XXXXXXX
403(b)
PLANS
Plan Agreement
XXXXXXX
SERVING INVESTORS SINCE 1919
Xxxxxxx 403(b) Agreement
This Xxxxxxx 403(b) Agreement ("the Agreement") is entered into by and
among (i) each employer who executes a Xxxxxxx 403(b) Application ("the
Employer") and thereby certifies that the Employer is duly qualified as an
organization described in section 403(b)(1)(A) of the Internal Revenue Code of
1954, as amended ("the Code"), (ii) the Custodian which executes a Xxxxxxx
403(b) Application and thereby certifies that it is duly qualified as a bank
described in section 401(d)(1) of the Code, and (iii) each employee who executes
a Xxxxxxx 403(b) Application ("the Employee") and thereby certifies that the
Employee is an employee of the Employer, and this Agreement shall be effective
as of the date acknowledgment of the receipt by the Custodian of such Xxxxxxx
403(b) Application is mailed by the Custodian to the Employee.
ARTICLE 1. DEFINITIONS
A. Code means the Internal Revenue Code of 1954, as amended.
B. Contribution means the amount to be transmitted by the Employer to
the Custodian for addition to the Employee's Custodial Investment Account.
C. Custodial Investment Account or Account means the account or
accounts established and maintained by the Custodian for an Employee pursuant to
this Agreement and, when the contect so implies, may mean the assets, if any, at
the time held therein by the Custodian.
X. Xxxxxxx 403(b) Agreement or Agreement means this document,
incorporating by reference the Xxxxxxx 403(b) Application and Designation of
Beneficiary.
E. Custodian shall mean the bank, or any successor thereto, set forth
in the Xxxxxxx 403(b) Application.
F. Designation of Beneficiary or Designation means the document
executed by the Employee pursuant to Article II, Part C.
G. Employee means each person employed by the Employer who has properly
executed an Application.
H. Employer means the organization, state, political subdivision of a
state, or agency or instrumentality of such state or political subdivision named
in this Agreement.
I. Regulated Investment Company or Company means a domestic corporation
which is a regulated investment company within the meaning of Section 851(a) of
the Code and which issues only redeemable stock for which Xxxxxxx, Xxxxxxx and
Xxxxx (or its successor) is acting as the investment adviser and which has been
designated by Xxxxxxx Fund Distributors, Inc. (or its successor) as appropriate
for investment hereunder.
X. Xxxxxxx 403(b) Application or Application means the document
executed by the Employer, the Employee and the Custodian pursuant to Article II,
Part A.
K. Normal Retirement Age means age 59 1/2.
ARTICLE II. ESTABLISHMENT OF CUSTODIAL INVESTMENT ACCOUNTS
A. Request for participation. Each Employee who properly executes an
Application thereby becomes a party to this Agreement with the right to enforce
its terms against any other party. Such executed Application is hereby
specifically incorporated herein by reference. An Application is properly
executed when signed by the Employer, the Employee and the Custodian. The
Custodian may rely on the validity of the signatures thereon, on the existence
of the employment relation thereby affirmed, and on the irrevocable subscription
to the provisions of this Agreement therein contained.
B. Opening of Account. Upon acceptance of an Application by the
Custodian, the Custodian shall open a separate Custodial Investment Account
("the Account") for the benefit of the Employee. The Account shall be maintained
pursuant to the terms of this Agreement, including the documents incorporated
herein by reference.
C. Employee's Designation of Beneficiary. Each Employee may submit to
the Custodian a properly executed Employee's Designation of Beneficiary form or
other written instrument acceptable to the Custodian for use in connection with
this Agreement (which are referred to hereinafter interchangeably as a
"Designation") which shall not become effective until it is filed with the
Custodian at the Custodian's home office during the lifetime of the Employee.
The last effective Designation accepted by the Custodian shall be controlling,
and whether or not fully dispositive of the Account, thereupon shall revoke all
other such Designations previously filed by the Employee. Each such executed
Designation is hereby specifically incorporated herein by reference and shall be
construed, enforced and administered according to the laws of the state in which
the home office of the Custodian is located.
