is re-employed by the Employer as an Employee and is first compensated as a re- employed Employee. 3.3MandatoryParticipation in Plan: Except as provided in the following sentence, all Employees who are eligible to participate in the Plan must participate in the Plan as a condition of their employment as an Employee with the Employer, and no current Participant may elect to discontinue his or her participation in the Plan. The provisions of this Section 3.3 may not be applicable to the fire chief of the Employer, provided that the applicable provisions of the Colorado Revised Statutes are complied with, and further provided that if said chief participates in another retirement plan sponsored by the SAW\57133\386363.02 9 Employer, such participation in such other retirement plan does not detrimentally impact the continued tax qualification of this Plan and Trust Agreement under the Internal Revenue Code. ARTICLE IV. CONTRIBUTIONS AND FORFEITURES 4.1Employer Contributions: Not less than monthly, the Employer shall pay into the Trust Fund an amount equal to eight percent (8%) of the Compensation of all Participants eligible to receive a contribution for such month. 4.2ContributionsbyParticipants: (a) Mandatory Contributions: Not less than monthly, each Participant will be required to make a mandatory contribution of eight percent (8%) of their monthly Compensation. The Employer shall pick up Mandatory Employee Contributions for all Compensation paid after the Effective Date and the contributions so picked up shall be treated as Employer contributions pursuant to Section 414(h)(2) of the Internal Revenue Code in determining tax treatment under such Code. The Employer shall pay these Employee contributions directly to the Trust Fund in lieu of paying such amounts to Employees, and such contributions shall be paid from the same funds which are used in paying salaries to the Employees. Employee contributions so picked up shall be SAW\57133\386363.02 10 treated for all purposes of this Plan, other than federal tax, in the same manner as Employee contributions which are not picked up by the Employer. (b) Voluntary Contributions: In order to encourage savings and investments by Participants, each Participant voluntarily may contribute to the Trust an amount not to exceed seven percent (7%) of Compensation in addition to contributions under subparagraph (a) of this subsection. All contributions shall be made by payroll deduction. The percentage, if any, which a Participant contributes under this section may be changed by filing a written notice with the Plan Manager prior to the effective date of such change. All voluntary contributions shall be paid to the Trustee by the Employer at least monthly. No Participant shall have any obligation to make any voluntary contribution. 4.3Disposition of Forfeitures: The amount of a Participant's Accrued Benefit forfeited under the Plan pursuant to Section 10.5 is a Participant forfeiture. Subject to any restoration allocation required under Section 10.5, the Trustees will use, allocate and credit the forfeiture as an additional Employer contribution for the Plan Year in which the forfeiture occurs. The Trustees will allocate the participant forfeitures for a Plan Year to the Account of each Participant in the same ratio that each Participant's Compensation for the Plan Year bears to the total Compensation of all Participants for the Plan Year. A Participant will not share in the allocation of a forfeiture of any portion of his Accrued Benefit. SAW\57133\386363.02 11 4.4Rollover Contributions: As permitted by law, an Employee who has an entitlement to a distribution of his entire interest in a plan which meets the requirements of Section 401(a) of the Internal Revenue Code or from an Individual Retirement Account may, in accordance with the procedures of the Trustees, transfer the rollover amount to the Trustees. The plan-to-Plan rollover must be executed on or before the 60th day after the day on which he is entitled to receive such distribution, to the extent that the fair market value of the rollover amount exceeds the amounts considered contributed by the Employee, reduced by any amounts previously distributed to him which were not includible in gross income. Such rollover amount shall be non-forfeitable, shall be held in a separate account and shall receive income allocations. The acceptance of the rollover amounts and the provisions established by the Trustees shall be governed by the provisions of the Internal Revenue Code. ARTICLE V. ALLOCATIONS TO PARTICIPANTS' ACCOUNTS 5.1Individual Accounts: The Trustees shall create and maintain adequate records to disclose the interest in the Trust of each Participant, Former Participant and Beneficiary. Such records shall be in the form of individual accounts, and credits and charges shall be made to such accounts in the manner herein described. A Participant may have up to five (5) separate accounts: an Employer Contribution Account, a Mandatory Employee Contribution Account, Employee Voluntary Contribution Account, Employee Mandatory Post Tax Contribution Account, and an Employee Rollover Account. The maintenance of individual accounts is only for accounting purposes, and a SAW\57133\386363.02 12 segregation of the assets of the Trust Fund to each account shall not be required. Distribution and withdrawals made from an account shall be charged to the accounts as of the date paid. 5.2Account Adjustments: The accounts of Participants, Former Participants and Beneficiaries shall be adjusted in accordance with the following: (a) Income: On each business day of the Year, a daily determination of unrealized and realized gains and losses, interest, dividends and capital gain distributions will be calculated and allocated based on the actual activity in each Participant's account. Activity includes, but is not limited to, allocation of contributions, forfeitures and distributions. Earnings or losses with respect to a Participant's directed account shall be allocated in accordance with Section 7.2. Participant's transfers from other qualified plans and voluntary contributions deposited in the general Trust Fund shall share in any earnings and losses (net appreciation or net depreciation) of the Trust Fund in the same manner provided above. Each segregated account maintained on behalf of a Participant shall be credited or charged with its separate earnings and losses. (b) Employer Contributions: Employer contributions shall be allocated to the Employer Contribution Account of each eligible Participant not less than monthly, according to the amount that is actually contributed on behalf of each Participant in accordance with Section 4.1. SAW\57133\386363.02 13 (c) Expenses: To the extent the Employer does not pay the administrative, legal, investment and consulting fees of the Trust in accordance with Section 7.14, such expenses shall be paid and shall be allocated to and deducted from the accounts of Participants. Expenses which are incurred as a direct result of the investments held in the Trust, shall be deducted from the interest, dividends and net income of the appropriate investment prior to allocating each month's Income to Participants. General administrative, legal and consulting fees and expenses shall be deducted from the accounts of all Participants in the proportion that each Participant's account balance bears to the total account balances of all Participants in the Plan on the date such expenses are deducted. 