 | Board of Visitors minutes November 8, 1996 |  |
ATTACHMENT E
DEFINED CONTRIBUTION RETIREMENT PLAN
FOR THE GENERAL FACULTY OF THE UNIVERSITY OF VIRGINIA
Amended and Restated January 1, 1996
| Page | ||
| PREAMBLE | 1 | |
| SECTION 1 | DEFINITIONS | 2 |
| 1.1 | Accumulation Account | 2 |
| 1.2 | Administrator | 2 |
| 1.3 | Board | 2 |
| 1.4 | Code | 2 |
| 1.5 | Compensation | 2 |
| 1.6 | Educational Leave of Absence | 3 |
| 1.7 | Eligible Employee | 3 |
| 1.8 | Employee | 3 |
| 1.9 | Employer | 3 |
| 1.10 | Former Participant | 3 |
| 1.11 | 415 Compensation | 4 |
| 1.12 | Joint and Survivor Annuity | 4 |
| 1.13 | Leased Employee | 5 |
| 1.14 | Life Annuity | 5 |
| 1.15 | Limitation Year | 5 |
| 1.16 | Participant | 5 |
| 1.17 | Phased Retirement | 5 |
| 1.18 | Plan | 5 |
| 1.19 | Plan Year | 5 |
| 1.20 | Trust | 5 |
| 1.21 | Trustees | 5 |
| 1.22 | University | 6 |
| 1.23 | Valuation Date | 6 |
| 1.24 | VRS | 6 |
| SECTION 2 | PARTICIPATION | 6 |
| 2.1 | Election to Participate | 6 |
| 2.2 | Obligation of Participant | 7 |
| 2.3 | Termination of Participation | 7 |
| 2.4 | Reinstatement as an Eligible Employee | 7 |
| SECTION 3 | CONTRIBUTIONS | 7 |
| 3.1 | University Contribution | 7 |
| 3.2 | Transfer Contributions | 8 |
| 3.3 | Annual Limitation on Contributions | 8 |
| SECTION 4 | VESTING | 9 |
| SECTION 5 | INVESTMENT OPTIONS | 10 |
| 5.1 | Investment Options | 10 |
| 5.2 | Annuity Contract | 10 |
| 5.3 | Qualified Trust | 10 |
| 5.4 | Reallocation Among Annuity Contracts and the Trust | 11 |
| SECTION 6 | DISTRIBUTIONS | 11 |
| 6.1 | Distributions of Amounts Allocated to Annuity Contracts | 11 |
| 6.2 | Distributions of Amounts Allocated to the Trust | 12 |
| SECTION 7 | AMENDMENT AND TERMINATION | 16 |
| 7.1 | Amendment | 16 |
| 7.2 | Termination, Partial Termination, or Complete Discontinuance of Contributions | 16 |
| 7.3 | Permissible Reversions | 17 |
| SECTION 8 | CLAIMS | 17 |
| 8.1 | Claims for Benefits Under an Annuity Contract | 17 |
| 8.2 | Claims for Benefits Under the Trust | 17 |
| SECTION 9 | ADMINISTRATION | 18 |
| 9.1 | Plan Administrator | 18 |
| 9.2 | Actions Conclusive | 19 |
| 9.3 | Appointment of Agents | 19 |
| 9.4 | Reliance on Opinions, Etc. | 19 |
| 9.5 | Records and Accounts | 20 |
| 9.6 | Payment of Expense | 20 |
| 9.7 | Liability | 20 |
| SECTION 10 | TRUST AGREEMENT | 21 |
| 10.1 | The Trust Agreement | 21 |
| 10.2 | No Diversion of Corpus or Income | 21 |
| SECTION 11 | MISCELLANEOUS | 21 |
| 11.1 | Limitation of Rights; Employment Relationship | 21 |
| 11.2 | Merger; Transfer of Assets | 21 |
| 11.3 | Prohibition Against Assignment | 22 |
| 11.4 | Applicable Law; Severability | 22 |
| 11.5 | Reliance Upon Copy of Plan | 23 |
| 11.6 | Gender and Number; Captions or Headings | 23 |
PREAMBLE
The University of Virginia (the "University") established the Defined Contribution Plan for the General Faculty of the University of Virginia (the "Plan") effective July 1, 1989. The Plan is a money purchase pension plan and was adopted to replace a defined contribution 403(b) plan that the University had provided General Faculty prior to July 1, 1989. The Plan was originally a 403(a) plan funded solely through annuity contracts. However, the Plan was amended and restated effective January 1, 1996 to add the Trust for the Defined Contribution Plan for the General Faculty of the University of Virginia (the "Trust") to provide an alternative form of funding Participants' benefits. Various other changes were made in 1996 including amending the employer contribution formula. As a result of the 1996 restatement, the Plan is currently a combination 403(a)/401(a) plan funded both by annuities and a tax exempt 501(a) trust.