ARTICLE III. CONTRIBUTIONS
A. Adjustment of compensation, transmittal of Contributions, and
exclusion allowance. Each agreement between the Employer and the Employee as to
the adjustment of the Employee's compensation, whether made pursuant to an
Application or pursuant to a separate written agreement between the Employer and
the Employee, shall be effective only as to amounts earned by the Employee after
such an agreement becomes effective. Each such agreement between the Employer
and the Employee as to the adjustment of the Employee's compensation, whether
made pursuant to an Application or pursuant to a separate written agreement
between the Employer and the Employee, shall be irrevocable as to both the
Employer and the Employee except that either of them may terminate such
agreement as of the end of any payroll period so that it will not apply to
compensation subsequently earned. Subject to the immediately preceding sentence,
the Employee may, in the manner provided for in subpart (a) of Part B of Article
VIII, change such agreement between the Employer and the Employee as to the
adjustment of the Employee's compensation, but such change may be made no more
than once in each taxable year of the Employee. All Contributions shall be
transmitted to the Custodian. The Employee shall be responsible for computing
the maximum amount that may be contributed on his behalf for each tax year in
accordance with the Employee's "exclusion allowance" as that term is defined in
section 403(b)(2) of the Code. The Employee shall determine the applicable
limitation(s) on contributions under section 415(c) of the Code, and the
Employee shall have the right to avail himself of and make any of the elections
provided under said section 415. Such computations and determinations shall be
made at least annually, and the Employee shall communicate the results to the
Employer no later than thirty (30) days before the last day on which the
Employee can execute a new Application or other written agreement with the
Employer for the taxable year without violating the pertinent rules and
regulations promulgated by the Treasury Department. Neither the Custodian,
Xxxxxxx Fund Distributors, Inc., any Regulated Investment Company, nor the
Employer shall have any obligation to verify the correctness of the Employee's
computation of the Employee's exclusion allowance or limitations on
contributions under section 415 of the Code or any responsibility with respect
to any election available to the Employee under said section 415 or any matters
relating to any tax consequences with respect to the Employee's contributions,
including the identification and correction of an "excess contribution" as that
term is defined in section 4973 of the Code, all of which foregoing matters
shall be solely the responsibility of the Employee.
B. Transfers and rollovers.
(a) Transfers from and to other Accounts. The Employer or the Employee
may cause the transfer of assets acceptable to the Custodian and
available from an existing custodial account qualified under section
403(b)(7) of the Code and/or from an existing annuity contract
qualified under section 403(b) of the Code to his Custodial Investment
Account. Once transferred into the Employee's Custodial Investment
Account, such assets shall be treated as a Contribution for purposes of
this Agreement and shall be invested, distributed and otherwise dealt
with as such. The Employer or Employee may cause the transfer of assets
agreed to by the Custodian from the Employee's Custodial Investment
Account to a custodial account established under section 403(b)(7) of
the Code and/or to an annuity qualified under section 403(b) of the
Code.
(b) Rollover contributions. The Custodian may accept contributions in
the form of assets acceptable to the Custodian received from an annuity
contract or a custodial account described in section 403(b) of the
Code, an individual retirement account described in section 408(a) of
the Code, an individual retirement annuity described in section 408(b)
of the Code, or a retirement bond described in section 409(a) of the
Code, provided that such contribution qualifies in all respects as a
rollover contribution in accordance with the requirements of section
403(b)(8), section 408(d)(3) or section 409(b)(3)(C) of the Code
(including the requirement that no part of the amount received from an
individual retirement account, individual retirement annuity or
retirement bond be attributable to any source other than a rollover
contribution from any annuity contract or custodial account described
in section 403(b) of the Code) or other applicable provisions of the
Code in effect from time to time. Such rollover contribution shall be
held by the Custodian in a separate Account for the benefit of the
Employee which consists only of such rollover contributions and the
earnings thereon. Once transferred into the Employee's Custodial
Account, such assets shall be treated as a Contribution for purposes of
this Agreement and shall be invested, distributed and otherwise dealt
with as such. The right is reserved to transfer the assets of the
Custodial Investment Account to another form of annuity contract or
custodial account described in section 403(b) of the Code or to an
individual retirement account, individual retirement annuity, or
retirement bond plan established pursuant to section 408 or 409 of the
Code.
If permitted by Xxxxxxx Fund Distributors, Inc., in accordance with
applicable law, rollover contributions with respect to qualified voluntary
employee contributions as defined in section 219(e)(2) of the Code may be
received under this Agreement with respect to taxable years
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beginning after December 31, 1981, and such contributions shall thereafter
be held and administered hereunder by the Custodian in accordance with all
applicable law with respect to accumulated deductible employee
contributions as defined in section 72(o)(5)(B) of the Code.
(c) Limitation of liabilities. Neither the Custodian nor Xxxxxxx Fund
Distributors, Inc. shall have any responsibility with respect to any
matters relating to the tax consequences with respect to any transfer or
rollover made under this Part B of Article III.
ARTICLE IV. INVESTMENT
A. Purchase. The Custodian shall receive and, as soon as practical,
shall invest all contributions in accordance with the Employee's investment
instructions which are then in effect for the Employee.
B. Registration and safekeeping. Any stock of a Regulated Investment
Company held under this Agreement shall be held by the Custodian. Such stock may
be registered in the name of the Custodian or its nominee, but the Custodian
need not require issuance of certificates for such stock.
C. Eligibility. The Custodian shall invest only in stock of a Regulated
Investment Company. Nothing in this Agreement shall prevent the Employer from
purchasing an annuity policy which qualifies under section 403(b) of the Code,
but such a policy, if selected by the Employee, shall be issued directly to such
Employee.
A Custodial Investment Account shall be limited to investment in stock
of one Regulated Investment Company, except that the Employee may choose that
the investment be divided between the stock of more than one Regulated
Investment Company if the value of the stock of each Company in which an
investment is being made is, upon completion of the investment, equal to a
minimum value established from time to time by a designation by Xxxxxxx Fund
Distributors, Inc. (including a designation that there shall be no such minimum
investment limitation).