5.3Maximum Additions: Notwithstanding anything contained herein to the contrary, the total Additions made to the Employer and Employee Contribution Accounts of a Participant for any Year shall not exceed the "Maximum Permissible Amount," reduced by the sum of any Additions allocated to the Participant's accounts for the same Year under any other defined contribution plan or welfare benefit fund (as defined in Code Section 419(e)) maintained by the employer. The Maximum Permissible Amount shall be equal to the lesser of $30,000 or 25% of the Participant's Compensation for such Year, or such amount as provided in §415 of the Internal Revenue Code. (a) The term "Additions" means the total of the Employer contributions and forfeiture amounts allocated to a Participant's Employer Contribution Account, plus the amount of any Employee Contributions to the Plan. Amounts allocated to an individual medical account (as defined in Code Section 415(1)(2)) included as part of a defined SAW\57133\386363.02 14 benefit plan maintained by the Employer are Additions. Furthermore, Additions include contributions paid or accrued attributable to post-retirement medical benefits allocated to the separate account of a key employee (as defined in Code Section 419A(d)(3)) under a welfare benefit fund (as defined in Code Section 419(e)) maintained by the Employer. (b) "Addition" does not include "rollovers" from a qualified plan or Individual Retirement Account as defined in the Internal Revenue Code. (c) As of January 1 of each calendar year, and applicable for that Plan Year, the dollar limit may be adjusted for increases in the cost of living in accordance with regulations prescribed by the Secretary of the Treasury or his delegate. If such additions exceed the limitation, the contributions made by the Participant for the Year, which cause the excess, shall be returned to the Participant. If, after returning the Participant's contribution an excess still exists, such excess which is attributable to Forfeitures shall be held in a suspense account. Such account may be maintained if (1) no Employer contributions are made when their allocation could be precluded by Section 415 of the Internal Revenue Code, (2) no income is allocated to the account, and (3) amounts in the account are allocated as of each allocation date on which Forfeitures may be allocated until the account is exhausted. Upon termination of the Plan, the balance of such account may revert to the Employer. (d) For purposes of this section, the limitation year shall mean the Plan Year. The term "Compensation" means, for purposes of Sections 5.3 and 5.4 only, a Participant's earned income, wages, salaries, fees for professional services and other amounts received for personal services actually rendered in the course of employment SAW\57133\386363.02 15 with the employer maintaining the Plan, including cash awards and elective contributions. “Elective contributions” are amounts excludible from an Employee’s gross income under Code Section 125, and amounts contributed by the Employer, at the Employee’s election, to a Code Section 457 Plan arrangement or a cafeteria plan. 5.4Multiple Plan Reduction: If an Employee is a Participant in one or more defined benefit plans and one or more defined contribution plans maintained by the Employer, the sum of the defined benefit plan fraction and the defined contribution plan fraction for any Plan Year prior to January 1, 2000 may not exceed 1.0. The defined benefit plan fraction for any year is a fraction (a) the numerator of which is the projected "annual benefit" of the Participant under the Plan (determined as of the close of the Year), and (b) the denominator of which is the lesser of: (1) the product of 1.25 multiplied by the maximum dollar limitation in effect under Section 415(b)(1)(A) of the Code for such year, or (2) the product of 1.4 multiplied by the amount which may be taken into account under Section 415(b)(1)(B) of the Code for such year. The defined contribution plan fraction for any year is a fraction (a) the numerator of which is the sum of the "annual additions" to the Participant's Account as of the close of the Year and (b) the denominator of which is the sum of the lesser of the following amounts determined for such year and each prior Year of Service with the Employer: (1) the product of 1.25 multiplied by the dollar limitation in effect under Section 415(c)(1)(A) of the Code for such year (determined without regard to Section 415(c)(6) of the Code), or (2) the product of 1.4 multiplied by the amount which may be taken into account under Section 415(c)(1)(B) of the Code for such year. SAW\57133\386363.02 16 At the election of the Trustees, in applying the provision of Section 5.4 with respect to the defined contribution plan fraction for any Year ending after January 1, 1984, the amount taken into account for the denominator for each Participant for all Years ending before December 31, 1983 shall be an amount equal to the product of (a) the amount of the denominator determined under Section 5.4 (as in effect for the Year ending in 1982) for Years ending in 1982, multiplied by (b) the "transition fraction." For purposes of the preceding paragraph, the term "transition fraction" shall mean a fraction (a) the numerator of which is the lesser of (1) $51,875 or (2) 1.4 multiplied by twenty-five percent (25%) of the Participant's Compensation for the Year ending in 1981, and (b) the denominator of which is the lesser of (1) $41,500 or (2) twenty-five percent (25%) of the Participant's Compensation for the Year ending in 1981. 5.5Qualified Military Service. Notwithstanding any provision of this Plan to the contrary, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with Section 414 (u) of the Internal Revenue Code. 5.6Return of Contributions. An Employer Contribution which is made by reason of a mistake of fact, or where the contribution was conditioned upon its deductibility, shall be returned to the Employer in accordance with this section. The return to the Employer of the amount involved must be made within one (1) year after: SAW\57133\386363.02 17 (a) the Employer made the contribution by mistake of fact; or (b) the disallowance of the contribution as a deduction, and then, only to the extent of the disallowance. ARTICLE VI. BENEFITS 6.1Benefits: If a Participant's employment with the Employer is terminated, the Participant shall be entitled to receive the entire vested amount then in the Participant's Aggregate Accounts in accordance with Section 6.2. The Employer Contribution Account, Mandatory Employee Account, Employee Voluntary Contribution Account, Employee Mandatory Post Tax Contribution Account, and the Employee Rollover Account balance shall be one-hundred percent (100%) vested at all times. Upon termination of employment, the Employer shall notify the Trustees in writing of the name and address of the Participant who has terminated employment. The Trustees shall determine the amount of the Participant's Aggregate Accounts as calculated above and shall, subject to the election of the Participant as provided in Section 6.2, distribute such to the Participant as soon as administratively practicable after the Participant's termination of employment. 