SECTION 1
DEFINITIONS
1.1 Accumulation Account
The account of a Participant that is credited with Employer Contributions pursuant to Section 3.1 and transfer contributions.
1.2 Administrator
The University.
1.3 Board
The Rector and Visitors of the University of Virginia.
1.4 Code
The Internal Revenue Code of 1986, as amended.
1.5 Compensation
(a) Generally
"Compensation" is solely the base salary to be paid to the Participant during the Plan Year, i.e., the nine-month academic year salary for those Participants with academic year assignments or the twelve-month salary for those Participants with twelve-month assignments, and does not include any other form of compensation a Participant may receive during the Plan Year including, but not limited to, overtime, summer wages and special payments.
(b) Participants on Educational Leave of Absence
"Compensation" for a Participant who is on an Educational Leave of Absence shall be the Compensation described in (a) above when the Participant went out on leave.
(c) Participants in Phased Retirement
"Compensation" for a Participant who is in Phased Retirement shall be what the Compensation would have been under (a) above if the Participant were working full time as determined by the Administrator in its sole and absolute discretion.
(d) Limitation
In addition to other applicable limitations set forth in the Plan and notwithstanding any other provision of the Plan to the contrary, for Employees who become Participants in Plan Years beginning on or after January 1, 1996, the annual compensation taken into account under the Plan shall not exceed the dollar limitation of Code section 401(a)(17), which is incorporated herein by reference, as adjusted from time to time.
1.6 Educational Leave of Absence
A leave of absence by a Participant that is determined by the University to have an "educational purpose" as that term is defined in the Faculty Handbook of the University.
1.7 Eligible Employee
An Employee who is a member of the General Faculty of the University, as that term is described in the Faculty Handbook of the University, except if the Employee is one of the following types of faculty members:
(a) a visiting faculty member, as that designation is determined by the University at the commencement of employment;
(b) a part-time faculty member, as that status may determined by the Employer from time to time; and
(c) a faculty member with an appointment of less than six (6) months.
1.8 Employee
Any individual on the payroll of the Employer whose wages from the Employer are subject to withholding for the purposes of Federal income taxes and the Federal Insurance Contributions Act and any Leased Employee of the Employer.
1.9 Employer
The University.
1.10 Former Participant
Any individual who is no longer a Participant but who continues to have an Accumulation Account.
1.11 415 Compensation
A Participant's wages, salaries, fees for professional service and other amounts of personal services actually rendered in the course of employment with an Employer maintaining the Plan (including, but not limited to, sales commissions, compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips and bonuses and in the case of a Participant who is an Employee within the meaning of Code Section 401(c)(1) and the regulations thereunder, the Participant's earned income (as described in Code Section 401(c)(2) and the regulations thereunder)) paid or accrued during the Limitation Year. It shall exclude: (1)(A) contributions made by the Employer to a plan of deferred compensation sponsored by the Employer to the extent that, before the application of the Code Section 415 limitations to the Plan, the contributions are not includable in the gross income of the Employee for the taxable year in which contributed, (B) Employer contributions made on behalf of an Employee to a simplified employee pension plan described in Code Section 408(k) to the extent such contributions are deductible by the Employee under Code Section 219(a), (C) any distributions from a plan of deferred compensation sponsored by the Employer regardless of whether such amounts are includable in the gross income of the Employee when distributed except any amounts received by an Employee pursuant to an unfunded non-qualified plan of the Employee's Employer to the extent such amounts are includable in the gross income of the Employee; (2) amounts realized from the exercise of a non-qualified stock option or when restricted stock (or property) held by an Employee either becomes freely transferrable or is no longer subject to a substantial risk of forfeiture; (3) amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; and (4) other amounts which receive special tax benefits, such as premiums for group term life insurance (but only to the extent that the premiums are not includable in the gross income of the Employee). Notwithstanding the foregoing, commencing on January 1, 1998, the exclusion described in (1)(A) above shall no longer apply nor shall contributions under a Code Section 125 plan be excluded.
1.12 Joint and Survivor Annuity
An immediate monthly annuity for the life of the Participant with a survivor annuity for the life of the Participant's designated beneficiary that is not less than 50% and not more than 100% of the amount of the annuity that is payable during the joint lives of the Participant and the designated beneficiary. The percentages of the survivor annuity under the Plan shall be 50%, 75%, and 100%. The annuity shall be equal to the amount of benefit that can be purchased with the portion of the Participant's Accumulation Account that has been allocated to the Trust. Notwithstanding the foregoing, any amount to be distributed each year, and the times those amounts are paid, must satisfy the incidental death benefit requirements specified in Code Section 401(a)(9)(G) and the regulations thereunder.