If a Company in whose stock investments have been made is no longer
designated by Xxxxxxx Fund Distributors, Inc as appropriate for investment
hereunder, Xxxxxxx Fund Distributors, Inc. shall advise the Employee for whose
Account the investments were made and shall provide said Employee with a current
list of Companies available for investment. If, within 30 days of providing of
such current list, the Employee does not submit new investment instructions, the
Employee's investment in the deleted Company shall be changed to an investment
for the Employee's Account in stock of Xxxxxxx Cash Investment Trust or in stock
of another Regulated Investment Company or Companies designated by Xxxxxxx Fund
Distributors, Inc. and no additional investments shall be made in said deleted
Company.
D. Reports and voting of securities. The Custodian shall deliver to the
Employee all notices, reports, prospectuses, financial statements, proxies and
proxy-soliciting materials received by it as to investments made for the
Employee's Account. The Custodian shall vote all shares only in accordance with
the instructions of the Employee as expressed in the executed proxy. If the
Employee desires to attend a meeting at which securities held in this account
may be voted, the Custodian shall furnish a proxy at the Employee's request.
E. Dividends. All capital gain distributions and dividends received on
the stock of a Regulated Investment Company shall be reinvested in the stock of
that Regulated Investment Company. The Custodian shall elect to receive any such
distribution in the stock of the distributing Company whenever possible.
F. Change of investments. An Employee or his designated beneficiary or
beneficiaries who has (have) survived the Employee and to whom distributions are
being made (by unanimous agreement if there is more than one beneficiary) may
direct in writing (or by any other manner of direction designated by Xxxxxxx
Fund Distributors, Inc.) that the investment medium of the Accout be changed to
stock of another Regulated Investment Company or Companies. However, if Xxxxxxx
Fund Distributors, Inc. determines in its own judgment that there has been
trading within the Account, any Regulated Investment Company may refuse to sell
its shares to such Account. If the Employee's Account is invested in stock of
more than one Regulated Investment Company, a separate account shall be kept
with respect to the stock of each such Company, and he or they may designate the
portion of any new contribution, withdrawal, or change of investment which is to
be allocated to each such separate account.
ARTICLE V. CUSTODIAN
A. Duties. The Custodian shall:
(1) Receive contributions transmitted by the Employer;
(2) Provide safekeeping for the securities and other assets in the
Custodial Investment Account;
(3) Collect income;
(4) Execute orders for purchase, sale or exchange of securities and
make settlement in accordance with general practice;
(5) Maintain records of all transactions in the Account;
(6) Transmit to each Employee, not less frequently than annually,
appropriate statements of the amount of the Custodian's compensation,
if any, charged to the account.
(7) File with the Internal Revenue Service and/or any other government
agency such returns, reports, forms, and other information as may be
required of it as Custodian;
(8) Perform all other duties and services consistent with the purposes
and intentions of this Agreement. The Custodian may perform any of its
administrative duties through other persons designated by the Custodian
from time to time, except that all assets in the Account shall be held
by the Custodian; and if State Street Bank and Trust Company is the
Custodian, it intends initially to delegate all such duties to Boston
Financial Data Services, Inc., which is partially owned by the
Custodian's parent company; but no such delegation or future change
therein shall be considered as an amendment of this Agreement.
B. Cash requirements. If cash funds are required to pay taxes, fees, or
other expenses pursuant to Article VI or to make payments to the Employee or his
beneficiaries (other than withdrawals under Article VII, Part C), the Employee
shall instruct the Custodian in writing which Regulated Investment Company
shares shall be redeemed or sold if there is more than one account, unless the
item for which cash is required is clearly allocable to an investment in a
specific Regulated Investment Company. In the absence of such written
instructions, the Custodian shall exercise its own discretion. However, the
Custodian's fee, if any, for each account within a Custodial Investment Account
shall be charged to such account.
C. Limitation of liabilities and duties.
(1) The Custodian shall be fully protected in acting or omitting to
take any action in reliance upon any order or other direction believed
by the Custodian to be genuine and properly given.
(2) To the extent permitted by law, upon the expiration of a 30-day
period after providing to the Employee the statements required under
Article V, Part A(6), the Custodian shall be released and discharged
from all liability to the Employee or any third party as to the matters
contained in such statement unless the Employee files written
objections with the Custodian within such 30-day period.
(3) In no event shall the Custodian be under a fiduciary duty to the
Employee in regard to the selection of investments or be liable for any
loss so incurred.
(4) The Custodian shall have no responsibility to see to the initial or
continued qualification of the Custodial Investment Account under
section 403(b)(7) of the Code.
(5) The Custodian shall not be obligated to determine the amount of any
contribution due or collect such contribution from the Employer.
(6) The Custodian shall not be held responsible for determining the
amount, character, or timing of any distribution to the Employee except
as provided in Article IX.