6.2Payment of Benefits: SAW\57133\386363.02 18 (a) Within a reasonable time prior to or following termination of a Participant's employment for any reason, the Trustees shall provide to the Participant a benefit application form, which shall describe in plain language the terms and conditions of the optional forms of benefits described below and which shall be provided for the Participant to indicate his benefit commencement date, his election of an optional form of benefit, and his Beneficiary or contingent annuitant. The completed benefit application form should be returned to the Trustees prior to the Participant's benefit commencement date. If the Participant files another benefit application form after the first form and prior to his benefit commencement date, the earlier form shall be deemed annulled. The Trustees shall follow a Participant's Beneficiary designation and may follow the method of payment, if any, selected by the Participant in the case of a distribution on account of the Participant's death. Payment of a Participant's benefits must commence within a reasonable time after the Participant's termination of employment. In any event, payment of a terminated Participant's benefits shall, unless the Participant otherwise elects a later date in writing, begin not later than the 60th day after the latest of the close of the Year in which (1) the Participant attains age 55, (2) the occurrence of the 10th anniversary of the year in which the Participant commenced participation in the Plan, or (3) the Participant terminates employment with the Employer. Notwithstanding any provision above to the contrary, mandatory minimum distributions of a Participant's benefits shall commence either during the taxable year in which he attains SAW\57133\386363.02 19 age 70-1/2, or the year in which he actually retires, whichever is later. Alternatively, distributions to a Participant must begin no later than such taxable year and must be made over the life of the Participant (or lives of the Participant and the Participant's spouse) or over a period not exceeding the life expectancy of the Participant (or the life expectancies of the Participant and the Participant's spouse). Distributions (as described above) may be made to a Participant and a non-spouse Beneficiary provided as the measuring lives remain those of the Participant and the Participant's spouse. The methods of payment available to a Participant are as follows: (1) In a lump sum, (2) By the purchase of a single-premium nontransferable annuity contract from a legal reserve life insurance company, with a term and in the form as the Participant, with the approval of the Trustees, shall determine, (3) A joint and 50% survivor annuity, or (4) Periodic payments over a period not exceeding the life expectancy of the Participant (or the joint life expectancies of the Participant and the Participant's designated beneficiary), with any amounts remaining in the Plan to receive income and expense allocations pursuant to Section 5.2(a) and (c). SAW\57133\386363.02 20 For distributions made on or after January 1, 1993 notwithstanding any provision of the Plan to the contrary which would otherwise limit a Participant's election under this section, a Participant may elect, at the time and in the manner prescribed by the Trustees, to have any portion of an eligible rollover distribution, as defined in Internal Revenue Code Section 402(c)(4), paid directly to an eligible retirement plan specified by the Participant in a direct rollover. Notwithstanding the foregoing, a Participant may elect to defer receipt of the balance in his Aggregate Account. Such Former Participant shall receive Income allocations pursuant to Section 5.2(a) and shall have trust expenses deducted pursuant to Section 5.2(c) until the balance of the Former Participant's Aggregate Account has been distributed. A Former Participant may make application for distribution of his Aggregate Account in accordance with the procedures contained in this section. In any event, a distribution option for a Former Participant's Aggregate Account shall be elected no later than the close of the Year in which the Former Participant attains age 65. Notwithstanding any provision herein to the contrary, if the present value of a Former Participant's Accrued Benefit is less than $5,000, or whatever amount is provided under Internal Revenue Code Section 411(a)(11)(A), the Plan may distribute the Accrued Benefit without the Former Participant's consent. SAW\57133\386363.02 21 (b) After a Participant attains Normal Retirement Age, the participant, until he retires, has a continuing election to receive all or any portion of his Accrued Benefit. A Participant shall make an election under this paragraph (b) on a form prescribed by the Trustees at any time during the Plan Year for which his election is to be effective. In his written election, the Participant shall specify the percentage or dollar amount he wishes the Trustees to distribute to him. Furthermore, the Participant's election shall relate solely to the percentage or dollar amount specified in his election form and his right to elect to receive an amount, if any, for a particular Plan Year greater than the dollar amount or percentage specified in his election form shall terminate on the Valuation Date. The Trustees shall make a distribution to a Participant in accordance with his election under this paragraph (b) within the 90-day period (or as soon as administratively practicable) after the Participant files his written election with the Trustees. The Trustees shall distribute the balance of the Participant's Accrued Benefit not distributed pursuant to his election(s) in accordance with the other distribution provisions of this Plan. 6.3Post-Death Distribution: Notwithstanding any provision herein to the contrary, where distributions did commence before death, distributions must continue to be made at least as rapidly as the deceased elected. Where distributions did not commence before death, benefits shall be distributed within the five year period following the date of death unless (i) a portion of benefits is payable to a designated Beneficiary, and that portion will be distributed over the life of the Beneficiary, and distributions commence no later than 1 year after the date of death; and/or (ii) a portion SAW\57133\386363.02 22 of the benefits is to be paid to the surviving spouse and is distributed over the life of, or a period not exceeding the life of, the spouse, and the distributions commence no later than the date on which the Employee would have attained age 70-1/2. 6.4Designation of Beneficiary: Each Participant from time to time may designate any person or persons (who may be designated contingently or successively and who may be an entity other than a natural person) as his Beneficiary or Beneficiaries to whom his Plan benefits are paid if he dies before receipt of all such benefits. Each Beneficiary designation shall be in the form prescribed by the Trustees and will be effective only when filed with the Trustees during the Participant's lifetime. Each Beneficiary designation filed with the Trustees will cancel all Beneficiary designations previously filed with the Trustees. If any Participant fails to designate a Beneficiary in the manner provided above, or if the Beneficiary designated by a deceased Participant dies before him or before complete distribution of the Participant's benefits, the Trustees, in their discretion, may distribute such Participant's benefits (or the balance thereof) pursuant to Colorado law. 6.5 Distributions Under Domestic Relations Order. Nothing contained in this Plan prevents the Trustees from complying with the provisions of a domestic relations order pursuant to C.R.S. § 14-10-113. A distribution to an alternate payee shall be made as soon as administratively practicable after the Trustees determines that an order SAW\57133\386363.02 23 submitted to the Plan complies with the terms of C.R.S. § 14-10-113, and shall be in the form of a lump sum. 6.6Direct Transfers and Rollovers. This section applies to distributions made on or after January 1, 1993. Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee's distribution election under this Article, a distributee may elect, at the time and in the manner prescribed by the Trustee, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the Participant, except that an eligible rollover distribution does not include: (i) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated Beneficiary, or for a specified period of ten years or more; (ii) any distribution to the extent such distribution is required under Code Section 401(a)(9); and (iii) the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). An eligible retirement plan is an individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b), an annuity plan described in Code Section 403(a), or a SAW\57133\386363.02 24 qualified trust described in Code Section 401(a) that accepts the distributee's eligible rollover distribution. However, in the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity. A distributee includes an Employee or former Employee. In addition, the Employee's or former Employee's surviving spouse and the Employee's or former Employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p), are distributees with regard to the interest of the spouse or former spouse. A direct rollover is a payment by the Plan to the eligible retirement plan specified by the distributee. The Trustees may establish procedures for the distribution of eligible rollover distributions, including any limitations on the amount eligible for a rollover distribution, to the extent permitted by law. ARTICLE VII. THE TRUST AND TRUST FUND 7.1Contributions to Trust: All contributions under this Plan shall be paid to the Trustees and deposited in the Trust Fund. All assets of the Trust Fund, including investment income, shall be retained for the exclusive benefit of Participants, Former SAW\57133\386363.02 25 Participants, and Beneficiaries and shall be used to pay benefits to such persons or to pay administrative expenses of the Plan and Trust Fund to the extent not paid by the Employer and shall not revert to or inure to the benefit of the Employer. Notwithstanding anything herein to the contrary, upon the Employer's request, a contribution which was made by a mistake of fact shall be returned by the Trustees to the Employer within one year after the payment of the contribution. 7.2Participant Direction of Investment: The investment of Trust funds hereunder is governed by the provisions of C.R.S. §31-31-602(2). To the extent allowed by the Trustees, each Participant shall exercise control of the investment of the Participant's individual Aggregate Account under the Plan. The Trustees shall select at least three investment alternatives, each of which is diversified in itself, that allow the Participant a broad range of investments and a meaningful choice between risk and return in the investment of the Participant's individual Aggregate Account. The Trustees shall allow each Participant to change investments at least once each calendar quarter. The Trustees shall provide the Participant with information describing the investment alternatives, and the nature, investment performance, fees, and expenses of the investment alternatives and other information to assist a Participant in making informed investment decisions. The Trustees may establish written procedures for Participant direction of investment under this Plan. The Trustees are not liable for any loss, nor are they liable for any breach resulting from a Participant's control and/or direction of the investment of any part of the Participant's individual Aggregate Account. Moreover, the SAW\57133\386363.02 26 Trustees may decline to implement participant instructions which would result in a prohibited transaction or would generate income which would be taxable to the Plan. As of each Valuation Date, all Participant-directed accounts shall be charged or credited with the net earnings, gains, losses and expenses as well as any appreciation or depreciation in the market value using publicly- listed fair market values when available or appropriate. (a)To the extent that the assets in a Participant's directed account are accounted for as pooled assets or investments, the allocation of earnings, gains and losses of each Participant's directed account shall be based upon the total amount of funds so invested, in a manner proportionate to the participant's share of such pooled investment. (b) To the extent that the assets in the Participant's account are accounted for as segregated assets, the allocation of earnings, gains and losses from such assets shall be made on a separate and distinct basis. 7.3Trustees' Powers and Duties: To the extent funds held by the Trust are not invested pursuant to Participant direction as provided in Section 7.2 hereof, it shall be the duty of the Trustees to hold the funds from time to time received by it from the Employer, to manage, invest and reinvest the Trust Fund and the income therefrom pursuant to the provisions hereinafter set forth, without distinction between principal and income. The Trustees shall be responsible only for such sums as shall be actually SAW\57133\386363.02 27 received by it as Trustees. The Trustees shall have no duty to collect any sums from the Employer or the Participants. The Trustees shall have the power to invest and/or reinvest any and all money or property of any description at any time held by it and constituting a part of the Trust Fund, without previous application to, or subsequent ratification of, any court, tribunal or commission, or any federal or state governmental agency, in accordance with the following powers: (a) With regard to its investments, the Trustees may invest and reinvest any and all money or property constituting the Trust Fund subject to the Uniform Prudent Investor Act, Article 1.1, of Title 15, C.R.S., in investments, including, but not limited to, obligations of the United States government and in obligations fully guaranteed as to principal and interest by the United States government, in state and municipal bonds, in corporate notes, bonds or debentures, convertible or otherwise, in railroad equipment trust certificates, in real property and in loans secured by first mortgages or deeds of trust on real property, in participation guarantee agreements with life insurance companies, in real estate limited partnerships, or limited liability companies, and in other types of investment agreements, and the foregoing investments may be made without limitation as to the percentage of the book value of the assets of the retirement fund so invested. Investments may also be made in either common or preferred corporate stocks. (b) The Trustees, in the matter of the investment of the Trust Fund, shall be held harmless in every respect in exercising its discretion as to how much of the Trust SAW\57133\386363.02 28 Fund shall remain uninvested and in cash temporarily awaiting investment or for the expected cash distributions out of the Trust Fund in accordance with the provisions of this Plan. (c) The Trustees may cause any part of the money or other property of the Trust to be commingled with the money or property of trusts created by others causing such assets to be invested as part of a pooled pension and profit sharing fund. In addition, any portion of the Trust assets may be invested in any other collective investment fund approved by the Trustees as an investment option, the terms of such collective investment trust shall be incorporated as part of this Plan and Trust upon approval of the Trustees. (d) The Trustees from time to time shall determine the immediate and long- term financial requirements of the Plan and on the basis of such determination, establish a policy and method of funding which will enable the Trustees or the investment manager or managers, if any, to coordinate the investment policies of the Plan's funds with the objectives and financial needs of the Plan. (e) The Trustees may delegate its investment responsibilities to an Investment Manager pursuant to Section 7.5 or permit Participants to direct the investment of their Aggregate Accounts pursuant to Section 7.2. 