1.13 Leased Employee
Any individual who is a leased employee within the meaning of Code Section 414(n)(2). Such individuals shall not be permitted to participate in the Plan.
1.14 Life Annuity
An immediate monthly annuity solely for the life of the recipient. The annuity shall be equal to the amount of benefit that can be purchased with the portion of the Participant's Accumulation Account that has been allocated to the Trust.
1.15 Limitation Year
The Plan Year.
1.16 Participant
Any Employee who has commenced participation in the Plan in accordance with the provisions of Section 2 of the Plan.
1.17 Phased Retirement
The Phased Retirement Option of the University's Incentive Retirement Program.
1.18 Plan
The Defined Contribution Retirement Plan for the General Faculty of the University of Virginia as set forth in this document and as amended from time to time.
1.19 Plan Year
The twelve (12) month period commencing each January 1.
1.20 Trust
The Trust for the Defined Contribution Retirement Plan for the General Faculty of the University of Virginia, created by the Trust Agreement entered into pursuant to Section 10 between the University and the Trustees.
1.21 Trustees
The persons and/or bank or trust company which are named as Trustees in the Trust Agreement described in Section 10.1.
1.22 University
The University of Virginia.
1.23 Valuation Date
The date during the Plan Year the portion of the assets of a Participant's or Former Participant's Accumulation Account allocated to the Trust is valued. Such dates shall be March 31, June 30, September 30 and December 31 of each Plan Year and any other day the Administrator, in its sole and absolute discretion, has determined it is feasible to determine the value.
1.24 VRS
The Virginia Retirement System.
SECTION 2
PARTICIPATION
2.1 Election to Participate
(a) New Employees
In the case of an Employee who is not a participant in the VRS at the time he or she becomes an Eligible Employee, such person shall choose within ninety (90) days of becoming an Eligible Employee to participate in either the Plan or the VRS. The Employee shall make the choice by completing the corresponding application of the retirement program in which he or she elects to participate. If an Eligible Employee fails to choose a plan, pursuant to the policy of the Commonwealth he or she shall be required to participate in the VRS and be ever precluded from participating in the Plan. An Eligible Employee who elects to participate in the Plan shall become a Participant in the Plan as of the first day of the month on or immediately following the day of becoming an Eligible Employee.
(b) Current Employees Who Become Members of the General Faculty
In the case of an Employee who is a participant in the VRS at the time he or she becomes an Eligible Employee, such person may make an irrevocable election to participate in the Plan any time on or after becoming an Eligible Employee by completing the Plan application form prescribed by the Administrator. Such
2.2 Obligation of Participant
When an Employee becomes eligible to participate, and thereafter from time to time, the Administrator may require the Employee to furnish such information and fill out, sign and file such forms and documents as may be reasonably required for the administration of the Plan, including beneficiary designation forms, evidence of age and marital status, etc. If a Participant does not comply with any such reasonable requirements neither the Administrator, the Trustees, nor any other person, shall be obligated to administer the Plan for such Participant until such information is properly furnished, and no such person shall incur liability to such Participant or his or her beneficiary to the extent that any intended Plan benefit has not been obtained or is not available because of the Participant's or beneficiary's failure to furnish such information and fill out, sign and file such documents.
2.3 Termination of Participation
Participation in the Plan continues until a Participant is no longer an Eligible Employee. Notwithstanding the foregoing, any Participant of the Plan on December 31, 1995 who might not otherwise meet the definition of Eligible Employee shall continue to participate in the Plan until employment with the University terminates.
2.4 Reinstatement as an Eligible Employee
A former Eligible Employee who subsequently becomes an Eligible Employee again shall have the right to elect to participate in the Plan as described in Section 2.1 above.
SECTION 3
CONTRIBUTIONS
3.1 University Contribution
(a) Participants Who Commenced Participation Before January 1, 1991
In the case of a Participant who commenced participation in the Plan before January 1, 1991 and who has had uninterrupted participation since, the University shall contribute to such Participant's Accumulation Account for the Plan Year an amount equal to the greater of:
(I) 10.4% of Compensation, or
(II) 11.5% of Compensation with a maximum of $100,000 taken into consideration when calculating the contribution herein.
(b) Participants Who Commenced Participation On or After January 1, 1991
In the case of a Participant who commenced participation in the Plan on or after January 1, 1991, the University shall contribute to such Participant's Accumulation Account for the Plan Year an amount equal to 10.4% of Compensation.