(7) The Custodian shall have no responsibility with respect to the
computation of the Employee's "exclusion allowance" as defined in
Section 403(b)(2) of the Code, any applicable limitation(s) on
contributions under Section 415(c) of the Code, any election available
to the Employee under said section 415, or any matters relating to any
tax consequences with respect to the Employee's contributions,
including the identification and correction of an "excess contribution"
as that term is defined in section 4973 of the Code, all of which
foregoing matters shall be solely the responsibility of the Employee.
(8) The Custodian shall not be required to carry out any instructions
not given in accordance with this Agreement and the various documents
incorporated herein by reference. If such instructions are not received
as required or if received, are in the opinion of the Custodian
unclear, the Custodian shall not be liable for loss of income or
appreciation or depreciation and shall not be liable for interest,
pending receipt of written instructions or other clarification.
Furthermore, the Custodian assumes (and shall have) no responsibility
to make any distribution (or process a withdrawal) by order of the
Employer, the Employee or a Beneficiary unless and until the requisite
instructions specify the occasion for such action and the Custodian is
furnished with any and all applications, certificates, tax waivers,
signature guarantees and other documents (including proof of any legal
representative's authority) deemed necessary or advisable to the
Custodian. The Custodian shall not be responsible for complying with
any instructions or acting in accordance with any other documents which
appear on their face to be genuine, or for refusing to comply or so act
if not satisfied to that effect, and assumes no further duty of
inquiry. The Custodian shall have no liability to the Employee (or the
Employee's beneficiary) for any tax penalty or other damages resulting
from any inadvertent failure by the Custodian to make a distribution
under this Agreement.
(9) The Custodian shall not be liable (and assumes no responsibility)
for the collection of contributions or the deductibility of
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any contribution, or its propriety under this Agreement, or the purpose
or propriety of any distribution made pursuant to this Agreement, which
matters are the responsibility of the Employer and the Employee.
(10) The Custodian shall not be liable for interest on temporary cash
balances, if any, maintained in the Account.
(11) To the extent permitted by law, the Employee shall always fully
idemnify the Custodian and save it harmless from any and all liability
whatsoever which may arise either (i) in connection with this Agreement
and matters which it contemplates, except that which arises due to the
Custodian's negligence or willful misconduct, or (ii) with respect to
making or failing to make any distribution, other than for failure to
make distribution in accordance with an order therefor which is in full
compliance with Article IX or Article VII, Part C or this Part C of
Article V. Except as required by law, the Custodian shall not be
obligated or expected to commence or defend any legal action or
proceeding in connection with this Agreement or such matters unless
agreed upon by the Custodian and the Employee, and unless fully
indemnified for so doing to the Custodian's satisfaction.
(12) The Employer assumes neither any responsibility nor any liability
for any acts or omissions of the Custodian hereunder.
D. Compensation. In consideration for its services hereunder, the
Custodian shall be entitled to receive the fees specified in its then current
fee schedule for the services specified on the schedule. The Custodian may
substitute a revised fee schedule from time to time upon thirty (30) days'
written notice to the Employer or Employee. A Custodian shall be entitled to
such reasonable additional fees as it may from time to time determine for
additional services required of it, if such additional services are not clearly
identified on the fee schedule.
E. Resignation and removal. The Custodian may resign by giving at least
30 days' written notice to the Employer. The Employer or Xxxxxxx Fund
Distributors, Inc. may remove the Custodian hereunder by giving at least 30
days' written notice to the Custodian. In each case, the Employer or Xxxxxxx
Fund Distributors, Inc. shall designate a successor custodian qualified under
section 403(b)(7) of the Code, which successor custodian shall accept such
appointment by a writing to be submitted to the Employer and the Custodian.
If, within 30 days after the giving of notice of resignation or
removal, neither the Employer nor Xxxxxxx Fund Distributors, Inc. designates a
successor custodian which accepts the appointment, this Agreement shall
terminate, and all assets in the Account shall be distributed in kind to the
Employee, or in the event of his death, to his designated beneficiary or
beneficiaries subject to the Custodian's right to reserve funds as provided in
this Part E of Article V.
On the effective date of its resignation or removal, the Custodian
shall transfer to the designated successor the assets and records (or copies
thereof) of the Custodial Investment Accounts provided, however, that the
Custodian may retain whatever assets it deems necessary for payment of its fees,
costs and expenses, compensation, and any other liabilities which constitute a
charge on or against the assets of the Account or on or against the Custodian.
ARTICLE VI. FEES, TAXES, AND OTHER EXPENSES
A. Fees, taxes, and other expenses. Any income taxes of any kind
whatsoever that may be levied or assessed upon or in respect of a Custodial
Investment Account created hereunder (including any transfer taxes incurred in
connection with the investment and reinvestment of the assets), and all other
expenses, fees, and administrative costs incurred by the Custodian in the
performance of its duties, including fees for legal services rendered to the
Custodian, and the compensation to the Custodian as determined under Article V,
Part D of this Agreement shall constitute a charge upon the assets of the
Custodial Investment Account and be paid from the assets held in such Account,
or (at the Custodian's option) be paid by the Employee.