7.4Further Powers of the Trustees: The Trustees shall have all powers necessary or advisable to carry out the provisions of this Plan and Trust Agreement and SAW\57133\386363.02 29 all inherent, implied and statutory powers now or hereafter provided by law, including specifically the power to do any of the following: (a) To cause any securities or other property to be registered and held in its name as Trustees, or in the name of one or more of its nominees, without disclosing the fiduciary capacity, or to keep the same in unregistered form payable to bearer. (b) To sell, grant options to sell, exchange, pledge, encumber, mortgage, deed in trust, or use any other form of hypothecation, or otherwise dispose of the whole or any part of the Trust Fund on such terms and for such property or cash, or part cash and credit, as it may deem best and it may retain, hold, maintain or continue any securities or investments which it may hold as part of the Trust Fund for such length of time as it may deem advisable, and generally, in all respects, the Trustees may do all things and exercise each and every right, power and privilege in connection with and in relation to the Trust Fund as could be done, exercised or executed by an individual holding and owning said property in absolute and unconditional ownership. (c) To abandon, compromise, contest and arbitrate claims and demands; to institute, compromise and defend actions at law (but without obligation to do so); as the Trustees shall deem advisable; all at the risk and expense of the Trust Fund. (d) To borrow money for this Trust upon such terms and conditions as the Trustees shall deem advisable, and to secure the repayment thereof by the mortgage or pledge of any assets of the Trust Fund. SAW\57133\386363.02 30 (e) To vote in person or by proxy any shares of stock or rights held in the Trust Fund; to participate in reorganization, liquidation or dissolution of any corporation, the securities of which are held in the Trust Fund and to exchange securities or other property in connection therewith. (f) To pay any amount due on any loan or advance made to the Trust Fund, all taxes of any nature levied, assessed or imposed upon the Trust Fund, and all reasonable expenses and attorney fees necessarily incurred by the Trustees with respect to any of the foregoing matters. (g) To defend any suit or legal proceedings against the Trust and the Trustees may sue or bring legal proceedings against any party or parties, compromise, submit to arbitration, or settle any suit or legal proceeding, claim, debt, damage or undertaking due or owing from or to the Trust Fund. In the administration of the Fund, the Trustees shall not be obligated to take any action which would subject them to any expense or liability unless they be first indemnified in an amount and in the manner satisfactory to the Trustees or to be furnished with funds sufficient, in the sole judgment of the Trustees, to cover such expenses. 7.5Investment Manager: To the extent funds held by the Trust are not invested pursuant to Participant direction as provided in Section 7.2 hereof, the Trustees may appoint one or more Investment Managers to exercise the power of the Trustees to direct the investment and reinvestment of the Trust Fund, pursuant to the provisions of Section 7.3 of this Plan and Trust. Such appointment shall be made in writing and accepted by the Investment Manager, a copy of which shall be delivered to the Trustees and may be SAW\57133\386363.02 31 revoked by the Trustees by written notice delivered to the Investment Manager. The Investment Manager shall receive such compensation and reimbursement for expenses as shall be agreed upon from time to time by the Trustees and the Investment Manager which shall be paid, in whole or in part by the Employer, and any amount thereof not paid by the Employer shall be paid by the Trustees out of the principal or income of the Trust. The Investment Manager shall discharge his duties relating to the investment and reinvestment of the Trust Fund in conformity with Article VII of this Plan and shall be subject to the liabilities therein stated insofar as his duties are concerned. The Trustees shall not be liable with respect to acts or omissions of the Investment Manager, or be under an obligation to invest or otherwise manage any assets of the Plan or Trust Fund which are subject to the management of the Investment Manager, except insofar as they shall be liable for the breach of co-fiduciaries pursuant to Article IX hereof. 7.6Claims Procedure: The Trustees shall make all determinations as to the right of any person to a benefit. Any denial by the Trustees of the claim for benefits under the Plan by a Participant or Beneficiary shall be stated in writing by the Trustees and delivered or mailed to the Participant or Beneficiary; and such notice shall set forth the specific reasons for the denial, reference pertinent Plan provisions, describe any additional information needed and the steps to be taken to submit the claim for review, all written to the best of the Trustees' ability in a manner that may be understood without legal or actuarial counsel. Should a Participant or Beneficiary receive no response to his claim for benefits within 90 days of making the claim, it shall be deemed to be denied and the Participant or Beneficiary may proceed to have the claim reviewed. The SAW\57133\386363.02 32 claimant may, within 60 days after receiving such denial notice, request a repeal of the denial in writing, submit issues and comments, and may review pertinent documents. The Trustees shall reach a decision as to the claimant's appeal not later than 60 days after receiving the request for review. 7.7Records and Reports: The Trustees shall exercise such authority and responsibility as it deems appropriate relating to records of Participant's Service, account balances and the percentage of such account balances which are non-forfeitable under the Plan; and notifications to Participants. 7.8Other Administrative Powers and Duties: The Trustees shall also have such duties and powers as may be necessary to discharge its duties hereunder, including, but not by way of limitation, the following: (a) To construe and interpret the Plan, decide all questions of eligibility and determine the amount, manner and time of payment of any benefits hereunder; (b) To prescribe procedures to be followed by Participants or Beneficiaries filing applications for benefits; (c) To prepare and distribute, in such manner as it determines to be appropriate, information explaining the Plan; (d) To receive from the Employer and from Participants such information as shall be necessary for the proper administration of the Plan; SAW\57133\386363.02 33 (e) To furnish the Employer, upon request, such annual reports with respect to the administration of the Plan as are reasonable and appropriate; (f) To receive, review and keep on file (as they deem convenient or proper) reports of the financial condition, and of the receipts and disbursements, of the Trust Fund; (g) To appoint or employ individuals to assist in the administration of the Plan and any other agents they deem advisable, including legal, investment, custodial, third-party administrators and actuarial counsel. The Trustees shall have no power to add to, subtract from or modify any of the terms of the Plan, or to change or add to any benefits provided by the Plan, or to waive or fail to apply any requirements of eligibility for a benefit under the Plan. No member of the Trustees shall act upon his own application for a benefit under the Plan. 7.9Rules and Decisions: The Trustees may adopt such rules as it deems necessary, desirable, or appropriate. All rules and decisions of the Trustees shall be uniformly and consistently applied to all Participants in similar circumstances. When making a determination or calculation, the Trustees shall be entitled to rely upon information furnished by a Participant or Beneficiary, the Employer or the legal counsel of the Employer. 