(c) Participants on Educational Leaves of Absence
The University shall continue to make a contribution under this Section 3.1 on behalf of a Participant who is on an Educational Leave of Absence subject to the limitation described in Section 3.3.
(d) Timing of Contributions
Timing of the contributions described in (a) - (c) above shall be determined by the Administrator in its sole and absolute discretion.
3.2 Transfer Contributions
The Plan shall receive only transfers of accrued benefits from the VRS on behalf of a Participant. It shall accept no other transfers or rollovers of any kind.
The Administrator shall allocate the transferred amounts described in the preceding paragraph among the various investment vehicles permitted under the Plan pursuant to Section 5. The Participant shall provide such instructions in writing on a form prescribed by the Administrator.
3.3 Annual Limitation on Contributions
(a) Defined Contribution Limit
In no event shall a Participant's University contribution under Section 3.1 above for any Limitation Year exceed the lesser of:
(I) $30,000, as adjusted under Code Section 415(c)(1)(A); or
(II) twenty-five percent (25%) of the Participant's 415 Compensation.
For Participants who are on an Educational Leave of Absence or in Phased Retirement, to the extent the Administrator prevents the University from making a
(b) Participation In More Than One Plan
If the University maintains another qualified defined contribution plan, as defined in Code Section 414(i), for Employees, some or all of whom may be Participants in this Plan, then any such Participant's Annual Additions in the other Plan shall be aggregated with the Participant's Annual Additions derived from this Plan for purposes of the limitation in Section 3.3(a) above.
(c) Reallocating Excess Contributions
If the limitation in Section 3.3(a) is exceeded, the excess amounts in the Participant's Accumulation Account shall be used to reduce the University's contribution for the next Limitation Year (and succeeding Limitation Years, as necessary) for that Participant. However, if that Participant is not covered by the Plan as of the end of a Limitation Year, then the excess amounts must be held unallocated in a suspense account for the Limitation Year and allocated and reallocated in the next Limitation Year to all of the remaining Participants in the Plan in proportion to what each Participant's Compensation for the Plan Year bears to the Compensation for all such Participants for the Plan Year. In no case may excess amounts be distributed to Participants or Former Participants.
(d) No Exceeding 415 Limit
In no event shall the amount of any benefit or annuity determined under this Plan Section 3 exceed the maximum benefit permitted under Code Section 415.
SECTION 4
VESTING
A Participant shall be fully vested in his or her Accumulation Account at all times under the Plan.
SECTION 5
INVESTMENT OPTIONS
5.1 Investment Options
The Participant shall have the option to allocate the University's contribution made pursuant to Section 3.1 between the following forms of investment:
(a) an annuity contract that meets the requirements of Code Section 403(a), or
(b) a qualified trust as described in Code Section 401(a).
When first applying to become a Participant in the Plan, as described in Section 2.1, the Eligible Employee shall also designate on the Plan application form prescribed by the Administrator whether Plan contributions should be invested in an annuity contract or the Trust. A Participant may then change the investment allocation annually during the Plan's open enrollment period which is a 30-day period designated by the Administrator prior to the beginning of the Plan Year and which takes place no earlier than ninety days prior to the beginning of the Plan Year.
5.2 Annuity Contract
The University may offer one or more annuity contracts described in Section 5.1(a) above among which a Participant may choose to allocate contributions made to his or her Accumulation Account. The nature and the quality of the investments offered under each of these contracts shall be determined by the Administrator. To the extent a Participant may choose among various investments offered under an annuity contract, any communication regarding such investment shall be between the sponsor of the annuity contract and the Participant. Once a Participant chooses an annuity contract to which to allocate Plan contributions, the University shall have no further responsibility regarding such contributions.
5.3 Qualified Trust
(a) Investment Funds
The Plan shall offer Participants investment funds to which the Participants may choose to allocate Plan contributions that the Participant has designated are to be allocated to the Trust pursuant to Section 5.1(b) above. The nature and the quality of the investments in each of these funds shall be determined by the Administrator.
(b) Designation of Investment Funds
Each Participant shall designate on a written form prescribed or approved by the Administrator one or more of the investment funds described in (a) above. Accounts for which no direction is received shall be invested in the investment fund which provides a balance between capital appreciation and preservation of capital and generation of income.
(c) Changing Investment Designation
A Participant may change the designation described in (b) above any number of times permitted by the Administrator and by any method permitted by the Administrator.
(d) Investment Performance
(I) Crediting Income and Losses
Income or losses from the investments in each investment fund above shall correspondingly increase or decrease the same investment fund.
(II) Adjustment of Accounts
The Administrator shall adjust, as of each Valuation Date, the respective portions of the Participant's Accumulation Account balance allocated to the Trust to reflect the current market value of the investment funds in which such Account was invested.