ARTICLE VII. PROTECTION OF EMPLOYEE BENEFITS
A. Non-forfeitable. At no time shall it be possible for any part of the
assets held by the Custodian in the Employee's Account to be used for or
diverted to purposes other than for the exclusive benefit of the Employee. The
Employee's rights to or derived from the Employer's contributions to the
Custodian for addition to the Employee's Account shall be non-forfeitable at all
times after such payments are made to the Custodian.
B. Non-alienable. Any right or benefit which shall be payable under the
terms of this Agreement shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any
attempt at such shall be void, and any such right or benefit shall not in any
way be subject to the debts, contracts, liabilities, engagements or torts of the
person who is entitled to such right or benefit, nor shall Such right or benefit
be subject to attachment or legal process for or against such person, except as
provided in Part C of this Article VII.
C. Employee withdrawals.
(a) At any time or times prior to the completion of distributions
pursuant to Article IX, an Employee who has attained age 59 1/2 may
withdraw amounts of cash from his Account, including the entire balance
thereof, if the Employee submits to the Custodian written proof
satisfactory to the Custodian of the attainment of such age and, also,
written instructions to the Custodian as to the amounts to be so
withdrawn. If the Employee makes any withdrawal at any time pursuant to
the provisions of this subpart (a) of this Part C of Article VII, no
additional contributions may be made to the Employee's Account for a
period of one (1) year after such withdrawal and the employee may not
participate in any other custodial account for regulated investment
company stock involving the Employer under section 403(b) of the Code
for a period of one (1) year after such withdrawal.
(b) In addition to the foregoing, at any time or times prior to the
completion of distributions pursuant to Article IX, an Employee may
withdraw amounts of cash from his Account, including the entire balance
thereof, if the Employee encounters financial hardship, as determined
under rules of uniform application and in accordance with applicable
law, governmental regulations or rulings, by a person designated by the
Employer in accordance with applicable legal authority, and if the
Employee submits to the Custodian written proof satisfactory to the
Custodian of such determination of hardship and, also, written
instructions to the Custodian as to the amounts to be so withdrawn.
(c) Any withdrawal made pursuant to the provisions of either subparts
(a) or (b) of this Part C may not be in kind but may only be in the
cash proceeds received by the Custodian from redemptions or sales of
shares of the Regulated Investment Companies held in the Employee's
Account. If there is more than one account, the Employee shall instruct
the Custodian in writing as to which Regulated Investment Company
shares shall be redeemed or sold before any distribution is made under
this Part C of Article VII.
ARTICLE VIII. AMENDMENT.
A. By Employer. This Agreement and/or the various documents
incorporated herein may be modified or amended by the Employer by delivering to
the Employee and to the Custodian a written copy of such modification or
amendment signed by the Employer.
B. By Employee. The Employee may amend this Agreement by making any of
the following changes:
(a) No more than one in each taxable year of the Employee, and subject
to other applicable provisions of Part A of Article III, the Employee
may change the agreement between the Employer and the Employee as to
the adjustment of the Employee's compensation either by submitting to
the Employer and the Custodian, in accordance with Article II, Part A,
a revised Application or in lieu thereof, by the execution of a
separate written agreement between the Employer and the Employee;
(b) The Employee may change investments pursuant to Article IV, Part F;
or
(c) The Employee may change his designated beneficiary or beneficiaries
by submitting to the Custodian at any time a revised Designation of
Beneficiary pursuant to Article II, Part C.
C. By Xxxxxxx Fund Distributors, Inc. The Employer hereby delegates
authority to Xxxxxxx Fund Distributors, Inc. to modify or amend this Agreement
and/or the various documents incorporated herein, including authority to adopt a
prototype or master plan (if one becomes available) for investment in shares of
Regulated Investment Companies, and the Employer shall be deemed to have
consented to any such modification or amendment. Xxxxxxx Fund Distributors, Inc.
shall provide copies of such modification or amendment to the Employer or the
Employee, and the Custodian. However, Xxxxxxx Fund Distributors, Inc. has no
affirmative obligation to amend any of the foregoing documents pursuant to this
portion of the Agreement.
D. Limitations. Notwithstanding the powers granted in Parts A, B, and C
above, no amendment shall be made which would:
(a) Cause or permit any part of the assets in the Account to be
diverted to purposes other than for the exclusive benefit of the
Employee and/or his beneficiaries, or cause or permit any portion of
such assets to revert to or become the property of the Employer.
(b) Place any greater burden on a Custodian without its written
consent, or
(c) Retroactively deprive any Employee of any benefit to which he was
entitled under this Agreement by reason of contributions made by the
Employer, unless such modification or amendment is necessary to conform
the Agreement to, or satisfy the conditions of any law, governmental
regulation or ruling, and to permit the Agreement and Account to meet
the requirements of Section 403(b) of the Code, or any similar statute
enacted in lieu thereof, and any such retroactive modification or
amendment must be pursuant to an opinion of counsel that it is
necessary or advisable to conform the Agreement to the requirements for
qualification under Section 403(b) of the Code and Regulations
prescribed thereunder.