7.10 Benefit Payments: The Trustees shall pay all benefits from the Trust Fund pursuant to the provisions of the Plan. SAW\57133\386363.02 34 7.11 Application and Forms for Benefits: The Trustees may require a Participant to complete and file with the Trustees an application for a benefit and all other forms approved by the Trustees and to furnish all pertinent information requested by the Employer. The Trustees may rely upon all such information so furnished it, including the Participant's current mailing address. 7.12 Indemnification: To the extent allowed by law, the Employer shall indemnify and hold harmless the Trustees from any and all claims, losses, damages, expenses (including counsel fees approved by the Trustees), and liabilities (including any amounts paid in settlement with the Trustees' approval) arising from any act or omission of the Trustees, except when the same is judicially determined to be due to the gross negligence or willful misconduct of such Trustees. 7.13 Loans to Participants: (a) General Rules: The Trustees, in accordance with a uniform and nondiscriminatory policy, may make a loan to any Participant who remains actively employed with the Employer and who makes a written request for such a loan. The Trustees will promulgate rules and procedures regarding Participant loans. No loan to a Participant may exceed the Participant's vested Accrued Benefit. In addition, a loan, when added to the outstanding balance of all other loans to the Participant from this and any other qualified Plan maintained by the Employer, may not exceed the lesser of: (1) $50,000 less the excess of the highest outstanding balance of loans from the Plan during the one-year period ending on the day before such loan is made over the outstanding balance of loans from the Plan on the day such loan is made; or (2) the SAW\57133\386363.02 35 greater of one-half of the value of the Participant's vested Accrued Benefit as of the last preceding valuation date or $10,000. (b) Security and Interest: All loans will be adequately secured and will bear a rate of interest considered reasonable on the date the loan was made. Participant loans will be considered a Participant-directed investment under Section 7.2 of the Participant requesting the loan and interest paid on the loan will be allocated to the account of the Participant-borrower. (c) Term of Loan: Any loan must be repaid in level payments of principal and interest at least quarterly within five years of the date on which it was made or on the occurrence of any event that renders the Participant's Account distributable, whichever occurs first. However, any loan verified by the Trustees as used to acquire any dwelling unit used or to be used within a reasonable time as the principal residence of the Participant must be repaid within the time prescribed by the Trustees, or upon distribution of the Participant's Account, whichever occurs first. If a Participant does not repay a loan within the time prescribed, in addition to enforcing payment through any legal remedy, the Trustees may deduct the total amount of the loan and any unpaid interest due on it from the Participant's Account when the Account becomes distributable under the Plan. 7.14 Payment of Expenses and Fees: The expenses of administration of the Trust incurred by the Trustees, including legal counsel and consulting fees and other charges, shall be paid by the Employer and if not paid by the Employer, then from the Trust Fund. The Trustees shall receive in addition to all their expenses, such SAW\57133\386363.02 36 compensation that may be agreed upon from time to time by the Employer and the Trustees. However, if any Trustee is already receiving compensation from the Employer, as a full-time Employee they shall not also receive compensation as a member of the Trustees. If and to the extent that the Employer does not pay such compensation or expense, it shall be paid from the Trust Fund. 7.15 Protection of the Trustees: The Trustees shall not incur any liability by reason of taking any action indicated by this instrument to be within the scope of the authority of an Investment Manager appointed by the Trustees in accordance with any written instrument purporting to be signed by such person or persons authorized to sign for the Investment Manager, or in reliance upon a certified copy of a resolution of the Trustees, any of which the Trustees, in good faith, believe to be genuine. The Trustees may consult with counsel, who may be counsel for the Employer, in respect to any of its duties or obligations hereunder and shall be fully protected in acting or refraining from acting in accordance with the advice of such counsel. The Trustees shall incur no liability for any loss to or depreciation in value of the Trust Fund or for any act done or omitted to be done in the administration of the Trust, except for breach of its fiduciary duty as set forth in this instrument. The Trustees shall be indemnified and saved harmless by the Employer from and against any and all liability arising from breach of its fiduciary duty, as provided in Section 7.12, including all expenses reasonably incurred in its defense, in case the Employer fails to provide such defense. SAW\57133\386363.02 37 7.16 Accounts of the Trustees: The Trustees shall maintain accurate records and accounts of all transactions hereunder, which shall be available at all reasonable times for inspection or audit by any person or persons designated by the Employer. The Trustees at the direction of the Employer shall submit to the auditors for the Employer such valuations, reports or other information as they may reasonably require. As of December 31st of each fiscal Year (i.e., the Valuation Date) the Trustees shall value the Trust Fund at its fair market value. The Trustees shall furnish a copy of such valuation to the Employer as soon as possible. Any valuation by the Trustees shall be conclusive and binding on any persons having an interest hereunder. ARTICLE VIII. TRUSTEES 8.1Trustees: The Trustees shall be made up of four (4) members composed initially as follows: two (2) members appointed by the Employer and two (2) members who are Employees that are duly elected by the Participants to be Trustees of the Plan. The Trustees shall serve initial terms of office as follows: two (2) Employer members and one (1) Employee member shall each serve a term of three (3) years and one (1) Employee member shall serve a term of two (2) years.. Successors shall each serve a term of three (3) years and shall become Trustees in the following manner: the Employer shall appoint successors to its member positions and successor Employee members shall be elected by a plurality vote of active Participants. The Trustees shall make all decisions in a non-discriminatory manner. An Employee member of the Trustees may resign at any time upon giving written notice thereof by registered or certified mail, hand delivery, or by SAW\57133\386363.02 38 telegram or telefax to the Employer. Upon termination of employment of an Employee representative member of the Trustees, such person's membership on the Trustees shall terminate and a successor shall be appointed in accordance with this Section 8.1 to fill the remaining unexpired term of such Trustee. Such resignation shall become effective forthwith upon the receipt of such written notice by the Employer. Each successor Trustee appointed as provided in Section 8.1 shall upon succeeding as a Trustee be vested with all of the rights, powers and discretions herein vested in and imposed upon the Trustees. Upon the removal, resignation or expiration of the term of any Trustee, he shall cause to be delivered to the Trustees any Trust property or records then in his possession. No successor Trustee shall have any duty to examine the accounts or doings of his predecessors. Any successor Trustee shall be responsible only for the money and property known to him to comprise the principal and income of the Fund and shall in no way be liable or responsible for anything done or omitted to have been done by his predecessors. 