5.4 Reallocation Among Annuity Contracts and the Trust
A Participant may reallocate all or a portion of his or her Accumulation Account invested in annuity contracts to the Trust, or vice versa, to the extent permitted, if at all, by the sponsor of the annuity and the Administrator.
SECTION 6
DISTRIBUTIONS
6.1 Distributions of Amounts Allocated to Annuity Contracts
Distribution of the portion of a Participant's Accumulation Account allocated to annuity contracts shall be distributed in accordance with the terms of the applicable annuity contract.
6.2 Distributions of Amounts Allocated to the Trust
Distribution of the portion of a Participant's Accumulation Account allocated to the Trust shall be distributed in the following manner:
(a) Election to Receive Benefits
A Participant who separates from service from the University may elect to receive his or her benefits any time on or after the day he or she separates from service. Such distribution shall be made on the later of 60 days from the receipt of request for such distribution or the date the Administrator determines the value of the Participant's Accumulation Account for purposes of distribution. The amount to be distributed shall be determined based on the value of the portion of the Former Participant's Accumulation Account balance allocated to the Trust as determined on the last day of the month in which the request for distribution was received by the Administrator. Such request shall be made on a written form prescribed or approved by the Administrator.
A Participant in Phased Retirement who is age 59 1/2 or older may elect to receive a distribution from the Plan as described in the preceding paragraph even if still an Employee.
(b) Forms of Distribution
A Participant may elect to receive a distribution of the portion of his or her Accumulation Account allocated to the Trust in one of the following forms:
(I) lump sum,
(II) Joint and Survivor Annuity, or
(III) Life Annuity.
(c) Mandatory Distribution Date
(I) Required Beginning Date
In no event shall distributions commence later than April 1 of the calendar year following the calendar year in which the Participant attains age seventy-and-one-half (70 1/2) except if the Participant is an Employee in the calendar year he or she attains age 70 1/2, in which case the distribution may commence April 1 of the calendar year following the calendar year in which the Employee retires.
(II) Failure to Make an Election Under Section 6.2(a)
If a Participant fails to make an election under Section 6.2(a) above before the date described in (I) above, the Administrator shall direct the Trustee to distribute the portion of Participant's Accumulation Account allocated to the Trust in a lump sum in accordance with (I) above.
(d) Pre-Distribution Death Benefits
(I) Election of Form of Distribution by Designated Beneficiary
If a Participant dies prior to having commenced distribution of benefits under Section 6.2(a) the designated beneficiary may elect to receive the portion of the Participant's Accumulation Account allocated to the Trust either in a lump sum or a Life Annuity to paid over the life of the designated beneficiary. Such request shall be made within six months of the Participant's death on a written form prescribed or approved by the Administrator. Distribution shall be made on the later of sixty (60) days from the receipt of request for such distribution or the date the Administrator determines the value of the Participant's Accumulation Account for purposes of distribution. The amount to be distributed shall be determined based on the value of the portion of the Former Participant's Accumulation Account balance allocated to the Trust as determined on the last day of the month in which the request for distribution was received by the Administrator.
(II) Failure of Designated Beneficiary to Elect a Form of Distribution
If a designated beneficiary fails to elect a form of distribution within six months immediately following the Participant's death, the Administrator shall have the Participant's Accumulation Account allocated to the Trust distributed in a lump sum. Distribution shall be made on the later of sixty (60) days from the last day of the sixth month immediately following the month in which the Participant died or the date the Administrator determines the value of the Participant's Accumulation Account for purposes of distribution. The amount to be distributed shall be determined based on the value of the portion of the Former Participant's Accumulation Account balance allocated to the Trust as determined on the last day of the sixth month immediately following the month in which the Participant died.
(III) Absence of Valid Designation of Beneficiaries
If a Participant has no valid beneficiary designation on file with the Administrator, or the beneficiary has predeceased the Participant, the
(IV) Surviving Spouse Dies Prior to Receiving Benefits as Described in (I) and (II) Above
If the surviving spouse dies after the Participant, but before payments to such spouse begin, the provisions of (I) and (II) above shall be applied as if the surviving spouse were the Participant.
(IV) Children as Beneficiaries
For purposes of this Section 6.1(d), any amount paid to a child of the Participant will be treated as if it had been paid to the surviving spouse if the amount becomes payable to the surviving spouse when the child reaches the age of majority.
(e) Incompetence of Distributee
If the Administrator receives evidence that a person entitled to receive any distribution under the Plan is physically or mentally incompetent or incompetent by any reason of age to receive such distribution and give valid release therefore, the Administrator shall direct the Trustee to make such distribution to the Participant's legal representative (such as a guardian) provided the Administrator, in its sole and absolute discretion, determines that such individual has the authority as legal representative to request payment from the Plan. Any such payment made under this Section 6.2(e) shall constitute a complete discharge of any liability under the Plan.