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ARTICLE IX. DISTRIBUTION
A. Time of distribution.
(a) Subject to the remaining provisions of this Article IX and to the
provisions of Part C of Article VII, distribution of assets held in the
Employee's Investment Account shall be made or shall commence at the
earliest time of the occurrence of one of the following events:
(1) The disability of the Employee within the meaning of Section
72(m)(7) of the Code. An Employee shall be considered to be so
disbabled if he is unable to engage in any substantial gainful
activity because of any medically determinable physical or mental
impairment which can be expected to result in death or to be of
long-continued and indefinite duration and an individual shall not
be considered to be disabled, and, therefore, the Custodian shall
not be required to make distribution on account of the Employee's
disability, unless and until the Custodian has received a
physician's certificate to that effect;
(2) The Employee's actual retirement or attainment of the Normal
Retirement Age, whichever is later; or
(3) The Employee's death.
(b) In addition to the foregoing, distribution shall be made or shall
commence upon the Employee's separation from the service of the
Employer, prior to the occurrence of any of the events listed in
subpart (a) of this Part A or Article IX, if the Employee, either at
any time prior to or upon the Employee's separation from the service of
the Employer, files with the Custodian a written, irrevocable election
to have distribution commence upon such separation from service.
(c) The Custodian shall not be responsible for making any distributions
until such time as it has been notified in writing by either the
Employer or the Employee of the occurrence of one of the events set
forth in subparts (a)(1),(a)(2), or (b) of this Part A, or by the
designated beneficiary or beneficiaries (or by the Employee's Executor
or other personal representative if no such beneficiary survives the
Employee) of the occurrence of the event set forth in subpart (a)(3) of
this Part A.
B. Mode of distribution to Employee. Distributions to the Employee of
amounts held by the Custodian in his Custodial Investment Account shall normally
be made in the form of annual, quarterly or monthly installments in cash or in
kind or in the form of a lump sum, provided that:
(a) Installment payments in cash or in kind shall be made in
approximately equal amounts or approximately equal fractions of the
Employee's Custodial Investment Account;
(b) If payments to the Employee are made in the form of installments,
there shall be credited to such Employee's Custodial Investment Account
all earnings thereon during the period of such installments; and
(c) Except in the case where the distribution is made in the form of an
annuity for a period measured by the life of the Employee and his
spouse (regardless of whether the Employee's beneficiary is someone
other than his spouse), the present value of the payments to be made to
the Employee must be more than 50 percent of the present value of total
payments to be made to the Employee and his beneficiaries.
Stock of a Regulated Investment Company shall not be distributed in
kind unless at the time distribution is made or, if it is to be made in
installments, at the time it commences, the value of such stock held in the
Custodial Investment Account is five hundred ($500) dollars or more.
Distribution may also be made by distributing an annuity contract which
qualifies under section 403(b)(1)(A) of the Code.
C. Election. The Employee may elect or alter his election of the method
of distribution to the Employee by filing with the Custodian a written election
of a method of distribution which is consistent with the provisions of Part B of
this Article IX at any time prior to seven (7) days before the time of
distribution determined under Part A of this Article IX. Such election may be
changed at any time prior to the beginning of said seven (7)-day period.
In the event that an Employee fails to properly elect a method of
distribution of his Account, unless the Custodian in its absolute discretion
chooses another method of distribution consistent with the provisions of Part B
of this Article IX, installment payments pursuant to said Part B will be made in
cash or in kind to the Employee on a monthly basis over a 10-year-period, if a
systematic withdrawal plan is available for the Regulated Investment Company
stock held in the Account and if the assets in such Account are determined to be
sufficient by Xxxxxxx Fund Distributors, Inc. If such a plan is unavailable or
if such assets are deemed to be insufficient by Xxxxxxx Fund Distributors, Inc.,
the shares of the Regulated Investment Company stock held in the Account will be
distributed in cash or in kind promptly to the Employee, unless the Custodian in
its absolute discretion chooses another method of distribution consistent with
the provisions of said Part B of this Article IX.
D. Method of distribution to beneficiaries. In the event of the death
of the Employee either before or after the occurrence of any of the times for
distribution listed in Part A of this Article IX, any amounts held by the
Custodian in the Employee's Account shall be distributed to the beneficiary or
beneficiaries named in the Employee's Designation by the method acceptable to
the Custodian and stipulated in such form, but only after such beneficiary or
beneficiaries have notified the Custodian in writing of the Employee's death and
provided the Custodian with adequate verification of such death, as provided in
subpart (8) of Part C of Article V. Until such distributions commence to such
beneficiary or beneficiaries, the Custodian shall not be responsible for
treating such person's predecessor to such rights and obligations as still
possessing the same.