8.2Useof Corporate Trustee: At any time and from time to time the Trustees may appoint, as Corporate Trustee, a bank or trust company located in the United States which has capital and surplus aggregating not less than $50,000,000.00, as shown by its last published statement. The Trustees may delegate to the Corporate Trustee (i) the power to hold all or any part of the Trust Fund as sole trustee of a trust separate from the SAW\57133\386363.02 39 Trust created by this Agreement (and not as agent of the Trustees or as Co-Trustee hereunder with the Trustees), (ii) the power to invest and reinvest the Trust Fund in the Corporate Trustee's sole discretion, and (iii) such other duties and powers as the Trustees may deem advisable. The Trustees may enter into and execute a trust agreement with the Corporate Trustee, which agreement shall contain such provisions as the Trustees may deem advisable. The Corporate Trustee shall have no obligations under this Agreement or under the Plan and its powers and duties shall be limited to those set forth in the agreement between it and the Trustees. Upon execution of an agreement with the Corporate Trustee, the Trustees may transfer and convey to the Corporate Trustee any part or all of the assets of the Trust Fund acceptable to the Corporate Trustee, and thereupon, the Trustees shall be forever released and discharged from any responsibility or liability with respect to the assets so transferred as to any period subsequent to such transfer and with respect to the investment and reinvestment thereof by the Corporate Trustee during the time the Trust Fund is in the hands of the Corporate Trustee. Notwithstanding such transfer, the Trustees shall continue to carry out its administrative functions under the Plan in accordance with the provisions of the Plan and Trust Agreement. Any Corporate Trustee appointed as provided in this section may be removed at any time, with or without cause, by majority vote of the Trustees and upon written notice thereof being furnished to such Corporate Trustee as provided by the terms of the Corporate Trustee Agreement previously entered into by the Trustees with such Corporate Trustee. If SAW\57133\386363.02 40 and when so removed, such Corporate Trustee shall cause to be transferred to the Trustees any and all Trust property, assets and records then in its possession. 8.3Officers: The officers of the Board of Trustees shall be selected annually at the first regularly-called meeting in each fiscal year by the Trustees from among themselves and shall serve until their successors have been selected and qualified. The officers shall include a Chairman and Secretary. 8.4Officer Responsibilities: The Chairman shall be responsible for the conduct of the meeting. The Secretary shall keep minutes or records of all meetings, proceedings and acts of the Trustees and shall make these available to all Trustees. The Chairman and the Secretary shall jointly execute written documents and instruments authorized by the Trustees. 8.5Annual Meeting: An annual meeting of the Trustees shall be held for the purpose of selecting officers for the ensuing year. The date and place of the annual and regular meetings shall be fixed by Resolution of the Trustees. Special meetings may be called by the Chairman or Secretary or any three (3) other Trustees by giving to each Trustee at least ten (10) days' written notice of time and place of such meeting; or may be held without notice if all Trustees consent in writing, or if the Trustees in attendance constitute a quorum and they agree to waive notice by their attendance. Whenever any notice is required to be given to any Trustee hereunder, a waiver thereof in writing, signed at any time, whether before or after the SAW\57133\386363.02 41 time of meeting, by the Trustees entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a Trustee at a meeting shall constitute a waiver of notice of such a meeting, except where a Trustee attends a meeting and objects prior to the first order of business to the transaction of any business upon the ground that the meeting was not lawfully called or convened. 8.6Quorum: Three (3) Trustees, at least one representing the Employer and one representing the Employees, present in person shall constitute a quorum for the transaction of business at any meeting. 8.7Majority Vote: All decisions of the Trustees shall be made by majority vote of the Trustees present at the meeting at which such vote is taken. ARTICLE IX. FIDUCIARIES 9.1Fiduciaries: The Fiduciaries shall have only those specific powers, duties, responsibilities and obligations as are specifically given them under this Plan or the Trust. In general, the Employer shall have the responsibility for making the contributions provided for under Section 4.1. The Trustees shall have the sole responsibility for the administration of this Plan, which responsibility is specifically described in this Plan and Trust. The Trustees shall have the sole responsibility for the administration of the Trust and the management of the assets held under the Trust. Each Fiduciary warrants that any directions given, information furnished, or action taken by it shall be in accordance SAW\57133\386363.02 42 with the provisions of the Plan and Trust authorizing or providing for such direction, information or action. Furthermore, each Fiduciary may rely upon any such direction, information or action of another Fiduciary as being proper under this Plan and Trust, and is not required under this Plan and Trust to inquire into the propriety of any such direction, information or action. It is intended under this Plan and Trust that each Fiduciary shall be responsible for the proper exercise of its own powers, duties, responsibilities and obligations under this Plan and Trust and shall not be responsible for any act or failure to act of another Fiduciary. No Fiduciary guarantees the Trust Fund in any manner against investment loss or depreciation in asset value. The following will cause a person to be classified as a "Fiduciary" for purposes of this Plan and Trust: (1) Exercise of any discretionary authority or discretionary control respecting the management or disposition of Plan or Trust assets, (2) rendering any investment advice for a fee or other compensation, or (3) exercise of any discretionary authority or responsibility for Plan or Trust administration. 9.2General Fiduciary Duties: All Fiduciaries must discharge their duties solely in the interest of the Employees eligible to participate and Beneficiaries of the Plan. In addition, Fiduciaries must act exclusively for the purpose of providing benefits to Employees eligible to participate and Beneficiaries and defraying reasonable expenses of the Plan. They must carry out their duties with the care, skill, prudence and diligence which a prudent man acting in a like capacity would use under conditions prevailing at the time. To the extent funds held by the Trust are not invested pursuant to Participant SAW\57133\386363.02 43 direction as provided in Section 7.2 hereof, investments of the Plan shall be diversified so that the risk of loss will be minimized unless this clearly is not prudent under the circumstances. However, investment in pooled funds will not violate the diversification rule if the Fund itself is sufficiently diversified. 