(f) Location of Participant or Beneficiary Unknown
In the event that all, or any portion, of the distribution payable to a Participant or his or her beneficiary under this Section 6.2 remains unpaid solely by reason of the inability of the Administrator to ascertain the whereabouts of such Participant or beneficiary after sending a registered letter, return receipt required, to the last known address, and further diligent effort, a savings account at a local financial institution shall be established in the person's name and the distribution shall be deposited therein.
(g) Direct Rollover
(I) General
Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee's election under this Section 6.2(g), a distributee may elect, at the time and in the manner prescribed by the Administrator, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover.
(II) Definitions
(A) Eligible Rollover Distributions
An eligible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: 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 (10) years or more; any distribution to the extent such distribution is required under Code Section 401(a)(9); and the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities).
(B) Eligible Retirement Plan
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 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.
(C) Distributee
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
(D) Direct Rollover
A direct rollover is a payment by the Plan to the eligible retirement plan specified by the distributee.
SECTION 7
AMENDMENT AND TERMINATION
7.1 Amendment
The University reserves the right to amend the Plan, through affirmative action by the Board at any time and from time to time, in whole or in part, including, without limitation, retroactive amendments necessary or advisable to qualify the Plan and Trust under the provisions of Code Sections 401(a) and 403(a). However, except as set forth in Section 7.3, no such amendment shall (1) cause any part of the assets of the Plan and Trust to revert to or be recoverable by the University or be used for or diverted to purposes other than the exclusive benefit of Participants, Former Participants, and beneficiaries; (2) deprive any Participant, Former Participant, or beneficiary of any benefit already vested; (3) alter, change, or modify the duties, powers, or liabilities of the Trustee without its written consent; or (4) permit any part of the assets of the Plan and the Trust to be used to pay premiums or contributions of the University under any other plan maintained by the University for the benefit of its Employees. No amendment to the vesting schedule shall deprive a Participant of unforfeitable rights to benefits accrued to the date of the amendment.
7.2 Termination, Partial Termination, or Complete Discontinuance of Contributions
Although the University has established the Plan with the intention and expectation that it will make contributions indefinitely, nevertheless the University shall not be under any obligation or liability to continue its contributions or to maintain the Plan for any given length of time. The University may in its sole and absolute discretion through an affirmative action by its Board discontinue contributions or terminate the Plan in whole or in part in accordance with its provisions at any time without any liability for the discontinuance or termination. However, the Trust shall continue until the portions of Participants' Accumulation Accounts that have been allocated to the Trust have been completely distributed to or for the benefit of such Participants in accordance with the Plan.
7.3 Permissible Reversions
(a) Notwithstanding any other provision of the Plan:
(I) No Participant nor beneficiary shall have any right or claim to any assets of the Trust or to any benefit under the Plan before the Internal Revenue Service determines that the Plan and Trust qualify under the provisions of Code Section 401(a), or any statute of similar import, other than any vested rights or benefits accrued represented by any assets transferred from the VRS, to the extent vested upon transfer to this Plan and Trust from the VRS. Upon the distribution to the Participants of any vested amounts or benefits transferred from the VRS and the return of any remaining contributions to the University following the denial of initial qualification of the Plan and Trust under the provisions of Code Section 401(a), the Trust provided for in this Plan shall be terminated and the Trustees shall be discharged from all obligations hereunder.
(II) To the extent the University's contributions are made by reason of a mistake of fact, they may be returned to the University within one (1) year from the date of contribution.
(b) The amounts that may be returned to the University under Section 7.3(a)(II) above shall be the excess of the amounts contributed over the amounts that would have been contributed had there not been a mistake of fact. No earnings on the mistaken contributions may be returned to the University and losses sustained by the Trust after the date of contribution shall proportionately reduce the amount that may be returned to the University.
SECTION 8
CLAIMS
8.1 Claims for Benefits Under an Annuity Contract
A Participant's (or beneficiary's) claim for benefits for the portion of the Participant's Accumulation Account allocated to an annuity contract shall be resolved by the sponsor of the annuity contract based on procedures it has established.
8.2 Claims for Benefits Under the Trust
A Participant's (or beneficiary's) claim for benefits for the portion of the Participant's Accumulation Account invested in the Trust may be presented in writing by the Participant to the Administrator.
If the claim for benefits is wholly or partially denied, the Administrator shall notify the Participant (or beneficiary) in writing of such denial of benefits within sixty (60) days of receipt of the claim.