In the event that the Employee fails to properly stipulate a method of
distribution of his Account to such beneficiary or beneficiaries, unless the
Custodian in its absolute discretion chooses another mode of distribution,
installment payments will be made in cash or in kind to such beneficiary or
beneficiaries on a monthly basis over a 10-year period from the date of the
Employee's death, if a systematic withdrawal plan is available for the Regulated
Investment Company stock held in the Account and if the assets in such Account
are determined to be sufficient by Xxxxxxx Fund Distributors, Inc. If such a
plan is unavailable or if such assets are deemed to be insufficient by Xxxxxxx
Fund Distributors, Inc., the shares of the Regulated Investment Company stock
held in the Account will be distributed in cash or in kind promptly to such
beneficiary or beneficiaries, unless the Custodian in its absolute discretion
chooses another method of distribution.
If the Employee so elects in the Designation of Beneficiary form in
effect at the time of his death, his designated beneficiary or beneficiaries who
has (have) survived him and to whom distributions are to be made, may direct the
Custodian in writing (by unanimous agreement if there is more than one
beneficiary) to change the method of distribution to such beneficiary or
beneficiaries (that is, the method either selected in the Employee's Designation
or provided for in this Part D of Article IX, as the case may be), but only
within sixty (60) days after the day on which such beneficiary or beneficiaries
first became entitled to any distribution from the Account and only if such
change is acceptable to the Custodian.
If a distribution is payable to a person known by the Custodian to be a
minor or a person under a legal disability, the Custodian may in its absolute
discretion make the whole or any part of the distribution to (i) a parent of
such person, (ii) the guardian, committee or other legal representative,
wherever appointed, of such person, including a custodian for such person under
a Uniform Gifts to Minors Act or similar act, (iii) any person having the
control and custody of such person, or (iv) to such person directly, the receipt
of the distributee to whom any such payment or distribution is so being made a
sufficient discharge therefor.
Insofar as the disposition of the Account of a deceased Employee is not
governed by a valid Designation which names at least one beneficiary who
survives the Employee, the Account shall be distributed to the estate of the
deceased Employee. Any portion of an Account of a deceased Employee remaining
undisposed of after the death of an Employee's designated beneficiary who has
survived the Employee, shall be distributed to the estate of such deceased
beneficiary.
ARTICLE X. TERMINATION.
A. Voluntary termination. With respect to amounts not yet earned by an
Employee, this Agreement may be terminated by either such Employee or the
Employer by giving written notice to the other.
Copies of such notice shall be sent forthwith to the Custodian. Unless
otherwise mutually agreed upon by the Employer and the Employee, any such
termination shall take effect as of the last day of the month next following the
month in which such written notice shall have been given, the Employee's
compensation level shall be increased by the amount by which it otherwise would
be reduced pursuant to the Application, or other written agreement between the
Employer and the Employee as to the adjustment of the Employee's compensation,
and the obligations under this Agreement of the Employer with respect to future
pay periods shall cease.
B. Termination on distribution. This Agreement shall terminate as to an
Employee when all the assets held in the Custodial Investment Account
established for him hereunder have been distributed.
C. Termination on disqualification. This Agreement shall terminate as
to an Employee, if after notification by the Internal Revenue Service that the
Employee's Account does not qualify under section 403(b)(7) of the Code, Xxxxxxx
Fund Distributors, Inc. fails or is unable to make the amendments necessary to
so qualify the Account. On such termination of this Agreement, all assets in an
Account shall be distributed in kind by the Custodian to the Employee or, in the
event of his death, to his designated beneficiaries, subject to the Custodian's
right to reserve funds as provided in Article V, Part E, except that where the
value of such assets is less than five hundred ($500) dollars, the distribution
shall be in cash.
ARTICLE XI. MISCELLANEOUS
A. Adjustment regarding other employee benefits. Unless provided
otherwise in a separate written agreement between the Employer and the Employee,
all employee benefits furnished (either wholly or in part) by the Employer for
the benefit of the Employee(other than those provided for under this Agreement)
which are based on the amount of compensation payable to an employee, and which
would ordinarily be subject to reduction in the event of any salary adjustment
other than that provided for
5
under this Agreement, shall continue to be based on the Employee's compensation
level without regard to any adjustment in compensation provided for under this
Agreement, if such employee benefits arrangements themselves are consistent with
this Part A of Article XI.
B. Qualified Voluntary Employee Contributions. If permitted by Xxxxxxx
Fund Distributors, Inc., qualified voluntary employee contributions as defined
in section 219(e)(2) of the Code may be received under this Agreement with
respect to taxable years beginning after December 31, 1981, and such
contributions shall thereafter be held and administered hereunder by the
Custodian in accordance with all applicable law with respect to accumulated
deductible employee contributions as defined in section 72(o)(5)(B) of the Code.
C. Applicable law. This Agreement and all documents incorporated herein
by reference shall be construed and administered in accordance with the laws of
the state in which the home office of the Custodian is located.
D. Terminology. Any masculine terminology in this Agreement shall
include the feminine.
E. Headings. Headings herein are primarily for convenience of
reference, and if they conflict with the text, the text shall control.
F. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall be an original,
but such counterparts shall together constitute one and the same instrument.