9.3Bonding and Insurance: The Trustees, any Investment Manager appointed pursuant to Section 7.5, and anyone acting as a Fiduciary as described in this Article IX, may be bonded. The Employer shall obtain Errors and Omissions Insurance in a minimum amount of $1,000,000 or such higher amount that they deem advisable to protect the Trust Fund. However, if the Employer does not provide the appropriate amount of insurance, the Trustees may obtain Errors and Omissions Insurance for such amount as they deem advisable to protect the Trust Fund. Such insurance and bond premiums and fees may be paid as an expense of the Trust pursuant to Section 7.14. 9.4Delegation of Authority: The Trustees shall have the power to delegate specific fiduciary responsibilities with respect to the control and management of the assets of the Trust and with respect to the administration of the Plan and Trust by a written agreement between the Trustees and any such designated person or entity. ARTICLE X. MISCELLANEOUS 10.1 Nonguarantee of Employment: Nothing contained in this Plan shall be construed as a contract of employment between the Employer and any Employee, or as a right of any Employee to be continued in the employment of the Employer, or as a limitation of the right of the Employer to discharge any of its Employees. SAW\57133\386363.02 44 10.2 Rights to Trust Assets: No Employee or Beneficiary shall have any right to, or interest in, any assets of the Trust Fund upon termination of his employment or otherwise, except as provided from time to time under this Plan, and then only to the extent of the benefits payable under the Plan to such Employee out of the assets of the Trust Fund. All payments of benefits as provided for in this Plan shall be made solely out of the assets of the Trust Fund and none of the Fiduciaries shall be liable therefor in any manner. 10.3 Nonalienation of Benefits: Except for assignments for child support purposes as provided for in sections 14-10-118(1) and 14-14-107, C.R.S., as they existed prior to July 1, 1996, for income assignments for child support purposes pursuant to section 14-14-111.5, C.R.S., for writs of garnishment that are the result of a judgment taken for arrearages for child support or for child support debt, and for payments made in compliance with a properly executed court order approving a written agreement entered into pursuant to section 14-10-113(6), C.R.S., benefits payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any kind, either voluntary or involuntary, prior to actually being received by the person entitled to the benefit under the terms of the Plan, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable hereunder, shall be void. The Trust Fund shall not in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits hereunder. SAW\57133\386363.02 45 The Trust Fund shall be held and distributed for the purpose of this article and for no other purpose whatsoever. 10.4 Payments to Minors or Persons of Unsound Mind: If any person entitled to receive any payment hereunder is a minor, or a person of unsound mind, whether formally adjudicated so or not, such payment shall be made to or for the benefit of such minor or person of unsound mind in any of the following ways, as the Trustees, in its sole discretion, shall determine: (a) to the legal representative of such person; (b) directly to such person; (c) to some near relative of such person; (d) in such other manner as the Trustees may deem appropriate under the circumstances. The Trustees shall not be required to see to the proper application of any such payment made to any person pursuant to the provisions of this Section. 10.5 Disposition of Unclaimed Payments: If the Trustees are unable to make any payment due under the Plan to any person because they cannot ascertain the identity or whereabouts of such person after making such written or telephonic inquiries as the Trustees, in their sole discretion, deem reasonable, the Trustees shall suspend all further payments to such person until he makes his identity or whereabouts known to the Trustees within seven (7) years after such payment was due. The Trustees shall declare such payment, and all remaining payments due such person, to be forfeited as of the expiration of such seven-year period. 10.6 Severability of Provisions: If any provision of this Plan is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions, SAW\57133\386363.02 46 and this Plan shall be construed and enforced as if such provision had not been included. 10.7 Trust and Plan to be Tax Exempt: The Trust and the Plan are intended to qualify under Internal Revenue Code Section 401(a) and to be tax exempt under Section 501(a), respectively, and is a "Governmental Plan" within the meaning of Section 414(d) of the Internal Revenue Code of 1986, as amended from time to time and Section 3(32) of the Employee Retirement Income Security Act of 1974. The Plan and Trust have been established with the expectation that the Trust will be irrevocable and in the belief that the Plan and Trust will be approved by the Internal Revenue Service, as meeting the requirements of the Internal Revenue Code of 1986 and the Regulations issued thereunder with respect to qualified employee benefit plans. ARTICLE XI. AMENDMENT OR TERMINATION OF THE PLAN 11.1 Right and Restrictions: The Employer reserves the right, with the approval of at least sixty-five percent (65%) of the total votes cast by actively-employed eligible Employees and all former employees who are entitled to a benefit from the Plan, to amend (retroactively or otherwise) or terminate the Plan, in whole or in part, or to discontinue contributions thereunder, provided that no amendment shall have the effect of (1) diverting for the benefit of any persons, other than Participants or their Beneficiaries, amounts attributable to contributions by the Employer, or (2) decreasing the nonforfeitable percentage or amount in any Participant's Aggregate Account. SAW\57133\386363.02 47 Notwithstanding the foregoing, the Employer shall have the right to amend the Plan without the approval of Participants, solely for the purpose of incorporating minor, technical amendments which are required, from time to time, by changes in state or federal laws or regulations. On the complete or partial termination of the Plan or complete discontinuance by the Employer of contributions under the Plan, the Accrued Benefit of each of the affected Participant's Aggregate Accounts shall be nonforfeitable and shall be distributed pursuant to Section 6.2. 11.2 Merger or Consolidation of the Plan: In the event of any merger or consolidation of the Plan with, or transfer of assets or liabilities of the Plan to, any other plan, each Participant shall be entitled to receive a benefit immediately after such merger, consolidation or transfer (determined as if such other plan had then terminated) which is equal to or greater than the benefit he would have been entitled to receive immediately before such merger, consolidation or transfer (if the Plan had then terminated). ARTICLE XII. GOVERNING LAW The Trust contained herein shall be deemed executed and governed under the laws of the State of Colorado. Should any provision of the laws of the State of Colorado be in conflict with the express powers, duties and responsibilities of the Trustees as set forth in this instrument, in such event the law shall control. For the convenience of the parties hereto, this Plan SAW\57133\386363.02 48 and Trust Agreement may be executed in multiple identical counterparts, each of which is complete in itself and may be introduced in evidence or used for any other purpose without the production of any other counterpart. This Plan document is the Restated Poudre Fire Authority New Hire Money Purchase Pension Plan and Trust Agreement effective December 24, 2001. ATTEST: EMPLOYER POUDRE FIRE AUTHORITY By: .......... Its: Its: .......... TRUSTEES .......... .......... SAW\57133\386363.02 49 .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... .......... ..........