Any notice of a denial of benefits shall advise the Participant (or beneficiary) of:
(a) the specific reason or reasons for the denial;
(b) the specific provisions of the Plan on which the denial is based;
(c) any additional material or information necessary for the Participant (or beneficiary) to perfect the claim and an explanation of why such material or information is necessary; and
(d) the steps which the Participant (or beneficiary) must take to have the claim reviewed.
A Participant (or beneficiary) whose claim has been denied may file a written request for a review by the Administrator of the denial of this claim. Such written request for review must be filed within sixty (60) days after receipt of written notification of the denial of this claim. The Administrator shall review the written comments and any submissions of the Participant (or beneficiary) and render its decision regarding the appeal within sixty (60) days of receipt of such appeal. Such decision shall be in writing setting forth the specific reasons and specific Plan provisions on which the Administrator based its decision.
SECTION 9
ADMINISTRATION
9.1 Plan Administrator
The Administrator shall administer the Plan. The General Counsel of the University is designated as the agent of the Plan for the service of legal process.
The Administrator's duties shall include, without limitation, powers with respect to the administration of the Trust as may be conferred upon it by the Trust. It shall have the power to take all action and to make all decisions that shall be necessary or proper in order to carry out the provisions of the Plan and, without limiting the generality of the foregoing, it shall have the following powers:
(a) to make (and enforce by suspension or forfeiture) such rules and regulations as it shall deem necessary or proper for the efficient administration of the Plan;
(b) to interpret or construe the Plan;
(c) to decide questions concerning the Plan and the eligibility of any Employee to participate therein and the right of any person to receive benefits thereunder;
(d) to decide any dispute arising under the Plan;
(e) to compute the amount of benefits which shall be payable to any person in accordance with the provisions of the Plan;
(f) to authorize all disbursements by the Trustees;
(g) to prescribe and require the use of such forms as it shall deem necessary or desirable in connection with the administration of the Plan;
(h) to supply any omissions in the Plan;
(i) to reconcile and correct any errors or inconsistencies in the Plan; and
(j) to make equitable adjustments for any mistakes or errors made in the administration of the Plan.
The Administrator shall establish rules and regulations and shall take other necessary or proper action to carry out its duties and responsibilities.
9.2 Actions Conclusive
All actions and decisions taken by the Administrator shall be final and conclusive and binding on all persons having any interest in the Plan or Trust or in any benefits payable thereunder.
9.3 Appointment of Agents
The Administrator may employ or engage such accountants, counsel, other experts, and other persons as it deems necessary in connection with the administration of the Plan to the extent permitted by law.
9.4 Reliance on Opinions, Etc.
The Administrator and each member thereof and each person to whom it may delegate any power or duty in connection with administering the Plan shall be entitled to rely conclusively upon, and shall be fully protected in any action taken by them or any of them in good faith reliance upon any valuation, certificate, opinion, or report which shall be furnished to them
9.5 Records and Accounts
The Administrator shall keep or cause to be kept all data, records and documents pertaining to the administration of the Plan, and shall execute all documents necessary to carry out the provisions of the Plan. The Administrator shall advise the Trustees of such facts as may be pertinent to the Trustees' administration of the Trust and shall give proper instruction to the Trustees for carrying out the purposes of the Plan.
9.6 Payment of Expense
(a) Subject to the provisions of paragraph (b) below, expenses in connection with the administration of the Plan and Trust including commissions, taxes, and expenses of the Trustees and of any accountant or other person who shall be employed by the Administrator or Trustees in the administration thereof, shall be paid by the Trust unless paid by the University.
(b) In the event of permanent discontinuance of contributions or termination any further payment of expenses which arise or have arisen in connection with the administration of the Plan and Trust shall be paid by the Trust unless paid by the University.
9.7 Liability
The Administrator shall incur no liability for any action taken or not taken in good faith reliance on advice of counsel, who may be counsel for the University or taken or not taken in good faith reliance on a determination as to a matter of fact which has been represented or certified by a person reasonably believed to have knowledge of the fact so represented or certified, or taken or not taken in good faith reliance on a recommendation or opinion expressed by a person reasonably believed to be qualified or expert as to any matter where it is reasonable or customary to seek or rely on such recommendations or opinions. Nor shall any employee of the Administrator be liable for the wrongful or negligent conduct of any other or any person having fiduciary responsibilities with respect to the Plan unless the employee (I) knowingly participates in or undertakes to conceal an act or omission of such other person knowing the act or omission is a breach of fiduciary duty, (ii) by failing to act solely in the interests of Participants and beneficiaries or to exercise the care, skill, prudence and diligence under the circumstances prevailing from time to time that a prudent man acting in a like capacity and familiar with such matters would exercise, has enabled the other fiduciary to commit a breach, or (iii) has knowledge of a breach by the other fiduciary and does not make reasonable efforts under the circumstances to remedy it. The University shall jointly and severally indemnify any employee and hold them harmless from loss, liability and expense in respect of the Plan, including the legal cost of defending claims and amounts
SECTION 10
TRUST AGREEMENT
10.1 The Trust Agreement
"Trust Agreement" means the "Trust for the Defined Contribution Retirement Plan for the General Faculty of the University of Virginia." The Trustees are to hold, invest, and distribute the Trust Fund in accordance with the terms and provisions of the Trust Agreement. The duties and rights of the Trustees shall be determined solely by reference to the Trust Agreement.