G. Change of address. The Employer shall notify the Custodian in
writing of any change of address within 30 days of such change.
H. Notice. Any notice from the Custodian to the Employee pursuant to
this Agreement shall be effective if sent by first class mail to the business
address of the Employer until the Employer specifies a different address
acceptable to the Custodian. Any notice to the Custodian pursuant to this
Agreement shall be by first class mail addressed to its home office.
I. Successors. This Agreement shall be binding upon and shall inure to
the benefit of the successors in interest of the parties hereto.
J. Not employment contract. This Agreement shall not be deemed to
constitute a contract of employment between the parties hereto, nor shall any
provision hereof restrict the right of the Employer to discharge the Employee or
of the Employee to terminate his employment.
K. Construction. No provision of this Agreement, including the
documents incorporated herein by reference, shall be construed to conflict with
any provision of a Treasury Department or Internal Revenue Service regulation,
ruling, release or other order which affects the terms of this Agreement or its
qualification under section 403(b)(7) of the Code. It is intended that this
Agreement, including the documents incorporated herein by reference, qualify as
a custodial account under said section 403(b)(7) and this Agreement, including
said documents, shall be construed and limited and the powers and discretions
conferred hereunder and by applicable laws shall be exercised in a manner
consistent with that purpose. Subject to the foregoing provisions of this Part K
of Article XI, in the event of any conflict between this Agreement and the
documents incorporated herein by reference, the provisions of this Agreement
shall prevail.
L. Tax treatment. The tax treatment of any contributions to the Account
and of any earnings of the Account depends, among other things, upon the nature
of the Employer, and the amount and nature of contributions made in any year to
the Account (and to other plans, accounts or contracts with the benefit of
special tax treatment) for the benefit of the Employee. The Custodian and
Xxxxxxx Fund Distributors, Inc. assume no responsibility with respect to such
matters, nor shall any term or provision of this Agreement be construed so as to
place any such responsibility upon any one of them. Furthermore, the Employer
and the Employee shall file and shall have sole responsibility for filing with
the Internal Revenue Service and/or any other government agency such returns,
reports, forms, and other information as may be required of them.
M. Separability. If any provision of this Agreement shall be held
invalid or illegal for any reason, such determination shall not affect any
remaining provisions of this Agreement, but this Agreement shall be construed
and enforced as if such invalid or illegal provision had never been included in
this Agreement.
N. If the Employer does not sign the Application and is not required to
do so under the Code and the regulations thereunder, the Employee, to the extent
allowed by law, assumes all obligations and responsibilities of the Employer
under the Application and this Agreement.
O. Separate Employer Plan. If the Employer has established a written
separate 403(b) plan, intending to provide for the investment in Regulated
Investment Companies, the terms of such plan will supersede any provisions of
this Agreement which conflict with such terms. This provision shall not be
effective until the Employer has provided Xxxxxxx Fund Distributors, Inc. with a
copy of such written plan and the Custodian has agreed in writing to be bound by
terms thereof.
6
Telephone
numbers and
addresses
--------------------------------------------------------------------------------
National Toll Free
Telephone Numbers
and Addresses
------------------------------------------------------------
For general information,
CALL (toll-free) 0-000-000-0000
(within Massachusetts, call collect 000-000-0000)
or
WRITE to: Xxxxxxx Fund Distributors, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Shareholder representatives from Xxxxxxx Fund Distributors,
Inc., underwriter for the Xxxxxxx funds, will answer your
calls and letters.
------------------------------------------------------------
------------------------------------------------------------
For prospectuses, call 0-000-000-0000.
For questions about an existing account and to arrange
transactions,
CALL (toll-free) 0-000-000-0000
(in Boston, call 000-0000)
WRITE to: The Xxxxxxx Funds
c/o Boston Financial Data Services
X.X. Xxx 0000
Xxxxxx, XX 00000
Account representatives from the transfer agent for the
Xxxxxxx funds will answer your calls and letters.
------------------------------------------------------------
--------------------------------------------------------------------------------
Local Telephone
Numbers and Addresses
of Xxxxxxx Fund
Distributors, Inc.
Boca Raton
000 Xxxx Xxxxxxxx Xxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
000-000-0000
Los Angeles
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
000-000-0000
Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
000-000-0000
New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
Chicago
Suite 2200, 000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
000-000-0000
Philadelphia
Three Mellon Bank Center
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
000-000-0000
Cincinnati
000 Xxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
000-000-0000
Portland, Oregon
0000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
000-000-0000
Cleveland
Xxxxx 000, 0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
000-000-0000
San Francisco
Suite 4100, 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
000-000-0000
Houston
1530 Bank of the Xxxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxx 00000
000-000-0000
7
XXXXXXX [LOGO]
--------------
This booklet is not to be used in
connection with the offering of any of
the Xxxxxxx funds unless preceded or
accompanied by the appropriate current
prospectus. The prospectus will be sent
to you by the fund's underwriter,
Xxxxxxx Fund Distributor's, Inc.
14-6-84 (C) Xxxxxxx Fund Distributors, Inc.