10.2 No Diversion of Corpus or Income
In no event shall any portion of the corpus or income of the Trust Fund be used for or diverted to purposes other than the exclusive benefit of Participants and their beneficiaries.
SECTION 11
MISCELLANEOUS
11.1 Limitation of Rights; Employment Relationship
Neither the establishment of the Plan and the Trust nor any modifications of them, nor the creation of any fund or account, nor the payment of any benefits, shall be construed as modifying or affecting in any way the terms of employment of any Employee.
11.2 Merger; Transfer of Assets
(a) If the University merges or consolidates with or into another entity, or if substantially all the assets of the University are transferred to another entity, the Plan shall terminate on the effective date of the merger, consolidation, or transfer. However, if the surviving entity resulting from the merger or consolidation, or the entity to which the assets have been transferred, adopts this Plan, the Plan shall continue and the successor entity shall succeed to all rights, powers, and duties of the University under the Plan, and the employment of any Employee who is continued in the successor entity's employ shall not be deemed to have been terminated for any purpose under the Plan.
(b) This Plan shall not be merged or consolidated with any other employee benefit plan, nor shall there by any transfer of assets or liabilities from this Plan to any other plan, unless, immediately after the merger, consolidation, or transfer, each Participant's benefits, if the other plan were then to terminate, are at least equal to the benefits to which the Participant would have been entitled had this Plan been terminated immediately before the merger, consolidation, or transfer.
11.3 Prohibition Against Assignment
(a) Except as provided below, the benefits provided by this Plan may not be assigned or alienated. Neither the University nor the Trustees shall recognize any transfer, mortgage, pledge, hypothecation, order, or assignment by any Participant or beneficiary of all or part of his or her interest under the Plan, and the interest shall not be subject in any manner to transfer by operation of law and shall be exempt from the claims of creditors or other claimants from all orders, decrees, levies, garnishment, and/or executions, and other legal or equitable process or proceedings against the Participant or beneficiary to the fullest extent that may be permitted by law.
(b) This provision shall not apply to the extent a Participant or beneficiary is indebted to the Plan, for any reason, under any provision of this Agreement. At the time a distribution is to be made to or for a Participant's or beneficiary's benefit, such proportion of the amount distributed as shall equal such indebtedness, shall be paid by the Trustees to the Trustees or the Administrator, at the direction of the Administrator, to apply against or discharge such indebtedness. Prior to making a payment, however, the Participant or beneficiary must be given written notice by the Administrator that such indebtedness is to be so paid in whole or in part from his account. If the Participant or beneficiary does not agree that the indebtedness is a valid claim against his vested Accounts, he shall be entitled to a review of the validity of the claim in accordance with procedures provided in Section 8.
(c) This provision shall not apply to a "qualified domestic relations order" defined in Code Section 414(p), and those other domestic relations orders permitted to be so treated by the Administrator under the Code. To the extent provided under a "qualified domestic relations order," a former spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan.
11.4 Applicable Law; Severability
This Plan shall be construed, administered, and governed in all respects in accordance with the laws of the Commonwealth of Virginia, provided, however, that if any provision is susceptible to more than one interpretation, it shall be interpreted in a manner consistent with the Plan's being a qualified plan within the meaning of the Internal Revenue Code. If any
11.5 Reliance Upon Copy of Plan
Any person dealing with the Trustees may rely upon copies of the Plan and the Trust Agreement, and any amendments thereto, certified by the Administrator to be true and correct copies.
11.6 Gender and Number; Captions or Headings
Wherever appropriate to the meaning or interpretation of this Plan, the masculine gender shall include the feminine, and the singular number shall include the plural and vice versa. Captions or headings are inserted and intended for organizational format and convenience of reference only; they are not to be given independent substantive meaning or effect.
IN WITNESS WHEREOF, the undersigned, being an authorized officer of the University, has caused this Plan as restated and amended to be executed this___day of___________________, 19___.
Witnesses: UNIVERSITY OF VIRGINIA
______________________________ By:___________________________________ [name]
| Board of Visitors minutes November 8, 1996 | |